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Hill v. Coggins

United States District Court, W.D. North Carolina, Asheville Division

September 24, 2019

PEGGY HILL and AMY WALKER, Plaintiffs,



         THIS MATTER is before the Court on remand from the Fourth Circuit Court of Appeals, Hill v. Coggins, 867 F.3d 499 (4th Cir. 2017), cert. denied, 138 S.Ct. 1003 (2018), and the parties’ supplemental briefs [Docs. 112, 113, 115, 116]. Upon consideration of the Fourth Circuit’s opinion, the testimony and evidence presented by the parties at trial, and the arguments of counsel, the Court hereby enters the following Memorandum of Decision and Order.


         The Plaintiffs Peggy Hill and Amy Walker initiated this citizen suit on December 3, 2013, against the Defendants Barry Coggins and Collette Coggins, collectively doing business as Cherokee Bear Zoo (“CBZ” or “Zoo”), alleging various violations of the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (“ESA”).[1] [Doc. 1]. As asserted in their Amended Complaint, the Plaintiffs allege that the Zoo’s past and ongoing practice of keeping four adult grizzly bears in allegedly undersized concrete pits constitutes an unlawful “taking” and unlawful possession of a “taken” threatened species (Counts One and Two).[2] [Doc. 30].

         After the Defendants’ motion for summary judgment was denied [Text-Only Order entered Aug. 13, 2015], the case proceeded to a bench trial. On March 30, 2016, the Court entered an Order containing findings of fact and conclusions of law. [Doc. 93]. Specifically, the Court concluded that the Plaintiffs generally had standing to bring their suit.[3] The Court further found that the four subject bears were in fact grizzly bears and thus subject to protection under the ESA. However, the Court concluded that the manner in which the Zoo maintains the bears does not amount to an unlawful taking under the Act. Accordingly, the Court dismissed the Plaintiffs’ action in all respects. [Doc. 93].

         Both the Plaintiffs and the Defendants appealed. On August 14, 2017, the Fourth Circuit Court of Appeals affirmed the Court’s rulings on the issues of standing and the status of the subject bears as grizzly bears. Hill, 867 F.3d at 502. The Fourth Circuit concluded, however, that this Court erred in its legal analysis of the issue of whether the Zoo is committing an unlawful taking of the bears. Id. Accordingly, that ruling was vacated, and this matter was remanded for further proceedings. Id. The United States Supreme Court denied a petition for a writ of certiorari on February 20, 2018. Hill v. Coggins, 138 S.Ct. 1003 (2018).

         Following the denial of the writ of certiorari, this Court ordered the parties to file supplemental briefing on the issues raised by the Fourth Circuit’s opinion. The parties filed their respective briefs [Docs. 112, 113], and responded to each other’s brief in kind [Docs. 115, 116].

         Having been fully briefed, this matter is ripe for disposition.


         The following is a summary of the relevant findings of fact made by the Court upon conclusion of the bench trial. These factual findings were not disturbed on appeal.

         The Plaintiffs Peggy Hill and Amy Walker are enrolled members of the Eastern Band of Cherokee Indians (“EBCI”). [T. 18, 100]. Both Plaintiffs reside within the Qualla Boundary in Cherokee, North Carolina. [T. 16, 98]. Defendants Barry Coggins and Collette Coggins have owned and operated the Cherokee Bear Zoo, an unaccredited roadside zoo in Cherokee, North Carolina, for over twenty years. [T. 411, 415]. There are approximately 35 animals currently at the Zoo, including black bears, monkeys, lemurs, goats, and a tiger. [T. 67, 203]. The Zoo also possesses four grizzly bears that are the subject of this litigation: Elvis, Marge, Lucky, and Layla. [T. 424-27]. The grizzly bears are housed in concrete pits and can be viewed by the general public from a walkway above. Underneath the public walkway and adjoining the pit enclosures, there are additional enclosures lined with hay or wood shavings where the bears can access food and water, come out of the sun, and come and go as they please. [T. 445].

         Barry and Collette Coggins began operating the Zoo in 1994. [T. 415]. They oversaw the construction of the Zoo, which exceeded the minimum requirements of the United States Department of Agriculture (USDA)[4] at the time. [T. 416]. The Defendants’ first grizzly bear was Elvis, whom they brought from another roadside zoo where they both had previously worked. Marge was purchased later. [T. 424]. Elvis and Marge are Lucky’s parents. [T. 427]. Lucky and Layla were both born at the Zoo. [T. 437].

         The Zoo holds a Class C Exhibitor’s license issued by the USDA. The Zoo’s license has never been suspended or revoked. [T. 418]. The Zoo is subjected to surprise inspections every three months by the USDA. [T. 196, 197, 419]. Over the years, the Zoo has received two or three notices of the need for corrective action with respect to the bears.[5] [T. 420]. The Zoo has never received a noncompliance notice, and the USDA has never brought an enforcement action against the Zoo. [T. 418-19, 420-21, 447, 517, 545, 546; Defendants’ Exs. 11-30].

