1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 ANIMAL LEGAL DEFENSE FUND, Cause No. C18-6025RSL 8 Plaintiff, 9 v. ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR 10 OLYMPIC GAME FARM, INC., et al., SUMMARY JUDGMENT 11 Defendants. 12 13 This matter comes before the Court on “Defendants’ Motion for Summary Judgment.” 14 Dkt. # 126. Plaintiff alleges, among other things, that the owners and operators of an animal- 15 based attraction on the Olympic Peninsula have violated the federal Endangered Species Act 16 (“ESA”) by taking and possessing protected species and have created a public nuisance in 17 violation of Washington state law. Defendants seek a summary determination that its brown 18 bears, wolves, and Canada lynx are not listed species for purposes of the ESA, that it has not 19 20 harmed, harassed, or possessed any species in violation of the ESA, and that it is not a public 21 nuisance. 22 Summary judgment is appropriate when, viewing the facts in the light most favorable to 23 the nonmoving party, there is no genuine issue of material fact that would preclude the entry of 24 judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial 25 26 responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. 27 ORDER GRANTING IN PART DEFENDANTS’ 1 Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that 2 show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving 3 party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to 4 designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. 5 at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . 6 7 and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of 8 Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact 9 genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the 10 “mere existence of a scintilla of evidence in support of the non-moving party’s position will be 11 insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th 12 Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose 13 14 resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion 15 for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In 16 other words, summary judgment should be granted where the nonmoving party fails to offer 17 evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. Am. 18 Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 19 20 Having reviewed the memoranda, declarations, and exhibits submitted by the parties and 21 taking the evidence in the light most favorable to plaintiff, the Court finds as follows: 22 A. Endangered Species Act 23 “The Endangered Species Act of 1973 . . . contains a variety of protections designed to 24 save from extinction species that the Secretary of the Interior designates as endangered or 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 threatened.” Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 690, 2 (1995). See also 16 U.S.C. § 1533; Tenn. Valley Auth. v. Hill, 437 U.S. 153, 159-60 (1978). The 3 ESA’s citizen suit provision permits “any person” to commence a civil suit to enjoin alleged 4 violations of the ESA or the regulations issued by the Fish and Wildlife Service (“FWS”) under 5 the Act’s authority. 16 U.S.C. § 1540(g)(1). Defendants argue that plaintiff’s ESA claims fail 6 7 because (1) some of the animals at issue are not designated as endangered or threatened and/or 8 (2) defendants have not harmed, harassed, or possessed any species in violation of the ESA. 9 1. Listed Species 10 a. Grizzly Bears 11 Defendants argue that its grizzly bears were born outside of the lower 48 states of the 12 United States and therefore do not fall within the relevant listing. The governing regulations list 13 14 the grizzly bear (Ursus arctos horribilis) as threatened in the “U.S.A., conterminous (lower 48) 15 States, except where listed as an experimental population” (50 C.F.R. § 17.11(h)) and provide 16 that “no person shall take any grizzly bear in the 48 conterminous states of the United States” 17 (50 C.F.R. § 17.40(b)(1)(i)(A)). Defendants argue, however, that because the term “grizzly bear” 18 is defined “as any member of the species Ursus arctos horribilis of the 48 conterminous States 19 20 of the United States” (50 C.F.R. § 17.40(b)(2)) (emphasis added), the bear at issue and all of its 21 ancestors must have been born in the lower 48 to fall within the listing. This construction of the 22 regulations puts more weight on the word “of” than it can bear and flies in the face of relevant 23 case law. 24 According to defendants, FWS used the word “of” to define and identify a “distinct 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 population segment” (“DPS”) of grizzly bears that were not only born in the lower 48, but that 2 were also descended from grizzly bears born in the lower 48. According to defendants, grizzly 3 bears born at Olympic Game Farm are not “of the 48 conterminous States” because one or more 4 of their ancestors haled from Alaska or Canada. This interpretation is unreasonable. When used 5 as a source identifier for a person or animal, “of” generally refers to that person or animal’s 6 7 place of birth or origin, not to the homeland of ancestors. To the extent defendants are arguing 8 that “of” requires that the grizzly be “originally from” or “born in” the lower 48, the 9 interpretation is not unreasonable, but “of” could just as easily mean that the animal was “found 10 or located in” the lower 48. Defendants offer no authority in support of their preferred 11 interpretation, and other regulatory provisions suggest they are incorrect. The actual listing, as 12 set forth above, states simply “U.S.A., conterminous (lower 48) States,” and the prohibition on 13 14 taking uses the phrase “in the 48 conterminous states of the United States” (emphasis added). In 15 announcing the listing, the FWS used the words “of” and “in” interchangeably, described the 16 species by reference to the three locations where they were then found in the conterminous 17 States, and sought “to protect any members of the species occurring elsewhere in the 48 18 conterminous States.” Amendment Listing the Grizzly Bear of the 48 Conterminous States as a 19 20 Threatened Species, 40 Fed. Reg. 31734, 31735 (July 23, 1975). There is no indication that 21 either Congress or FWS intended the choice of preposition to have the significant and 22 substantive impact defendants suggest. Nor is there any indication that FWS studied or made 23 findings that grizzlies located in the lower 48 that were born elsewhere (or that descended from 24 grizzlies that were born elsewhere) “qualify as separate ‘species' or otherwise qualify for 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 separate legal status under the [ESA].” Safari Club Int’l v. Jewell, 960 F. Supp.2d 17, 44 2 (D.D.C. 2013) (quoting 12–Month Findings on Petitions to Delist U.S. Captive Populations of 3 the Scimitar-horned Oryx, Dama Gazelle, and Addax, 78 Fed. Reg. 33,790, 33,797 (June 5, 4 2013)). The weight of the statutory and regulatory language therefore support an interpretation 5 of “of the 48 conterminus States” to mean “located or found in the 48 conterminus States.” 