Case 3:18-cv-06025-RSL Document 228 Filed 03/08/22 Page 1 of 30
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`ANIMAL LEGAL DEFENSE FUND,
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` Plaintiff,
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` v.
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`OLYMPIC GAME FARM, INC., et al.,
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` Defendants.
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`Cause No. C18-6025RSL
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION FOR
`SUMMARY JUDGMENT
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`This matter comes before the Court on “Defendants’ Motion for Summary Judgment.”
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`Dkt. # 126. Plaintiff alleges, among other things, that the owners and operators of an animal-
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`based attraction on the Olympic Peninsula have violated the federal Endangered Species Act
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`(“ESA”) by taking and possessing protected species and have created a public nuisance in
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`violation of Washington state law. Defendants seek a summary determination that its brown
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`bears, wolves, and Canada lynx are not listed species for purposes of the ESA, that it has not
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`harmed, harassed, or possessed any species in violation of the ESA, and that it is not a public
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`nuisance.
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`Summary judgment is appropriate when, viewing the facts in the light most favorable to
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`the nonmoving party, there is no genuine issue of material fact that would preclude the entry of
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`judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial
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`responsibility of informing the district court of the basis for its motion” (Celotex Corp. v.
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 1
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`Case 3:18-cv-06025-RSL Document 228 Filed 03/08/22 Page 2 of 30
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`Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that
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`show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving
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`party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to
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`designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S.
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`at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . .
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`and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of
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`Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact
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`genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the
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`“mere existence of a scintilla of evidence in support of the non-moving party’s position will be
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`insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th
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`Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose
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`resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion
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`for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In
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`other words, summary judgment should be granted where the nonmoving party fails to offer
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`evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. Am.
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`Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019).
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`Having reviewed the memoranda, declarations, and exhibits submitted by the parties and
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`taking the evidence in the light most favorable to plaintiff, the Court finds as follows:
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`A. Endangered Species Act
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`“The Endangered Species Act of 1973 . . . contains a variety of protections designed to
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`save from extinction species that the Secretary of the Interior designates as endangered or
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 2
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`Case 3:18-cv-06025-RSL Document 228 Filed 03/08/22 Page 3 of 30
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`threatened.” Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 690,
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`(1995). See also 16 U.S.C. § 1533; Tenn. Valley Auth. v. Hill, 437 U.S. 153, 159-60 (1978). The
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`ESA’s citizen suit provision permits “any person” to commence a civil suit to enjoin alleged
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`violations of the ESA or the regulations issued by the Fish and Wildlife Service (“FWS”) under
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`the Act’s authority. 16 U.S.C. § 1540(g)(1). Defendants argue that plaintiff’s ESA claims fail
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`because (1) some of the animals at issue are not designated as endangered or threatened and/or
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`(2) defendants have not harmed, harassed, or possessed any species in violation of the ESA.
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`1. Listed Species
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`a. Grizzly Bears
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`Defendants argue that its grizzly bears were born outside of the lower 48 states of the
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`United States and therefore do not fall within the relevant listing. The governing regulations list
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`the grizzly bear (Ursus arctos horribilis) as threatened in the “U.S.A., conterminous (lower 48)
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`States, except where listed as an experimental population” (50 C.F.R. § 17.11(h)) and provide
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`that “no person shall take any grizzly bear in the 48 conterminous states of the United States”
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`(50 C.F.R. § 17.40(b)(1)(i)(A)). Defendants argue, however, that because the term “grizzly bear”
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`is defined “as any member of the species Ursus arctos horribilis of the 48 conterminous States
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`of the United States” (50 C.F.R. § 17.40(b)(2)) (emphasis added), the bear at issue and all of its
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`ancestors must have been born in the lower 48 to fall within the listing. This construction of the
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`regulations puts more weight on the word “of” than it can bear and flies in the face of relevant
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`case law.
