Argued: March 24, 2017
from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:13-cv-00047-MR-DLH)
S. Whitlock, DAVIS & WHITLOCK, P.C., Asheville, North
Carolina, for Appellants/Cross-Appellees.
R. Melrose, MELROSE LAW, PLLC, Waynesvile, North Carolina,
Douglas A. Ruley, DAVIS & WHITLOCK, P.C., Asheville,
North Carolina, for Appellants/Cross-Appellees.
Frostic, THE HUMANE SOCIETY OF THE UNITED STATES, Washington,
D.C., for Amici Curiae.
FLOYD and HARRIS, Circuit Judges, and John Preston BAILEY,
United States District Judge for the Northern District of
West Virginia, sitting by designation.
Barry Coggins and Collette Coggins, doing business as the
Cherokee Bear Zoo (collectively, "the Zoo"), keep,
care for, and exhibit bears. In 2013, Plaintiffs Peggy Hill
and Amy Walker (collectively, "Plaintiffs") visited
the Zoo, and observed four of the Zoo's bears living in
what Plaintiffs believed to be an inhumane setting. In
response, Plaintiffs brought the instant suit against the
Zoo, claiming that the Zoo's allegedly poor maintenance
of its bears constitutes an unlawful taking proscribed by the
Endangered Species Act (ESA), 16 U.S.C. § 1538 et
district court approved of Plaintiffs' standing to bring
their suit, and found that the four subject bears were
grizzly bears protected by the ESA. The court nonetheless
concluded that the manner in which the Zoo maintains its
bears-although "archaic, " Hill v.
Coggins, No. 2:13-cv-47, 2016 WL 1251190, at *14 (W.D.
N.C. Mar. 30, 2016)-does not amount to an unlawful taking.
reasons that follow, we affirm the district court's
rulings in favor of Plaintiffs on the issues of standing and
the subject bears' status as protected grizzly bears. We
conclude, however, that the court's ruling against
Plaintiffs on the issue of whether the Zoo is committing an
unlawful taking was premised on incorrect legal analysis. We
therefore vacate that ruling and remand this case for further
Plaintiffs reside within the Qualla Boundary in Cherokee,
North Carolina. Plaintiffs are members of the Eastern Band of
Cherokee Indians ("EBCI"). Like many members of the
EBCI, Plaintiffs possess a deep cultural and spiritual
connection with wildlife, including bears.
March 28, 2013, Plaintiffs visited the Zoo. Plaintiffs
observed a sign on the Zoo's premises advertising grizzly
bears; they then proceeded to two bear pits containing four
bears, at least three of which were identified by nearby
signs as grizzly bears. The pits were compact and made
entirely of concrete. Each pit had a small pool of water, but
neither had any vegetation nor any shade.
observed the bears in listless form, pacing around in their
pits. They also witnessed the bears begging for food, with
patrons responding by feeding the bears apples and dry bread
sold by the Zoo.
Hill observed the bears for a period of approximately thirty
minutes, while Ms. Walker observed the bears for a period of
fifteen to twenty minutes. Plaintiffs claim to have left
feeling angry and upset with what they observed at the Zoo.
Plaintiffs refuse to return to the Zoo while the bears are in
their current living conditions, but they have expressed a
desire to return if those conditions are improved.
their encounter with the bears, Plaintiffs brought this
citizen suit against the Zoo in federal district court.
Plaintiffs alleged that the Zoo's practice of keeping
four (apparent) grizzly bears in the above-described living
conditions constitutes a "tak[ing]" of a threatened
species proscribed by 16 U.S.C. § 1538(a)(1)(B), and
possession of a "taken, " threatened species
proscribed by 16 U.S.C. § 1538(a)(1)(D). The basis for
these allegations was Plaintiffs' view that the Zoo's
conduct is a form of "harass[ment]" of, and
"harm" to, its bears. See 16 U.S.C. §
1532(19) (defining "take" as, inter alia,
"to harass" or "harm"). Plaintiffs sought
injunctive relief in response to the Zoo's alleged
violations of the ESA.
filed a motion to dismiss Plaintiffs' suit, which the
district court denied on June 17, 2014. The Zoo subsequently
filed a motion for summary judgment, which the district court
denied on August 13, 2015. As a result, on September 17 and
18, 2015, the parties participated in a bench trial. At
trial, Plaintiffs gave testimony describing their
observations of the bears, their corresponding reactions, and
their desires to observe the bears living in humane
also presented extensive evidence demonstrating that the
subject bears are grizzly bears. This evidence includes
exhibits of the Zoo's webpage, entitled "Grizzlies
Page, " J.A. 673-74, which identified the four bears as
grizzly bears; signs at the Zoo's facility identifying at
least three of the four bears as grizzly bears; veterinary
records identifying the four bears as grizzly bears; and
United States Department of Agriculture (USDA) reports
identifying at least some of the bears as grizzly bears.