6 7 The relevant case law also supports this interpretation. ESA listings based on geographic 8 boundaries have been interpreted to refer to where an animal is found, not where it was born or 9 where its ancestors haled from. The Tenth Circuit has noted “the well-established fact [that] 10 individual animals can and do lose Endangered Species Act protection simply by moving about 11 the landscape.” Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1235 (10th Cir. 2000). 12 As amici, Environmental Defense Fund and others aptly summarize: 13 14 The line dividing protected and unprotected (or differently protected) 15 populations is sometimes an international boundary (e.g., grizzly bears, 16 which south of the US-Canada border are threatened, but north of the border are unlisted [40 Fed. Reg. 31376 (July 28, 1975), codified at 50 17 C.F.R. § 17.11(h) (1977)]), a state boundary (e.g., brown pelicans, which 18 west of the Mississippi-Alabama state line are listed as endangered, while 19 east of that line are unlisted [50 Fed. Reg. 4938 (Feb. 4, 1985), codified at 50 C.F.R. § 17.11(h) (1997)]), a county boundary (e.g., American alligators 20 which were once listed as endangered everywhere other than in three 21 Louisiana parishes [40 Fed. Reg. 44412 (Sept. 26, 1975)]), a measure of 22 latitude (e.g., bald eagles, which until 1978 were listed as endangered south of 40 degrees north latitude, while those to the north were unlisted [50 23 C.F.R. § 17.11(i)(1977), revised at 43 Fed. Reg. 6233 (Feb. 14, 1978)]), a 24 point on the coast (e.g., coho salmon, which, if they spawn south of Cape 25 Henry Blanco in Oregon are threatened, but which, if they spawn north of 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 the cape are unlisted [62 Fed. Reg. 24588 (May 6, 1997)]), a distance from 2 the coastline (e.g., western snowy plovers, which are threatened within 50 miles of the Pacific coast, but unlisted beyond that distance [58 Fed. Reg. 3 12864 (March 5, 1993)]), or even a point on a river (e.g., least terns, which 4 are endangered along the Mississippi River and its tributaries north of 5 Baton Rouge, but south of Baton Rouge lack any ... protection [50 Fed. Reg. 21784, 21789 (May 28, 1995)]). 6 7 Indeed, the protection afforded the gray wolf itself depends on the 8 geographic location (if an “endangered” wolf in Wisconsin crosses the border into Minnesota it becomes “threatened,” and therefore has fewer 9 Endangered Species Act protections, 43 Fed. Reg. at 9611-12, codified at 10 50 C.F.R. § 17.11(h)(1997)). 11 Id., at 1235 n.4. The Ninth Circuit, when considering a geographically-limited listing for gray 12 13 wolves, concurred: 14 [G]ray wolves are protected by the ESA based on where they are found, not where 15 they originate. Canadian gray wolves that migrate into the northern United States, for example, assume protected status when they cross the border. See 59 Fed. Reg. 16 at 60,253 (discussing the probable “southern expansion of the Canadian wolf 17 population” into Glacier National Park, where they are classified as endangered); 18 see also H.R.Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833 (shifting treatment of protected status depending on seasonal movement 19 patterns); Ramsey v. Kantor, 96 F.3d 434, 438 (9th Cir. 1996) (shifting “legal 20 regimes” for protected salmon through the course of their migration). Therefore, 21 the wolves transported from Canada were members of “any population ... of an endangered species or a threatened species” as soon as they entered the United 22 States. 23 24 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 U.S. v. McKittrick, 142 F.3d 1170, 1173-74 (9th Cir. 1998).1 2 For purposes of the grizzly bear listing, the Court finds that “of” means “located or found 3 in.”2 Donald, Moxie, and the grizzly bears born at the Olympic Game Farm are therefore 4 protected from “taking” because they are located and found in the lower 48 states of the United 5 States.3 6 7 b. Gray Wolves 8 While this motion was pending, FWS’ final rule removing the gray wolf (Canis lupus) 9 from the endangered or threatened species list was vacated. Dkt. # 226 at 3-28 (Defenders of 10 Wildlife v. U.S. Fish and Wildlife Serv., C21-0344JSW (N.D. Cal. Feb. 10, 2022)). Defendants’ 11 jurisdictional argument is therefore unavailing, and the Court rejects defendants’ place-of-origin 12 argument for the reasons set forth above. 13 14 Defendants also assert that the gray wolves at Olympic Game Farms are hybrids, having 15 crossed with domestic dogs at some undisclosed point in the past, and are therefore not protected 16 under the ESA. Defendants’ factual assertion is based on (a) transfer records related to Seth, 17 18 19 20 1 As a practical matter, this interpretation of the relevant regulatory provisions makes sense given 21 the goals of the ESA. If the grizzly population in the lower 48 has dropped to such an extent that the species is threatened or endangered in that geographic area, any grizzly found within the specified area 22 could play a role in the species’ survival or rehabilitation. Allowing hunters to shoot and kill a grizzly in Montana simply because it was born in Canada would not further the protective goals of the statute. 23 2 Because the birth place of the bears is irrelevant to the ESA analysis, the Court need not resolve 24 plaintiff’s objection to Robert Beebe’s assertion that the brown bears are Kodiaks. 25 3 Plaintiff has stipulated that Miska, Yuri, Tug, and Bella are not protected by the ESA. 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 Sam, Tonka, and Gracie (Dkt. # 136 at 50-56) and (b) expert testimony that Brutus, Jacob,4 Seth, 2 and Sam “are hybrid individuals (wolf-dog hybrids)” and that Tonka and Gracie “have little or 3 no hybridization with dogs . . .” Dkt. 128 at 9 and 21). There is no indication that any of the 4 wolves had a parent, grandparent, or even great-grandparent that was a dog. The transfer records 5 show that Seth, Sam, Tonka, and Gracie were all “High Content Wolfdogs,” and they were 6 7 clearly purchased by Olympic Game Farm to display as wolves, not as dogs or hybrids. The most 8 defendants’ expert can say is that the Olympic Game Farm wolves “may have some level of 9 domestic dog ancestry” (Dkt. # 128 at 21): the genome sequencing and principal component 10 analysis she performed suggests that the Olympic Game Farm wolves are most closely related to 11 wolves from Nunavut and Yellowstone (Dkt. # 128 at 21-23). 12 Defendants and their expert are using the term “hybrid” to mean a mixture of two distinct 13 14 genomes, regardless how far back in the past the actual event of hybridization occurred. 15 However, “[t]he most common definition in the field of population genetics for ‘hybrid’ is an 16 individual who is a 50-50 first generation cross.” Dkt. # 150 at 6; see also U.S. v. Kapp, 419 17 F.3d 666, 672 (7th Cir. 2005) (“Neither the ESA nor the regulations . . . refer specifically to 18 hybrids, which are crosses between listed and unlisted animals.”). While courts have been 19 20 willing to entertain the idea that a second generation individual (i.e., the offspring of a wolf and 21 a 50-50 first generation cross) is a hybrid that is not protected by the ESA (see Animal Legal 22 Defense Fund v. Fur-Ever Wild, No. C17-4496JNE-HB (D. Minn. June 13, 2019) (Hearing 23 24 25 4 Jacob is the full sibling of Brutus and the remaining gray wolves at Olympic Game Farm, namely Leah, Angie, Lily, Coco, and Ginger. 