United States District Court, D. Maryland
Xinis United States District Judge.
before the Court is Plaintiff People for the Ethical
Treatment of Animals, Inc. (“PETA”)'s Motion
for Summary Judgment. ECF No. 99. The motion is fully
briefed, and a hearing was held on June 28, 2019, during
which time the Court ruled orally on all but this motion.
See Loc. R. 105.6. After thorough review of the
pleadings, and based on additional information learned at the
hearing, the Court grants in part and denies in part summary
judgment in PETA's favor and will schedule trial on the
gravamen of PETA's claims is that Tri-State Zoological
Park of Western Maryland, Inc., Animal Park, Care &
Rescue, Inc., and Robert Candy (collectively, “the
Zoo”) harassed and harmed the lions, tigers, and lemurs
by providing inadequate veterinary care, shelter, and
environmental enrichment. On July 31, 2017, PETA filed suit
against the Zoo, alleging violations of the Endangered
Species Act, 16 U.S.C. § 1531 et seq. ECF No.
1. At the close of discovery, the parties filed cross-motions
for summary judgment. ECF Nos. 99 & 114. The Zoo moved to
strike a supplemental affidavit filed by PETA. ECF No. 130.
PETA moved to exclude or strike three of the Zoo's
experts, portions of Candy's affidavit, and the Zoo's
reply, arguing that it functioned as an impermissible
surreply. ECF Nos. 94, 95, 96, 119, 125. PETA, however, did
not move to exclude Candy as an expert witness in the
relevant areas of zookeeping, animal husbandry and care of
the lemurs and big cats.
June 28, 2019 hearing, the Court granted PETA's motions
to exclude the Zoo's experts, denied the motion to strike
the reply, and granted in part and denied in part the motion
to strike portions of Candy's affidavit. The Court also
denied the Zoo's motion to strike and motion for summary
judgment. The sole remaining motion for resolution is
PETA's motion for summary judgment. ECF No. 99.
own and operate a zoological park in Cumberland, Maryland.
ECF No. 26 ¶¶ 12-14. The Zoo currently holds
approximately 50 animals. ECF No. 99-20 at 35. Those
protected under the ESA-the lions, tigers, and lemurs-are the
subject of this lawsuit. ECF No. 1 ¶¶ 2-3.
was home to two lemurs, Bandit and Alfredo; five tigers,
Cheyenne, Cayenne, India, Kumar, and Mowgli, and two lions,
Peka and Mbube. ECF No. 99-17 at 35-36. Since 2016, three of
the nine animals, or a full one-third of the protected
species, have died at the Zoo. According to PETA, the
Defendants are squarely to blame for these deaths. PETA
alleges that Defendants violated the ESA as to each category
of protected species (lions, tigers, and lemurs), and grounds
its theory of liability in the Zoo's provision of
inadequate shelter, enrichment and veterinary care. The Court
first summarizes the pertinent facts as to each liability
theory and then discusses whether summary judgment is
warranted as to the claimed deficiencies.
Shelter at the Zoo
lions and tigers (collectively, “big cats”) live
in enclosures that allow travel between outdoor and indoor
portions. ECF No. 114-3 at 7-8. None of the big cat
enclosures are heated or have insulation in the walls or
ceiling. ECF No. 99-17 at 119-20, 135. Rather, the Zoo
provides hay or straw in the enclosures for warmth and heats
Peka's drinking water to prevent it from freezing. ECF
No. 99-21 at 15; ECF No. 99-17 at 135. The Zoo annually
experiences snow, ice, and subfreezing temperatures, but has
not installed thermometers to measure the ambient air
temperature or humidity. ECF No. 99-21 at 15; ECF No. 99-17
at 120, 135. Instead, the Zoo gauges air by
“feel” and by noting if the drinking water is
frozen. ECF No. 99-17 at 135.
and most subspecies of tigers have not evolved a thick,
insulating coat to maintain appropriate internal body
temperatures in the cold. ECF No. 99-47 at 9, 35. Amur
tigers, however, can grow a thick, insulating coat.
