6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 1 of 23
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF OKLAHOMA
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`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`–v–
`
`JEFFREY LOWE, LAUREN LOWE,
`GREATER WYNNEWOOD EXOTIC
`ANIMAL PARK, LLC, and TIGER KING,
`LLC,
`
`Defendants.
`
`Case No. 6:20-cv-00423-JFH
`
`PROPOSED INTERVENOR-PLAINTIFF PEOPLE FOR THE ETHICAL TREATMENT
`OF ANIMALS’ BRIEF IN SUPPORT OF MOTION TO INTERVENE
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`

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`6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 2 of 23
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`Table of Contents
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`Statement of Compliance With LCvR 7.1(f) .................................................................................. 1
`Preliminary Statement ..................................................................................................................... 1
`Factual Background ........................................................................................................................ 2
`Procedural Background ................................................................................................................... 3
`Argument ........................................................................................................................................ 6
`I.
`PETA is Entitled to Intervene As of Right........................................................................................ 6
`A.
`PETA’s Intervention Is Timely ........................................................................................... 6
`B.
`PETA Has Substantial Interests in This Proceeding ........................................................... 8
`1.
`PETA seeks to redress impairment of its mission ................................................. 8
`2.
`PETA has litigation interests at stake .................................................................... 9
`3.
`PETA has financial interests at stake ................................................................... 11
`The Disposition of This Case May Impair PETA’s Interests ........................................... 11
`1.
`PETA is entitled to redress impairment of its mission ........................................ 11
`2.
`PETA is entitled to protect its litigation interests ................................................ 12
`3.
`PETA is entitled to protect it is financial interests .............................................. 13
`PETA’s Interests Are Not Adequately Represented by the Existing Parties .................... 13
`1.
`The government presumptively represents varied stakeholders .......................... 13
`2.
`PETA is entitled to pursue its own litigation strategy ......................................... 16
`II. Alternatively, PETA Satisfies the Standards for Permissive Intervention ...................................... 17
`Conclusion .................................................................................................................................... 18
`
`D.
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`C.
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`– i –
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`

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`6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 3 of 23
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`Table of Authorities
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`Cases
`Big Cat Rescue Corp. v. Schreibvogel,
`No. CIV-16-155-SLP, 2020 WL 2842845 (W.D. Okla. June 1, 2020)..................................... 17
`Coal. of Arizona/New Mexico Ctys. for Stable Econ. Growth v. Dep’t of Interior,
`100 F.3d 837 (10th Cir. 1996) ............................................................................................ passim
`Kane Cty. v. United States,
`928 F.3d 877 (10th Cir. 2019) ............................................................................................ passim
`Nat’l Farm Lines v. Interstate Commerce Comm’n,
`564 F.2d 381 (10th Cir.1977) .......................................................................................... 6, 14, 16
`Natural Res. Def. Council v. United States Nuclear Regulatory Comm’n,
`578 F.2d 1341 (10th Cir.1978). ........................................................................................... 11, 13
`PETA v. Dade City’s Wild Things, Inc.,
`No. 8:16-CV-2899-T-36AAS, 2019 WL 245343 (M.D. Fla. Jan. 17, 2019) .............................. 3
`PETA v. Lauren Lowe,
`No. 5:20-CV-00612-PRW (W.D. Okl. Dec. 17, 2020) ............................................................. 11
`PETA v. Lowe, et al.,
`No. 5:20-CV-01076-D (W.D. Okla. Oct. 22, 2020) ........................................................... passim
`PETA v. Tri-State Zoological Park of W. Maryland, Inc.,
`424 F. Supp. 3d 404 (D. Md. 2019), aff’d, No. 20-1010, 2021 WL 305546 (4th Cir. Jan. 29,
`2021)...................................................................................................................................... 3, 17
`PETA v. United States Dep’t of Agric.,
`861 F.3d 502 (4th Cir. 2017). .................................................................................................... 14
`PETA v. Wildlife in Need and Wildlife in Deed, Inc., et al.,
`476 F. Supp. 3d 765 (S.D. Ind. Aug. 3, 2020) ................................................................... passim
`San Juan Cty., Utah v. United States,
