Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 1 of 15
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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 DENYING PLAINTIFF’S
`MOTION FOR SUMMARY
`JUDGMENT
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`This matter comes before the Court on “Plaintiff’s Motion for Partial Summary
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`Judgment.” Dkt. # 160.1 Plaintiff alleges, among other things, that the owners and operators of
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`an animal-based attraction on the Olympic Peninsula have violated the federal Endangered
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`Species Act (“ESA”) by taking protected species and have created a public nuisance in violation
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`of Washington state law. Plaintiff seeks a summary determination that Olympic Game Farm,
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`Inc., and its shareholders have (1) taken, harmed, and/or harassed tigers and grizzly bears in
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`violation of the ESA and (2) maintained a public nuisance through their taking and/or possession
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`of tigers, grizzly bears, Canada lynx, gray wolves, Roosevelt elk, and Sika deer.
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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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`1 A redacted version of plaintiff’s motion can be found at Dkt. # 147.
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 1
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 2 of 15
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`responsibility of informing the district court of the basis for its motion” (Celotex Corp. v.
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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 defendants, the Court finds as follows:
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 2
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 3 of 15
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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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`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). Plaintiff seeks a summary determination that
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`defendants are violating the ESA by “taking” tigers and grizzly bears.
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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 term “harass” is relevant here and means:
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`an intentional or negligent act or omission which creates the likelihood of injury to
`wildlife by annoying it to such an extent as to significantly disrupt normal
`behavioral patterns which include, but are not limited to, breeding, feeding, or
`sheltering. This definition, 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
`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,
`when such practices, procedures, or provisions are not likely to result in injury to
`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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`captivity than when applied to an animal in the wild.” People for the Ethical Treatment of
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 3
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 4 of 15
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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).2 In promulgating the captive wildlife regulations, the
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`agency concluded that “[s]ince Congress chose not to prohibit the mere possession of
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`lawfully-taken listed species in section 9(a)(1) of the Act, . . . congressional intent supports the
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`proposition that measures necessary for the proper care and maintenance of listed wildlife in
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`captivity do not constitute ‘harassment’ or ‘taking’.” Id.
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`2 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.” 63 FR at 48636.
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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”.
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`Id.
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 4
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 5 of 15
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`a. Grizzly Bears
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`Plaintiff asserts that defendants have harassed their ESA-protected grizzly bears3 “by,
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`among other things, (1) housing them in muddy, unsanitary, cheatgrass-infested pens and then
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`failing to provide them with adequate vet care for their grossly infected cheatgrass wounds; (2)
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`withholding regular meals and pain medication for severe arthritis in favor of tourists feeding the
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`bears 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. See also Dkt. # 160 at 18-26. Defendants argue that a
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`determination of liability, standing alone, is outside the scope of the citizen suit provision of the
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`ESA, that the Court lacks jurisdiction over the cheatgrass, veterinary/medical care, and
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`anesthesia claims because plaintiff failed to give written notice of these violations, and that the
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`sole remaining claim regarding the feeding of bread fails because the practice does not adversely
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`affect the bears’ nutrition and does not pose a serious threat of harm to the animals.4
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`i. Citizen Suit Provision
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`The ESA authorizes “any person” to “commence a civil suit . . . to enjoin any person . . .
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`3 Plaintiff identifies the protected bears as Donald, Moxie, Connie, Lillie, Fee, Fie, and Fumm
`(still living) and Patches, Good Momma, Marsha, and Samantha (now deceased). Dkt. # 160 at 17.
`Plaintiff has stipulated that Miska, Yuri, Tug, and Bella are not protected by the ESA.
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`4 Defendants also argue that their bears are not protected by the ESA because they are not “Ursus
`arctos horribilis of the 48 conterminous States of the United States” (50 C.F.R. § 17.40(b)(2)). For the
`reasons set forth in the Order Granting in Part Defendants’ Motion for Summary Judgment, of even date,
`the Court finds that the ESA protects from “taking” members of the species Ursus arctos horribilis
`located or found in the lower 48 states, including Donald, Moxie, and the grizzly bears that were born at
`the Olympic Game Farm.
