PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., ANIMAL LEGAL DEFENSE FUND, HOWARD GARRETT, ORCA NETWORK, Plaintiffs - Appellants,
MIAMI SEAQUARIUM, FESTIVAL FUN PARKS, LLC, Defendants-Appellees.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:15-cv-22692-UU
BLACK and HULL, Circuit Judges, and RESTANI, [*] Judge.
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.
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.
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.
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,
lives in an oblong tank that, at its widest and deepest
points, is eighty feet wide and twenty feet
deep. 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
The Instant Case
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. §
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.
9(a)(1) protects "any endangered species of fish or
wildlife listed pursuant to section 1533." 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. § 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