`503 F.3d 1163 (10th Cir. 2007) ................................................................................................... 7
`United States v. Osage Wind, LLC,
`No. 14-CV-704-GKF-JFJ, 2020 WL 3578351 (N.D. Okla. July 1, 2020) .................................. 6
`Utah Ass’n of Ctys. v. Clinton,
`255 F.3d 1246 (10th Cir. 2001) .......................................................................................... passim
`W. Energy All. v. Zinke,
`877 F.3d 1157 (10th Cir. 2017) .......................................................................................... passim
`WildEarth Guardians v. National Park Service,
`604 F.3d 1192 (2010) .................................................................................................. 8, 9, 11, 13
`Statutes
`16 U.S.C. § 1540(g)(2) ............................................................................................................... 5, 7
`16 U.S.C. § 1540(g)(4) ........................................................................................................... 11, 12
`Rules
`Rule 12(b)(6), Federal Rules of Civil Procedure ............................................................................ 7
`Rule 24(a)(2), Federal Rules of Civil Procedure ................................................................ 8, 11, 12
`Rule 24(a), Federal Rules of Civil Procedure ................................................................. 2, 6, 17, 18
`Rule 24(b)(1)(B), Federal Rules of Civil Procedure ............................................................... 17, 18
`
`– ii –
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`

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`6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 4 of 23
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`Rule 24(b)(3), Federal Rules of Civil Procedure .......................................................................... 17
`Rule 24(b), Federal Rules of Civil Procedure ................................................................. 2, 6, 17, 18
`Rule 27(a)(2), Federal Rules of Civil Procedure ............................................................................ 5
`Rule 7.1(f), Local Civil Rules ......................................................................................................... 1
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`– iii –
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`

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`6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 5 of 23
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`Statement of Compliance With LCvR 7.1(f)
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`Proposed Plaintiff-Intervenor People for the Ethical Treatment of Animals, Inc. (“PETA”)
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`has fulfilled its obligation to meet and confer with counsel of record for Defendants and the
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`Plaintiff the United States of America under LCvR 7.1(f). Counsel for the United States, by
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`telephone conference and email (allowed under LCvR 7.1(f) given the significant distance between
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`offices of counsel), informed PETA that the United States does not oppose PETA’s requested
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`intervention, but reserves the right to move the Court to place any limits on PETA’s participation
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`it may deem reasonable and necessary. During an in-person meet and confer with counsel for
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`Defendants held Tuesday, April 20, 2021, counsel discussed the parties’ positions with respect to
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`the proposed intervention, after which counsel for Defendants informed PETA’s counsel that his
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`clients intend to oppose PETA’s motion to intervene, on grounds to be set out in their opposition.
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`Preliminary Statement
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`PETA is a non-profit dedicated to protecting animals from abuse, neglect, and cruelty. For
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`many years, this has meant confronting Jeffrey Lowe, Lauren Lowe, and their many business
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`partners and facilities through, among other means, fielding public complaints, conducting
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`investigations, submitting public records requests and regulatory complaints, publishing press
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`releases and other media content, coordinating public demonstrations, and prosecuting litigation
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`in Florida, Indiana, and Oklahoma.
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`These measures were necessitated by PETA’s mission. For years, Defendants have been
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`the hub of a national industry of hands-on interaction between members of the public and exotic
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`animals including lions, tigers, and hybrids thereof. As some of the highest profile exploiters and
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`abusers of animals, including those protected by the Endangered Species Act (“ESA”),
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`Defendants’ ongoing operations have significantly impaired PETA’s mission. In addition, Mr.