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 5
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 6 of 15
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`who is alleged to be in violation of any provision of this chapter or regulation issued under the
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`authority thereof.” 16 U.S.C. § 1540(g)(1)(A). Defendants argue that a request for a
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`determination that defendants’ past conduct violated the ESA falls outside the citizen suit
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`provision because plaintiff has not attempted to show that injunctive relief - the only relief
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`available under the statute - is appropriate. A party may, however, move for summary judgment
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`regarding a part of a claim. Fed. R. Civ. P. 56(a). Thus, a motion seeking to establish that
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`defendants are “in violation” of the ESA is permissible even if the remedy remains to be
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`determined. Nor is plaintiff seeking relief for wholly past violations. Plaintiff asserts that
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`defendants have handled and cared for their tigers and grizzlies in essentially the same way over
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`the past five or six years, including after this lawsuit was filed, and that their conduct constitutes
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`“taking” under the ESA. In these circumstances, a determination that defendants’ past conduct
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`harmed or harassed protected animals may justify injunctive relief aimed at curbing similar and
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`on-going conduct in the future.5
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`ii. Notice Letter
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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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`5 In a footnote, defendants assert that plaintiff’s separation of an ESA violation from the
`appropriate remedy “precludes any analysis of standing under the ESA.” Dkt. # 206 at 10 n.52. They do
`not explain why that is: standing can be raised and argued at the remedy stage. In addition, defendants
`improperly ignore or discount the nature of the injuries claimed by plaintiff’s members without any
`competing evidence.
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 6
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 7 of 15
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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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`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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` protected species are kept in cramped and squalid conditions and are deprived of
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`psychological and social enrichment;
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` brown bears are given unrestricted access to bread, an improper food source;
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` the manner in which brown bears are fed lacks challenge, leaving the bears
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 7
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 8 of 15
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`purposeless;
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` the small, barren enclosures in which brown bears are housed frustrate the bears’
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`natural behaviors, are unprotected from the heat, and cause stress; and
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` a brown bear had a 5" gash below its shoulder blade and perpendicular to its
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`spine in September 2018.
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`Dkt. # 148-9 at 3, 10-11. There is no mention of cheatgrass or related wounds, the withholding
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`of meals or medications, or improper anesthetizations. The allegations regarding the size and
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`barrenness of the bears’ enclosures would not, as plaintiff would have it, provide adequate notice
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`that the enclosures have too much of something, such as cheatgrass. Similarly, a description of a
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`wound that appears to be wholly unrelated to cheatgrass does not give notice of a claim of
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`infected cheatgrass wounds (or even of a general failure to provide veterinary or wound care).
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`Id. Defendants could not, based on the notice letter, reasonably be expected to anticipate most of
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`the violations that are now being claimed. The one exception is the bread-feeding allegation. The
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`notice clearly identifies bread as an improper food source for brown bears and alleges on-going,
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`unrestricted, and regular feedings of bread. Given defendants’ better knowledge of their
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`activities and practices, to the extent the feeding of bread resulted in the withholding of more
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`appropriate food sources or medications, the bread complaint encompasses these claims as well.
