United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE
opinion and order follow a six-day bench trial brought by
People for the Ethical Treatment of Animals
(“PETA”) against Defendants Tri-State Zoological
Park of Western Maryland Inc., Animal Park, Care &
Rescue, Inc., and Robert Candy (collectively,
“Tri-State”), the owners and operators of a
zoological park in Cumberland, Maryland. ECF No. 26
¶¶ 12-14. The animals protected under the
Endangered Species Act (ESA)-the lions, tigers, and lemurs-
are the subject of this lawsuit. ECF No. 1 ¶¶ 2-3.
before this lawsuit began, Tri-State was home to two lemurs,
Bandit and Alfredo; five tigers, Cheyenne, Cayenne, India,
Kumar, and Mowgli; and two lions, Peka and Mbube. Since 2016,
five of the nine animals, more than half of the protected
species, have died at Tri-State. Alfredo has been transferred
to the Maryland Zoo (JX7 at 3), and only Cheyenne, Mowgli,
and Peka remain alive and at Tri-State.
initiated suit on July 31, 2017, alleging violations of the
Endangered Species Act, 16 U.S.C. § 1531 et
seq. ECF No. 1. The suit proceeded to summary judgment
and on July 8, 2019, this Court granted in part and denied in
part summary judgment in PETA's favor. ECF No. 138.
trial, PETA argued that Defendants have violated the ESA by
subjecting the protected animals to harm and harassment. PETA
contended that Defendants have committed a “take”
as understood in the ESA arising from Tri-State's
provision of unsanitary living conditions, poor diets,
substandard veterinary care, and inadequate shelter and
enrichment. Trial exposed Tri-State and Candy's flagrant
and persistent violations of the ESA. For the following
reasons, and based on the following facts, the Court finds in
favor of PETA on all theories of liability.
Findings of Fact 
General Conditions Affecting the Protected Species
The Zoo Grounds
uncontroverted testimony reflects that every animal at issue
suffered under Tri-State's living conditions. The zoo is
situated on sixteen acres of what used to be an old
campground. Trial Tr. vol 5, 11. Past the ramshackle entrance
are a range of enclosures and buildings that house its
approximately fifty animals. Trial Tr. vol. 5, 21-22; JX37.
These include a gated farm animal enclosure, a reptile room
and a kinkajou room, both situated around the corner of a
kitchen in which food is prepared, an aviary across the path
from the reptile room, an approximately six-foot diameter
pool for large alligators, and a group of small primate
enclosures. See generally JX37. And, of course, the
zoo houses separate enclosures for the tigers, lions, and
evidence demonstrated that since PETA began its
investigation, the animals have been housed in fetid and
dystopic conditions. Filth and feces dominate Tri-State.
PETA's undercover investigation in 2014 and 2015
documented animal excrement throughout the zoo grounds-in the
kitchen where animal food is prepared, the room that houses
the reptile exhibits, the grounds generally, and in each of
the protected animals' enclosures. See generally
PX20-24; PX30; PX45-47; PX74; PX77; see also photos
below (documenting feces and decaying vegetables in kinkajou
cages and the aviary across more than a month).
vegetables spilled over large receptacles, decaying meat sat
in piles outside the kitchen and in the furnace room under
the nearby reptile house, and decomposing carcasses were left
for days in the enclosures for the tigers and lions
(collectively "Big Cats"). See generally
PX21-22; PX27; PX73-74; PX77. General filth coated the
kitchen, from the walls and sink to the refrigerator. PX75;
Trial Tr. vol. 2, 101. A trashcan filled with waste stood
the kitchen, piles of donated produce lay unrefrigerated,
many in a state of decay and long past their expiration
dates. PX73; PX19; PX17; Trial Tr. Vol. 1, 80, 97, 100.