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`Lowe and Mrs. Lowe and their accomplices, many of whom are Defendants in this action, have
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`– 1 –
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`

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`6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 6 of 23
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`voluntarily interposed themselves in ongoing efforts by PETA to fight exploitation of captive
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`animals by other exhibitors—including litigation in the Southern District of Indiana and the Middle
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`District of Florida in which Defendants willfully made themselves required parties or subjects of
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`discovery because of their actions with respect to ESA-protected animals.
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`PETA had previously sent notice of its intent (“NOI”) to file a citizen suit under the ESA
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`to Defendants Jeffrey Lowe, Lauren Lowe, Greater Wynnewood Exotic Animal Park, LLC
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`(“GWEAP”), and Tiger King LLC, as well as Cheryl Scott, Eric Yano, Erik Cowie, and the Big
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`Cat Institute. As PETA’s claims against all recipients are now ripe, PETA satisfies the standards
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`for intervening in this proceeding as a matter of right pursuant to Rule 24(a) of the Federal Rules
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`of Civil Procedure or, in the alternative, should be granted leave to intervene under Rule 24(b).
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`Factual Background
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`PETA contends Defendants have unlawfully harmed, harassed, wounded, and caused the
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`death of animals, including many protected by the ESA, for years without meaningful
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`repercussion. See Drft. Verified PETA Compl., attached as Exhibit 1, at ¶¶ 13-158. These
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`practices have greatly impaired, and continue to greatly impair, PETA’s mission by, for example,
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`creating incorrect public impressions that these practices are humane, lawful, and tolerable. Id. at
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`¶ 162, 171. As a result, PETA’s mission has required it to, through the course of many years, divert
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`significant non-litigation resources to counteract this impairment. Id. at ¶¶ 163-164, 169-170.
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`These diversions include engaging in frequent monitoring of Defendants’ activities and practices;
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`submitting complaints and public records requests relating to Defendants’ practices to government
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`agencies; publishing media content about Defendants including blog posts, articles, fact sheets,
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`– 2 –
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`and press releases; reviewing and responding to complaints from members of the public about
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`Defendants; coordinating public demonstrations, and facilitating animal rescues. Id.
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`When necessary, that same mission obligates PETA to evaluate and consider litigation,
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`such as under the ESA’s citizen suit provision and public nuisance law. For example, PETA has
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`previously pursued successful litigation against exhibitors in the District of Maryland, the Middle
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`District of Florida, and the Southern District of Indiana. See, e.g., PETA v. Tri-State Zoological
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`Park of W. Maryland, Inc. (“Tri State”), 424 F. Supp. 3d 404 (D. Md. 2019), aff’d, No. 20-1010,
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`2021 WL 305546 (4th Cir. Jan. 29, 2021); PETA v. Wildlife in Need and Wildlife in Deed, Inc.
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`(“WIN”), et al., 476 F. Supp. 3d 765 (S.D. Ind. Aug. 3, 2020); PETA v. Dade City’s Wild Things,
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`Inc. (“DCWT”), No. 8:16-CV-2899-T-36AAS, 2019 WL 245343 (M.D. Fla. Jan. 17, 2019).
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`While Defendants were not anticipated subjects of these prior actions, they chose to insert
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`themselves into a number of them by taking possession of—and ultimately causing or contributing
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`to the harm, harassment, wounding, and deaths of—ESA-protected animals at issue in those cases,
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`in knowing contempt of the Federal Rules of Evidence and court orders. See, e.g., Ex. 1, at ¶¶ 166-
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`168. As a result, PETA has also been required, during the course of many years, to divert
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`significant resources to taking discovery from and litigating claims against Mr. and Mrs. Lowe
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`and their associates in the Middle District of Florida, the Southern District of Indiana, and the
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`Western District of Oklahoma. Id. Some of these actions, including proceedings against Mr. and
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`Mrs. Lowe, remain pending. Id.
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`Procedural Background
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`On September 21, 2020, PETA sent a NOI to file a citizen suit pursuant to the ESA to Mr.