Additionally, Edward Ramsay, D.V.M.-one of Plaintiffs'
expert witnesses and a diplomate of the American College of
Zoological Medicine-identified the subject bears as grizzly
bears based on his observation of distinctive shoulder humps
on the bears.
Finally, Plaintiffs proffered expert testimony that
highlighted serious deficiencies in the Zoo's treatment
of its bears. Dr. Ramsay and Ms. Else Poulson-a zookeeper and
animal behaviorist-testified that the Zoo's virtually
barren concrete pit enclosures, public feeding arrangements,
and apparent lack of meaningful enrichment programs fell
short of generally accepted animal husbandry practices. Ms.
Poulsen added that the small concrete pits prompted the bears
to engage in the abnormal behavior of pacing. Ms. Poulsen,
along with Dr. Ramsay, also identified the bears' act of
begging for food as an abnormal behavior that was
attributable to the Zoo's practice of public feeding and
its inadequate nourishment of the bears.
attempted to push back on Plaintiffs' evidentiary
presentation. Ms. Coggins testified that the Zoo had
described the subject bears as grizzly bears only for
promotional purposes. Additionally, David Ackerman,
D.V.M.-the Zoo's primary veterinary care
provider-testified that the subject bears are European brown
Coggins and Dr. Ackerman also testified that the subject
bears are in good health, and do not demonstrate abnormal
behavior. Dr. Ackerman added that although current zookeeping
practices for brown bears-a category that includes grizzly
bears- provide for more space and a more natural environment
than the Zoo currently provides, he has had discussions with
Mr. Coggins about implementing such practices in the future.
March 30, 2016, the district court issued its decision in
this case. Hill, 2016 WL 1251190. The court first
held that Plaintiffs had standing to litigate their ESA suit,
because Plaintiffs had demonstrated that the Zoo was injuring
their aesthetic interest in viewing the subject bears in a
setting compatible with the ESA, in a manner that could be
redressed by injunctive relief calling for such a setting.
The court then considered the conflicting evidence, weighed
the credibility of witnesses, assessed the relevant discovery
history, and arrived at the conclusion that the subject bears
are grizzly bears protected by the ESA.
end, however, the court ruled against Plaintiffs on the issue
of the Zoo's ESA liability. After examining the relevant
regulations, the court concluded that the Zoo's manner of
maintaining its bears did not-for ESA purposes-harm or harass
the bears, and by extension did not subject the bears to a
note, the court based its conclusion that the Zoo did not
harass its bears entirely on its determination that the
Zoo's animal husbandry practices complied with applicable
standards under the Animal Welfare Act (AWA), 7 U.S.C. §
2131 et seq. The court explicitly declined to
consider whether the Zoo's practices complied with
"generally accepted" animal husbandry practices,
despite language in the relevant regulation referencing a
"generally accepted" standard. See 50
C.F.R. § 17.3 (explaining that the definition of
"[h]arass" under the ESA excludes
"generally accepted . . . [a]nimal husbandry
practices that meet or exceed the minimum standards for
facilities and care under the [AWA]" (emphasis added)).
The court also found it unnecessary to consider whether the
Zoo's practices are of an injurious or disruptive nature.
concluding that the Zoo was not liable under the ESA, the
court dismissed with prejudice the entirety of
Plaintiffs' suit. Plaintiffs filed a timely appeal from
the district court's judgment, and contest the
court's determination that the Zoo is not committing a
taking. The Zoo filed a timely cross-appeal, and contests the
court's determinations that Plaintiffs have standing in
this case and that the subject bears are grizzly bears
protected by the ESA. The appeal and the cross-appeal were
consolidated, and we possess jurisdiction to review them both
pursuant to 28 U.S.C. § 1291.
review a district court's legal determinations, including
its rulings as to whether a party possesses standing and its
interpretations of regulations, de novo. See Wilson v.