Free-roaming cats, chickens, and ducks took turns scavenging
the piles. Id.
reptile room, just feet away from the kitchen, "decaying
remnants of fruits and vegetables were scattered across the
floor, and there were  large smears of feces, presumably
from the sulcatas [tortoises]." PX74 at:00-2:09,
2:27-3:50; Trial Tr. vol. 1, 78-80. Rotten scraps of
vegetables and feces scattered the marmoset cage, which is
stationed in the reptile room. PX77; Trial Tr. vol. 1, 92. Of
the rooms near the kitchen, PETA investigator Stuart Henstock
stated that they "smelled horrendous, [ ] an almost
choking smell of feces" and of "rotting
vegetables." Trial Tr. vol. 1, 79, 89.
indoor tiger enclosures, tufts of fur coated rusted bars, and
carcasses, bones, feathers, fur, and debris mixed with dirty
straw. Trial Tr. vol. 1, 138-39, 144.
tigers' outdoor enclosures contained piles of feces,
discolored water sources filled with decaying leaves, and
large spots of urine residue accumulated over time. PX31;
Trial Tr. vol. 1, 76; Trial Tr. vol. 4, 34.
the grounds, free-roaming animals traipsed between rooms and
enclosures. See generally PX11; PX12; PX19; PX74;
PX75; Trial Tr. vol. 1, 135. Scores of domestic cats, many of
whom are unvaccinated, sported matted and unkempt fur along
with crusted, watery, or bloody discharge seeping from their
eyes, nose, or ears. JX39, Candy 30(b)(6) Dep. 336; PX12 at
1; Trial Tr. vol. 2, 66-68, 101-102. The cat in the
screenshot below, for example, had "obvious ocular
discharge," according to Dr. Haddad. Trial Tr. vol. 2,
and zoo volunteers take no precautions to minimize the filth
or stop the spread of disease. Tri-State has no areas
designated for cleaning that are standard at zoos and
sanctuaries, such as footbaths and cleaning receptacles.
Trial Tr. vol. 4, 10-11. Perhaps PETA investigators Stuart
Henstock and Chris Fontes said it best: that even though they
had visited dozens of zoos and sanctuaries combined,
Tri-State was "the dirtiest" and "worst
place" they had ever seen. Trial Tr. vol. 1, 101,
Inadequate Veterinary Care
has never provided adequate veterinary care to its lemurs,
tigers, and lions. The Animal Welfare Act (AWA) governing
Tri-State's USDA-issued exhibitors license requires that
Tri-State secure an attending veterinarian with
species-specific training and experience. See 9
C.F.R. § 2.40(a) (“Each dealer or exhibitor shall
have an attending veterinarian who shall provide adequate
veterinary care to its animals in compliance with this
section.”); 9 C.F.R. § 1.1 (defining attending
veterinarian as a person who “has received training
and/or experience in the care and management of the
species being attended”) (emphasis added).
Defendants never came close to complying with this
2009 and 2018, Tri-State employed Dr. Timothy Fox as the
attending veterinarian. JX39, Fox Dep. 8-9. After PETA
initiated suit, Dr. Fox was no longer willing to serve as the
zoo's veterinarian, and he was replaced with Dr. Gale
Duncan. Neither Dr. Fox nor Dr. Duncan had acquired any
formal or informal training, education, or experience working
with Big Cats or primates other than the animals at
Tri-State. “I'm just a regular old veterinarian [,
] I'm not a specialty in any of those zoo animals,
” Dr. Fox admitted. JX39, Fox Dep. 28. Dr. Duncan
readily conceded that she did not have any experience with
Big Cats or lemurs apart from some training in veterinary
school. ECF No. 138 at 6.
Dr. Fox and Dr. Duncan, in concert with Candy, utterly failed
to implement a satisfactory program of veterinary care for
the lions, tigers, and lemurs. The AWA provides that
“each exhibitor shall establish and maintain programs
of adequate veterinary care that include . . . the use of
appropriate methods to prevent, control, diagnose, and treat
diseases and injuries . . . ” 9 C.F.R. §
2.40(b)(2). The Program of Veterinary Care (PVC) must be
written, reviewed on an annual basis, and modified as needed.
Trial Tr. vol. 2, 47, 77. Similarly, as is standard in any
medical field, the provision of medical services must be
documented contemporaneously. Applying here is the old adage,
“if it is not written down, it did not happen.”
PX69 at 52; Trial Tr. vol. 3, 153.
