United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE.
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.
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”). [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). [Doc. 30].
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. 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.
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).
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].
been fully briefed, this matter is ripe for disposition.
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.
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.
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) 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].
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. [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.
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) 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
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].
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].
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].
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 [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].
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 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].
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.].
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
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.
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].
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].
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). FWS regulations further
provide that “no person shall possess . . . any
unlawfully taken grizzly bear.” 50 C.F.R. §
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.
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.”
” 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. §