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Tracey K. Kuehl v. Pamela Sllner
Northern District of Iowa Federal Courthouse - Cedar Rapids, Iowa
Case Number: 16-1624
Court: United States Court of Appeals for the Eighth Circuit on appeal from the Northern District of Iowa (Linn County)
Plaintiff's Attorney: Daniel J Anderson, Jessica Blome, Elisabeth Holmes, Daniel Harold Lutz, Jeffrey Pierce
Defendant's Attorney: Larry J Thorson
Description: Tracey 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
1The Honorable Richard W. Goldberg, United States Court of International
Trade, sitting by designation.
the Endangered Species Act, 16 U.S.C. § 1531 et seq. (the Act), seeking to enjoin
defendants’ mistreatment of endangered species. Following a four-day bench trial,
the district court ordered that the endangered 2 species be transferred to another
facility and denied plaintiffs’ request for attorney fees and costs. Defendants appeal,
arguing that plaintiffs lack standing to bring suit and that—assuming standing—the
defendants did not violate the Act. Plaintiffs also appeal, challenging the district
court’s placement decision for the animals, as well as the court’s denial of their
request for attorney fees. We affirm.
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
the 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.3 Each had concerns about the animals’ mental health and physical wellbeing,
noting excessive feces in the animals’ cages, an overpowering smell of
manure, and a lack of environmental enrichment to keep the animals entertained.
Tracey observed that the Cricket Hollow lemur cage contained only one log—unlike
2The 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 28 U.S.C. § 636(c).
3Tracey 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.
other zoos she had visited that had several “vertical structures” for the lemurs to perch
on and climb. Braumann saw a lemur living in isolation, which upset him because
he knew that lemurs were “extremely social.” Tracey also noted that the tiger cages
lacked grass, vegetation, and toys. Braumann was disappointed that the tiger cages
had a single bowling ball for environmental enrichment and that feces had
accumulated in the cages. Plaintiffs reported their concerns to regulatory agencies,
the county sheriff, and other public officials. Dissatisfied with the results they had
obtained, plaintiffs filed this lawsuit. Although Tracey, Lisa, Harvey, and Braumann
have not returned to Cricket Hollow since 2013, they all agree that they would return
if the conditions improved.
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
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] 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].”
We review de novo the district court’s ruling that plaintiffs have standing to
enforce the Act. Hodak v. City of St. Peters, 535 F.3d 899, 903 (8th Cir. 2008). To
establish standing, plaintiffs must show at a minimum “an injury in fact, meaning the
actual or imminent invasion of a concrete and particularized legal interest; a causal
connection between the alleged injury and the challenged action of defendant; and a
likelihood that the injury will be redressed by a favorable decision of the court.”
Sierra Club v. Kimbell, 623 F.3d 549, 556 (8th Cir. 2010) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992)). The only element in dispute is whether
plaintiffs have suffered an injury in fact.
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, 504 U.S.
at 557-58, 563-64. The Court explained that plaintiffs’ “some day” intentions to
return to Egypt and Sri Lanka “without any description of concrete plans, or indeed
even any specification of when the some day will be—[did] not support a finding of
 ‘actual or imminent’ injury.” Id. at 564. Defendants argue that plaintiffs have not
demonstrated the “actual and imminent” injury required by Lujan because they have
not specifically identified when they intend to return to Cricket Hollow. Unlike the
plaintiffs in Lujan, however, plaintiffs here need not travel to distant places to
observe the animals they fear are being harmed by violations of the Act, since all are
Iowa residents and live within hours of Cricket Hollow. Tracey, Lisa, and Braumann
have each visited Cricket Hollow more than once, which differentiates their proposed
plans to return to the zoo if conditions improve from the vague, abstract, “some day”
intentions described in Lujan. Their claim of standing is supported by the Supreme
Court’s ruling in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC),
Inc., 528 U.S. 167, 183 (2000), which explained that “environmental plaintiffs
adequately allege injury in fact when they aver that they use the affected area and are
persons ‘for whom the aesthetic and recreational values of the area will be lessened’
by the challenged activity.” (quoting Sierra Club v. Morton, 405 U.S. 727, 735
(1972); citing Lujan, 504 U.S. at 562-63). The Court distinguished its ruling in
Laidlaw from Lujan, explaining “[n]or can the [plaintiffs’] conditional
statements—that they would use the nearby North Tyger River for recreation if
Laidlaw were not discharging pollutants into it—be equated with the speculative
‘“some day” intentions’ to visit endangered species halfway around the world that we
held insufficient to show injury in fact in [Lujan].” Id. at 184 (citing Lujan, 504 U.S.