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`According to defendants, FWS used the word “of” to define and identify a “distinct
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 3
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`Case 3:18-cv-06025-RSL Document 228 Filed 03/08/22 Page 4 of 30
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`population segment” (“DPS”) of grizzly bears that were not only born in the lower 48, but that
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`were also descended from grizzly bears born in the lower 48. According to defendants, grizzly
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`bears born at Olympic Game Farm are not “of the 48 conterminous States” because one or more
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`of their ancestors haled from Alaska or Canada. This interpretation is unreasonable. When used
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`as a source identifier for a person or animal, “of” generally refers to that person or animal’s
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`place of birth or origin, not to the homeland of ancestors. To the extent defendants are arguing
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`that “of” requires that the grizzly be “originally from” or “born in” the lower 48, the
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`interpretation is not unreasonable, but “of” could just as easily mean that the animal was “found
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`or located in” the lower 48. Defendants offer no authority in support of their preferred
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`interpretation, and other regulatory provisions suggest they are incorrect. The actual listing, as
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`set forth above, states simply “U.S.A., conterminous (lower 48) States,” and the prohibition on
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`taking uses the phrase “in the 48 conterminous states of the United States” (emphasis added). In
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`announcing the listing, the FWS used the words “of” and “in” interchangeably, described the
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`species by reference to the three locations where they were then found in the conterminous
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`States, and sought “to protect any members of the species occurring elsewhere in the 48
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`conterminous States.” Amendment Listing the Grizzly Bear of the 48 Conterminous States as a
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`Threatened Species, 40 Fed. Reg. 31734, 31735 (July 23, 1975). There is no indication that
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`either Congress or FWS intended the choice of preposition to have the significant and
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`substantive impact defendants suggest. Nor is there any indication that FWS studied or made
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`findings that grizzlies located in the lower 48 that were born elsewhere (or that descended from
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`grizzlies that were born elsewhere) “qualify as separate ‘species' or otherwise qualify for
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 4
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`Case 3:18-cv-06025-RSL Document 228 Filed 03/08/22 Page 5 of 30
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`separate legal status under the [ESA].” Safari Club Int’l v. Jewell, 960 F. Supp.2d 17, 44
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`(D.D.C. 2013) (quoting 12–Month Findings on Petitions to Delist U.S. Captive Populations of
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`the Scimitar-horned Oryx, Dama Gazelle, and Addax, 78 Fed. Reg. 33,790, 33,797 (June 5,
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`2013)). The weight of the statutory and regulatory language therefore support an interpretation
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`of “of the 48 conterminus States” to mean “located or found in the 48 conterminus States.”
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`The relevant case law also supports this interpretation. ESA listings based on geographic
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`boundaries have been interpreted to refer to where an animal is found, not where it was born or
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`where its ancestors haled from. The Tenth Circuit has noted “the well-established fact [that]
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`individual animals can and do lose Endangered Species Act protection simply by moving about
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`the landscape.” Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1235 (10th Cir. 2000).
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`As amici, Environmental Defense Fund and others aptly summarize:
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`The line dividing protected and unprotected (or differently protected)
`populations is sometimes an international boundary (e.g., grizzly bears,
`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
`C.F.R. § 17.11(h) (1977)]), a state boundary (e.g., brown pelicans, which
`west of the Mississippi-Alabama state line are listed as endangered, while
`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
`which were once listed as endangered everywhere other than in three
`Louisiana parishes [40 Fed. Reg. 44412 (Sept. 26, 1975)]), a measure of
`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
`C.F.R. § 17.11(i)(1977), revised at 43 Fed. Reg. 6233 (Feb. 14, 1978)]), a
`point on the coast (e.g., coho salmon, which, if they spawn south of Cape
`Henry Blanco in Oregon are threatened, but which, if they spawn north of
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 5
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`Case 3:18-cv-06025-RSL Document 228 Filed 03/08/22 Page 6 of 30
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`the cape are unlisted [62 Fed. Reg. 24588 (May 6, 1997)]), a distance from
`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.
`12864 (March 5, 1993)]), or even a point on a river (e.g., least terns, which
`are endangered along the Mississippi River and its tributaries north of
`Baton Rouge, but south of Baton Rouge lack any ... protection [50 Fed.
`Reg. 21784, 21789 (May 28, 1995)]).
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`Indeed, the protection afforded the gray wolf itself depends on the
`geographic location (if an “endangered” wolf in Wisconsin crosses the
`border into Minnesota it becomes “threatened,” and therefore has fewer
`Endangered Species Act protections, 43 Fed. Reg. at 9611-12, codified at
`50 C.F.R. § 17.11(h)(1997)).