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 Transcript at Dkt. # 147-17); Kuehl v. Sellner, 161 F. Supp.3d 678, 689 (N.D. Iowa 2016)), there 2 is no support in the ESA, its legislative history, the implementing regulations, or case law for 3 defendants’ contention that a negligible amount of non-wolf genetic material from a distant 4 ancestor excludes an individual from the protections of the statute. If defendants were correct, an 5 animal’s status under the ESA could never be determined without a DNA analysis, and a 6 7 significant number, if not the vast majority, of organisms that are currently considered 8 endangered or threatened would lose their protection. The Court declines to adopt a definition of 9 “hybrid” that upends decades of regulatory and judicial enforcement of the act. Based on the 10 existing facts, the wolves at Olympic Game Farm are protected under the ESA. 11 c. Canada Lynx 12 Canada lynx are listed as threatened and protected by the ESA when found within the 13 14 lower 48 states of the United States. 50 C.F.R. § 17.11(h). It is undisputed that Olympic Game 15 Farm’s lynx, Purrsia, is a Canada lynx. Defendants assert, however, that Purrsia was born in 16 captivity and is therefore excepted from the “take” protections of the ESA. See 50 C.F.R. 17 § 17.40(k)(4)(i) (“You may take lawfully obtained captive lynx without a permit.”). In support of 18 this assertion, defendants offer the declaration of Robert Beebe, the owner and president of 19 20 Olympic Game Farm, to show that Purrsia was obtained from Cindy Price of Belfair, 21 Washington, who, in turn, acquired the lynx from Bitterroot Bobcat & Lynx in Stevensville, 22 Montana, where she was born in captivity. Dkt. # 135 at ¶ 22. Exhibit N to the Beebe declaration 23 is a Montana Certificate of Interstate Movement showing that a 3-week old female lynx was 24 transferred from Stevensville to Belfair. The certification of health was signed on May 26, 2010. 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 Exhibit M is a U.S. Department of Agriculture (“USDA”) record of transport dated June 3, 2010, 2 indicating that Chris Price received a 1 pound female kitten born on May 14, 2010, from 3 Bitterroot Bobcat & Lynx/Barbara Roe. Exhibit L is a delivery receipt signed by Robert Beebe 4 on August 19, 2010, indicating that Olympic Game Farm had received a 20 pound female 5 Canada lynx from Cindy Price. 6 7 Plaintiff objects to consideration of this evidence, arguing that Robert Beebe has no 8 personal knowledge of the circumstances of Purrsia’s birth and that Exhibits M and N are 9 inadmissible hearsay and have not been properly authenticated. In response, defendants argue 10 that it is plaintiff’s burden to affirmatively prove that Purrsia was born in the wild, so the 11 inadmissibility of the evidence offered by defendants is irrelevant. In the American legal system, 12 “the ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims.” 13 14 Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) (citing 2 J. Strong, McCormick on 15 Evidence § 337, p. 412 (5th ed. 1999) (“The burdens of pleading and proof with regard to most 16 facts have been and should be assigned to the plaintiff who generally seeks to change the present 17 state of affairs and who therefore naturally should be expected to bear the risk of failure of proof 18 or persuasion”); C. Mueller & L. Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003) (“Perhaps the 19 20 broadest and most accepted idea is that the person who seeks court action should justify the 21 request, which means that the plaintiffs bear the burdens on the elements in their claims”)). In 22 the context of a statutory claim where Congress has not specified the party that bears the burden 23 of proof, courts usually assume without much analysis that plaintiffs bear the burden of 24 persuasion regarding the essential aspects of their claims unless a contrary statutory purpose is 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 apparent. Id., at 57; Irobe v. U.S. Dep’t of Agric., 890 F.3d 371, 378 (1st Cir. 2018) (citing Gross 2 v. FBL Fin. Servs., 557 U.S. 167, 177 (2009)). If an element of a claim is fairly characterized as 3 an affirmative defense or exemption, however, the burden of persuasion may be shifted to 4 defendants, especially where the defendants have better access to evidence and are in the best 5 position to show that the defense or exemption applies. Schaffer, 546 U.S. at 57 (citing Fed. 6 7 Trade Comm’n v. Morton Salt Co., 334 U.S. 37-44-45 (1948)); Irobe, 890 F.3d at 378. When the 8 burden has shifted, the non-moving party must show that there are genuine issues of material 9 fact as to whether an exception or defense to statutory liability applies to avoid summary 10 judgment, but the party asserting the exception or defense would have the ultimate burden of 11 establishing that it applies at trial. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 153, 12 (1989) (Freedom of Information Act case); Green v. U.S., 630 F.3d 1245, 1248-49 (9th Cir. 13 14 2011) (Federal Tort Claims Act case). 15 The issue, then, is whether the “captive lynx” provision defines the scope of the ESA 16 protections plaintiff seeks to enforce or is an affirmative defense or exception to liability. FWS 17 has determined that Canada lynx in the contiguous United States are threatened wherever found. 18 50 C.F.R. § 17.11(k). The form and extent of the protection provided to Canada lynx under the 19 20 ESA is set forth in the special rules for mammals at 50 C.F.R. § 17.40(k) and varies depending 21 on whether the lynx is wild or captive. Wild lynx are entitled to the full panoply of the 22 prohibitions and provisions of 50 C.F.R. § 17.31 and § 17.32, including the prohibition against 23 taking without a permit. 50 C.F.R. § 17.40(k)(2). A captive Canada lynx, on the other hand, is 24 generally not protected from taking under the ESA as long as it was lawfully obtained. 50 C.F.R. 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 § 17.40(k)(4). FWS reasoned that “captive-bred specimens have neither a positive nor negative 2 effect on the species in the wild” and chose to rely on an international treaty for the regulation of 3 trade for captive lynx rather than the ESA itself. Determination of Threatened Status for the 4 Contiguous U.S. Distinct Population Segment of the Canada Lynx and Related Rule, 65 FR 5 16052-01, 16084 (Mar. 24, 2000). Thus, proof that an animal is a Canada lynx is insufficient to 6 7 identify the protections to which the animal is entitled. Because the regulatory scheme does not 8 create a presumption that a particular animal is wild or captive, plaintiff must make that showing 9 before it can establish that an ESA violation has occurred. Plaintiff has failed to offer any 10 evidence that Purrsia was born in the wild or otherwise falls outside of the definition of a captive 11 lynx.5 12 Plaintiff argues that, even if Purrsia is a “captive lynx,” the ESA incorporates “applicable 13 14 State and tribal laws and regulations,” making a “[v]iolation of State or tribal law . . . a violation 15 of the Act.” 50 C.F.R. § 17.40(k)(5) (responding to the question “[a]re any activities not allowed 16 or restricted for captive lynx?”). Plaintiff’s claim that defendants have violated Washington’s 17 animal cruelty laws with regards to Purrsia is discussed below in Section C. Defendants 18 argument that the reference to “State or tribal law” in subsection (5) refers to the transportation 19 20 and shipping regulations mentioned in subsection (4)(iii) is unpersuasive. The subsection (5) 21 reference is limited only by the term “applicable,” and the fact that subsection (4)(iii) deals with 22 issues of interstate commerce has no bearing on the scope of subsection (5)’s command that one 23 24 25 5 In light of this ruling, the Court need not determine whether paragraph 22 and/or Exhibits M and N to the Beebe declaration are admissible. 