• Miyares and Harrington, LLP

This is the Story of Emily and Ruth, A Cautionary Tale for Municipal Zoos

Emily and Ruth are denizens of the City of New Bedford’s Buttonwood Park Zoo; they are Asian elephants. A citizen sympathetic to their plight sued under the Endangered Species Act, 16 U.S.C. §§1531-1544, claiming that they were being harassed and harmed as a result of their captivity. The Endangered Species Act provides standing to private citizens to pursue claims. Section 9 of the Act makes it illegal for an individual to “take” any endangered species. Court decisions that have considered the breadth of the Act have adopted a most expansive definition of “take,” including making it illegal to harass or harm an endangered species such as the Asian elephant.

The record before Federal District Court Judge Young was not unblemished regarding Emily and Ruth’s care at the municipal zoo, but he focused on current conditions to determine if the Act was being violated. He relied, in part, on the standards of care found in the Animal Welfare Act, 7 U.S.C. §§2131-2159, and its regulations, even though that Act excludes animal husbandry for animals intended for exhibition purposes. The care provided to the animals would violate the ESA if it “creates the likelihood of injury to [the elephants] by annoying [them] to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering,” unless the care satisfies a generally accepted animal husbandry practice and complies with AWA. Rowley v. City of New Bedford, No. 17-11809 (D. Mass. Sept. 24, 2019).

The physical care of the elephants was found to meet all acceptable standards. The court had the most difficulty, however, determining whether the animals’ emotional needs were adequately addressed. It was concerned about evidence that Emily was bullying Ruth and the zoo was not doing enough to protect Ruth from Emily. During the trial, in fact, the zoo confined Ruth to the barn, a move that the plaintiff alleged caused Ruth emotional and physical distress. The court accepted the zoo’s explanation that the confinement was aimed at protecting Ruth from Emily, limited to feeding times when Emily was most aggressive to Ruth.

What truly caused the court to rule in the city’s favor, however, was the lack of expert testimony in elephant care and behavior. The case might have had a different outcome had the plaintiff produced the necessary expert. The citizen standing provision of the ESA and the viability of a legal claim for violation even if the animal husbandry standards of the AWA are met means that municipal zoos should pay equal attention to the physical and emotional needs of the animals in their care.



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