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`Lowe, Mrs. Lowe, GWEAP, and Tiger King LLC. See Notice of Intent to File Citizen Suit, PETA
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`v. Lowe, et al., No. 5:20-CV-01076-D (W.D. Okla. Oct. 22, 2020) [Doc. No. 3-1,] also attached as
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`App. 1 to the Draft Verified PETA Complaint (“NOI Letter”). Other addressees of PETA’s NOI
`– 3 –
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`6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 8 of 23
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`were Cheryl Scott, Eric Yano, Erik Cowie, and the Big Cat Institute. Id. PETA’s NOI alleged past
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`and ongoing violations of the ESA with respect to lemurs, a grizzly bear, a jaguar, tigers, lions,
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`and tiger-lion hybrids (together with jaguar, tigers, and lions, “Big Cats”). Id.
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`The United States filed this action on November 19, 2020—59 days after PETA sent its
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`NOI. [Doc. No. 2.]
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`On October 22, 2020, while waiting for its ESA claims to ripen, PETA filed a Rule 27
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`petition to preserve existing evidence related to the endangered and threatened species in the
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`possession and control of Defendants and other respondents in the Western District of Oklahoma.
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`See R. 27 Petition, PETA v. Lowe, et al., No. 5:20-CV-01076-D (W.D. Okla. Oct. 22, 2020) [Doc.
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`No. 1] (“R. 27 Petition”). This action was necessitated, in large part, by Defendants’ prior actions
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`aiding and abetting attempted spoliation of Big Cats at issue in the Middle District of Florida and
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`in the Southern District of Indiana. Id. at 10-15.
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`PETA’s Rule 27 petition was granted following oral argument on November 30, 2020. See
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`Order, PETA v. Lowe, et al., No. 5:20-CV-01076-D (W.D. Okla. Nov. 30, 2020) [Doc. No. 27]
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`(“R. 27 Order”). Two weeks later, instead of taking steps to comply with the Court’s order, Mr.
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`and Mrs. Lowe moved to set it aside. See Mot. to Set Aside Court’s Nov. 30 Order, PETA v. Lowe,
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`et al., No. 5:20-CV-01076-D, (W.D. Okla. Dec. 16, 2020) [Doc. No. 31] (“Recons. Mot.”). This
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`motion was rejected on December 29, 2020. PETA v. Lowe, et al., No. 5:20-CV-01076-D, 2020
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`WL 7755657, at *2-*3 (W.D. Okla. Dec. 29, 2020). PETA conducted an inspection and took
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`depositions pursuant to the Western District of Oklahoma’s Rule 27 order on January 22-23, 2021.
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`On November 30, 2020, during oral argument with respect to PETA’s Rule 27 petition,
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`counsel for Defendants conceded that the United States’ action does not preclude PETA’s citizen
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`suit, see Tr. of Oral Arg. on R. 27 Petition, PETA v. Lowe, et al., No. 5:20-CV-01076-D (W.D.
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`– 4 –
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`Okla. Dec. 22, 2020) [Doc. No. 33-1,] (“Oral Arg. Tr.”), at 24:7-20, going so far as to say he would
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`move to consolidate it with the present case should PETA file in the Western District: “I was just
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`served today with the DOJ case from the Eastern District of Oklahoma. Obviously, as the Court is
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`aware, DOJ is requesting—it’s the same facts, exact same animals, same place. . . . And, obviously,
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`there is substantial—there could be—there’s substantial risk of contradicting judgments at the end
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`of the day. . . . [E]ven if [PETA’s citizen suit] weren’t dismissed, I would move to transfer it and
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`consolidate it to the Eastern District because, again, the Lowes shouldn’t have to pay for and
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`litigate two different lawsuits on the exact same thing. . . . So the point is there’s a lot of overlap.
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`And even if it weren’t dismissed, I would request that it be transferred and consolidated.” Oral
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`Arg. Tr., at 19:6-21:3.