Dollar Gen. Corp., 717 F.3d 337, 342 (4th Cir. 2013)
(standing); United States v. Boynton, 63 F.3d 337,
342 (4th Cir. 1995) (interpretation of regulations). We
review a district court's findings of fact for clear
error. See Nelson-Salabes, Inc. v. Morningside Dev.,
LLC, 284 F.3d 505, 512 (4th Cir. 2002). "We review
a district court's discovery rulings, as well as its
decision to admit particular expert testimony, for abuse of
discretion." Bresler v. Wilmington Trust Co.,
855 F.3d 178, 189 (4th Cir. 2017).
threshold matter, we must determine whether Plaintiffs
possess Article III standing to bring this suit against the
Zoo. See United States v. Under Seal, 853 F.3d 706,
721 (4th Cir. 2017). We conclude that they do.
satisfy Article III's standing requirements, a plaintiff
must have "(1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable
decision." Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016). "The plaintiff, as the party invoking
federal jurisdiction, bears the burden of establishing these
district court held that Plaintiffs satisfied all three
standing elements. We agree.
begin, Plaintiffs' claim that the Zoo is depriving them
of a right to personally observe the Zoo's bears living
in a setting compatible with the ESA constitutes an aesthetic
injury that satisfies the first standing element of injury in
establish injury in fact, a plaintiff must show that he or
she suffered 'an invasion of a legally protected
interest' that is 'concrete and particularized'
and 'actual or imminent, not conjectural or
hypothetical.'" Spokeo, 136 S.Ct. at 1548
(quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992)). Courts frequently treat an aesthetic
interest in the observation of animals as a legally protected
interest. See Lujan, 504 U.S. at 562-63 (explaining
that "the desire to use or observe an animal species,
even for purely esthetic purposes, is undeniably a cognizable
interest for purpose of standing" (citing Sierra
Club v. Morton, 405 U.S. 727, 734 (1972))); Am.
Soc'y for Prevention of Cruelty to Animals v. Ringling
Bros. & Barnum & Bailey Circus, 317 F.3d 334,
337 (D.C. Cir. 2003) (concluding that "an injury in fact
can be found when a defendant adversely affects a
plaintiff's enjoyment of flora or fauna, which the
plaintiff wishes to enjoy again upon the cessation of the
defendant's actions"). When that interest is invaded
in a real, non-speculative, and personal manner, the
requirement of an actual or imminent, concrete, and
particularized injury is satisfied. See Spokeo, 136
S.Ct. at 1548-49 (explaining the concreteness and
particularization conditions); see also Lujan, 504
U.S. at 563-64 (rejecting plaintiffs' claim that they
suffered actual or imminent injury from government action
that allegedly harmed endangered species living in foreign
countries, because the plaintiffs only expressed speculative
"'some day' intentions" to visit those
case, Plaintiffs claim a strong interest in observing the
Zoo's bears living in conditions that do not violate the
ESA. They explain, however, that they are precluded from
observing the bears living in such conditions because the
bears are currently being mistreated. Plaintiffs add that
they are willing and able to go back and visit the bears if
the conditions that the bears live in are improved. These
claims, if true, are sufficient to establish injury in fact
under the relevant precedent.
the district court found Plaintiffs' claims credible. The
court defended its finding of injury by highlighting the
"spiritual and cultural connection with the bears"
that Plaintiffs, as members of the EBCI, possessed.
Hill, 2016 WL 1251190, at *9. The court also cited
definite statements by Plaintiffs confirming their intent to
return to the nearby Zoo if the bears' setting improved.
See, e.g., id. at *3 (noting that Ms. Walker claimed
she "certainly would go" to observe the bears if
they were given a more humane setting); cf. Friends of
the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC),
Inc., 528 U.S. 167, 184 (2000) (holding that plaintiffs
had standing to sue where they offered conditional statements
that they would use a nearby river if the discharge of
pollutants in the river ceased). The court recognized that
Plaintiffs only observed the bears for fifteen to thirty
minutes, but reasonably attributed their somewhat short
observation time to the upsetting nature of the bear scene.
Hill, 2016 WL 1251190, at *3. We discern no clear
error in these sound credibility determinations.
found that Plaintiffs satisfy the injury in fact element, the
second and third standing elements easily follow. The Zoo is
maintaining its bears in the setting that Plaintiffs complain
of, and so Plaintiffs' alleged aesthetic injury is fairly
traceable to the Zoo. Finally, Plaintiffs claim that they are
being deprived of a right to observe the bears living in a
setting that does not violate the ESA, and this can be
redressed by an injunction directing the Zoo to maintain its
bears in such a setting.