Tri-State maintained only 86 pages of medical records in
connection with Dr. Fox's veterinary care for the
last decade and for the entire zoo
population. PX4. Some of the 86 pages are invoices or
duplicates. Trial Tr. vol. 2, 73-74. Only 121 pages of
records are associated with Dr. Duncan's care. PX5. This
shallow sheaf makes a mockery of the simple requirement that
exhibitors maintain “documentation for all covered
animals showing that current medical problems and existing
chronic conditions are being addressed, and/or receiving
proper care.” PX52 at 150 (USDA Animal Welfare
Tri-State minimizes the significance of its record-keeping
failures, the fact remains that lack of such documentation
detrimentally affects animal care. As Dr. Haddad explained,
Big Cats especially do not manifest obvious signs of illness
until their conditions are serious, if not terminal. Trial
Tr. vol. 2, 72. Early detection and treatment of illness
depends on recording seemingly trivial changes in animal
behavior and appearance. Provision of related veterinary care
must likewise receive the same careful documentation to
ensure the animals receive proper and consistent care. Trial
Tr. vol. 4, 7.
has also abdicated its responsibility to provide its animals
preventative or palliative care. Preventative care is
fundamental to an adequate veterinary plan because “it
[is] much easier to prevent disease than it is to treat it
once [disease has] manifested itself . . . . The sooner you
intervene in any kind of medical condition or illness, the
much higher the likelihood of a successful outcome.”
Trial Tr. vol. 2, 53. Preventative care requires, at a
minimum, routine physical examination, blood tests, fecal
examinations, and immunizations. Trial Tr. vol. 2, 54- 56.
Tri-State failed to provide any of it.
routine examinations, Tri-State records reflect little to no
routine care for the animals. PX2 at 11-12. In 2014, Dr. Fox
logged one visit to the zoo, and did not return for eleven
months. Id. In 2015, he visited just twice.
Id. Dr. Fox then waited an entire year to return and
only did so for a focused evaluation of a terminally-ill
Mbube in 2016. Id.; Trial Tr. vol. 2, 78-84. Another
year and a half passed with no visits to evaluate
any of the fifty-plus animals at Tri-State. PX2 at
11-12. In 2018, Dr. Duncan visited for the first time,
id., and Cayenne's death at Dr. Duncan's
hands followed soon after. ECF No. 138 at 12. Even accepting
Candy's representations that he discussed with Dr. Fox
and Dr. Duncan the animals' care as needed, the
consistent lack of in-person evaluations shows clearly that
the provision of veterinary care remained grossly inadequate.
more concrete example, no record exists that any of the Big
Cats received routine vaccinations for common and highly
communicable diseases like rabies, panleukopenia,
calicivirus, herpesvirus, as well as vaccines for distemper
and feline leukemia virus, which are commonly administered to
high-risk Big Cats. PX69 at 32; Trial Tr. vol. 2, 61-64. As
grounds for not giving basic preventative vaccinations, Dr.
Fox claimed “self-preservation…[g]iving a tiger
a shot, that's difficult” and “I don't
believe they are required to have any.” JX39, Fox Dep.
76. No. record exists of routine fecal or blood tests
performed on any of the animals at issue.
the animals became sick, Tri-State utterly failed to provide
adequate and timely care. 9 C.F.R. § 2.40(b)(2) requires
the maintenance of programs of care that include the
availability of emergency, weekend, and holiday medical
assistance when needed. In addition, palliative treatment and
pain management for serious illnesses is a basic standard of
care that should be offered even if the cause of the
underlying symptoms is unknown. See PX69 at 13.
Failure to do so may exacerbate a condition and interfere
with an animal's ability to engage in species-typical
behavior. Id. Yet all the animals at issue have
suffered from longstanding, chronic conditions for which
veterinary care was always too little and far too late.
Tri-State's “pattern of waiting until animals are
very, very ill before either bringing it to the attention of
the veterinarian or until the veterinarian actually comes out
to look at the animals” has, according to PETA's
experts, contributed to long and painful deaths of five
endangered species. Trial Tr. vol. 2, 30.
Lack of Enrichment
the Big Cats and lemurs at Tri-State have lived in a
bacteria-ridden wasteland, and in stark contrast to their
natural habitats. General animal husbandry practices in the
industry require that any exhibitor who chooses to keep
captive such animals must provide adequate shelter and
enrichment that resembles their natural habitat. Candy and
Tri-State made no meaningful effort to even come close to
industry standards. To illustrate the harm that Defendants
have visited -- and continue to visit -- on the animals, the
following section addresses each species separately.