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, 568 U.S. 398
(2013), and Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (per curiam), for the
proposition that plaintiffs cannot manufacture standing by inflicting harm upon
themselves. In Clapper, the Court ruled that plaintiffs could not manufacture standing
by expending resources to avoid a speculative, hypothetical harm. 568 U.S. at
415-16. In Pennsylvania, the Court ruled that its original jurisdiction over disputes
between states could not be invoked when a state’s own legislative decisions caused
the alleged harm. 426 U.S. at 663-64. Defendants’ argument assumes that Tracey,
Lisa, Harvey, and Braumann inflicted injury upon themselves by visiting Cricket
Hollow. This argument, however, mischaracterizes plaintiffs’ injury, which instead
stems from Cricket Hollow’s inability to properly care for its animals. The Supreme
Court recognized this distinction in Havens Realty Corp. v. Coleman, 455 U.S. 363,
373-74 (1982), in which it ruled that housing applicants had standing to bring suit
against a realty company even when the applicants’ sole purpose for applying for
housing was to uncover racial discrimination. As the Court explained, when an
individual searches for and finds a violation of the law, it is the violation itself—not
the search—that causes the plaintiff injury. Id. Here Tracey, Lisa, Harvey, and
Braumann’s injuries were not self-inflicted, but instead resulted from the conditions
at Cricket Hollow.
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, 432 U.S. 333, 343 (1977). We conclude
that Animal Defense has met these requirements. As explained above, the individual
plaintiffs who belong to Animal Defense have standing to bring suit. The suit
furthers Animal Defense’s mission “to advance the interests and protect the lives of
animals through the legal system,” and this case does not require “individualized
proof,” which would prohibit it from being resolved in the group context. Id. at 344.
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[.]” 16 U.S.C.
§ 1538(a)(1)(B). The term “take” includes the definitions “harass” and “harm.” 16
U.S.C. § 1532(19). The Code of Federal Regulations defines “harass” as “an
intentional or negligent act or omission which creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly disrupt normal behavioral
patterns, which include, but are not limited to, breeding, feeding, or sheltering.” 50
C.F.R. § 17.3. The definition, “when applied to captive wildlife, does not include
generally accepted: (1) Animal husbandry practices that meet or exceed the minimum
standards for facilities and care under the Animal Welfare Act[.]” Id. The
regulations define harm as “an act which actually kills or injures wildlife. Such act
may include significant habitat modification or degradation where it actually kills or
injures wildlife by significantly impairing essential behavioral patterns, including
breeding, feeding or sheltering.” Id.
Defendants first argue that the they could not have violated the Act because the
Animal Welfare Act, 7 U.S.C. § 2131 et seq. (Animal Act) provides a “safe harbor”
for licensed facilities. Defendants appear to argue that Cricket Hollow is exempt
from all aspects of the Act as long as it remains a licensed Animal Act facility,
because a facility does not harass an animal if it abides by “generally accepted . . .
[a]nimal husbandry practices that meet or exceed the minimum standards for facilities
and care under the Animal Welfare Act.” 50 C.F.R. § 17.3. The exemption provided
by the Animal Act regulations, however, is limited to its definition of “harass,” and
does not apply to the other types of taking listed within the Act. See 16 U.S.C.
§ 1532(19). Furthermore, if a facility fails to meet the standards outlined in the
Animal Act regulations, the exemption does not apply. The Animal Act thus does not
provide blanket immunity to suits under the Act.
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, 563
F.3d 312, 316 (8th Cir. 2009).
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 9 C.F.R. § 3.81, however, provides that exhibitors of
nonhuman primates “must develop, document, and follow an appropriate plan for
environment enhancement adequate to promote the psychological well-being of
nonhuman primates. The plan must be in accordance with the currently accepted
professional standards as cited in appropriate professional journals or reference
guides, and as directed by the attending veterinarian.” The regulation requires that
“[t]he physical environment in the primary enclosures must be enriched by providing
means of expressing noninjurious species-typical activities.”4 9 C.F.R. § 3.81(b).
The district court found that Cricket Hollow had failed to meet this standard and that
this noncompliance “significantly disrupts [the lemurs’] normal behavioral patterns
and, therefore, constitutes ‘harassment’ and ‘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, 960 F.2d 765, 769 (8th Cir. 1992) (“a reasonable interpretation
of conflicting evidence  cannot constitute clear error”).
The district court also ruled in the alternative that defendants had harassed the
lemurs by not providing the sanitary conditions specified in 9 C.F.R. § 3.84(a), which
requires that “[e]xcreta and food waste must be removed from inside each indoor
primary enclosure daily.” The district court found on the basis of reports and
settlement agreements from December 2006, February 2011, August 2011, August
2012, November 2012, April 2013, September 2013, May 2015, and June 2015, that
Cricket Hollow was “unable to keep up with the demands of providing clean water
and sanitary conditions for the animals . . . including the lemurs.” Defendants argue
4This 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.”