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`Id., at 1235 n.4. The Ninth Circuit, when considering a geographically-limited listing for gray
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`wolves, concurred:
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`[G]ray wolves are protected by the ESA based on where they are found, not where
`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.
`at 60,253 (discussing the probable “southern expansion of the Canadian wolf
`population” into Glacier National Park, where they are classified as endangered);
`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
`patterns); Ramsey v. Kantor, 96 F.3d 434, 438 (9th Cir. 1996) (shifting “legal
`regimes” for protected salmon through the course of their migration). Therefore,
`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
`States.
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 6
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`Case 3:18-cv-06025-RSL Document 228 Filed 03/08/22 Page 7 of 30
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`U.S. v. McKittrick, 142 F.3d 1170, 1173-74 (9th Cir. 1998).1
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`For purposes of the grizzly bear listing, the Court finds that “of” means “located or found
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`in.”2 Donald, Moxie, and the grizzly bears born at the Olympic Game Farm are therefore
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`protected from “taking” because they are located and found in the lower 48 states of the United
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`States.3
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`b. Gray Wolves
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`While this motion was pending, FWS’ final rule removing the gray wolf (Canis lupus)
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`from the endangered or threatened species list was vacated. Dkt. # 226 at 3-28 (Defenders of
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`Wildlife v. U.S. Fish and Wildlife Serv., C21-0344JSW (N.D. Cal. Feb. 10, 2022)). Defendants’
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`jurisdictional argument is therefore unavailing, and the Court rejects defendants’ place-of-origin
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`argument for the reasons set forth above.
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`Defendants also assert that the gray wolves at Olympic Game Farms are hybrids, having
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`crossed with domestic dogs at some undisclosed point in the past, and are therefore not protected
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`under the ESA. Defendants’ factual assertion is based on (a) transfer records related to Seth,
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`1 As a practical matter, this interpretation of the relevant regulatory provisions makes sense given
`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
`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.
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`2 Because the birth place of the bears is irrelevant to the ESA analysis, the Court need not resolve
`plaintiff’s objection to Robert Beebe’s assertion that the brown bears are Kodiaks.
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`3 Plaintiff has stipulated that Miska, Yuri, Tug, and Bella are not protected by the ESA.
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 7
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`Case 3:18-cv-06025-RSL Document 228 Filed 03/08/22 Page 8 of 30
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`Sam, Tonka, and Gracie (Dkt. # 136 at 50-56) and (b) expert testimony that Brutus, Jacob,4 Seth,
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`and Sam “are hybrid individuals (wolf-dog hybrids)” and that Tonka and Gracie “have little or
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`no hybridization with dogs . . .” Dkt. 128 at 9 and 21). There is no indication that any of the
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`wolves had a parent, grandparent, or even great-grandparent that was a dog. The transfer records
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`show that Seth, Sam, Tonka, and Gracie were all “High Content Wolfdogs,” and they were
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`clearly purchased by Olympic Game Farm to display as wolves, not as dogs or hybrids. The most
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`defendants’ expert can say is that the Olympic Game Farm wolves “may have some level of
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`domestic dog ancestry” (Dkt. # 128 at 21): the genome sequencing and principal component
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`analysis she performed suggests that the Olympic Game Farm wolves are most closely related to
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`wolves from Nunavut and Yellowstone (Dkt. # 128 at 21-23).
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`Defendants and their expert are using the term “hybrid” to mean a mixture of two distinct
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`genomes, regardless how far back in the past the actual event of hybridization occurred.
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`However, “[t]he most common definition in the field of population genetics for ‘hybrid’ is an
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`individual who is a 50-50 first generation cross.” Dkt. # 150 at 6; see also U.S. v. Kapp, 419
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`F.3d 666, 672 (7th Cir. 2005) (“Neither the ESA nor the regulations . . . refer specifically to
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`hybrids, which are crosses between listed and unlisted animals.”). While courts have been
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`willing to entertain the idea that a second generation individual (i.e., the offspring of a wolf and
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`a 50-50 first generation cross) is a hybrid that is not protected by the ESA (see Animal Legal
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`Defense Fund v. Fur-Ever Wild, No. C17-4496JNE-HB (D. Minn. June 13, 2019) (Hearing
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`4 Jacob is the full sibling of Brutus and the remaining gray wolves at Olympic Game Farm,
`namely Leah, Angie, Lily, Coco, and Ginger.