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`Despite PETA’s best efforts, it was unable to send its NOI to all recipients in September
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`2020, as Mr. Yano never claimed the certified mailing. See Mot. for Recognition of Substitute
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`Service, PETA v. Lowe, et al., No. 5:20-CV-01076-D (W.D. Okla. Dec. 11, 2020) [Doc. No. 29]
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`(“Mot. for Substitute Service”). Nor was PETA able to, despite reasonable diligence, serve Mr.
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`Yano for the purposes of Rule 27(a)(2). Id. at 2-4. On December 29, 2020, the Western District of
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`Oklahoma approved PETA’s efforts as acceptable substitute service and appointed counsel for
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`Defendants, Daniel Card, to represent Mr. Yano consistent with Rule 27(a)(2). PETA v. Lowe, et
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`al., 2020 WL 7755657, at *1-*2. PETA sent Mr. Card the NOI for Mr. Yano’s benefit on
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`December 29, 2020. Dec. 29, 2020 email from A. Smith, attached as Exhibit 2.
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`As such, PETA’s ESA claims became ripe against all recipients of its NOI after March 1,
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`2021. 16 U.S.C. § 1540(g)(2). Should this Court choose not to grant leave for PETA to intervene
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`as a party plaintiff, PETA stands ready to file all of its claims as a standalone case. See Ex. 1.
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`– 5 –
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`

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`6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 10 of 23
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`Argument
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`Anyone shall be permitted to intervene in an ongoing action when, “[o]n timely motion . .
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`. [they] claim[] an interest relating to the property or transaction that is the subject of the action,
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`and is so situated that disposing of the action may as a practical matter impair or impede the
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`movant's ability to protect its interest, unless existing parties adequately represent that interest.”
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`Fed. R. Civ. P. 24(a). PETA easily meets these requirements, as well as the broader standards for
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`permissive intervention under Rule 24(b).
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`I.
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`PETA is Entitled to Intervene As of Right
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`This Circuit has “historically taken a liberal approach to intervention and thus favors the
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`granting of motions to intervene” provided the movant can meet the elements of Rule 24(a). Kane
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`Cty. v. United States, 928 F.3d 877, 890 (10th Cir. 2019). See also Utah Ass’n of Ctys. v. Clinton,
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`255 F.3d 1246, 1249 (10th Cir. 2001) (reversing denial of motion to intervene while observing
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`“[t]his circuit follows ‘a somewhat liberal line in allowing intervention.’” (quoting Nat’l Farm
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`Lines v. Interstate Commerce Comm’n, 564 F.2d 381, 384 (10th Cir.1977))).
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`This analysis remains unchanged where a movant is seeking to intervene as a plaintiff in
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`civil litigation brought by the United States. See, e.g., United States v. Osage Wind, LLC, No. 14-
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`CV-704-GKF-JFJ, 2020 WL 3578351, at *7 (N.D. Okla. July 1, 2020) (allowing intervention as
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`of right for private litigant as plaintiff). Likewise, this Circuit recognizes that intervention is
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`appropriate to vindicate the ESA citizen suit provision and ensure protection of listed species.
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`Coal. of Arizona/New Mexico Ctys. for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837,
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`840-46 (10th Cir. 1996).
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`A.
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`PETA’s Intervention Is Timely
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`Whether a motion to intervene is timely is determined by considering “all of the
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`circumstances,” including the “length of time since the applicant knew of his interest in the case,”
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`“prejudice to the existing parties,” “prejudice to the applicant,” and “the existence of any unusual
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`circumstances.” Kane Cty., 928 F.3d at 890-91. All of these factors weigh in favor of granting
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`PETA leave to intervene.
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`First, PETA’s motion to intervene and accompanying draft verified complaint against all
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`recipients of its NOI comes squarely within the range of time this Circuit deems timely. Ex. 2; 16
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`U.S.C. § 1540(g)(2). In a similar context, the 10th Circuit has suggested that non-profit
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`environmental conservation groups’ interval of “just over two months” after intervention became
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`possible was timely. W. Energy All. v. Zinke, 877 F.3d 1157, 1164-165 (10th Cir. 2017). See also
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`Kane Cty., 928 F.3d at 891 (interval of three months deemed timely).
