PETA v. Miami Seaquarium<\/em>, 879 F.3d 1142 (11th Cir. 2018).\u00a0 PETA\u00a0sued the Seaquarium on the grounds that the conditions in which a killer whale — “Lolita” — is maintained constitute a prohibited “take” under the ESA.\u00a0 Lolita, previously a member of the Pacific Northwest Southern Resident\u00a0 population of killer whales, is the only killer whale held in a\u00a0zoological setting in the U.S.\u00a0who is designated as “endangered” under the ESA.\u00a0\u00a0However,\u00a0Lolita is also one of the\u00a0longest-lived killer whales \u00a0in captivity and has lived at the Seaquarium since 1970.<\/p>\nPETA argued that\u00a0Lolita’s physical issues were the result of the conditions of her enclosure and therefore constituted “harm” and “harassment” within the meaning of the “taking” prohibition of the ESA.\u00a0 While the panel did not agree with the district court that\u00a0these terms only included deadly or potentially deadly harm, the panel rejected PETA’s argument that the conditions of Lolita’s captivity pose a threat of serious harm to her.<\/p>\n
Of particular significance to the panel’s ruling was the fact that the conditions at issue were compliant with the Animal Welfare Act (AWA), a statute administered by the Animal Plant and Health Inspection Service (APHIS) of the U.S. Department of Agriculture.\u00a0 The AWA preceded the passage of the ESA and\u00a0governs the conditions, inter alia<\/em>, in which animals held for exhibition are kept.\u00a0 The panel ruled that PETA’s position that a “take” could arise under the ESA notwithstanding the exhibitor’s compliance with the AWA would nullify the AWA:<\/p>\nPETA\u2019s expansive reading of \u201charm\u201d and \u201charass\u201d would effectively nullify the AWA in the context of captive endangered animals.\u00a0 If given their dictionary definitions, \u201charm\u201d and \u201charass\u201d would sweep so broadly as to deprive AWA compliance of practical significance.\u00a0 Any continual annoyance, trouble, or vexation could, for example, be actionable \u201charass[ment].\u201d\u00a0 It is not difficult to imagine that captivity, however humane, could often be challenged as continually annoying, troublesome, or vexatious. PETA urges that we ought not be concerned about interpreting the ESA aggressively because Congress intended the ESA to provide added protections for endangered animals.\u00a0 But the interpretation PETA presses could nullify the AWA\u2019s regime of administrative enforcement.\u00a0 Even after APHIS had approved a particular aspect of an endangered animal\u2019s conditions of captivity, plaintiffs could expose the exhibitor to ESA liability by framing that condition as an impermissible \u201ctake,\u201d no matter how de minimis the harm it caused.<\/strong>\u00a0 For example, if APHIS had approved a captive endangered marine mammal\u2019s companions, plaintiffs could invite a federal court to substitute its judgment for APHIS\u2019s by bringing an ESA lawsuit characterizing the chosen companions as a \u201ccontinual annoyance.\u201d\u00a0 Our conclusion that \u201charm\u201d or \u201charass[ment]\u201d is actionable if it poses a threat of serious harm provides captive endangered animals with an additional layer of protection from harmful conditions of captivity without abrogating the complex regulatory scheme crafted and administered by APHIS.<\/p><\/blockquote>\n879 F.3d at 1150 (emphasis added).<\/p>\n
The Seaquarium<\/em> case is an important precedent for exhibitors subject to the ESA.\u00a0 It definitively puts to rest the animal activist theory that the ESA “taking” provision created what\u00a0amounts to a “no contact” standard for captive endangered species.\u00a0 Such a theory would have made it all but impossible for endangered species to be held in a zoological setting.<\/p>\n","protected":false},"excerpt":{"rendered":"by John M. Simpson. A petition for rehearing filed by People for the\u00a0Ethical Treatment of\u00a0Animals (PETA) was recently denied by\u00a0the U.S. Court of Appeals for the Eleventh Circuit in an Endangered Species Act (ESA) case involving a killer whale (Orcinus orca) maintained by the Miami Seaquarium.\u00a0\u00a0The denial\u00a0left standing a significant ruling by the court under … <\/p>\n
Continue reading “PETA Strikes Out Again in Eleventh Circuit”<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[177,6,24,105,8,5,176,7],"ppma_author":[697],"class_list":["post-123","post","type-post","status-publish","format-standard","hentry","category-general","tag-captivity","tag-endangered-species-act","tag-esa","tag-harass","tag-harm","tag-john-simpson","tag-killer-whale","tag-take"],"authors":[{"term_id":697,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/simpsonjohn-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/123","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=123"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/123\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=123"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=123"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=123"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=123"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}