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Rowley v. City of New Bedford

United States District Court, D. Massachusetts

September 24, 2019

JOYCE ROWLEY, Plaintiff,




         This is a case about elephants -– specifically, Asian elephants.

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 voices.
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 animals.

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).

         Joyce 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).


         A. The Endangered Species Act

         Congress 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).

         Section 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.

         The 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.

         The 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.

         1. Harming an Endangered Species

         The 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)).

         2. Harassment of an Endangered Species

         The 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.


         This 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.


         B. The Animal Welfare Act

         Because 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.

         Before 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 following goals:

(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 been stolen.

Id. § 2131.

         Congress 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).

         There 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).

         The 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 ...

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