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`Second, there is no prejudice to any party. As Defendants conceded, intervention serves
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`their own interests—if they cannot succeed in having PETA’s lawsuit dismissed under Rule
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`12(b)(6), it would be less burdensome for them to have it consolidated with the instant litigation
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`rather than face “two different lawsuits.” Oral Arg. Tr., at 19:6-21:3. There is also no prejudice to
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`the United States. The United States would not be “expose[d] . . . to any burden not inherent in the
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`litigation to which it has consented,” San Juan Cty., Utah v. United States, 503 F.3d 1163, 1174
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`(10th Cir. 2007), because PETA’s ESA and public nuisance claims implicate the same conduct
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`and the same animals that are at issue in the United States’ ESA and Animal Welfare Act (“AWA”)
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`claims. Rather, “every item of evidence” that PETA might present “is one that another party . . .
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`would undoubtedly have the right to present in the absence of [PETA],” even though PETA “may
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`in fact present matters that would not have been presented by other parties[.]” Id. And as the instant
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`litigation has only been pending since November 2020, the “relatively early stage of the litigation”
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`also supports the timeliness of PETA’s motion to intervene. Utah Ass’n of Ctys., 255 F.3d at 1251.
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`See also W. Energy All., 877 F.3d at 1165.
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`– 7 –
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`Finally, the unusual circumstances at hand favor PETA’s request to intervene while further
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`demonstrating Defendants’ lack of prejudice. Defendants’ own conduct has unnecessarily
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`prolonged PETA’s timeline for bringing its lawsuit. Mr. Yano’s refusal to accept the certified mail
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`PETA sent him in September 2020 required PETA to pursue a motion for substitute service. See
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`Mot. for Substitute Service, at 2-4; PETA v. Lowe, et al., 2020 WL 7755657, at *1-*2. PETA could
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`only be sure that Mr. Yano had adequate notice of its NOI via his newly-appointed counsel after
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`December 29, 2020. See Ex. 2. Mr. Lowe and Mrs. Lowe likewise unnecessarily prolonged the
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`resolution of PETA’s motion for recognition of substitute service for Mr. Yano and appointment
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`of Mr. Card as counsel by interposing an unsuccessful motion to set aside the Western District of
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`Oklahoma’s prior order. PETA v. Lowe, et al., 2020 WL 7755657, at *2-*3.
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`B.
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`PETA Has Substantial Interests in This Proceeding
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`Rule 24(a)(2) requires the applicant to “claim[] an interest relating to the property or
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`transaction that is the subject of the action[.]” This is not a rigid test, but “primarily a practical
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`guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible
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`with efficiency and due process[.]” Coal., 100 F.3d at 841 (internal citations omitted). Based on
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`this Circuit’s determination that a movant’s “record of advocacy for . . . protection” of animals
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`under the ESA “amounts to a direct and substantial interest . . . for the purpose of intervention as
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`of right,” id. at 841, PETA should easily meet the necessary threshold. See, e.g., WildEarth
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`Guardians v. National Park Service, 604 F.3d 1192, 1198 (2010) (“With respect to Rule 24(a)(2),
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`we have declared it indisputable that a prospective intervenor’s environmental concern is a legally
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`protectable interest.”)
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`1.
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`PETA seeks to redress impairment of its mission
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`As PETA alleges in the verified allegations of its draft complaint, its mission has caused it
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`to advocate for the animals under Defendants’ care for years. Ex. 1, at ¶¶ 159-173. Meanwhile,
`– 8 –
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`this action brought by the United States seeks similar declaratory and injunctive relief and to have
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`Defendants “relinquish possession of all their ESA-protected animals[.]” See, e.g., [Doc No. 2,] at
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`46. As addressed further below, PETA has a valid interest in redressing impairment of it mission—
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`elaborated at Ex. 1, at ¶¶ 159-173—by seeing that Defendants’ practices receive legal
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`condemnation and injunction and that all of the animals at issue are protected via surrender to
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`reputable facilities. See Coal., 100 F.3d at 841; WildEarth Guardians, 604 F.3d at 1198.
