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Hill v. Coggins

United States Court of Appeals, Fourth Circuit

August 14, 2017

PEGGY HILL; AMY WALKER, Plaintiffs - Appellants,
BARRY COGGINS, d/b/a Cherokee Bear Zoo; COLLETTE COGGINS, d/b/a Cherokee Bear Zoo, Defendants - Appellees. THE HUMANE SOCIETY OF THE UNITED STATES; THE FUND FOR ANIMALS, Amici Supporting Appellant. PEGGY HILL; AMY WALKER, Plaintiffs - Appellees,
BARRY COGGINS, d/b/a Cherokee Bear Zoo; COLLETTE COGGINS, d/b/a Cherokee Bear Zoo, Defendants - Appellants. THE HUMANE SOCIETY OF THE UNITED STATES; THE FUND FOR ANIMALS, Amici Supporting Appellee.

          Argued: March 24, 2017

         Appeals 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)


          James S. Whitlock, DAVIS & WHITLOCK, P.C., Asheville, North Carolina, for Appellants/Cross-Appellees.

          Mark R. Melrose, MELROSE LAW, PLLC, Waynesvile, North Carolina, for Appellees/Cross-Appellants.

         ON BRIEF:

          Douglas A. Ruley, DAVIS & WHITLOCK, P.C., Asheville, North Carolina, for Appellants/Cross-Appellees.

          Anna Frostic, THE HUMANE SOCIETY OF THE UNITED STATES, Washington, D.C., for Amici Curiae.

          Before FLOYD and HARRIS, Circuit Judges, and John Preston BAILEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

          FLOYD, Circuit Judge:

         Defendants 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 seq.

         The 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.

         For the 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 proceedings.


          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.

         On 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.

         Plaintiffs 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.

         Ms. 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.

         After 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.

         The Zoo 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 conditions.

         Plaintiffs 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.[1]

          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.

         The Zoo 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 bears.

         Ms. 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.

         On 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.

         In the 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 taking.

         Of 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.

         After 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.


         We 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).


         As a 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.


         To 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 elements." Id.


         The district court held that Plaintiffs satisfied all three standing elements. We agree.

         To 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 fact.

         "To 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 countries).

         In this 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.

         Importantly, 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.

         Having 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.



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