United States District Court, D. Massachusetts
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR
WILLIAM G. YOUNG DISTRICT JUDGE.
a case about elephants -– specifically, Asian
Asian elephants . . . usually weigh well under eleven
thousand pounds and st[an]d about seven to nine feet tall at
the shoulder, as opposed to African elephants, who could
weigh as much as fifteen thousand pounds and reach thirteen
feet in height. Both male and female African elephants have
tusks, while only some Asian males have tusks, and none of
the females do. Their body shapes differ, too: Asians are
more compact; Africans lankier, with a more concave back. The
Africans’ ears are enormous and wide (like maps of
Africa, it’s said) -- the biggest mammal ears in the
world -- while those of the Asian elephant are smaller and
closer to square.
In fact, the African and Asian elephants are not only
separate species but separate genera -- a whole other level
of taxonomic rank, as distinct in genetic heritage as a
cheetah is from a lion. And some say it shows in their
temperaments -- the Africans active and more high-strung; the
Asians more serene.
Physically, all elephants are astonishing. They are the
largest animals walking on land. And their appetites are
commensurate . . . ., gathering their food with those
incredible trunks. Longer and heavier than a man, and much,
much stronger, the trunks provide elephants with a sense of
smell that may be five times more acute than that of a
bloodhound. And by narrowing or widening their nostrils like
musical instruments, they can modulate the sound of their
They have extraordinary brains built for memory and insight,
and they use them to negotiate one of the most advanced and
complex societies of all mammals. To those who have spent
time with them, elephants often seem philosophical and
perceptive, and appear to have deep feelings. They can
cooperate with one another and have been known to break tusks
trying to hoist injured relatives back on their feet.
Further, their behavior suggests they have an understanding
of death, something believed to be rare among nonhuman
Vicki Constantine Croke, Elephant Company: The Inspiring
Story of an Unlikely Hero and the Animals Who Helped Him Save
Lives in World War II 22-23 (Random House 2014). The
Court takes judicial notice of these facts. See
Fed.R.Evid. 201. Asian elephants are an endangered species.
50 C.F.R. § 17.11(h); see also 41 Fed. Reg.
24062, 24066 (June 14, 1976).
Rowley (“Rowley”) sued the City of New Bedford
(“City”) under the Endangered Species Act, 16
U.S.C. §§ 1531-1544. Am. Compl., ECF No. 47. She
alleged that the City is harming and harassing two geriatric
Asian elephants, Emily and Ruth, in violation of the
Endangered Species Act. See id.; 16 U.S.C. §
1540(g)(1). This Court has already determined that Rowley has
standing to pursue this claim. Rowley v. City of New
Bedford, 333 F.Supp.3d 30, 39-40 (D. Mass. 2018).
THE LEGAL FRAMEWORK
The Endangered Species Act
first enacted the Endangered Species Act, 16 U.S.C.
§§ 1531-1544, in December 1973. Pub. L. No. 93-205,
87 Stat. 884 (Dec. 28, 1973). The tripartite mission of the
Endangered Species Act is to (1) “provide a means
whereby the ecosystems upon which endangered species and
threatened species depend may be conserved, ” (2)
“provide a program for the conservation of such
endangered species and threatened species, ” and (3)
take appropriate steps to carry out the United States’
commitments in various international treaties and conventions
regarding species conservation. 16 U.S.C. § 1531(b).
nine of the Endangered Species Act makes it illegal for any
individual to “take” any endangered species. 16
U.S.C. § 1538(a)(1)(B). The Supreme Court has emphasized
evidence that Congress intended the word “take”
to cover “every conceivable way in which a person can
‘take’ or attempt to ‘take’ any fish
or wildlife.” Babbitt v. Sweet Home Chapter of
Cmtys. for a Great Or., 515 U.S. 687, 704 (1995)
(quoting S. Rep. No. 93-307, at 7 (1973)). Far from
prohibiting only intentional acts, section nine reaches
“more than the deliberate actions of hunters and
trappers.” Id. at 705.
