United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
WILLIAM G. YOUNG DISTRICT JUDGE
plaintiff Friends of Ruth & Emily, Inc.
("Friends") filed suit against the defendant City
of New Bedford ("New Bedford"), alleging that New
Bedford's city zoo committed an unlawful taking under the
Endangered Species Act. After New Bedford moved to dismiss
the complaint for lack of proper legal representation, Joyce
Rowley ("Rowley") substituted herself as plaintiff,
rendering the issue moot. ECF Nos. 18, 23. This Court
withheld judgment on the motion, however, asking the parties
instead to brief the issue of standing. ECF No. 30. Satisfied
that Rowley does indeed have the requisite standing to
maintain this suit at this stage of the litigation, the Court
now DENIES New Bedford's motion to dismiss.
September 21, 2017, Friends filed a complaint against New
Bedford in this Court under its federal question
jurisdiction. Compl. Decl. & Inj. Relief
("Compl.") ¶ 25. New Bedford moved to dismiss
the complaint on October 16, on the basis that Rowley, the
non-attorney founder and president of Friends, could not
represent Friends in a federal lawsuit. Mot. Dismiss PL's
Compl. ("Mot. Dismiss"), ECF No. 7. Friends opposed
the motion, Resp. Opp'n Def.'s Mot. Dismiss
("Opp'n Mot. Dismiss"), ECF No. 14, and moved
for a preliminary injunction on December 12, Mot. Prelim.
Inj., ECF No. 16. That day, this Court heard oral argument on
the motion to dismiss and granted a conditional dismissal,
allowing Friends thirty days to retain proper counsel.
See ECF No. 18.
February 12, 2018, Rowley moved to intervene, which this
Court allowed as a motion to substitute the plaintiff.
See ECF Nos. 21, 23. Rowley then renewed
Friends' previous motion for a preliminary injunction.
See ECF Nos. 27, 28. Concerned about Rowley's
standing to maintain suit, this Court requested briefing on
the issue, which both parties duly provided. See PL's Br.
Supp. PL's Standing ("PL's Mem."), ECF No.
31; Def.'s Mem. Law Supp. Mot. Dismiss ("Def.'s
Mem."), ECF No. 33.
alleges maltreatment of two Asian elephants, named Ruth and
Emily, at the Buttonwood Park Zoo (the "Zoo") in
New Bedford. Compl. ¶¶ 7-8. Rowley is the founder
and president of Friends, a "nonprofit organization and
 public charity" consisting of "dozens" of
members supporting the effort to shut down the Zoo's
elephant exhibit and transfer Ruth and Emily to an elephant
sanctuary in Tennessee. Id. ¶¶ 2, 13.
Rowley is also a member of the Buttonwood Park Zoological
Society and visits the Zoo on a "near daily basis"
to observe Ruth and Emily. Id. ¶ 14. Rowley
alleges that she has formed "an aesthetic, emotional,
and spiritual relationship with Ruth and Emily over the
years." Id. ¶ 15.
alleges that the Zoo has harmed Ruth and Emily in several
ways, such as by chaining their legs to restrain them
overnight; failing to protect Ruth from attacks by Emily (it
is allegedly "well documented" that the two
elephants do not get along); housing them in inadequate
facilities; failing to provide the elephants with sufficient
socialization opportunities; and failing to provide adequate
veterinary care. Id. ¶¶ 36-65. Rowley
claims that the Zoo's treatment of Ruth and Emily
violates Section 9 of the Endangered Species Act, which
prohibits the "taking" of any endangered species
and the possession of any endangered species unlawfully
taken. Id. ¶¶ 78-79. Rowley requests that
this Court declare that the Zoo's treatment of Ruth and
Emily violates the Endangered Species Act and enjoin the Zoo
from committing any further violations. Id. at 25.
Justice Scalia explained in Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992):
[O]ur cases have established that the irreducible
constitutional minimum of standing contains three elements.
First, the plaintiff must have suffered an "injury in
fact" - an invasion of a legally protected interest
which is (a) concrete and particularized and (b) "actual
or imminent, not 'conjectural' or
'hypothetical.'" Second, there must be a causal
connection between the injury and the conduct complained of -
the injury has to be "fairly . . . trace[able] to the
challenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party not
before the court." Third, it must be "likely,"
as opposed to merely "speculative," that the injury
will be "redressed by a favorable decision."
Id. at 560-61 (citations omitted) (first quoting
Whitmore v. Arkansas, 495 U.S.
149, 155 (1990), then quoting Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42
(1976), then quoting Simon, 426 U.S. at 38, 43).
While "[t]he party invoking federal jurisdiction bears
the burden of establishing these elements," the severity
of this burden varies depending on the stage of litigation.
Id. at 561. "At the pleading stage," for
example, "general factual allegations of injury
resulting from the defendant's conduct may suffice."
Rowley brings her suit under the Endangered Species Act, 16
U.S.C. §§ 1531-44, which expressly authorizes
citizen suits for injunctive relief. See id. §
1540(g)(1). Thus, she may bring such a suit if she has
standing. Since this case has not proceeded beyond the motion
to dismiss stage, Rowley "must clearly allege facts
demonstrating standing; [this Court] then construe[s] those
facts and reasonable inferences drawn from them in [her]
favor." Animal Welfare Inst, v.
Martin, 623 F.3d 19, 25 (1st Cir. 2010).
Injury in Fact
"there is ordinarily little question" of injury
when a plaintiff is herself the object of the government
action she challenges, in certain cases, such as those
arising under the Endangered Species Act, the plaintiff's
"asserted injury arises from the government's
allegedly unlawful regulation (or lack of regulation) of
someone else." Lujan, 504 U.S. at
561-62. In these cases, "standing is not precluded, but
it is ordinarily ...