An Endangered Species Act (ESA) lawsuit against the City of New Bedford will continue after a federal district judge in Massachusetts denied the defendant’s efforts to dismiss plaintiff Joyce Rowley’s lawsuit. The City of New Bedford runs the Buttonwood Park Zoo, which has been home to two Asian elephants, Ruth and Emily, for decades. Plaintiff Rowley runs an organization called Friends of Ruth & Emily Inc., which is dedicated to retiring Asian elephants Ruth and Emily to “a warm climate sanctuary to live out their days in peace, dignity, and freedom”. In the last 25 months, it’s “Go Fund Me” page has raised just $10,025 of the requested $25,000 “to get justice” for the elephants.

In her lawsuit, Rowley alleges that the zoo is committing an illegal “take” of the elephants alleging, among other things, that the elephant facility is inadequate, the zoo fails to provide them with adequate socialization and veterinary care. The Court asked the parties to brief the issue of “standing”, which is the ability of a party to demonstrate a sufficient connection to and harm from the law or action challenged to support that party’s participation in a case.

Rowley, who claims she visits the elephants on a “near daily basis” alleges that she has formed “an aesthetic, emotional, and spiritual relationship with Ruth and Emily over the years” and that her enjoyment of the elephants is greatly diminished by observing the “suffering” from their captivity.

In support of her relationship with the elephants, Rowley also noted that she has protested on the elephants’ behalf at the zoo, advocated for the elephants to newspapers and through social media, and, through her organization, “raised $800 in 2015 to have ‘ele-coats’ handmade and shipped to the zoo for Ruth and Emily to wear in the winter”.

The Court determined that Rowley — at least at the motion to dismiss stage — had alleged enough to demonstrate standing, consistent with prior caselaw. The Court rejected Defendant’s argument that Rowley’s request to relocate the elephants to the Tennessee sanctuary would not satisfy the “redressability” requirement. In other words, if Rowley got what she requested, she would not be able to see the elephants again, which would destroy her daily relationship with the elephants and not cure her “injury”. (The sanctuary that Rowley proposed for relocation has elephant habitats that are “closed to the public.”) The Court reasoned that while Rowley’s complaint urges relocation (as does her organization’s website), it does not actually seek this relief.

The Court, noting that “this case has dragged on far too long” (and the fact that Rowley had initially filed a preliminary injunction seeking interim relief), joined her prior request with a trial on the merits and set a status conference for October 4, 2018 in order to set an “early trial date”. Evidently not satisfied with waiting for a trial date without interim relief, Rowley filed a notice of appeal of the Court’s decision, which thereby canceled the status conference, furthering delaying a trial date.

This case is yet another ESA lawsuit that challenges the animal care practices and facilities at an accredited zoo that has three years of publicly-available USDA inspections reports showing zero violations. Just last month, at the Association of Zoos and Aquariums annual conference in Seattle, faculty from the Lewis & Clark law school’s Animal Law program gave a presentation indicating that they taught their law students, among other things, how to develop an “aesthetic” injury that could provide the basis to sue a zoo over an endangered species in federal court. The Lewis & Clark representatives did not limit the encouragement of federal court lawsuits to unaccredited zoos, “roadside” zoos, or facilities that had USDA inspection citations. Despite its accreditation and USDA inspection history, for now the Buttonwood Park Zoo will have to continue to defend itself in federal court.