What do the salacious docudrama Tiger King, and Association of Zoos and Aquariums-accredited Buttonwood Park Zoo in New Bedford, Mass., have in common? Well, generally speaking, nothing. They exist on opposite ends of a spectrum of what the public would call “zoos”. Tiger King displaying the worst of “roadside zoos and attractions,” and Buttonwood Park Zoo displaying dedication to the highest standard for a modern zoological facility—AZA accreditation.
However, they have both been at the center of separate and significant legal battles surrounding the care of endangered species—in Tiger King, of course, tigers and other big cats; and in the case of Buttonwood Park Zoo, elephants.
Enter the Endangered Species Act, which protects listed endangered or threatened species from “take,” which the law defines as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt” to do so. The terms “harm” and “harass” are defined, in regulations: harm is any act that “kills or injures wildlife”; and harassment is “an intentional or negligent act or omission which creates the likelihood of injury.” Importantly for wildlife in managed care, the definition of harass exempts “generally accepted” husbandry practices, breeding procedures, or veterinary care.
Recent enforcement actions and court decisions are bringing important and well-needed clarity to this generally accepted practices exemption, and both AZA and its members are playing key roles—members like Buttonwood Park Zoo.
Buttonwood Park Zoo and the City of New Bedford, Massachusetts, recently prevailed in a very important federal court victory. Their two aged Asian elephants—Emily (over 55 years old) and Ruth (over age 60)—have lived at the Zoo since 1968 and 1986 respectively. Both elephants were the subject of an ESA citizen suit (Rowley v City of New Bedford) arguing that the care provided by the Zoo constituted “harassment” and therefore, illegal “take” and seeking their removal from the Zoo.
Last month, a unanimous, three judge panel of the United States Court of Appeals for the First Circuit affirmed, in all respects, the trial court judgment in favor of the Zoo. PETA filed an amicus brief in the case, but did not take a position in favor of either party, and did not dispute the District Court decision. Rather, they argued unsuccessfully that the District Court had improperly applied the “generally accepted practices” exemption. Notwithstanding, the Court of Appeals found no error in the trial judgment that there was neither “harm” nor “harassment”, and therefore, no “take” of the elephants.
This decision is important to all AZA members because it found no error in using AZA accreditation standards as proof of the “generally accepted animal husbandry practices” exception to the definition of illegal “harassment.” Here is what the trial court said about AZA accreditation:
“The City's accreditation by the Association [of] Zoos and Aquariums, which sets standards for animal care above the minimum standards required by Animal Welfare Act regulations, supports the Court's conclusion that the shelter and food that the City provides the elephants are consistent with generally accepted animal husbandry practices and do not harm or harass them.” Rowley, 413 F.Supp. 3d 53, 65 (D. Mass. 2019).
The Court of Appeals agreed, holding as a matter of law that “we see no legal error in the district court's application of the captive wildlife exclusion for generally accepted, Animal Welfare Act-compliant, animal husbandry practices contained in 50 C.F.R. § 17.3. . . . and reversal is not required based on the district court's reliance on Association of Zoos and Aquariums accreditation standards in its finding that the food and shelter provided to the elephants accords with generally accepted, AWA-compliant animal husbandry standards.” Rowley v. City of New Bedford, 2020 U.S. App. LEXIS 33007 (1st Cir. 2020).
Interestingly, although PETA’s amicus brief disagrees with the District court’s analysis, it agrees that AZA accreditation standards are an appropriate benchmark, writing: “Whether conduct is generally accepted should be determined by reference to the relevant scientific community, such as the standards of care from the Association of Zoos and Aquariums, the Global Federation of Animal Sanctuaries, the American Association of Zoo Veterinarians, or testimony from expert witnesses.”
On the other end of the zoo-spectrum, the Tiger King cast-of-characters and others are helping to define what is not generally accepted practice, and is in fact, both unacceptable and unlawful.
Earlier this month, the Virginia attorney general’s animal law unit announced animal cruelty and ESA-related indictments against Doc Antle and Myrtle Beach Safari, and Keith Wilson and Wilson’s Wild Animal Park.
In August 2020, a U.S. District Court in Indiana held that Tim Stark and Wildlife in Need had violated the ESA by “taking” tigers, lions, and hybrids when they were gruesomely declawed, and by prematurely separating big cat cubs from their mothers for guest interactions. “The evidence demonstrates declawing and prematurely separating cubs from their mothers for Tiger Baby Playtime poses a serious harm—in many cases a deadly one,” the judge wrote in his ruling. Tim Stark was subsequently arrested and remains in custody.
Jeff Lowe and Wynnewood Exotic Animal Park have lost their USDA license. PETA is helping place their animals. We know where Joe Exotic has landed.
In December 2019, in another case brought by PETA, the U.S. District Court for Maryland held that the treatment of endangered tigers, lions, and lemurs at Maryland’s unaccredited Tri-State Zoo constituted ESA-prohibited take, ordered the animals removed, and prohibited the zoo from owning or possessing endangered or threatened species in the future.
All of this, although often excruciating and agonizing to witness, is coming full circle, helping better define what constitutes ESA harm and harassment for wildlife in managed care, and importantly, what is exempt as “generally accepted” husbandry practices.
Clearly, AZA accreditation and standards are being viewed as credible and authoritative evidence by non-government organizations like PETA, enforcement agencies like the U.S. Fish and Wildlife Service, and by the federal courts.
This is a definite and a positive trend. One that recognizes and therefore incentivizes application of high standards; one that will help to continually elevate the notion of general acceptance. What was generally accepted in 1960 is certainly not today. What is generally accepted today may not be tomorrow.
This is good news for a community like AZA, which aspires to continual learning and improvement. It opens the door for a more productive relationship with animal protection organizations as we both embrace an expert-based approach to animal care and welfare and increasingly collaborate to stop abuse of animals at places like Tri-State Zoo and Wildlife in Need. The latter will also help the public to make the increasingly important distinction between good and bad zoological facilities.
Life does come full circle. It certainly has here.
Dan Ashe is the president and CEO of the Association of Zoos and Aquariums.
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