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 comply with “applicable State and tribal laws and regulations” when handling captive lynx. 2 Thus, to the extent plaintiff’s state law claim regarding Purrsia survives, the ESA claim would 3 likewise survive. 4 2. “Take” of Protected Animals 5 The term “take” is defined in the ESA as “harass, harm, pursue, hunt, shoot, wound, kill, 6 7 trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). 8 The terms “harm” and “harass” are relevant here. The term “harm” is defined as “an act which 9 actually kills or injures wildlife. Such act may include significant habitat modification or 10 degradation where it actually kills or injures wildlife by significantly impairing essential 11 behavioral patterns, including breeding, feeding or sheltering.” 50 C.F. R. § 17.3. The term 12 “harass” means “an intentional or negligent act or omission which creates the likelihood of 13 14 injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral 15 patterns which include, but are not limited to, breeding, feeding, or sheltering. This definition, 16 when applied to captive wildlife, does not include generally accepted: 17 (1) Animal husbandry practices that meet or exceed the minimum standards for 18 facilities and care under the Animal Welfare Act, 19 20 (2) Breeding procedures, or 21 (3) Provisions of veterinary care for confining, tranquilizing, or anesthetizing, 22 when such practices, procedures, or provisions are not likely to result in injury to 23 the wildlife. 24 50 C.F.R. § 17.3. The term “harass” has “a different character when applied to an animal in 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 captivity than when applied to an animal in the wild.” People for the Ethical Treatment of 2 Animals, Inc. v. Miami Seaquarium, 189 F. Supp.3d 1327, 1350 (S.D. Fla. 2016). The regulatory 3 definition of “harass” is intended “to exclude proper animal husbandry practices that are not 4 likely to result in injury from the prohibition against “take.” Captive-bred Wildlife Regulation, 5 63 FR 48634-02, 48636 (Sept. 11, 1998).6 6 7 a. Grizzly Bears 8 Plaintiff asserts that defendants have harmed and harassed its grizzly bears “by, among 9 other things, (1) housing them in muddy cheatgrass-infested pens and then failing to provide 10 11 12 6 FWS reasoned that the purposes of the ESA are “best served by conserving species in the wild along with their ecosystems.” Captive animals, the FWS noted, are “removed from their natural 13 ecosystems and have a role in survival of the species only to the extent that they maintain genetic integrity.” Id. 14 15 It is true that the Act applies to all specimens that comprise a “species” (as defined in the Act) that has been listed as endangered or threatened, and in general does not distinguish 16 between wild and captive specimens thereof. However, the definition of “take” in the Act clearly applies to individual specimens or groups of specimens, and the captive or 17 non-captive status of a particular specimen is a significant factor in determining whether 18 particular actions would “harass” that specimen or whether such actions would “enhance the propagation or survival” of the species. 19 To decide otherwise would place those persons holding captive specimens of a listed 20 species in an untenable position. If providing for the maintenance and veterinary care of a live animal were considered to be “harassment”, those persons holding such specimens in 21 captivity would be forced to obtain a permit or give up possession since any failure to 22 provide proper care and maintenance would be an unlawful “taking”. Since Congress chose not to prohibit the mere possession of lawfully-taken listed species in section 23 9(a)(1) of the Act, the Service believes that congressional intent supports the proposition that measures necessary for the proper care and maintenance of listed wildlife in captivity 24 do not constitute “harassment” or “taking”. 25 Id. 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 them with adequate vet care for their grossly infected cheatgrass wounds; (2) withholding 2 regular meals and pain medication for severe arthritis in favor of tourists feeding the bears 3 excessive amounts of bread, which only compounds their obesity and joint pain and 4 inflammation; and (3) anesthetizing bears without a vet present and without critical monitoring 5 and support.” Dkt. # 192 at 9. Defendants argue that the Court lacks jurisdiction over the 6 7 cheatgrass, veterinary/medical care, and anesthesia claims because plaintiff failed to give written 8 notice of these violations. Defendants argue that the sole remaining claim regarding the feeding 9 of bread fails because the practice does not violate the Animal Welfare Act (“AWA”), 7 U.S.C. 10 § 2131, et seq. Although the jurisdictional argument was not raised in defendants’ motion, it was 11 asserted in opposition to plaintiff’s motion for summary judgment, and plaintiffs have had an 12 opportunity to reply. The Court therefore considers the issue here. 13 14 The ESA requires citizen-plaintiffs to provide notice of a violation at least sixty days 15 prior to filing suit. 16 U.S.C. § 1540(g)(2)(A)(i). The Ninth Circuit has identified two purposes 16 for the notice provision: it gives the government a chance to take responsibility for enforcing the 17 applicable statute, and it gives the alleged violator a chance to bring itself into compliance. 18 Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 650 (9th Cir. 2015). In order to 19 20 fulfill these purposes, the notice must, “[a]t a minimum ... provide sufficient information ... so 21 that the [notified parties] could identify and attempt to abate the violation.” Sw. Ctr. for 22 Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 522 (9th Cir. 1998). Although 23 the notice need not list every detail, instance, or aspect of a violation (Cmty. Ass’n for 24 Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir. 2002)), an 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 examination of the notice as a whole (Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 2 1996)) along with the behavior of the recipients (Natural Res. Def. Council v. Sw. Marine, Inc., 3 236 F.3d 985, 997 (9th Cir. 2000)) must show that the notice provided enough information that 4 the defendant could “identify and address the alleged violations, considering the defendant’s 5 superior access to information about its own activities” (Klamath-Siskiyou Wildlands Ctr., 797 6 7 F.3d at 651). 