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`iii. “Take” Under the ESA
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`Plaintiff argues that it is entitled to a summary determination that feeding brown bears
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`unrestricted amounts of bread is not a generally accepted animal husbandry practice, does not
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`comply with the standards for humane care and treatment of animals under the Animal Welfare
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 8
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 9 of 15
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`Act (“AWA”), 7 U.S.C. § 2131, et seq., or is likely to result in injury to the bears, and, therefore,
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`it constitutes “harassment” under the ESA. In response, defendants argue that the only criterium
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`against which their animal husbandry practices can be measured is the standards promulgated
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`under the AWA. But the ESA does not adopt the AWA as the sole standard for the care of
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`captive wildlife. Rather, the ESA requires both AWA compliance and that the animal husbandry
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`practices be “generally accepted” in order to fall within the first “captive wildlife” exclusion in
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`the definition of “harass.” See Hill v. Coggins, 867 F.3d 499, 509-10 (4th Cir. 2017).6 While an
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`agency determination that a laboratory, zoo, or pet owner is in compliance with the AWA is
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`certainly evidence that the challenged animal husbandry practice is generally accepted and
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`“meet[s] or exceed[s] the minimum standards for facilities and care under the [AWA]” (50
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`C.F.R. § 17.3), the court must independently evaluate the animal husbandry practices for
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`purposes of an ESA claim when conflicting evidence is presented (Graham v. San Antonio
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`Zoological Society, 261 F. Supp.3d 711, 743-44 (W.D. Tex. 2017)).7
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`6 Plaintiff asserts that there is a third element that must be satisfied in order to benefit from the
`animal husbandry exclusion from the term “harass,” namely, that the practice is “not likely to result in
`injury to the wildlife.” Dkt. # 160 at 8 (quoting 50 C.F.R. § 17.3). Although there is support for this third
`element in FWS’ comments when defining “harass,” see 63 FR at 48636, grammatically it is imbedded
`within the third subsection of the definition, which has to do with veterinary care, and is arguably not
`applicable to the first subsection, which has to do with animal husbandry practices. Plaintiff’s block
`quotation of 50 C.F.R. § 17.3 obscures the structure of the definition. Dkt. # 160 at 8. Because the
`parties have not squarely addressed the applicability of a likelihood-of-harm criterium, the Court
`declines to decide the issue.
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`7 Defendants cite two district court decisions for the proposition that a judicial determination of
`whether they complied with the ESA is unconstitutional and would substitute the judgment of a federal
`court for the technical expertise of the responsible agency. Dkt. # 126 at 20 n.103. The decision out of
`the Western District of North Carolina, while noting constitutional vagueness concerns, was ultimately
`able to interpret and apply the “generally accepted” standard in keeping with the Fourth Circuit’s
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 9
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`It is plaintiff’s burden to show that the AWA’s minimum standards were not met or that
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`defendants’ conduct did not fall within generally accepted animal husbandry practices. Hill, 867
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`F.3d at 510; Graham, 261 F. Supp.3d at 741. When offering a standard other than the AWA
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`against which defendants’ conduct is to be measured, plaintiff must show that it has been
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`“generally accepted,” meaning that it applies to the care or facilities at issue and that it has been
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`widely adopted and accepted. See Hill, 423 F. Supp.3d at 221 (following remand from the Fourth
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`Circuit).
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`Defendants do not seriously contest plaintiff’s assertion that, at a minimum, they must
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`feed endangered animals a diet that is appropriate to their species. Instead, they assert that they
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`meet that standard. See Dkt. # 126 at 21( the bears “are fed a species appropriate diet -
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`comprised mainly of meat, grains, fruit, and berries - that is approved by Olympic Game Farm’s
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`attending veterinarians and meets the requirements of the Animal Welfare Act.”); Dkt. # 206 at
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`19-20 (“Bears are fed regular meals of meat, USDA-approved red meat fat, and fish three times
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`a week during their active period and twice a week in winter. They are also fed fruits and
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`vegetables. . . . Visitors to Olympic Game Farm have fed bread to bears for decades, and this
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`practice has been approved by the attending veterinarian and USDA.”). Factual disputes
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`regarding whether defendants’ practices provide the bears with a species appropriate diet prevent
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`summary judgment on this issue for either party. The trier of fact will need to determine, among
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`direction and constitutional requirements. Hill v. Coggins, 423 F. Supp.3d 209, 219-21 (W.D.N.C.
`2019). The Court finds that the decision in People for the Ethical Treatment of Animals, Inc. v. Miami
`Seaquarium, 189 F. Supp.3d 1327 (S.D. Fla. 2016), is unpersuasive for the reasons stated in Graham,
`261 F. Supp.3d at 741-43.
