Tracey Kuehl v. Pamela Sellner
Opinion of the Court
WOLLMAN, Circuit Judge *848Tracey K. Kuehl (Tracey), Lisa K. Kuehl (Lisa), Kris A. Bell, Nancy A. Harvey, John T. Braumann, and the Animal Legal Defense Fund (plaintiffs) brought suit against Pamela Sellner, Tom Sellner, and Cricket Hollow Zoo (defendants) under the Endangered Species Act,
I. Background
Pamela and Tom Sellner own and operate the Cricket Hollow Zoo (Cricket Hollow) in Manchester, Iowa. Cricket Hollow houses approximately 300 animals, including tigers, lemurs, wolves, cougars, monkeys, and birds. Pamela and Tom are the only full-time workers, assisted by occasional volunteer labor. No one, including *849the Sellners, is paid for their work. In addition to operating Cricket Hollow, the Sellners run a 70-cow Grade A dairy farm.
In 2012 and 2013, Tracey, Lisa, Harvey, and Braumann visited Cricket Hollow.
During trial, Dr. Peter Klopfer-a research professor at the Duke University Lemur Center-testified regarding the generally accepted animal husbandry practices for lemurs, explaining that lemurs are "highly developed animals" that have "advanced cognitive abilities." Dr. Klopfer testified that lemurs are a "very social species," with the result that social isolation leads to "elevated noradrenaline levels," that predict "susceptibility to disease and early death." Dr. Klopfer explained that the effects of social isolation can be mitigated by the presence of environmental enrichment, such as trees and ropes, enrichment that Cricket Hollow did not provide. Dr. Klopfer further testified that lemurs have a "much greater sensitivity to olfactory stimuli" than humans. He explained that lemurs use numerous scent glands to communicate to other lemurs information such as "[a]ge, sex, reproductive status, degree of aggressivity; a host of things that [people] in an exchange would convey verbally or in writing, [lemurs] convey olfactorily." Dr. Klopfer concluded that "[t]he presence of feces and cobwebs ... interferes with [the lemurs'] olfactory senses[.]" By way of analogy, Dr. Klopfer explained that having lemurs "in a smelly environment is like having [humans] be in a room where there's constantly white noise being amplified," because the smell disrupts the lemurs' normal behavioral patterns.
The plaintiffs also submitted several reports that documented conditions at Cricket Hollow. The reports repeatedly noted excessive animal waste in the animal enclosures and revealed that Cricket Hollow had been assessed financial penalties, at least in part because of the unsanitary conditions at the zoo. Dr. Jennifer Conrad, a wildlife and exotic animal veterinarian, testified that an accumulation of feces also constituted a "disease hazard" for animals at the zoo.
The district court's lengthy post-trial order held that Cricket Hollow's treatment of its lemurs and tigers violated the Act by keeping the lemurs in social isolation; by not "develop[ing], document[ing], and follow[ing *850] an appropriate" environmental enrichment plan for the lemurs; by "fail[ing] to provide timely and appropriate veterinary care" for the tigers; and by not "providing clean water and sanitary conditions for the [lemurs and tigers]."
II. Standing
We review de novo the district court's ruling that plaintiffs have standing to enforce the Act. Hodak v. City of St. Peters,
The Supreme Court held that the Lujan plaintiffs lacked standing to challenge rules promulgated by the United States Secretary of the Interior affecting endangered species overseas because they had not traveled to the affected areas-Egypt and Sri Lanka-for more than five years and had no current plans to return. Lujan,
Defendants argue in the alternative that plaintiffs lack standing because "the Plaintiffs visited the Cricket Hollow Zoo for the purpose of looking for claimed violations." Defendants rely on Clapper v. Amnesty International USA,
Defendants argue that the Animal Legal Defense Fund (Animal Defense) lacks associational standing. The Supreme Court has explained that an association has standing to bring suit on behalf of its members when "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm'n,
Defendants further argue that Animal Defense lacks standing because it failed to prove that it is an association and that the individual plaintiffs were members of Animal Defense when they visited Cricket Hollow. Defendants, however, essentially conceded that Animal Defense is an association in light of the parties' pretrial stipulation that "Plaintiff Animal Legal Defense Fund (ALDF) is a non-profit organization registered with the California Secretary of State.... ALDF has more than 200,000 members and supporters nationwide, including members in the state of Iowa and Plaintiffs Tracey Kuehl, Lisa Kuehl, Kristine Bell, and Nancy Harvey." Furthermore, defendants do not dispute that Lisa became a member of ALDF before trial, and thus because the injury she suffered at the time the complaint was filed was ongoing, she and Animal Defense have standing to bring suit.
