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People for Ethical Treatment of Animals, Inc. v. Tri-State Zoological Park of Western Maryland, Inc.

United States District Court, D. Maryland

December 26, 2019

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff,
v.
TRI-STATE ZOOLOGICAL PARK OF WESTERN MARYLAND, INC., et al., Defendants.

          MEMORANDUM OPINION

          PAULA XINIS UNITED STATES DISTRICT JUDGE

         This 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.

         Shortly 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.

         PETA 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.

         At 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.

         I. Findings of Fact [1]

         A. General Conditions Affecting the Protected Species

         1. The Zoo Grounds

         The 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 lemurs.

         Trial 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).

         (Image Omitted)

         Rotting 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 uncovered. Id.

         (Image Omitted)

         Outside 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.

         (Image Omitted)

         In the 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.

         (Image Omitted)

         In the 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.

         (Image Omitted)

         The 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.

         (Image Omitted)

         Throughout 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, 102.

         (Image Omitted)

         Candy 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, 149.[2]

         2. Inadequate Veterinary Care

         Tri-State 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 regulation.

         Between 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.

         Unsurprisingly, 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.

         Stunningly, 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.[3] 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 Inspection Guide).

         Although 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.

         Tri-State 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.

         As to 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.

         As a 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.

         When 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.[4]

         3. Lack of Enrichment

         Overall 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.

         a. Ring-Tailed Lemurs (Bandit and Alfredo)

         Ring-tailed 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.

         The 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.

         (Image Omitted)

         Exhibitors 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.

         At 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.

         In 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.

         The 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.

         Rather 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.

         At 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.

         Moreover, 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.

         Cumberland 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.

         b. Lions (Mbube and Peka)

         The 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.

         Exposing 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.

         The 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 9.[5]

         As for 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 ...


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