8 Plaintiff’s notice letter, dated September 27, 2018, includes a general allegation that 9 defendants “are violating the ESA’s prohibition against ‘take’ of members of listed endangered 10 and threatened species by harming and/or harassing numerous animals at the Game Farm.” Dkt. 11 # 148-9 at 2. That allegation, standing alone, is clearly insufficient. See Klamath-Siskiyou 12 Wildlands Ctr., 797 F.3d at 653. More specifically, plaintiff asserts that: 13 14 protected species are kept in cramped and squalid conditions and are deprived of 15 psychological and social enrichment; 16 brown bears are given unrestricted access to bread, an improper food source; 17 the manner in which brown bears are fed lacks challenge, leaving the bears 18 purposeless; 19 20 the small, barren enclosures in which brown bears are housed frustrate the bears’ 21 natural behaviors, are unprotected from the heat, and cause stress; and 22 a brown bear had a 5" gash below its shoulder blade and perpendicular to its 23 spine in September 2018. 24 Dkt. # 148-9 at 3, 10-11. There is no mention of cheatgrass or related wounds, the withholding 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 of meals or medications, or improper anesthetizations. The allegations regarding the size and 2 barrenness of the bears’ enclosures would not, as plaintiff would have it, provide adequate notice 3 that the enclosures have too much of something, such as cheatgrass. Similarly, a description of a 4 wound that appears to be wholly unrelated to cheatgrass does not give notice of a claim of 5 infected cheatgrass wounds (or even of a general failure to provide veterinary care). Id. 6 7 Defendants could not, based on the notice letter, reasonably be expected to anticipate most of the 8 violations that are now being claimed. The one exception is the bread-feeding allegation. The 9 notice clearly identifies bread as an improper food source for brown bears and alleges on-going, 10 unrestricted, and regular feedings of bread. The Court therefore has jurisdiction to hear that 11 claim. 12 Defendants argue that they are entitled to summary judgment on the bread-feeding claim 13 14 because the practice satisfies the general standards for humane care and treatment that must be 15 provided for animals exhibited to the public under the AWA. The argument is premised on an 16 incorrect legal analysis. Defendants seek to convert an agency finding of compliance with one 17 statute into a determination that there is no ESA liability. But in order to fall within the first 18 “captive wildlife” exclusion in the definition of “harass,” the ESA requires both AWA 19 20 compliance and that the animal husbandry practices be “generally accepted.” See Hill v. 21 Coggins, 867 F.3d 499, 509-10 (4th Cir. 2017). While an agency determination that a laboratory, 22 zoo, or pet owner is in compliance with the AWA is certainly evidence that the challenged 23 animal husbandry practice is generally accepted and “meet[s] or exceed[s] the minimum 24 standards for facilities and care under the [AWA]” (50 C.F.R. § 17.3), the court must 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 independently evaluate the animal husbandry practices for purposes of an ESA claim when 2 conflicting evidence is presented (Graham v. San Antonio Zoological Society, 261 F. Supp.3d 3 711, 743-44 (W.D. Tex. 2017)).7 4 It is plaintiff’s burden to show that the AWA’s minimum standards were not met and/or 5 that defendants’ conduct did not fall within generally accepted animal husbandry practices. Hill, 6 7 867 F.3d at 510; Graham, 261 F. Supp.3d at 741. When offering a standard other than the AWA 8 against which defendants’ conduct is to be measured, plaintiff must show that it has been 9 “generally accepted,” meaning that it applies to the care or facilities at issue and that it has been 10 widely adopted and accepted. See Hill, 423 F. Supp.3d at 221 (following remand from the Fourth 11 Circuit). 12 Defendants assert that their bears “are fed a species appropriate diet - comprised mainly 13 14 of meat, grains, fruit, and berries - that is approved by Olympic Game Farm’s attending 15 veterinarians and meets the requirements of the Animal Welfare Act.” Dkt. # 126 at 21. There 16 are factual disputes regarding virtually all of these assertions. First, there is evidence that bread 17 comprised a substantial portion of the calories given the bears during the tourist season, to the 18 point that other meals were curtailed. Second, there is evidence that the veterinarians did not 19 20 7 Defendants cite two district court decisions for the proposition that a judicial determination of 21 whether they complied with the ESA is unconstitutional and would substitute the judgment of a federal 22 court for the technical expertise of the responsible agency. Dkt. # 126 at 20 n.103. The decision out of the Western District of North Carolina, while noting constitutional vagueness concerns, was ultimately 23 able to interpret and apply the “generally accepted” standard in keeping with the Fourth Circuit’s direction and constitutional requirements. Hill v. Coggins, 423 F. Supp.3d 209, 219-21 (W.D.N.C. 24 2019). The Court finds that the decision in People for the Ethical Treatment of Animals, Inc. v. Miami 25 Seaquarium, 189 F. Supp.3d 1327 (S.D. Fla. 2016), is unpersuasive for the reasons stated in Graham, 261 F. Supp.3d at 741-43. 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 know how much bread the bears were eating and therefore could not have approved a diet of 2 which they were ignorant. Finally, there is evidence that the practice was not acceptable under 3 the AWA, even if there were no specific regulatory prohibitions. Plaintiff offers the USDA 4 inspector’s 2014 report which “strongly advised” defendants to immediately begin “a gradual 5 transition to a more species appropriate snack,” suggesting vegetables, grain, or forage in place 6 7 of the bread. Dkt. # 148-38 at 3. Although there was no regulatory standard to cite, the practice 8 was clearly not acceptable to the inspector. One of plaintiff’s veterinarian experts explains that 9 feeding bears unrestricted amounts of bread (i.e., rapidly digestible starch) “contributes to 10 insulin resistance, obesity, diabetes, and arthritis due to its pro-inflammatory properties.” Dkt. 11 # 159 at ¶ 62. Obesity, Dr. Harrenstien further opines, aggravates arthritis and contributes to 12 cardiovascular stress, and the heavy reliance on bread as a food source during the tourist season 13 14 reduces the opportunities for administering medications for these conditions Id. at ¶¶ 62 and 15 78.8 Relying solely on the fact that no AWA citation was issued regarding the feeding of bread, 16 defendants offer no rebuttal to this evidence. In the context presented here, plaintiff has raised an 17 inference that feeding unrestricted bread to bears (especially if, in fact, the feeding was used to 18 reduce the animals’ daily dietary provisions and interfered with their recommended medication 19 20 schedules) is neither generally accepted nor AWA compliant. 