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 8
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`Transcript at Dkt. # 147-17); Kuehl v. Sellner, 161 F. Supp.3d 678, 689 (N.D. Iowa 2016)), there
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`is no support in the ESA, its legislative history, the implementing regulations, or case law for
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`defendants’ contention that a negligible amount of non-wolf genetic material from a distant
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`ancestor excludes an individual from the protections of the statute. If defendants were correct, an
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`animal’s status under the ESA could never be determined without a DNA analysis, and a
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`significant number, if not the vast majority, of organisms that are currently considered
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`endangered or threatened would lose their protection. The Court declines to adopt a definition of
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`“hybrid” that upends decades of regulatory and judicial enforcement of the act. Based on the
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`existing facts, the wolves at Olympic Game Farm are protected under the ESA.
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`c. Canada Lynx
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`Canada lynx are listed as threatened and protected by the ESA when found within the
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`lower 48 states of the United States. 50 C.F.R. § 17.11(h). It is undisputed that Olympic Game
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`Farm’s lynx, Purrsia, is a Canada lynx. Defendants assert, however, that Purrsia was born in
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`captivity and is therefore excepted from the “take” protections of the ESA. See 50 C.F.R.
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`§ 17.40(k)(4)(i) (“You may take lawfully obtained captive lynx without a permit.”). In support of
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`this assertion, defendants offer the declaration of Robert Beebe, the owner and president of
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`Olympic Game Farm, to show that Purrsia was obtained from Cindy Price of Belfair,
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`Washington, who, in turn, acquired the lynx from Bitterroot Bobcat & Lynx in Stevensville,
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`Montana, where she was born in captivity. Dkt. # 135 at ¶ 22. Exhibit N to the Beebe declaration
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`is a Montana Certificate of Interstate Movement showing that a 3-week old female lynx was
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`transferred from Stevensville to Belfair. The certification of health was signed on May 26, 2010.
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 9
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`Case 3:18-cv-06025-RSL Document 228 Filed 03/08/22 Page 10 of 30
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`Exhibit M is a U.S. Department of Agriculture (“USDA”) record of transport dated June 3, 2010,
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`indicating that Chris Price received a 1 pound female kitten born on May 14, 2010, from
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`Bitterroot Bobcat & Lynx/Barbara Roe. Exhibit L is a delivery receipt signed by Robert Beebe
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`on August 19, 2010, indicating that Olympic Game Farm had received a 20 pound female
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`Canada lynx from Cindy Price.
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`Plaintiff objects to consideration of this evidence, arguing that Robert Beebe has no
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`personal knowledge of the circumstances of Purrsia’s birth and that Exhibits M and N are
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`inadmissible hearsay and have not been properly authenticated. In response, defendants argue
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`that it is plaintiff’s burden to affirmatively prove that Purrsia was born in the wild, so the
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`inadmissibility of the evidence offered by defendants is irrelevant. In the American legal system,
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`“the ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims.”
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`Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) (citing 2 J. Strong, McCormick on
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`Evidence § 337, p. 412 (5th ed. 1999) (“The burdens of pleading and proof with regard to most
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`facts have been and should be assigned to the plaintiff who generally seeks to change the present
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`state of affairs and who therefore naturally should be expected to bear the risk of failure of proof
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`or persuasion”); C. Mueller & L. Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003) (“Perhaps the
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`broadest and most accepted idea is that the person who seeks court action should justify the
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`request, which means that the plaintiffs bear the burdens on the elements in their claims”)). In
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`the context of a statutory claim where Congress has not specified the party that bears the burden
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`of proof, courts usually assume without much analysis that plaintiffs bear the burden of
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`persuasion regarding the essential aspects of their claims unless a contrary statutory purpose is
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 10
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`apparent. Id., at 57; Irobe v. U.S. Dep’t of Agric., 890 F.3d 371, 378 (1st Cir. 2018) (citing Gross
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`v. FBL Fin. Servs., 557 U.S. 167, 177 (2009)). If an element of a claim is fairly characterized as
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`an affirmative defense or exemption, however, the burden of persuasion may be shifted to
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`defendants, especially where the defendants have better access to evidence and are in the best
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`position to show that the defense or exemption applies. Schaffer, 546 U.S. at 57 (citing Fed.