Ring-Tailed Lemurs (Bandit and Alfredo)
lemurs come from Madagascar, a tropical and lush island
country in Africa. PX70 at 59. Lemurs naturally are social
and highly developed. They travel in packs of seven to as
many as thirty and enjoy complex social structures.
Id. at 72. Accordingly, basic animal husbandry
standards require that lemurs in captivity should be housed
in groups of at least four to seven. Id. at 72-73;
Trial Tr. vol. 4, 92-93. Forcing a lemur to live a solitary
existence, as was done to Bandit, visits permanent
psychological and physical injury on a species born to engage
in constant interaction with his kind. Trial Tr. vol. 2,
147-48; Trial Tr. vol. 4, 93.
Madagascar habitat is complex and varied, such that lemurs
have evolved to respond to and interact with its complex
surroundings. PX70 at 59. For example, foraging, exploring,
marking, and grooming are natural species-specific behavior
developed in conjunction with their environment.
who choose to care for lemurs must endeavor to replicate
their natural habitat so that the animals may replicate their
species-specific behaviors-which is to say, so they can
simply be lemurs.
Tri-State, the lemur enclosure, while sufficiently large, was
barren and at odds with the lemurs' natural habitat.
PX13; PX12 at 12; Trial Tr. vol. 4, 95-96. Defendants also
never developed any real enrichment plan for the lemurs.
Rather, Defendants' "enrichment" plan consisted
of a single written page with four nondescript bullet points
under "activities," and no goals or appropriate
list of usable items. PX2 at 20; Trial Tr. vol. 4, 94. The
"plan" never comported with generally accepted
husbandry practices, and no evidence suggests that it was
ever designed to provide the lemurs any opportunity to engage
in the vast array of complex and diverse behaviors known to
its species. Cf. PX70 at 102-07 (multi-page list
from a small facility outlining dozens of items and
opportunities to offer lemurs to elicit a wide-range of
species typical behavior). Moreover, in the decade since the
“plan” was created, it has never been updated.
practice, too, Defendants failed its enrichment obligations
to its lemurs. Animal husbandry standards call for complex
enclosures with “horizontal platforms, horizontal bars,
tree branches, hanging tires, plastic chains, and nest boxes,
” PX69 at 7, along with a dynamic variety of sensory
objects. See PX70 at 102. Yet at Tri-State, the
enclosure was bare, with only a few dirty, old toys that hung
in the enclosure for years. Trial Tr. vol. 4, 95;
See PX30 at:50, JX19 at:44, PX13, PX11 at 6:35 (each
depicting the same children's toy hanging in the
lemurs' enclosure on December 11, 2014; January 28, 2015;
September 16, 2015; and March 3, 2018, respectively).
Moreover, the toys were often hazardous or unsanitary to the
point of serving as disease carriers. Trial Tr. vol. 4, 97.
Court credits the testimony of PETA's animal husbandry
expert, Mr. Jay Pratte, whose over 25 years of training,
education, and experience aided this Court in its
fact-finding mission. PX70 at 1. As Pratte opines, Defendants
exhibited a stunning ignorance as to how to provide the
lemurs an environment remotely appropriate to their species.
Pratte found that Defendants did not have “any process,
information, research done…into how
[to]…alleviate these  problems, let alone that they
were even aware that they were a problem to begin
with.” Trial Tr. vol. 4, 99.
than being provided enrichment, the lemurs experienced a
daily onslaught of environmental horribles. Lemurs naturally
are “olfactory” animals. They engage in scent
marking and communication. Indeed, smelling is
“inherent to their communication, to how they interact
with one another, to detecting potential threats or resources
in the environment.” Trial Tr. vol. 4, 100. Smells of
dung and urine are not only “inherently irritating and
stressful” to the lemurs, but also “obscure their
ability to understand what's happening in the world
around them, and so  directly impacts their ability to
exhibit normal species-typic behavior.” Trial Tr. vol.
4, 100. In fact, exposure to such offending smells can cause
lemurs physical pain and permanent damage to their mucous
membranes. Trial Tr. vol. 4, 100.