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`2.
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`PETA has litigation interests at stake
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`Defendants’ willful actions—including the physical taking of Big Cats at issue in litigation
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`against exhibitors in other federal jurisdictions, in violation of evidence preservation obligations
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`and orders—have also required PETA to engage in years of litigation against Defendants in the
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`Southern District of Indiana and the Western District of Oklahoma, and to take third party
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`discovery from Defendants in litigation in the Middle District of Florida. Ex. 1, at ¶¶ 165-168.
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`This prior litigation is further evidence of PETA’s substantial interest in this proceeding. See
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`W. Energy All., 877 F.3d at 1165 (“The conservation groups also have an interest in preserving the
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`Leasing Reform Policy that they spent years negotiating and litigating.”).
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`Prior rulings in this case have acknowledged some of PETA’s interests in this proceeding.
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`For example, this Court’s January 15, 2021 ruling on the United States’ motion for a preliminary
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`injunction recognized that allegations relating to four lions that are the subject of PETA’s litigation
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`in the Southern District of Indiana—and that are the subject of a pending summary judgment
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`motion in that case, see Br. in Supp. of Mot. for Summ. J., PETA v. WIN, et al., No. 4:17-cv-
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`00186-RLY-DML (S.D. Ind. Sept. 11, 2020), [Doc. No. 407] (“S.D. Ind. Summ. J. Mot.”)—are
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`also at issue in this matter. [Doc. No. 65,] at 11. PETA has a valid interest in ensuring that evidence
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`– 9 –
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`presented in this proceeding does not erroneously place any material facts presented in PETA’s
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`pending motion for summary judgment in dispute. See W. Energy All., 877 F.3d at 1165.
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`This Court’s ruling also cited the fact that “[the Southern District of Indiana] recently
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`issued an order rejecting the argument that Big Cat hybrids are not protected under the ESA.”
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`[Doc. No. 65,] at 9. Defendants chose to reserve their right to press this issue later rather than
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`addressing it in their pending motion to dismiss, see [Doc. No. 70,] and PETA has a valid interest
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`in preserving the precedent it has won—and may continue to win—against Defendants in other
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`jurisdictions on this point.1 See W. Energy All., 877 F.3d at 1165.
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`PETA also has an interest in holding Defendants accountable in this jurisdiction for
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`representations they have made in this proceeding that contradict positions they have taken in the
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`Southern District of Indiana. As PETA recently informed the Southern District of Indiana, records
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`produced by Defendants and entered as evidence in this proceeding contradict evidence, sworn
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`testimony, and assertions of counsel concerning the date of a lion’s death and the date of a break-
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`in at GWEAP, as well as other issues relevant to the merits of PETA’s pending summary judgment
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`motion against Mr. Lowe. See Mot. for Leave to File Supplemental Evidence, PETA v. WIN, et
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`al., No. 4:17-cv-00186-RLY-DML (S.D. Ind. Dec. 2, 2020), [Doc. No. 440] (“First S.D. Ind.
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`Supplemental Evidence Motion”); Mot. for Leave to File Supplemental Evidence, PETA v. WIN,
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`et al., No. 4:17-cv-00186-RLY-DML (S.D. Ind. March 2, 2021), [Doc. No. 441] (“Second S.D.
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`Ind. Supplemental Evidence Mot.”).
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`Defendants’ pending motion to dismiss also argues that the prevailing definitions of terms
`1
`defined by the AWA may implicate PETA. [Doc. 69,] at 8, 14. PETA stands ready to address this
`spurious argument at an appropriate juncture after it is granted leave to intervene.
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`6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 15 of 23
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`3.