         The Plaintiffs’ expert, professional zookeeper Else Poulsen, made four visits to the Zoo between October 2009 and November 2014 in order to observe the bears and review the records pertaining to their care and treatment. [Plaintiffs’ Ex. 37 at 21]. Ms. Poulsen testified that pit enclosures are not accepted by the international zoo community as appropriate housing for captive brown bears. [Id. at 76]. Ms. Poulsen further testified that the pit enclosures do not meet minimum size standards required by North Carolina regulation 15A N.C. Admin. Code § 10H.0302(b)(5)[6] for the housing of captive black bears. [Id. at 41-43]. Ms. Poulsen opined that the pit enclosures at the Zoo do not meet generally accepted animal husbandry practices because: the high walls and small size of the enclosures prevent wind from eddying into the pits, thereby depriving the bears of their sense of smell on a daily basis [Id. at 44-45]; there is music playing constantly which blocks out other sounds the bears might be interested in hearing [Id. at 47]; the high walls force the bears to sit in an abnormal position, with their heads leaning back, which results in physical stress if they wish to see anything moving [Id. at 48]; and no significant shade structures are present [Id. at 60-61].

         Ms. Poulsen testified that she observed the bears pacing, which is stereotypic (i.e., abnormal) behavior. [Id. at 59]. According to Ms. Poulsen, public feeding is not a standard husbandry practice as it encourages the bears to beg for food, which is an abnormal behavior, and presents a risk of disease being transferred to the bears from members of the public. She noted that, for these reasons, public feeding is prohibited by the Accreditation Standards established by the Association of Zoos and Aquariums (“AZA”). [Id. at 53]. The AZA is a voluntary zoological organization that has developed accreditation standards as to how a zoo should operate with regard to the treatment and care of captive animals and all aspects of zoo operation. [T. 283-84; Plaintiffs’ Ex. 84]. In some respects, AZA Accreditation Standards are more stringent than existing state and federal laws and regulations. [T. 285]. Less than 10% of the 2, 800 exhibitors in the United States are accredited members of the AZA. [T. 331].

         Ms. Poulsen testified that, in her opinion, the Zoo is not in compliance with the Animal Welfare Act (“AWA”) because the pit enclosures do not allow for freedom of movement. [Plaintiffs’ Ex. 37 at 224, 255]. Specifically, she testified:

I believe these animals [would be] free to move, if they lived in, say, an environment similar to what the state of North Carolina sets out for American black bears. That’s free to move. Because the animal is able to run, swim, walk, you know, climb, those kind of things. That’s not possible in these pit enclosures.

[Id. at 255]. Ms. Poulsen conceded that the USDA has determined that the Zoo is in compliance with the Animal Welfare Act, but she does not agree with this assessment. [Id. at 224, 259, 260-61].

         The Plaintiffs’ second expert, Edward Ramsay, D.V.M., visited the Zoo in November 2014. [T. 243]. Additionally, he reviewed photographs and videos taken by other witnesses within the last five years. [T. 244]. Dr. Ramsay opined that begging for food is not a normal behavioral pattern for a bear. [T. 246]. Dr. Ramsay opined that this abnormal behavior is encouraged by the Zoo because it allows public feeding of the bears. [T. 247]. Dr. Ramsay described this as “an unfortunate practice” as it prevents the zoo from controlling the animals’ nutrition; it poses a risk of foreign objects being swallowed by the bears and for the communication of diseases; and it encourages stereotypic behavior. [T. 248-49]. Dr. Ramsay testified that the Zoo’s feeding practices fail to meet generally accepted husbandry practices, as public feeding of animals is not considered a generally accepted practice. [T. 305].

         Dr. Ramsay further opined that the concrete pits do not meet generally accepted husbandry practices because: they are constructed of high block walls that are taller than a bear can reach [T. 251]; they are devoid of enrichment[7] [T. 254, 260-61]; and they lack adequate shade [T. 255]. He further opined that the size of the enclosures also fails to meet generally accepted animal husbandry practices, as the pits are only a few hundred square feet in area, whereas a bear’s natural habitat would be multiple square miles. [T. 301].

         According to Dr. Ramsay, the AZA Accreditation Standards form the basis for generally accepted practices in the field of zoology. [T. 283; Plaintiffs’ Ex. 84]. According to Dr. Ramsay, it is the “generally held opinion in the captive animal community” that Section 10.3.3 of the AZA Accreditation Standards[8] constitutes generally accepted husbandry practices and that the Zoo’s pit enclosures fail to meet this standard. [T. 304, 334]. Dr. Ramsay could not identify, however, any literature or peer-reviewed article to support that proposition. [T. 334].