21 b. Wolves 22 With regards to the Olympic Game Farm wolves, defendants assert that “[t]he enclosures, 23 24 25 8 Defendants object to Dr. Harrenstien’s opinions regarding the effects of a bread-based diet as duplicative of opinions offered by Dr. Johnson. Dkt. # 142 at 20. The objection is overruled. 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 shelters, care, and living conditions provided to the wolf-dog hybrids meet or exceed the 2 requirements of the Animal Welfare Act.” Dkt. # 126 at 21. As discussed above, however, 3 compliance with the AWA does not foreclose the possibility of an ESA violation. Defendants 4 have not, therefore, shown that they are entitled to judgment as a matter of law with regards to 5 the wolf-related ESA claim. 6 7 c. Lions 8 Plaintiff alleges that the Olympic Game Farm lions are (a) kept in enclosures that are only 9 20% of the minimum size generally accepted by zoo professionals and lion experts and are too 10 cold and too hard to stave off obesity and arthritis, (b) deprived of treatment for their joint 11 disease, and (3) subjected to unsafe food preparation and feeding practices. Dkt. # 192 at 15-16. 12 Of these complaints, the 60-day notice letter mentions only the size and temperature of the 13 14 enclosures. Dkt. # 148-9 at 6-7. The Court therefore lacks jurisdiction over the other claims. 15 With regards to the size and temperature of the lion enclosure, there is no evidence that 16 defendants violated the minimum standards for facilities under the AWA. Plaintiff must 17 therefore identify a relevant “generally accepted” standard with which defendants arguably 18 failed to comply. It has not done so. Plaintiff relies solely on the Association of Zoos and 19 20 Aquariums (“AZA”) Lion Species Survival Plan to establish a size standard of 10,000 square 21 feet for lion enclosures and a supplemental heat requirement whenever temperatures drop below 22 50 F. Dkt. # 148-9 at 6-7; Dkt. # 195 at ¶ 9. Plaintiff does not, however, assert or attempt to 23 show that an organization with the stated goal of promoting its accreditation “as the standard of 24 excellence in the zoo and aquarium profession” (https://www.aza.org/strategic-plan) has instead 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 set forth a plan that is “generally accepted.” As described in Hills v. Coggins on remand, the 2 AZA is an elite, voluntary, zoological association: less than 10% of USDA-licensed exhibitors 3 are accredited by the organization. Plaintiff does “not explain how standards that are met by so 4 small a minority of exhibitors” and which are represented to be the standard of excellence to 5 which zoos and aquariums should aspire reflect “generally accepted” animal husbandry 6 7 practices. 423 F. Supp.3d at 222. Plaintiff has not raised a genuine issue of material fact 8 regarding the size and temperature of the lion enclosure for purposes of the ESA.9 9 d. Tigers 10 Plaintiff asserts that defendants failed to provide adequate veterinary care to their tigers as 11 required by 9 C.F.R. § 2.40, foregoing annual and semi-annual examinations, delaying or failing 12 to report symptoms, relying on veterinarians with limited experience with tigers, failing to 13 14 perform diagnostic tests, refusing to follow treatment recommendations, anesthetizing cats 15 without veterinarian supervision, and shooting (rather than euthanizing) one of its cats. Plaintiff 16 also asserts that the tiger enclosures are small and barren, that the concrete floors exacerbate 17 joint problems in the big cats, that the tigers are fed donated horse and cow carcasses, and that 18 19 20 9 Plaintiff has not offered a separate analysis showing that defendants “harmed” the captive lions. As discussed in the text, the term “harm” is defined as “an act which actually kills or injures wildlife. 21 Such act may include significant habitat modification or degradation where it actually kills or injures 22 wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F. R. § 17.3. While it is possible for a zoo to “harm” its animals even if it has not 23 “harassed” them, Graham, 261 F. Supp.3d at 746, FWS has stated “that measures necessary for the proper care and maintenance of listed wildlife in captivity do not constitute "harassment" or “taking.” 24 Captive-bred Wildlife Regulation, 63 FR 48634-02, 48636 (Sept. 11, 1998) (emphasis added). Having 25 failed to make a separate argument regarding “harm,” the Court will not guess at what plaintiff’s arguments might be in this respect. 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 defendants failed to provide adequate claw care (resulting in the claws growing into the foot pad 2 and causing injury upon removal). Dkt. # 160 at 9-15. Of these complaints, the 60-day notice 3 letter mentions the size and lack of complexity of the enclosures, lameness attributable to and 4 exacerbated by inadequate flooring, and the failure to provide adequate care for a tiger, 5 Amadeus, as he failed and ultimately died. Dkt. # 148-9 at 8-9. The Court finds that, given 6 7 defendants’ better information regarding its care and treatment of Amadeus and the other cats, 8 the last allegation put defendants on notice that plaintiff was challenging the adequacy of the 9 veterinary care provided to tigers suffering from kidney disease. Dkt. # 160 at 9-10. The Court 10 lacks jurisdiction, however, over the feeding-of-carcasses claim and other lack of care 11 allegations. 12 Plaintiff has raised a genuine issue of fact regarding whether the veterinary care provided 13 14 to tigers suffering renal disease meets or exceeds the minimum standards for facilities and care 15 under the AWA. The relevant standards require, among other things, that an exhibitor of animals 16 “have an attending veterinarian who shall provide adequate veterinary care to its animals” and 17 conduct regularly scheduled visits, give the veterinarian appropriate authority to provide 18 necessary care, use appropriate prevention, diagnostic, and treatment methods, and timely and 19 20 accurately report information to the veterinarian. 9 C.F.R. § 2.40. Plaintiff has provided evidence 21 from which one could reasonably infer that defendants failed to satisfy these standards by, inter 22 alia, failing to report known symptoms of kidney disease and failing to follow veterinarian 23 recommendations. This aspect of the ESA claim may therefore proceed. 24 With regards to the claims related to the size, construction, and barrenness of the tiger 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 enclosure, plaintiff relies solely on the AZA Tiger Species Survival Plan to establish the 2 minimum acceptable requirements regarding square footage, materials, and occupational interest 3 of the facilities. For the reasons stated above in Section A.2.c., plaintiff has failed to show that 4 the AZA’s standards of excellence, which have been adopted by a small minority of exhibitors, 5 reflect “generally accepted” animal husbandry practices. Defendants are entitled to summary 6 7 judgment on these claims. 