Endangered Species Act itself defines “take” to
mean “harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any
such conduct.” 16 U.S.C. § 1532(19). Here,
Rowley’s claims rely on the prohibition on harassing
and harming endangered species. See Am. Compl.
¶¶ 95, 104-30.
Fish and Wildlife Service, the agency within the United
States Department of the Interior tasked with implementing
the Endangered Species Act, see 16 U.S.C. §
1537a(a), has promulgated regulations defining the terms
“harm” and “harass” in the context of
the Endangered Species Act.
Harming an Endangered Species
Fish and Wildlife Service defines “harm” in the
definition of “take” in the Endangered Species
Act to mean:
[A]n act which actually kills or injures wildlife. Such act
may include significant habitat modification or degradation
where it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breeding,
feeding or sheltering.
50 C.F.R. § 17.3; see also Babbitt, 515 U.S. at
703 (deferring to regulation’s interpretation of
“harm”) (citing Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467
U.S. 837 (1984)).
Harassment of an Endangered Species
Fish and Wildlife Service defines “harass” in the
definition of “take” in the Endangered Species
Act to mean:
[A]n intentional or negligent act or omission which creates
the likelihood of injury to wildlife by annoying it to such
an extent as to significantly disrupt normal behavioral
patterns which include, but are not limited to, breeding,
feeding, or sheltering.
definition includes a carve-out that exempts from the
definition of “harass”:
generally accepted: (1) [a]nimal husbandry practices that
meet or exceed the minimum standards for facilities and care
under the Animal Welfare Act, (2) [b]reeding procedures, or
(3) [p]rovisions of veterinary care for confining,
tranquilizing, or anesthetizing, when such practices,
procedures, or provisions are not likely to . . . result in
injury to the wildlife.
The Animal Welfare Act
the City is engaged in animal husbandry practices with
“animals intended . . . for exhibition purposes,
” see 7 U.S.C. § 2131, the Animal Welfare
Act exclusion applies to Rowley’s harassment claims.
the enactment of the Endangered Species Act, Congress enacted
the Animal Welfare Act, 7 U.S.C. §§ 2131-2159, Pub.
L. No. 89-544, 80 Stat. 350 (Aug. 24, 1966), with the
(1) to insure that animals intended for use in research
facilities or for exhibition purposes or for use as pets are
provided humane care and treatment; (2) to assure the humane
treatment of animals during transportation in commerce; and
(3) to protect the owners of animals from the theft of their
animals by preventing the sale or use of animals which have
Id. § 2131.
charged the United States Department of Agriculture
(“Department of Agriculture”) with enforcing this
statute. Id. §§ 2132(b), 2133, 2146. To
implement the Animal Welfare Act’s protections, the
Department of Agriculture promulgates regulations that set
standards for facilities and care of animals in captivity,
see, e.g., 9 C.F.R. §§ 3.125-3.142
(setting standards for the “handling, care, treatment,
and transportation of warmblooded animals other than dogs,
cats, rabbits, hamsters, guinea pigs, nonhuman primates, and
marine mammals”), which it enforces through licensing
and compliance inspections, see 7 U.S.C. §
2146(a). Unlike the Endangered Species Act, the Animal
Welfare Act does not include a citizen suit provision.
See Graham v. San Antonio Zoological Soc’y,
261 F.Supp.3d 711, 737 (W.D. Tex. 2017).
are at least four recent District Court cases that have
grappled with the interplay between Animal Welfare Act
requirements and the Endangered Species Act’s
harassment-based “take” prohibition. See
Graham, 261 F.Supp.3d at 739-43 (collecting cases).
general consensus among these courts is that the regulations
that the Department of Agriculture promulgates pursuant to
the Animal Welfare Act are the substantive standards by which
a court ought assess harassment-based “take”
claims under the Endangered Species Act. See id. at
745. The findings of past inspections by the Animal and Plant
Health Inspection Service (“USDA-APHIS, ” the
agency within Department of Agriculture charged with
enforcing the Animal Welfare Act) are relevant to a
court’s assessment ...