III. Violations of the Act
The Act makes it "unlawful for any person subject to the jurisdiction of the United States to ... take any such species within the United States[.]"
Defendants first argue that they could not have violated the Act because the Animal Welfare Act,
A. Lemurs
The district court found that defendants had harassed the lemurs by keeping them in social isolation; by not developing, documenting, and following an appropriate plan for environmental enhancement; and by not providing clean water and sanitary conditions. We review the district court's factual findings for clear error and its legal conclusions de novo . General Motors Corp. v. Harry Brown's, LLC,
Defendants argue that their compliance with the minimum standards outlined in the Animal Act's regulations rebuts any claim that they have harassed the lemurs. Animal Act regulation
*853and 'taking' within the meaning of the Endangered Species Act." In support of these findings, the district court took into account the testimony of Cricket Hollow's veterinarian, Dr. John Pries, that "enrichment or enhancement of an animal's living quarters" is not "part of [his] role as a veterinarian," as well as Dr. Klopfer's testimony that Cricket Hollow's enrichment plan for the lemurs was inadequate. The district court further explained that "[e]ven with the limited plan, however, there is no evidence that Cricket Hollow routinely followed the plan, and there is no evidence that they properly documented their implementation of the enrichment plan." Defendants' recounting of contrary trial evidence that showed that Cricket Hollow had undergone some violation-free inspections does not render the district court's finding clearly erroneous. Diamonds Plus, Inc. v. Kolber,
The district court also ruled in the alternative that defendants had harassed the lemurs by not providing the sanitary conditions specified in
B. Tigers
The district court also ruled that defendants had injured, and thereby harmed, the tigers by "fail[ing] to provide timely and appropriate veterinary care." It relied on evidence that four tigers-Casper, Luna, Miraj, and Raoul-had died without having been examined by a licensed veterinarian for their illnesses. Instead, Pamela Sellner had relayed the observed symptoms to Dr. Pries, who then prescribed medication, a treatment regimen that the district court found to be inadequate to address the tigers' needs. It held that "if an exhibitor chooses to keep endangered species, it must assume the obligation-and the cost-of providing such care." Defendants argue that they had accepted tigers in poor physical condition and that Cricket Hollow "has acted as a sanctuary for big cats that have had troubled pasts in order to save them from being euthanized." In essence, defendants again attack the district court's factual findings, which we conclude are not clearly erroneous, supported as they are by the evidence that Cricket Hollow had failed to provide adequate veterinary care for its tigers.
The district court also ruled in the alternative that defendants had harassed the tigers by not providing them with sanitary conditions. Under Animal Act regulation
IV. Animal Placement
Upon granting plaintiffs' requested injunction, the district court ordered that the "Defendants must transfer the lemurs and tigers in their possession to an appropriate facility which is licensed by the USDA [United States Department of Agriculture] and is capable of meeting the needs of the endangered species." Defendants proposed that the lemurs be transferred to Special Memories Zoo located in Greenville, Wisconsin, and that the tigers be transferred to the Exotic Feline Rescue Center (the Center) in Center Point, Indiana. Plaintiffs opposed defendants' choice, arguing the lemurs should be transferred to the Prosimian Sanctuary operated by the Endangered Primate Foundation in Jacksonville, Florida, and that the tigers should be transferred to the Wild Animal Sanctuary (the Sanctuary) in Keenesburg, Colorado. After conducting a hearing on the animals' placement, the district court issued an order approving defendants' recommended placements.