8 3. “Possess” Protected Animals 9 The ESA prohibits the “tak[ing]” of any endangered or threatened species, and makes it 10 unlawful to possess any endangered or threatened species that has been unlawfully “taken” 16 11 U.S.C. § 1538(a)(1)(B) and (D). Defendants’ motion for summary judgment on this claim 12 presupposes a summary determination that they have not “taken” a protected species in violation 13 14 of the ESA. As discussed elsewhere in this Order, plaintiff has raised a triable issue of fact 15 regarding whether the feeding of unrestricted bread to bears, its housing and care of wolves, the 16 failure to provide adequate veterinarian care to tigers suffering from renal disease, and/or the 17 failure to provide timely and adequate care for Purrsia’s broken femur constitutes a “taking.” 18 Defendants are not entitled to summary judgment regarding possession for those claims. 19 20 B. Public Nuisance 21 Washington’s nuisance law has been codified at RCW 7.48, et. seq., and provides that a 22 nuisance constitutes “unlawfully doing an act, or omitting to perform a duty, which act or 23 omission either annoys, injures or endangers the comfort, repose, health or safety of others, 24 offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public 2 park, square, street or highway; or in any way renders other persons insecure in life, or in the use 3 of property.” RCW § 7.48.120. “A public nuisance is one which affects equally the rights of an 4 entire community or neighborhood, although the extent of the damage may be unequal.” RCW 5 § 7.48.130. “A private person may maintain a civil action for a public nuisance, if it is specially 6 7 injurious to himself or herself but not otherwise.” RCW § 7.48.210. 8 Plaintiff argues that defendants’ violations of the ESA, Washington’s ESA, and/or 9 Washington’s cervid laws “supply a predicate for a public nuisance action.” Dkt. # 192 at 19 10 (quoting Animal Legal Defense Fund v. Olympic Game Farm, Inc., 387 F. Supp.3d 1202, 1207 11 (W.D. Wash. 2019) (“ALDF I”) (Judge Leighton’s order denying defendants’ motion to dismiss 12 the public nuisance claim)). In essence, plaintiff is arguing either that the conduct of a business 13 14 in violation of governing laws and regulations is a nuisance per se or that the violation of animal 15 protection laws is a public nuisance because it interferes with public morals. There are cases 16 from other jurisdictions that might support such claims. See, e.g., Animal Legal Defense Fund v. 17 Special Memories Zoo LLC, No. 20-C-216, 2021 WL 101121, at *1-2 (E.D. Wis. Jan. 12, 2021) 18 (in light of defendants’ default, “the Court hereby finds that the defendants did violate the ESA 19 20 and that the operation of the zoo constituted a nuisance”); Collins v. Tri-State Zoological Park of 21 W. Md., 514 F. Supp.3d 773, 780 (D. Md. 2021) (“Maryland has historically recognized a public 22 nuisance claim where a defendant’s business operations involve dereliction of public morals.”); 23 Penn. Soc’y for Prevention of Cruelty to Animals v. Bravo Enters. Inc., 237 A.2d 342, 348 (Pa. 24 1968) ((“A legislative proscription, such as that found in the cruelty to animals statute, is 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 declarative of the public policy and is tantamount to calling the proscribed matter prejudicial to 2 the interests of the public. Injury to the public is the essence of public nuisance. Therefore, 3 [defendant’s] activities are properly enjoinable as being contrary to law and prejudicial to the 4 interests of the public.”) (internal citation omitted). None of these cases applies Washington law, 5 however, and plaintiff has not attempted to show that RCW 7.48, et seq., has been or could be 6 7 stretched so far as to make the conduct of which they complain a public nuisance. 8 The Washington law cited by plaintiff relates almost exclusively to violations of 9 environmental laws involving the discharge of pollutants into waterways. Such conduct has long 10 been considered a nuisance in Washington, see Miotke v. City of Spokane, 101 Wn.2d 307, 329 11 (1984) (discharge of raw sewage into a river) and Tiegs v. Boise Cascade Corp., 83 Wn. App. 12 411, 416 (1996) (release of pollutants into an aquifer), and RCW § 7.48.140(2) makes clear that 13 14 “to corrupt or render unwholesome or impure the water of any . . . spring, stream, pond, lake, or 15 well, to the injury or prejudice of others” is a public nuisance. Other types of conduct that the 16 legislature deems a public nuisance includes the placement of dead animals “in any place to the 17 prejudice of others,” the obstruction of waterways, roads, or public transportation, the 18 manufacture or storage of explosives “within fifty rods” of another building, the conduct of a 19 20 business that emits offensive smells or is otherwise dangerous to public health, the use of 21 premises for the illegal sale of wine, beer, or liquor, and the failure to cover or fence off holes 22 that are at least ten inches wide at the top and at least four feet in depth (unless the hole is open 23 and obvious). RCW § 7.48.140. All of the conduct that the legislature has identified as a public 24 nuisance adversely impacts land, the use and enjoyment of property, or public health and safety. 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 “Although Washington courts have allowed other actions or inactions to form the basis of a 2 public nuisance claim, this enumerated list is instructive because it confirms the legislature was 3 conforming public nuisance to accepted and known public threats.” ALDF I, 387 F. Supp.3d at 4 1205. See Kitsap County v. Kev, Inc., 106 Wn.2d 135, 139-40 (1986) (finding that “[a]lmost 5 daily violations of controlled substances and prostitution laws” interferes with the comfort, 6 7 repose, health, and safety of the neighborhood and was a public nuisance); Kitsap County v. 8 Kitsap Rifle & Revolver Club, 184 Wn. App. 252 (2014) (affirming trial court’s finding that the 9 operation of a shooting range near residential neighborhoods substantially and unreasonably 10 interfered with the neighbors’ use and enjoyment of their properties and were therefore a public 11 nuisance). It is undoubtedly true that conduct that violates a statute or regulation may constitute a 12 public nuisance, but merely establishing such a violation is rarely enough. RCW § 7.48.140(6) 13 14 and (8) specify two types of unlawful activity that are deemed a public nuisance - establishing a 15 gun powder magazine at a place other than that designated by the governing municipal 16 authorities and maintaining a place where intoxicating beverages are sold in contravention of the 17 law. By negative implication, other statutory or regulatory violations are public nuisances only if 18 they fall within the traditional concepts of nuisance law. 19 20 Washington cases consistently evaluate a claim of nuisance by determining whether the 21 conduct interferes with the use and enjoyment of property or creates a public hazard. See Tiegs v. 22 Watts, 135 Wn.2d 1, 13 (1998) (“An actionable nuisance must either injure the property or 23 unreasonably interfere with enjoyment of the property.”); Grundy v. Thurston County, 155 24 Wn.2d 1, 6 (2005) (a nuisance