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`Trade Comm’n v. Morton Salt Co., 334 U.S. 37-44-45 (1948)); Irobe, 890 F.3d at 378. When the
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`burden has shifted, the non-moving party must show that there are genuine issues of material
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`fact as to whether an exception or defense to statutory liability applies to avoid summary
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`judgment, but the party asserting the exception or defense would have the ultimate burden of
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`establishing that it applies at trial. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 153,
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`(1989) (Freedom of Information Act case); Green v. U.S., 630 F.3d 1245, 1248-49 (9th Cir.
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`2011) (Federal Tort Claims Act case).
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`The issue, then, is whether the “captive lynx” provision defines the scope of the ESA
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`protections plaintiff seeks to enforce or is an affirmative defense or exception to liability. FWS
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`has determined that Canada lynx in the contiguous United States are threatened wherever found.
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`50 C.F.R. § 17.11(k). The form and extent of the protection provided to Canada lynx under the
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`ESA is set forth in the special rules for mammals at 50 C.F.R. § 17.40(k) and varies depending
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`on whether the lynx is wild or captive. Wild lynx are entitled to the full panoply of the
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`prohibitions and provisions of 50 C.F.R. § 17.31 and § 17.32, including the prohibition against
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`taking without a permit. 50 C.F.R. § 17.40(k)(2). A captive Canada lynx, on the other hand, is
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`generally not protected from taking under the ESA as long as it was lawfully obtained. 50 C.F.R.
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 11
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`§ 17.40(k)(4). FWS reasoned that “captive-bred specimens have neither a positive nor negative
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`effect on the species in the wild” and chose to rely on an international treaty for the regulation of
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`trade for captive lynx rather than the ESA itself. Determination of Threatened Status for the
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`Contiguous U.S. Distinct Population Segment of the Canada Lynx and Related Rule, 65 FR
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`16052-01, 16084 (Mar. 24, 2000). Thus, proof that an animal is a Canada lynx is insufficient to
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`identify the protections to which the animal is entitled. Because the regulatory scheme does not
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`create a presumption that a particular animal is wild or captive, plaintiff must make that showing
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`before it can establish that an ESA violation has occurred. Plaintiff has failed to offer any
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`evidence that Purrsia was born in the wild or otherwise falls outside of the definition of a captive
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`lynx.5
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`Plaintiff argues that, even if Purrsia is a “captive lynx,” the ESA incorporates “applicable
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`State and tribal laws and regulations,” making a “[v]iolation of State or tribal law . . . a violation
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`of the Act.” 50 C.F.R. § 17.40(k)(5) (responding to the question “[a]re any activities not allowed
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`or restricted for captive lynx?”). Plaintiff’s claim that defendants have violated Washington’s
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`animal cruelty laws with regards to Purrsia is discussed below in Section C. Defendants
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`argument that the reference to “State or tribal law” in subsection (5) refers to the transportation
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`and shipping regulations mentioned in subsection (4)(iii) is unpersuasive. The subsection (5)
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`reference is limited only by the term “applicable,” and the fact that subsection (4)(iii) deals with
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`issues of interstate commerce has no bearing on the scope of subsection (5)’s command that one
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`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.
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 12
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`comply with “applicable State and tribal laws and regulations” when handling captive lynx.
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`Thus, to the extent plaintiff’s state law claim regarding Purrsia survives, the ESA claim would
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`likewise survive.
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`2. “Take” of Protected Animals
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`The term “take” is defined in the ESA as “harass, harm, pursue, hunt, shoot, wound, kill,
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`trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
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`The terms “harm” and “harass” are relevant here. The term “harm” is defined as “an act which
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`actually kills or injures wildlife. Such act may include significant habitat modification or
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`degradation where it actually kills or injures wildlife by significantly impairing essential
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`behavioral patterns, including breeding, feeding or sheltering.” 50 C.F. R. § 17.3. The term
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`“harass” means “an intentional or negligent act or omission which creates the likelihood of
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`injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral
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`patterns which include, but are not limited to, breeding, feeding, or sheltering. This definition,
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`when applied to captive wildlife, does not include generally accepted:
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`(1) Animal husbandry practices that meet or exceed the minimum standards for
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`facilities and care under the Animal Welfare Act,
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`(2) Breeding procedures, or
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`(3) Provisions of veterinary care for confining, tranquilizing, or anesthetizing,
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`when such practices, procedures, or provisions are not likely to result in injury to
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`the wildlife.