Plaintiffs argue that the district court applied an "erroneous legal standard" and committed a per se abuse of discretion by giving the Sellners' choice for animal placement preference over other facilities. As plaintiffs acknowledge, however, the district court retains a "broad grant of equitable power" to make the placement decision. We review the district court's grant of equitable relief for abuse of discretion and its factual findings for clear error. General Motors Corp.,
Defendants established during the placement hearing that Special Memories Zoo is a licensed USDA facility subject to regular inspections, and that even though it has been cited for noncompliant behavior in the past, it has also undergone inspections that have resulted in no noncompliant determinations. Plaintiffs argue that the district court clearly erred in finding that "Special Memories [Zoo] is capable of meeting the animals' needs." Plaintiffs' suggested placement facility had not been licensed or inspected by the USDA at the time of the hearing, however, and so we conclude that the district court did not clearly err in finding that Special Memories Zoo is capable of caring for the lemurs and providing at least the basic life-enhancing accoutrements described in note 4 supra. Likewise, the district court did not abuse its discretion when it decided to put those animals in a licensed USDA facility that has had previous positive inspections.
Plaintiffs argue that the district court clearly erred in finding that the Center "was capable of meeting the needs of the tigers." The evidence at the hearing showed that both the Center and defendants'
*855placement choice, the Sanctuary, were licensed facilities subject to periodic inspections. Although the Sanctuary is better funded and has more resources than the Center, the district court did not clearly err in finding that the Center is capable of meeting the tigers' needs in light of the evidence that showed that it had sufficient staff and space to care for the tigers. The district court thus did not abuse its discretion in its placement decision.
V. Attorney Fees and Costs
The district court's initial order denied plaintiffs' request for litigation expenses, including attorney and expert witness fees. In response, plaintiffs moved to amend the judgment under Federal Rule of Civil Procedure 59(e), attaching their proposed motion for attorney fees and costs. After considering the defendants' substantive response, the district court denied the Rule 59(e) motion, stating that "Plaintiffs' proposed motion for attorney fees and costs would be denied." In its analysis, the district court relied on the factors set forth in Martin v. Arkansas Blue Cross & Blue Shield,
We review the denial of a Rule 59(e) motion for a clear abuse of discretion. Sipp v. Astrue,
Plaintiffs argue that no special circumstances exist to deny an award of attorney fees.
Plaintiffs now seek to use the Act as a vehicle to close Cricket Hollow. During trial, plaintiffs submitted several exhibits and testified about the general conditions at the zoo for all animals, not just the endangered species. Plaintiffs acknowledged in their reply brief that even though "the Sellners lack [the] ability to adequately pay for the necessary care and maintenance their animals need," plaintiffs are entitled to attorney fees because "the Sellners do not have a right to continue [the] operation of their non-complian[t] business enterprise." The conclusion to be drawn from such argument is that plaintiffs seek to close Cricket Hollow by obtaining $239,979.25 in attorney fees, costs, and other expenses.
Although the district court did not state its ruling in terms of the analysis outlined in Newman or Fowler, it expressed its concerns about the defendants' inability to pay plaintiffs' attorney fees and the effect such an award would have on "private animal owners" forced "to defend lawsuits brought by well-financed national organizations." We, too, are concerned with plaintiffs' attempt, assisted as it is by at least five of such organizations, as evidenced by their corporate-level-counsel amici briefs, to fashion the Act into a weapon to close small, privately owned zoos-a circumstance never discussed during the Act's passage. We hold that those circumstances justify the district court's decision to deny the motion for attorney fees.
We affirm.