is “a substantial and unreasonable interference with the use and 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 enjoyment of land”); Puget Sound Traction, Light & Power Co. v. Grassmeyer, 102 Wash. 482, 2 490 (1918) (“This franchise is property, and any unlawful interference therewith is actionable.”); 3 Kitsap Rifle & Revolver Club, 184 Wn. App. at 279 (“A nuisance exists if there has been a 4 substantial and unreasonable interference with the use and enjoyment of property.”) See also 5 RCW § 7.48.010 (“[W]hatever is injurious to health or indecent or offensive to the senses . . . so 6 7 as to essentially interfere with the comfortable enjoyment of the life and property, is a 8 nuisance”). “In so far as a general rule can be formulated, the enjoyment of one’s premises must 9 be sensibly diminished, either by actual tangible injury to the property itself, or by the promotion 10 of such physical discomforts as detract sensibly from the ordinary enjoyment of life.” Crawford 11 v. Cent. Steam Laundry, 78 Wash. 355, 357 (1914). While there is language in Kitsap County v. 12 Kev, Inc., 106 Wn.2d at 139, that suggests that mere operation of a business in violation of a law 13 14 that regulates or prohibits the conduct is a nuisance per se, the case on which the Supreme Court 15 relied for that proposition, King County ex rel. Sowers v. Chisolm, 33 Wn. App. 809 (1983), did 16 not involve a nuisance claim. Rather, the ordinance that was violated in Chisolm specifically 17 authorized injunctive relief to remedy violations, “indicat[ing] a decision by the legislative body 18 that the regulated behavior warrants enjoining, and that the violation itself is an injury to the 19 20 community.” Id. at 818-19. The Washington Supreme Court has since clarified that simply 21 showing that the challenged conduct is unlawful does not establish a nuisance per se. Despite the 22 “expansive definition” of nuisance in RCW § 7.48.120 that refers to “unlawfully doing an act,” 23 the court noted that an activity is generally considered a nuisance “only when it ‘interferes 24 unreasonably with other persons’ use and enjoyment of their property.’” Id. at 155 (quoting 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 Tiegs v. Watts, 135 Wn.2d 1, 13 (1998)). Although there is a wide range of landowner conduct 2 that could run afoul of state or local law, where neither the legislature nor the courts has seen fit 3 to declare the conduct to be a nuisance per se, “it will be considered a nuisance as a matter of 4 law only if that conduct interfere with others’ use and enjoyment of their lands.” Tiegs v. Boise 5 Cascase Corp., 83 Wn. App. 411, 418 (1996) (quoting 8 Thompson on Real Property, Thomas 6 7 Edition § 67.03(a)(1), at 94-95 (David A. Thomas ed., 1994)). 8 In the case before the Court, there is no indication that Olympic Game Farm’s operations 9 impair or threaten “the comfort, repose, health or safety of others . . . or in any way renders other 10 persons insecure in life, or in the use of property.” RCW § 7.48.120. Nor has plaintiff made any 11 effort to establish a moral nuisance, which under Washington law generally requires the 12 exhibition of lewd performances or the use of property for prostitution, illegal gambling, or the 13 14 manufacture, distribution, or ingestion of controlled substances. See RCW § 7.48.052. Plaintiff 15 has accused defendants of serious statutory violations, but they are entirely unrelated to 16 plaintiff’s use and enjoyment of property or to public health or safety. Absent some injury that 17 falls within Washington’s nuisance laws, the public nuisance claim fails. 18 C. Washington’s Animal Cruelty Laws 19 20 For purposes of this motion, the Court is concerned only with whether plaintiff’s have 21 raised a genuine issue of material fact regarding defendant’s alleged violation of state animal 22 cruelty laws with regards to the Canada lynx. See Section A.1.c. Plaintiff asserts that defendants 23 violated state law – and therefore the ESA – with regards to Purrsia by “knowingly, recklessly, 24 or with criminal negligence inflict[ing] unnecessary suffering or pain upon an animal” and/or 25 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 “knowingly, recklessly, or with criminal negligence . . . fail[ing] to provide the animal with 2 necessary . . . medical attention and the animal suffers unnecessary or unjustifiable physical pain 3 as a result of the failure . . . .” RCW § 16.52.207(1)(a) and (2)(a). Plaintiff has offered evidence 4 that, on September 7, 2016, Purrsia was anesthetized in order to treat an abscess on the cheek. 5 During that process, Purrsia’s femoral (thigh) bone fractured and the injury had to be surgically 6 7 repaired. Dkt. # 195 at ¶ 16. “Two weeks later, the bone pin used to stabilize the fracture was 8 coming out of the skin and the fracture site was infected with obvious pus.” Dkt. # 195 at ¶ 17. 9 Plaintiff’s expert opines that these complications were the result of (i) the choice of an 10 inappropriate type of internal fixation (a single bone pin with an external splint), (ii) the failure 11 to follow aseptic technique during surgery, and (iii) the failure to perform appropriate 12 postoperative monitoring. Id. At some point, an orthopedic surgeon recommended proceeding 13 14 with a second surgery to give better stability to the fracture: the surgery occurred three weeks 15 after the recommendation was made.10 Id. at ¶ 18. During the period in which Purrsia’s bone was 16 fractured, the animal was likely in extreme pain. During the healing process, Purrsia’s 17 movements and behaviors would have been restricted. Id. Dr. Harrenstien opines that “[t]he 18 treatment provided for the lynx was insufficient and resulted in unnecessary suffering. Id. 19 20 Defendants, relying solely on their argument that the only state and tribal laws that matter 21 are those related to transportation, offer no alternative analysis of RCW § 16.52.207 or facts 22 regarding the delay in providing medical attention for Purrsia’s infected femur. Although it is 23 24 25 10 This interpretation of the evidence is not without doubt. Dr. Harrenstein states that “it was over three weeks before the second surgery occurred,” but it is not clear when the three-week period began. 26 27 ORDER GRANTING IN PART DEFENDANTS’ 1 not clear that mere negligence in providing veterinary care violates Washington’s animal cruelty 2 laws, in the absence of any countervailing argument or facts, plaintiff has raised a triable issue of 3 fact regarding this claim. 4 5 For all of the forgoing reasons, defendants’ motion for summary judgment is GRANTED 6 7 in part and DENIED in part. Plaintiff has raised a triable issue of fact regarding whether the 8 feeding of unrestricted bread to bears, the housing and care of wolves, the failure to provide 9 adequate veterinarian care to tigers for renal disease, and/or the failure to provide timely and 10 adequate care for Purrsia’s broken femur violates the ESA. All other aspects of plaintiff’s ESA 11 claims and the public nuisance claim are DISMISSED. 12 13 14 Dated this 8th day of March, 2022. 15 Robert S. Lasnik 16 United States District Judge

ORDER GRANTING IN PART DEFENDANTS’