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`50 C.F.R. § 17.3. The term “harass” has “a different character when applied to an animal in
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 13
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`captivity than when applied to an animal in the wild.” People for the Ethical Treatment of
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`Animals, Inc. v. Miami Seaquarium, 189 F. Supp.3d 1327, 1350 (S.D. Fla. 2016). The regulatory
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`definition of “harass” is intended “to exclude proper animal husbandry practices that are not
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`likely to result in injury from the prohibition against “take.” Captive-bred Wildlife Regulation,
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`63 FR 48634-02, 48636 (Sept. 11, 1998).6
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`a. Grizzly Bears
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`Plaintiff asserts that defendants have harmed and harassed its grizzly bears “by, among
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`other things, (1) housing them in muddy cheatgrass-infested pens and then failing to provide
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`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
`ecosystems and have a role in survival of the species only to the extent that they maintain genetic
`integrity.” Id.
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`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
`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
`non-captive status of a particular specimen is a significant factor in determining whether
`particular actions would “harass” that specimen or whether such actions would “enhance
`the propagation or survival” of the species.
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`To decide otherwise would place those persons holding captive specimens of a listed
`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
`captivity would be forced to obtain a permit or give up possession since any failure to
`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
`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
`do not constitute “harassment” or “taking”.
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`Id.
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 14
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`them with adequate vet care for their grossly infected cheatgrass wounds; (2) withholding
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`regular meals and pain medication for severe arthritis in favor of tourists feeding the bears
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`excessive amounts of bread, which only compounds their obesity and joint pain and
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`inflammation; and (3) anesthetizing bears without a vet present and without critical monitoring
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`and support.” Dkt. # 192 at 9. Defendants argue that the Court lacks jurisdiction over the
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`cheatgrass, veterinary/medical care, and anesthesia claims because plaintiff failed to give written
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`notice of these violations. Defendants argue that the sole remaining claim regarding the feeding
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`of bread fails because the practice does not violate the Animal Welfare Act (“AWA”), 7 U.S.C.
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`§ 2131, et seq. Although the jurisdictional argument was not raised in defendants’ motion, it was
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`asserted in opposition to plaintiff’s motion for summary judgment, and plaintiffs have had an
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`opportunity to reply. The Court therefore considers the issue here.
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`The ESA requires citizen-plaintiffs to provide notice of a violation at least sixty days
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`prior to filing suit. 16 U.S.C. § 1540(g)(2)(A)(i). The Ninth Circuit has identified two purposes
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`for the notice provision: it gives the government a chance to take responsibility for enforcing the
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`applicable statute, and it gives the alleged violator a chance to bring itself into compliance.
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`Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 650 (9th Cir. 2015). In order to
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`fulfill these purposes, the notice must, “[a]t a minimum ... provide sufficient information ... so
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`that the [notified parties] could identify and attempt to abate the violation.” Sw. Ctr. for
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`Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 522 (9th Cir. 1998). Although
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`the notice need not list every detail, instance, or aspect of a violation (Cmty. Ass’n for
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`Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir. 2002)), an
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`ORDER GRANTING IN PART DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT - 15
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`examination of the notice as a whole (Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.
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`1996)) along with the behavior of the recipients (Natural Res. Def. Council v. Sw. Marine, Inc.,
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`236 F.3d 985, 997 (9th Cir. 2000)) must show that the notice provided enough information that
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`the defendant could “identify and address the alleged violations, considering the defendant’s
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`superior access to information about its own activities” (Klamath-Siskiyou Wildlands Ctr., 797
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`F.3d at 651).
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`Plaintiff’s notice letter, dated September 27, 2018, includes a general allegation that
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`defendants “are violating the ESA’s prohibition against ‘take’ of members of listed endangered
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`and threatened species by harming and/or harassing numerous animals at the Game Farm.” Dkt.
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`# 148-9 at 2. That allegation, standing alone, is clearly insufficient. See Klamath-Siskiyou
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`Wildlands Ctr., 797 F.3d at 653. More specifically, plaintiff asserts that:
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