Rowley v. City of New Bedford
Rowley v. City of New Bedford
Opinion of the Court
YOUNG, D.J.
*32I. INTRODUCTION
Former 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.
A. Procedural History
On 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.
On 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.
B. Facts Alleged
Rowley 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.
Rowley 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 *33declare 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.
II. LEGAL STANDARD
As Justice Scalia explained in Lujan v. Defenders of Wildlife,
[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."
Here, Rowley brings her suit under the Endangered Species Act,
III. ANALYSIS
A. Injury in Fact
While "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,
The Supreme Court has noted that "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing." Id. at 562-63,
The Supreme Court again rejected claims of injury in fact in Lujan, where an organization challenged a federal regulation interpreting the Endangered Species Act not to apply to agency actions taken in foreign nations.
In so holding, the Supreme Court rejected the "animal nexus" approach, under which "anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing," and the "vocational nexus" approach, under which "anyone with a professional interest in such animals" has standing.
Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason.... It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible -- though it goes to the outermost limit of plausibility -- to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that might have been the subject of his interest will no longer exist. It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.
*35By contrast, the plaintiffs in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
The First Circuit followed the example set by Friends of the Earth in Animal Welfare Institute v. Martin,
Plaintiffs' affidavits from members who are Maine residents assert the members frequently visit wildlife refuges and parks in Maine to try to observe lynx and other wildlife species. This "desire to use or observe an animal species ... is undeniably a cognizable interest for purpose of standing." The members also allege a cognizable injury to this interest: that Maine's trapping regulations ... interfere with the Canada lynx's natural state and may increase the animals' risk of death, reducing the likelihood that the members will observe Canada lynx in their natural state on future visits.
Another relevant case from this circuit determining allegations of injury in fact to be insufficient is not inconsistent with these opinions. In Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium,
The above precedent persuades this Court that Rowley has sufficiently alleged injury in fact. Rowley makes the following relevant allegations in her complaint:
14. [Rowley] has resided in New Bedford, MA for over five years and in the Zoo's market area for 11 years. She is also a member of the Buttonwood Park Zoological Society located at the Zoo. Ms. Rowley visited the Zoo on a near daily basis for the past three and one-half years to observe Ruth and Emily and communicates with them regularly. Prior to that she visited the Zoo on a weekly and monthly basis since 2010.
15. Ms. Rowley has developed an aesthetic, emotional, and spiritual relationship with Ruth and Emily over the years. Any enjoyment she has from befriending the elephants is greatly diminished by observing their ongoing suffering from their captivity.
16. Plaintiff Friends1 have demonstrated, protested, and handed out educational literature at the Zoo ... to inform and educate the public about Ruth and Emily's living conditions over the past five years.
17. Plaintiff Friends' members have voiced concerns through letters to the local newspapers, social media and email about Ruth's and Emily's health and living conditions at the Zoo.
...
19. Plaintiff Friends were so concerned that they raised $800 in 2015 to have "Ele-coats" handmade and shipped to the Zoo for Ruth and Emily to wear in the winter, when they are forced to stand on exhibit in snow, ice and freezing temperatures.
20. Plaintiff Friends were so concerned about the lack of medical care for Ruth that they raised approximately $2,000 to bring a veterinarian with 40 years of elephant expertise to the Zoo in 2015....
Compl. ¶¶ 14-17, 19-20. Rowley's allegations that she lives in New Bedford, is a member of the Zoo's Zoological Society, and observes and communicates with Ruth and Emily on a "near daily basis" are akin to the evidence relied on by the courts in Friends of the Earth, Animal Welfare Institute, and Strahan to establish injury in fact. While she does not explicitly state that she intends to return to the Zoo, construing all inferences in her favor (as is warranted at this stage), one may reasonably conclude from the occasional use of present tense and overall tenor of her allegations that she has "concrete plans" to continue her frequent visits to the Zoo, rather than only " 'some day' intentions" to return. Lujan,
Rowley also alleges that she has a relationship with and an ongoing interest in observing these particular elephants, rather than simply alleging that she has observed some elephants at the Zoo. Cf. Citizens to End Animal Suffering & Exploitation, Inc.,
Overlooking this circuit's precedent on the matter, New Bedford relies on Animal Legal Defense Fund, Inc. v. Glickman, a case from the District of Columbia Circuit, to argue that Rowley has not adequately established injury in fact because she has not alleged that she has any specialized training in wildlife or animal welfare. Def.'s Mem. 2-3. In Glickman, the court affirmed the ruling that an individual plaintiff alleging "aesthetic injury" from observing captive animals living under inhumane conditions had standing.