The Honorable Jon Stuart Scoles, then Chief United States Magistrate Judge for the Northern District of Iowa, now retired, to whom the case was submitted by consent of the parties under
Tracey Kuehl visited Cricket Hollow June 23, 2012; July 6, 2012; and June 24, 2013. Lisa Kuehl visited the zoo June 21, 2012; an unknown day in July 2012; and July 13, 2013. Nancy Harvey visited the zoo June 21, 2012. John T. Braumann visited the zoo October 13, 2012, and July 13, 2013.
This includes "providing perches, swings, mirrors, and other increased cage complexities; providing objects to manipulate; varied food items; using foraging or task-oriented feeding methods; and providing interaction with the care giver or other familiar and knowledgeable person consistent with personnel safety precautions."
We have considered and now deny plaintiffs' motion to take judicial notice of the August 5, 2015, complaint filed by the United States Secretary of Agriculture against the Exotic Feline Rescue Center, which alleges that the Center has committed willful violations of the Animal Act.
Plaintiffs cite a number of cases in which defendants have failed to establish special circumstances that justify the denial of attorney fees: E.C. v. Phila. Sch. Dist.,
Concurring Opinion
I agree that the district court did not ultimately abuse its discretion in relocating the lemurs to the Special Memories Zoo. For this reason, I concur in the result. Nevertheless, I share the Plaintiffs' view that the district court's reasoning was problematic.
There is little guidance for courts exercising injunctive power under the ESA to relocate privately-owned animals. However, the express purpose of the ESA, under which this case arises, is the "conservation of endangered species."
Instead, the district court gave significant weight to relocating the lemurs to a "facility which is licensed by the USDA" and, on this basis, summarily rejected Plaintiffs' proposed facility, Prosimian Sanctuary. In my view, the district court unnecessarily hamstrung its broad remedial powers. USDA inspectors primarily apply Animal Welfare Act standards. As aptly explained by amicus, the Animal Welfare Act "provide[s] minimum requirements for humane treatment" but is not designed to address "whether captive uses of wildlife affirmatively serve the conservation purpose required by the ESA." Br. for the Humane Soc'y of the United States et al. as Amici Curiae 12. Accordingly, USDA licensing, while certainly a valid consideration, is insufficient as a proxy for the far-reaching purpose of the ESA.
*857In sum, strict adherence by the district court to its own order regarding USDA licensing may have resulted in the lemurs being relocated to the facility less responsive, on the whole, to their complex social, psychological, and environmental needs.
Reference
- Full Case Name
- Tracey K. KUEHL, an Individual; Lisa K. Kuehl, an Individual; Kris A. Bell; Nancy A. Harvey, an Individual; John T. Braumann, an Individual; Animal Legal Defense Fund, a Non-Profit Corporation, Plaintiffs-Appellees v. Pamela SELLNER, an Individual; Tom Sellner, an Individual; Cricket Hollow Zoo, a Non-Profit Corporation, Defendants-Appellants the Fund for Animals ; Delcianna J. Winders, an Academic Fellow; Animal Rescue League of Iowa, Inc.; Center for Biological Diversity; Endangered Primate Foundation; Public Citizen, Inc.; Humane Society of the United States, Amici on Behalf of Appellee(s) Tracey K. Kuehl, an Individual; Lisa K. Kuehl, an Individual; Kris A. Bell; Nancy A. Harvey, an Individual; John T. Braumann, an Individual; Animal Legal Defense Fund, a Non-Profit Corporation, Plaintiffs-Appellants v. Pamela Sellner, an Individual; Tom Sellner, an Individual; Cricket Hollow Zoo, a Non-Profit Corporation, Defendants-Appellees Public Citizen, Inc.; Humane Society of the United States; The Fund for Animals ; Delcianna J. Winders, an Academic Fellow; Animal Rescue League of Iowa, Inc.; Center for Biological Diversity; Endangered Primate Foundation, Amici on Behalf of Appellant(s)
- Cited By
- 27 cases
- Status
- Published