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 10
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 11 of 15
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`other things, whether bread comprised a substantial portion of the calories given the bears (or
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`was rather a snack supplementing an otherwise appropriate diet). Evidence regarding
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`defendants’ consultations with veterinarians and USDA inspectors, the types of conditions and
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`diseases caused by a diet heavy in rapidly digestible starches, the types of conditions and
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`diseases to which defendants’ bears have been susceptible, and whether defendants’ feeding and
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`medication regimens were impacted by the feeding of bread will all inform the analysis of
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`whether defendants’ animal husbandry was generally acceptable and AWA compliant.8
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`b. Tigers
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`Plaintiff asserts that defendants have harassed their tigers by failing to provide adequate
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`veterinary care as required by 9 C.F.R. § 2.40, foregoing annual and semi-annual examinations,
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`delaying or failing to report symptoms, relying on veterinarians with limited experience with
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`tigers, failing to perform diagnostic tests, refusing to follow treatment recommendations,
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`anesthetizing cats without veterinarian supervision, and shooting (rather than euthanizing) one of
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`its cats. Plaintiff also asserts that the tiger enclosures are small and barren, that the concrete
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`floors exacerbate joint problems in the big cats, that the tigers are fed donated horse and cow
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`carcasses, and that defendants failed to provide adequate claw care (resulting in the claws
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`growing into the foot pad and causing injury upon removal). Dkt. # 160 at 9-15. Of these
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`complaints, the 60-day notice letter mentions the size and lack of complexity of the enclosures,
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`8 The relevant AWA standards require, among other things, that an exhibitor of animals
`accurately report information to the veterinarian. 9 C.F.R. § 2.40. There is evidence that the Olympic
`Game Farm veterinarians do not know how much bread the bears are consuming.
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 11
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 12 of 15
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`lameness attributable to and exacerbated by inadequate flooring, and the failure to provide
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`adequate care for a tiger, Amadeus, as he failed and ultimately died. Dkt. # 148-9 at 8-9. The
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`Court finds that, given defendants’ better information regarding its care and treatment of
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`Amadeus and the other cats, the last allegation put defendants on notice that plaintiff was
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`challenging the adequacy of the veterinary care provided to tigers suffering from kidney disease.
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`Dkt. # 160 at 9-10. The Court lacks jurisdiction, however, over the feeding-of-carcasses claim
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`and the other lack of care allegations.
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`There are genuine issues of fact regarding whether the veterinary care provided to tigers
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`suffering from renal disease meets or exceeds the minimum standards for care under the AWA.
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`The relevant standards require that:
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`(a) Each dealer or exhibitor shall have an attending veterinarian who shall provide
`adequate veterinary care to its animals in compliance with this section.
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`(1) Each dealer and exhibitor shall employ an attending veterinarian under
`formal arrangements. In the case of a part-time attending veterinarian or
`consultant arrangements, the formal arrangements shall include a written
`program of veterinary care and regularly scheduled visits to the premises of
`the dealer or exhibitor; and
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`(2) Each dealer and exhibitor shall assure that the attending veterinarian has
`appropriate authority to ensure the provision of adequate veterinary care
`and to oversee the adequacy of other aspects of animal care and use.
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`(b) Each dealer or exhibitor shall establish and maintain programs of adequate
`veterinary care that include:
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`(1) The availability of appropriate facilities, personnel, equipment, and
`services to comply with the provisions of this subchapter;
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`(2) The use of appropriate methods to prevent, control, diagnose, and treat
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 12
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 13 of 15
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`diseases and injuries, and the availability of emergency, weekend, and
`holiday care;
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`(3) Daily observation of all animals to assess their health and well-being;
`Provided, however, That daily observation of animals may be accomplished
`by someone other than the attending veterinarian; and Provided, further,
`That a mechanism of direct and frequent communication is required so that
`timely and accurate information on problems of animal health, behavior,
`and well-being is conveyed to the attending veterinarian;
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`(4) Adequate guidance to personnel involved in the care and use of animals
`regarding handling, immobilization, anesthesia, analgesia, tranquilization,
`and euthanasia; and
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`(5) Adequate pre-procedural and post-procedural care in accordance with
`established veterinary medical and nursing procedures.