Id. at 35. Although it is unclear what subspecies of
tigers are at the Zoo, some evidence suggests that Mowgli is
a Bengal, not an Amur. Id. Exposing big cats to
inappropriately cold temperatures can lead to hypothermia,
dehydration, and damage to the cats' pads and mucous
membranes. Id. at 9, 36.
enclosures provide the big cats some limited shade from the
walls and the indoor portions of their enclosures. ECF No.
114-3 at 33. However, lack of climate control or insulation
in the structure causes the enclosed areas of the lion
shelter to be hotter than the outdoor, ambient temperature.
ECF No. 99-47 at 9. Exposing big cats to inappropriately hot
temperatures can lead to overheating, dehydration, heat
sickness, and stroke. Id. at 9, 36. For lions, this
exposure is likely to result in tissue injuries,
psychological distress, and eventually death. Id. at
9. Candy contends, however, that the big cats were not
exposed to such inappropriate temperatures at the Zoo.
See ECF No. 114-3 at 23, 34.
has lived alone in her enclosure since 2011. ECF No. 99-17 at
127; ECF No. 99-16 at 356. Peka could previously view, hear,
and smell Mbube, prior to his death in 2016. ECF No. 114-3 at
31. Although the Zoo planned to find another lion to keep
Peka company, the Zoo has decided not to pursue such plans.
are a highly social species. ECF No. 99-47 at 22. Lion prides
can reach up to 40 lions, and lions frequently communicate,
stalk, hunt, play, and rear young together. Id.; ECF
No. 99-10 at 38. PETA's experts opine that keeping a lion
in solitude does not meet commonly accepted zoological
practices. ECF No. 99-10 at 38; ECF No. 99-47 at 23. Solitude
is extremely stressful for lions and disrupts natural social
behaviors. ECF No. 99-10 at 38; ECF No. 99-47 at 23. Some
evidence suggests that Peka is in distress as displayed
through her abnormal interactions with Candy. ECF No. 99-10
at 38. Candy, however, who has cared for Peka since infancy,
disputes that Peka shows signs of stress. ECF No. 114-3 at
lemurs were housed in a small enclosure that only provided
shade inside the shelter and at the top of the cage, despite
the risks of heat sickness and dehydration. ECF No. 99-47 at
61. The appropriate temperature for lemurs is above 70
degrees Fahrenheit. Id. When temperatures dip below
65 degrees, lemurs must be provided shelter with adequate
heat. ECF No. 99-10 at 9. If the temperature falls below 48
degrees, lemurs must be kept indoors. Id. The indoor
portion of the lemur enclosure is not insulated and has two
electric heaters and one heat lamp. ECF No. 99-47 at 61; ECF
No. 99-17 at 151. The record is not clear as to whether the
heaters are temperature controlled. Compare ECF No.
99-17 at 152, with ECF No. 99-29 at 68. Zoo staff
monitored the temperature by checking whether the lemurs'
drinking water had frozen. ECF No. 99-17 at 152. At least
once, the lemurs were permitted outside with snow on the
ground. ECF No. 99-40. And on the day Bandit died in January,
his body was at a subnormal temperature. ECF No. 99-20 at
197. In fact, the Zoo's treating veterinarian at the
time, Dr. Timothy Fox, described Bandit as
“freezing” when presented for treatment on the
day of his death. Id. at 262.
does not employ a formal written enrichment plan for the big
cats because Candy believes the big cats “make their
own fun.” ECF No. 99-17 at 367. Peka has a stuffed bear
that she has carried around for years, which Candy attests is
enriching. ECF No. 114-3 at 32. The tigers have old tires and
bowling balls, which are not offered at accredited facilities
because of the risk of injury to the animals. ECF No. 99-47
at 31. The big cats also receive Christmas trees, carcasses,
barrels, and cardboard containers. ECF No. 114-3 at 32. No.
evidence suggests ...