In fact, the Glickman court's analysis only bolsters this Court's conclusion that Rowley has shown injury in fact. In determining that the plaintiff's allegations "solidly establish injury in fact," the court explained that the plaintiff "enjoy[s] seeing [animals] in various zoos and other parks near [his] home" due to his "familiarity with and love of exotic animals, as well as for recreational and educational purposes and because [he] appreciate[s] these animals' beauty."
*38New Bedford next argues that Rowley has not produced evidence that she has observed or will observe Asian elephants in their native lands. Def.'s Mem. 3. This argument suffers from a similar flaw in that it imports a nonexistent requirement into the injury in fact analysis. The fact that some cases have involved plaintiffs who have based their theories of injury on the observation of a species in its natural habitat, see, e.g., Lujan,
B. Causation
The second requirement of standing is "a causal connection between the injury and the conduct complained of." Lujan,
(1) keep[s] Ruth & Emily in a facility ... that interferes with normal behavior; (2) confin[es] them in a small enclosure and even smaller "barn" with bars and hard substrates that cause physical and psychological harm; (3) prevent[s] them from having appropriate social interactions with each other and other elephants; (4) fail[s] to protect Ruth from Emily's aggression which causes Ruth physical and psychological harm; (5) fail[s] to provide adequate veterinary care which harms both Ruth and Emily; (6) fail[s] to provide proper food and enrichment.
Compl. ¶ 10. New Bedford claims that because the Zoo has in fact not mistreated the elephants, Rowley cannot show that its conduct has caused any harm. Def.'s Mem. 3-4. Whether or not Rowley will ultimately succeed in proving her allegations of harm, however, is irrelevant at this stage. Rowley has sufficiently alleged that the Zoo's actions cause the harm complained of by "interfer[ing] with [Ruth and Emily's] natural state" and "increas[ing] [their] risk of death." Animal Welfare Inst.,
C. Redressability
Finally, Rowley must show that "it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."
New Bedford contends that Rowley has not established redressability because her complaint proposes the relocation of Ruth and Emily to a sanctuary in Tennessee, yet she "has not alleged that she would travel to Tennessee" or "stated how she would personally benefit by the proposed relocation." Def.'s Mem. 5. This Court need not determine whether such allegations are necessary, however, because while Rowley's complaint at times urges this relocation, it does not actually seek this relief. Instead, it requests that this Court enjoin the Zoo's alleged unlawful taking, possession, and mistreatment of the elephants and declare its practices unlawful. See Compl. at 25. Further, there has been no indication that the elephants' fate rests in part with agencies not involved in this lawsuit or government initiatives outside New Bedford's control. See Lujan,
New Bedford next argues that Rowley's injuries are unlikely to be redressed by the Court because Ruth and Emily fall into an exemption from the Endangered Species Act's requirements. Def.'s Mem. 5-6. The Endangered Species Act does indeed exempt certain wildlife from some of its provisions:
The provisions of subsections (a)(1)(A) and (a)(1)(G) of this section shall not apply to any fish or wildlife which was held in captivity or in a controlled environment on (A) December 28, 1973, or (B) the date of the publication in the Federal Register of a final regulation adding such fish or wildlife species to any list published pursuant to subsection (c) of section 1533 of this title: Provided, That such holding and any subsequent holding or use of the fish or wildlife was not in the course of a commercial activity.
This argument might carry weight if Rowley were claiming violations of subsections (a)(1)(A) or (a)(1)(G) of section 1538. Her complaint, however, alleges violations of subsections (a)(1)(B), prohibiting the unlawful "taking" of an endangered species, and (a)(1)(D), prohibiting the possession of such an unlawfully taken species. Compl. ¶ 9. The statute's plain language indicates that the exemption does not apply to these subsections. See American Soc'y for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus,
IV. CONCLUSION
For the foregoing reasons, the Court finds that Rowley has sufficiently demonstrated standing to pursue her claims. New Bedford's motion to dismiss, ECF
*40No. 7, is DENIED. This case has already dragged on far too long. Since Rowley seeks preliminary injunctive relief, it is appropriate in this instance that such hearing be joined with trial on the merits pursuant to Federal Rule of Civil Procedure 65(a). The Court will convene a status conference as soon as possible to set an early trial date.
SO ORDERED.
Given that Rowley has alleged that she is the founder and president of Friends, Compl. ¶ 9, and is now the substituted plaintiff, the Court considers it reasonable to infer that she was involved in the activities attributed to Friends in the complaint.
Rowley has also recently moved for a preliminary injunction based on allegations of Ruth's declining health, seeking a court order enjoining the Zoo's continued allegedly unlawful possession of Ruth and mandating Ruth's assessment by an expert. Mem. Supp. Prelim. Inj. 6, ECF No. 28.
Reference
- Full Case Name
- Joyce ROWLEY v. CITY OF NEW BEDFORD
- Cited By
- 1 case
- Status
- Published