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`9 C.F.R. § 2.40. Plaintiffs argue that defendants ignored obvious symptoms of renal disease,
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`failed to keep veterinarians apprised of those symptoms, declined to obtain veterinary care in a
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`timely manner, and, when they did, failed to follow treatment recommendations. In response,
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`defendants have provided evidence from which one could reasonably infer that their population
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`of tigers is older and more medically needy than most, that chronic renal disease is common in
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`older felids, and that there is no way to cure the disease short of a kidney transplant. Dkt. # 205
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`at ¶¶ 11-12. Defendants have also presented evidence that intravenous fluids and diet changes -
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`two treatments designed to prolong the life of tigers with chronic kidney disease - are not
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`without their risks and that many facilities simply “monitor for signs of chronic kidney disease,
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`watch the animal’s quality of life, and when the animal’s quality of life has deteriorated too far,
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`they euthanize the animal.” Dkt. # 205 at ¶¶ 12-15. Olympic Game Farm apparently follows this
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`“generally acceptable practice.” Dkt. # 205 at ¶ 15. Given the competing evidence in the record,
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 13
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 14 of 15
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`the trier of fact will need to determine whether the veterinary care provided to tigers with renal
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`failure satisfies the applicable standards.
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`Plaintiff also seeks a summary determination that shooting a tiger whose quality of life
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`has degraded too far is not a generally accepted method of euthanasia. There is support for this
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`assertion, namely a USDA inspection report from 2004 noting that “[g]unshot is not an
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`acceptable method of routine euthanasia for any animal” other than “hoofstock that are to be
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`butchered for carnivore food.” Dkt. # 148-13 at 2. Defendants were instructed to update their
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`AWA-mandated Program of Veterinary Care (“PVC”) to clarify which animals may be
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`euthanized by gunshot and who would administer the gunshot. Defendants’ December 2020
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`PVC specifies that “sick, diseased, injured, or lame animals shall be provided veterinary care or
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`euthanized” and that the licensee would administer a “gunshot to the head in extreme
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`emergencies.” Dkt. # 190-10 at 4. Thus, a gunshot is, in some circumstances, an appropriate
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`method of euthanasia under the AWA. Plaintiff offers no other generally accepted standard
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`which precludes this method of euthanasia. To the contrary, there is evidence that veterinarians
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`and their associations approve the method. Dkt. # 203 at 146; Dkt. # 205 at ¶ 18; Dkt. # 205 at
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`104 (2020 American Veterinary Medical Association (“AVMA”) Guidelines specifying that “[a]
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`properly placed gunshot can cause immediate insensibility and a humane death”).9 In 2014,
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`9 The AWA guidance for inspectors specifies that the AVMA’s guidelines on euthanasia describe
`humane methods that comply with the AWA. Dkt. # 205 at 62 (citing 9 C.F.R. § 1.1). Failure to comply
`with the AVMA’s guidelines is not, in and of itself, an AWA violation because the inspector must still
`assess whether the facility’s method “produces rapid unconsciousness and subsequent death without
`evidence of pain or distress” or “utilizes anesthesia produced by a agent that causes painless loss of
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 14
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`Case 3:18-cv-06025-RSL Document 229 Filed 03/08/22 Page 15 of 15
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`defendants euthanized by gunshot a tiger named Bree who “stopped eating, had lost weight, and
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`was suffering badly.” Dkt. # 160 at 11. It is not clear what version of the PVC was in place at the
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`time, whether Bree’s condition justified the use of a gun under the PVC, or - most importantly -
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`whether the euthanization met the regulatory definition of “euthanasia.” Summary judgment on
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`this claim is not warranted.
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`With regards to the claims related to the size, construction, and barrenness of the tiger
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`enclosure, the claims are dismissed for the reasons set forth in the Order Granting in Part
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`Defendants’ Motion for Summary Judgment, of even date. Plaintiff has failed to show that the
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`Association of Zoos and Aquariums (“AZA”) standards of excellence, which have been adopted
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`by a small minority of exhibitors, reflect “generally accepted” animal husbandry practices and
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`have offered no other standards against which to measure defendants’ conduct.
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`B. Public Nuisance
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`For the reasons stated in the Order Granting in Part Defendants’ Motion for Summary
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`Judgment, of even date, plaintiff’s public nuisance claim under Washington law cannot proceed.
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`For all of the forgoing reasons, plaintiff’s motion for summary judgment (Dkt. # 160) is
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`DENIED.
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`Dated this 8th day of March, 2022.
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`Robert S. Lasnik
`United States District Judge
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`consciousness and subsequent death.” Dkt. # 205 at 62.
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`ORDER DENYING PLAINTIFF’S
`MOTION FOR SUMMARY JUDGMENT - 15
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