         Dr. Ramsay opined that the “generally accepted” standard for an enclosure for two brown bears would be a minimum of fifty yards by fifty yards. [T. 386]. He did not cite any reference materials for this opinion, noting that the calculation of the minimum size required was “just a Dr. Ramsay opinion.” [Id.].

         Dr. Ramsay opined that the Zoo’s pit enclosures also fail to meet the North Carolina regulatory standards for captive black bear enclosures, 15A N.C. Admin. Code § 10H.0302(b)(5). [T. 291-93]. These regulations require an enclosure to provide at least one acre of land for two black bears, plus additional acreage for every additional bear. Dr. Ramsay testified that these regulatory standards actually exceed what he considered to be the “generally accepted” practice. [Id.]. Nevertheless, he testified that the North Carolina regulatory standards would be a “reasonable expectation” for the type of enclosure that the Defendants should be providing for the subject grizzly bears. [T. 292-93; see also T. 319 (describing the North Carolina regulation as an “excellent” standard)].

         With respect to veterinary care, Dr. Ramsay testified that it was unclear from the records whether the bears have ever been immobilized for examination. Further, the records indicate that the bears were treated on multiple occasions for skin problems or hair loss, but the only diagnostic test indicated was a single fungal culture. [T. 315]. Based on what he observed, Dr. Ramsay opined that the USDA should take enforcement action against the Zoo for violations of the AWA. [T. 335-36].

         According to both Ms. Coggins and the Zoo’s veterinarian, Dr. David Ackerman, the bears are in good health. Dr. Ackerman visits the bears on a monthly basis. [T. 440, 531]. He testified that the bears’ weight is normal, and their fecal matter has been normal. [T. 560]. While the bears occasionally have exhibited some hair loss, Dr. Ackerman did not believe that this hair loss was due to stress, as it appeared to be a seasonal allergic reaction which responded to medical treatment. [T. 441, 559, 583].

         According to both Ms. Coggins and Dr. Ackerman, the bears do not exhibit stereotypic behavior. [T. 443, 555]. Ms. Coggins testified that the bears receive limited feeding from the public of apples, bread, lettuce, and pellets of dog food; the Zoo ensures that the bears are also fed meat, vegetables, fruits, nuts, and berries on a daily basis. [T. 444]. Dr. Ackerman admits that current zookeeping practices for brown bears provide for more space and a more natural environment, and he has had discussions with Mr. Coggins of implementing such practices in the future. [T. 573].


         The Plaintiffs assert that the Defendants’ treatment of the subject grizzly bears violates Section 9 of the ESA, 16 U.S.C. § 1538. Specifically, the Plaintiffs claim that the Defendants have violated 16 U.S.C. § 1538(a)(1)(B), which prohibits the “take” of any endangered or threatened species, and 16 U.S.C. § 1538(a)(1)(D), which makes it unlawful to possess any endangered or threatened species that has been unlawfully “taken” in violation of § 1538(a)(1)(B). Regulations promulgated by the Fish and Wildlife Service (FWS) pursuant to the ESA specifically prohibit the “taking” of any grizzly bear in the lower 48 states, including North Carolina. 50 C.F.R. § 17.40(b)(1)(i)(A).[9] FWS regulations further provide that “no person shall possess . . . any unlawfully taken grizzly bear.” 50 C.F.R. § 17.40(b)(1)(ii)(A).

         The prohibitions in Section 9 of the ESA and its accompanying regulations apply to endangered or threatened animals bred and/or kept in captivity, as well as those in the wild. See, e.g., Safari Club Int’l v. Jewell, 960 F.Supp.2d 17, 30 (D.D.C. 2013); see also Final Rule, Listing Endangered or Threatened Species: Amendment to the Endangered Species Act Listing of the Southern Resident Killer Whale Distinct Population Segment, 80 Fed. Reg. 7380-01, 7385 (Feb. 10, 2015) (“[T]he ESA does not allow for captive held animals to be assigned separate legal status from their wild counterparts on the basis of their captive status . . . . [C]aptive members of a species have the same legal status as the species as a whole. . . . [C]aptive members of a listed species are also subject to the relevant provisions of section 9 of the ESA as warranted”). In some instances, however, the regulations apply differently to captive animals. At issue herein is the application of one of those exemptions that apply only to captive animals.

         The ESA defines the term “take” to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). As the Supreme Court has noted, the term “take” is defined “in the broadest possible manner to include every conceivable way in which a person can take or attempt to take any fish or wildlife.” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704 (1995) (internal citations and quotations marks omitted). Here, the Plaintiffs have alleged that the Defendants’ conduct both “harms” and “harasses” the subject bears and thus results in a “taking.”

         A. “Harassment”

         “Harass, ” as used in the definition of “take, ” is defined as “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.” 50 C.F.R. § 17.3. ...

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