Tri-State, the lemurs were surrounded by filth that
undoubtedly created a significant impediment to their ability
to communicate. In their own enclosures stood feces and bird
waste. Trial Tr. vol. 4, 89-90. Just feet away, the potbelly
pig enclosure was piled with foul-smelling pig feces. Trial
Tr. vol. 1, 67; PX30 at 4:52-5:30. Directly behind them was
another fecal-ridden enclosure housing two barking dogs, PX30
at 3:26; Trial Tr. vol. 1, 66, or more aptly put, “a
direct predator ten feet away that is vocalizing” and
thus presenting a “constant source of distress.”
Trial Tr. vol. 4, 85-87; JX19.
the lemur enclosure's indoor section gave little real
shelter from the elements. Lemurs come from a tropical
climate, and therefore do not have insulating coats to
maintain internal body temperatures when exposed to the cold.
PX70 at 61. Accordingly, for exhibitors who choose to house
lemurs, the Association of Zoos and Aquariums
(“AZA”) guidelines advise that lemurs not be
subjected to temperatures below 45 degrees for longer than
four hours, and that they should always have access to
adequate supplemental heat. Trial Tr. vol. 2, 140; PX69 at 9.
Exposure to such temperatures negatively affects lemurs'
health, which can lead to hypotension, suppressed appetite,
and increased vulnerability to disease. Trial Tr. vol. 2,
144; PX70 at 61.
in the winter is decidedly not like Madagascar. Snow falls
and temperatures dip below freezing several months of the
year. JX19; Trial Tr. vol. 4, 86. In 2015 alone, the animals
at Tri-State were exposed to temperatures below 45 degrees
for four consecutive hours for 149 days. JX17. The lemurs had
little refuge from this cold. For “insulation, ”
Candy provided two electric heaters and one heat lamp
stationed below just one portion of the enclosure. PX70 at
61; Trial Tr. vol. 5, 225-26. Candy would monitor the
temperature not by thermometer, but by whether the drinking
water in the enclosure had frozen. JX39, Candy Dep. 151. No.
credible evidence exists that the heat source protected the
lemurs from prolonged exposure to cold temperatures that are
directly at odds with the climate of their African homeland.
Lions (Mbube and Peka)
lions live in a similarly dissonant environment at Tri-State.
Although lions come from far warmer regions than Cumberland,
Maryland, at Tri-State they are forced to withstand
temperature extremes without proper provision. The lion
enclosures allow the cats to travel freely between an indoor
and outdoor area in their respective enclosures, DX1 at 7-8,
but neither area offers remotely sufficient protection from
Maryland temperatures. The indoor enclosures are uninsulated
and unheated. Trial Tr. vol. 4, 41, 45; JX39, Candy Dep. Tr.
at 133-35. Outdoors, the lions have little shelter from the
snow, sleet, wind, or freezing rain.
Big Cats to inappropriately cold temperatures can lead to
hypothermia, dehydration, and damage to the cats' pads
and mucous membranes. PX70 at 9. Big Cats must have access to
heated or cooled areas when ambient temperature falls below
30 degrees Fahrenheit, adjusted for windchill, or rises above
85 degrees Fahrenheit; greater caution must be exercised with
elderly, infant, and disabled Big Cats. PX121 at 18 (Global
Federation of Animal Sanctuary (“GFAS”)
standards); JX17. For the Big Cats and at Tri-State, Candy
monitors the temperature in the Cat enclosures by just
“feeling it.” JX39, Candy Dep. Tr. at 135.
summer months are equally brutal on the cats. A few sparse
trees and a single wall provide inadequate shade, especially
on days when the temperatures creep into the 80s and 90s.
Compare DX1 at 33 with Trial Tr. vol. 4,
25. As a result, the Cats are at risk for overheating,
dehydration, heat sickness, and stroke. PX70 at
enrichment needs, lions are a highly social species who
travel in prides of as many as 40 lions. They enjoy a complex
social structure in which together they stalk, hunt, play,
and rear young. PX70 at 22; PX69 at 38. Solitude is extremely
stressful for lions and disrupts their natural social
behaviors; PETA's experts opine that keeping a lion in