9 C.F.R. § 3.81(b).
that the animal “inspectors would often show up before morning chores had been
done at the Zoo and then would write the Zoo up for actions (such as cleaning up
feces) that were about to be taken.” The evidence at trial, however, indicated that the
cages in fact had contained a buildup of feces. The district court was not required to
accept defendants’ explanation, and, supported as it is by the evidence, its finding is
not clearly erroneous.
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
9 C.F.R. § 3.131(a), “[e]xcreta shall be removed from primary enclosures as often as
necessary to prevent contamination of the animals contained therein and to minimize
disease hazards and to reduce odors.” The district court relied on reports from
December 2006, November 2010, December 2011, November 2012, February 2013,
April 2013, May 2014, and August 2014, which documented excessive manure buildup
at Cricket Hollow, including within the tiger cages. The district court considered
these reports with Dr. Conrad’s testimony and concluded that Cricket Hollow’s
actions constituted harassment under the Act. Again, defendants have not shown the
district court’s finding to be clearly erroneous.
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.5
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
We have considered and now deny plaintiffs’ 5 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.
discretion and its factual findings for clear error. General Motors Corp., 563 F.3d at
316. We conclude that the decision to impose upon the Sellners the responsibility of
finding an appropriate, licensed facility for the lemurs and tigers was well within its
broad equitable powers.
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’ placement 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, 299 F.3d 966 (8th Cir. 2002), an ERISA case. It concluded that
the defendants had not “acted in ‘bad faith’ and it cannot be said that their position
was frivolous.” Kuehl v. Sellner, No. C14-2034, 2016 WL 3582085 (N.D. Iowa June
We review the denial of a Rule 59(e) motion for a clear abuse of discretion.
Sipp v. Astrue, 641 F.3d 975, 981 (8th Cir. 2011). Under the Act, 16 U.S.C.
§ 1540(g)(4), the court “may award costs of litigation (including reasonable attorney
and expert witness fees) to any party, whenever the court determines such award is
appropriate.” The Supreme Court has explained that when individual citizens act as
“private attorneys general” to enforce important Congressional objectives, successful
plaintiffs “should ordinarily recover an attorney’s fee unless special circumstances
would render such an award unjust.” Newman v. Piggie Park Enters., Inc., 390 U.S.
400, 402 (1968); see also Pennsylvania v. Del. Valley Citizens’ Counsel for Clean
Air, 478 U.S. 546, 560 (1986). We adopted this reasoning in Fowler v.
Schwarzwalder, 498 F.2d 143, 145 (8th Cir. 1974), when we explained that “absent
compelling circumstances, a plaintiff who acts as a ‘private attorney general’ in
seeking to vindicate Congressional policy of the highest priority and advance the
public interest should not be forced to bear the costs of litigation. Indeed, few
aggrieved parties would have the financial resources to pay such fees.”
Plaintiffs argue that no special circumstances exist to deny an award of attorney
fees. We disagree. An award 6 of attorney fees here would be inconsistent with the
6Plaintiffs 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.,
Act’s purpose and would unduly expand the scope of litigation under its authority.
When Congress passed the Act, it hoped to achieve a limited purpose: the protection
of endangered species. As Senator John V. Tunney explained on the Senate floor,
“The goal of the Endangered Species Act is to conserve, protect, restore, and
propagate species of fish and wildlife, that are in imminent danger of extinction or are
likely to become endangered within the foreseeable future.” 119 Cong. Rec. 25,668
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
644 F. App’x 154, 157 (3d Cir. 2016) (unpublished); Lenard v. Argento, 699 F.2d
874, 899-900 (7th Cir. 1983); Inmates of Allegheny Cty. Jail v. Pierce, 716 F.2d 177,
180 (3d Cir. 1983); Entm’t Concepts, Inc. III v. Maciejewski, 631 F.2d 497, 507 (7th
Cir. 1980); Bunn v. Central Realty of La., 592 F.2d 891, 892 (5th Cir. 1979). Unlike
the parties in those cases, plaintiffs here made substantive arguments that defendants’
lack of resources caused the statutory violation.
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.
GOLDBERG, Judge, concurring.
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
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.” 16 U.S.C.
§ 1531(b). “Conservation” is defined as “all methods and procedures which are
necessary to bring any endangered species or threatened species to the point at which
[ESA protections] are no longer necessary.” 16 U.S.C. § 1532(3); see also Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). I believe this general principle should
have informed the district court’s decision and should inform courts exercising their
injunctive powers in cases such as these.
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.
In 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