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`PETA has financial interests at stake
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`Finally, PETA has a financial stake in this proceeding. Mrs. Lowe has been found in
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`contempt of an order issued in the Western District of Oklahoma to pay PETA $6,851.92. See
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`Order, PETA v. Lauren Lowe, No. 5:20-CV-00612-PRW (W.D. Okl. Dec. 17, 2020), [Doc. No.
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`17] (“Lauren Lowe Contempt Order”). Mrs. Lowe now owes PETA this amount as well as an
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`award of interest. Id. at 3. PETA also anticipates the success of its pending summary judgment
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`motion against Mr. Lowe in the Southern District of Indiana will result in a fee award under the
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`ESA’s fee shifting provision. 16 U.S.C. § 1540(g)(4) (under the ESA, a court “may award costs of
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`litigation (including reasonable attorney and expert witness fees) to any party, whenever the court
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`determines such award is appropriate”). To the extent the outcome of this matter may alter
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`Defendants’ financial status, PETA intends to pursue any available remedies to protect its own
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`interests.
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`C.
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`The Disposition of This Case May Impair PETA’s Interests
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`Rule 24(a)(2) requires a movant to show that “disposing of the action may as a practical
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`matter impair or impede the movant’s ability to protect its interest[.]” In this Circuit, “the question
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`of impairment is not separate from the question of the existence of an interest.” Utah Ass’n of
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`Ctys., 255 F.3d at 1253, citing Natural Res. Def. Council v. United States Nuclear Regulatory
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`Comm’n, 578 F.2d 1341, 1345 (10th Cir.1978). To satisfy this test, PETA need only meet “a
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`minimal burden,” and show that impairment is merely “possible” if intervention is denied. Kane
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`Cty., 928 F.3d at 891-92; W. Energy All., 877 F.3d at 1167; WildEarth Guardians, 604 F.3d at
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`1199; Utah Ass’n of Ctys., 255 F.3d at 1253.
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`1.
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`PETA is entitled to redress impairment of its mission
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`Disposition of this action is likely to adjudicate Defendants’ past, ongoing, and future
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`animal care practices and decide the permanent home of many animals in Defendants’ control. If
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`6:20-cv-00423-JFH Document 86 Filed in ED/OK on 04/28/21 Page 16 of 23
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`this action were to conclude without Defendants’ practices being declared in violation of the ESA
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`or otherwise subject to injunction, or if the animals at issue were to remain with Defendants or
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`relinquished to facilities that do not meet sufficient standards of humane and lawful conduct,
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`PETA’s interests—and mission—will continue to be impaired. Ex. 1, at ¶¶ 159-173. This more
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`than meets Rule 24(a)(2)’s standard. Coal., 100 F.3d at 841 (recognizing potential impairment to
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`movant’s ability to protect owls).
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`2.
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`PETA is entitled to protect its litigation interests
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`As referenced above, disposition of this action without PETA’s intervention may impair
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`PETA’s active litigation in the Southern District of Indiana, see [Doc. No. 65,] at 9, 11; Ex. 1, at
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`¶ 168; S.D. Ind. Summ. J. Mot.; First S.D. Ind. Supplemental Evidence Mot.; Second S.D. Ind.
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`Supplemental Evidence Mot., as well as PETA’s efforts to recover money owed as a result of
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`pending litigation. See Lauren Lowe Contempt Order; 16 U.S.C. § 1540(g)(4).
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`PETA’s interests would be further impaired if the outcome of this litigation alters the
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`interpretation of the ESA, including the definition of protected species and whether challenged
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`conduct amounts to a “take”—the prevailing interpretations of which result in significant part from
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`PETA’s recent legal victories, including in litigation involving Mr. Lowe. See, e.g., [Doc. No. 65,]
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`at 9. In addition, factual holdings with respect to whether Defendants harmed, harassed, wounded,
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`or engaged in conduct leading to the death of animals at issue both in this proceeding and in
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`PETA’s litigation in the Southern District of Indiana may also impair not only the outcome of that
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`c