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People For The Ethical Treatment of Animals, Inc. v. Miami Seaquarium

United States Court of Appeals, Eleventh Circuit

January 12, 2018

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., ANIMAL LEGAL DEFENSE FUND, HOWARD GARRETT, ORCA NETWORK, Plaintiffs - Appellants,
v.
MIAMI SEAQUARIUM, FESTIVAL FUN PARKS, LLC, Defendants-Appellees.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cv-22692-UU

          Before BLACK and HULL, Circuit Judges, and RESTANI, [*] Judge.

          PER CURIAM

         This case concerns Lolita, an Orcinus orca living in captivity at Miami Seaquarium. People for the Ethical Treatment of Animals, Inc., Animal Legal Defense Fund, Orca Network, and Howard Garrett (collectively, PETA) sued Miami Seaquarium and Festival Fun Parks, LLC (collectively, Seaquarium), alleging Seaquarium is perpetrating an unlawful "take" by "harm[ing]" or "harass[ing]" Lolita in violation of section 9(a)(1)(B) of the Endangered Species Act of 1973, 16 U.S.C. § 1538(a)(1)(B).

         The district court determined that "a licensed exhibitor 'take[s]' a captive animal . . . only when its conduct gravely threatens or has the potential to gravely threaten the animal's survival" and granted summary judgment for Seaquarium, citing PETA's failure to identify any conduct satisfying that standard. On appeal, PETA contends the district court imposed too high a standard and, alternatively, that the district court erred by concluding Seaquarium's conduct does not, as a matter of law, pose a grave threat to Lolita.[1]

          We affirm the district court's determination that Seaquarium is entitled to summary judgment; however, we do not agree that actionable "harm" or "harass[ment]" includes only deadly or potentially deadly harm. Rather, Seaquarium is entitled to summary judgment because the evidence, construed in the light most favorable to PETA, does not support the conclusion that the conditions of her captivity pose a threat of serious harm to Lolita.

         I. BACKGROUND

         A. Lolita

         A member of the Southern Resident L Pod of the Southern Resident Killer Whale (SRKW) Distinct Population Segment, Lolita was captured off the coast of Washington state when she was between three and six years old. Seaquarium purchased Lolita and she has lived at Seaquarium since September 24, 1970. Lolita is about twenty feet long and weighs around 8, 000 pounds.

         Lolita lives in an oblong tank that, at its widest and deepest points, is eighty feet wide and twenty feet deep.[2] A portion of the tank is occupied by a concrete platform on which Lolita's trainers stand. Stadium seating surrounds the tank. Lolita has not lived with another orca since 1980, when Hugo, her former companion, passed away. Lolita now lives with Pacific white-sided dolphins (PWSDs). Like Lolita, the PWSDs are cetacean mammals.

         B. The Instant Case

         The Endangered Species Act of 1973 (ESA), 87 Stat. 884, 16 U.S.C. § 1531 et seq. (1988 ed. and Supp. V), protects species of fish and wildlife designated as endangered or threatened. Until recently, the ESA did not cover Lolita. The National Marine Fisheries Service (NMFS), the agency that administers the ESA with respect to marine mammals, recognized SRKWs as an endangered species in 2005; however, the listing excluded captive SRKWs. Endangered and Threatened Wildlife and Plants: Endangered Status for Southern Resident Killer Whales, 70 Fed. Reg. 69, 903-01, 69, 911 (Nov. 18, 2005) (codified at 50 C.F.R. § 17.11).

         In January 2013, PETA successfully petitioned the NMFS to recognize Lolita as a protected SRKW and to remove the "captive member" exclusion from the ESA. Since May 11, 2015, NMFS has recognized Lolita as a SRKW covered by the ESA. 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 (Feb. 10, 2015) (codified at 50 C.F.R. pt. 224). On July 20, 2015, approximately two months after Lolita came within its coverage, PETA sued under section 9(a)(1)(B) of the ESA.

         Section 9(a)(1) protects "any endangered species of fish or wildlife listed pursuant to section 1533."[3] 16 U.S.C. § 1538(a)(1). Section 9(a)(1)(B) makes it unlawful to "take any such species within the United States or the territorial sea of the United States." Id. § 1538(a)(1)(B). "The term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. ยง 1532(19). PETA specifically contends Seaquarium is subjecting Lolita to "harm" or "harass[ment]." When PETA filed suit, Lolita was approximately fifty-one years old. Wild female SRKWs have a median life expectancy of approximately 38 years according to Seaquarium and approximately 50 years according to PETA. Lolita has exceeded the median life expectancy of wild female SRKWs by either measure. In support of its claim that Seaquarium is subjecting Lolita to "harm" or "harass[ment], " PETA cites ...


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