Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 1 of 31

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JAMES GRAHAM,
ELIZABETH WYMER,
and NOAH B. KHOSHBIN
Plaintiffs,
v.
SAN ANTONIO ZOOLOGICAL
SOCIETY,
Defendant.

CIVIL NO. 5:15-cv-01054-XR

DEFENDANT SAN ANTONIO ZOOLOGICAL SOCIETYS

RULE 12(b)(6) MOTION TO DISMISS PLAINTIFFS COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF

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TABLE OF CONTENTS
I.

INTRODUCTION AND SUMMARY OF ARGUMENT .......................................................1

II. MOTION TO DISMISS STANDARD.....................................................................................2

III. PLAINTIFFS FACTUAL AND LEGAL ALLEGATIONS...................................................3
IV. ARGUMENT ............................................................................................................................5
A. The conditions of animals held in captivity are governed by the Animal Welfare
Act, which standards are not be enforced through ESA citizen suits...............................5
1.

The ESAs Take prohibition does not generally apply to lawfully held
zoo animals ..............................................................................................................6

2.

The AWA comprehensively regulates conditions of zoo animals ..........................9

3.

The ESA does not permit citizen suits to enforce the AWAs standards
for animals held in captivity. Instead, USDA APHIS must consult with
FWS as to any endangered animal covered by an AWA license ..........................11

4.

The ESAs own terms preclude factual and legal determinations in an

ESA citizen suit that the AWAs standards are being violated .............................13

5.

Plaintiffs Complaint is the latest attempt to evade limits on judicial

review of zoos and aquaria holding of listed animals.........................................15

B. Plaintiffs have not alleged an actionable harm. ............................................................20

C. Plaintiffs cannot, as a matter of law, allege an illegal possession....................................23
D. Plaintiffs cannot allege a cause of action for forfeiture ...................................................25
CONCLUSION AND PRAYER ...................................................................................................28
CERTIFICATE OF SERVICE......................................................................................................29

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JAMES GRAHAM,

ELIZABETH WYMER,

and NOAH B. KHOSHBIN

Plaintiffs,

v.

CIVIL NO. 5:15-cv-01054-XR

SAN ANTONIO ZOOLOGICAL

SOCIETY,

Defendant.

DEFENDANT SAN ANTONIO ZOOLOGICAL SOCIETYS

RULE 12(b)(6) MOTION TO DISMISS PLAINTIFFS COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
TO THE HONORABLE JUDGE XAVIER RODRIGUEZ:
Defendant San Antonio Zoological Society (the San Antonio Zoo) respectfully moves
for dismissal of Plaintiffs James Graham, Elizabeth Wymer, and Noah B. Khoshbins
(collectively Plaintiffs) Complaint for Declaratory and Injunctive Relief under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
I.
INTRODUCTION AND SUMMARY OF ARGUMENT
Lucky is a 56-year old Asian elephant who has lived for more than a half-century at the
San Antonio Zoo. Plaintiffs lawsuit seeks to pry her away from her home at the Zoo through a
novel forfeiture claim, or, alternatively, to judicially force what they perceive as improvements
to her enclosure at the Zoo.1 Plaintiffs seek these outcomes by claiming Endangered Species Act
(ESA) take violations based on allegations that Luckys enclosure is inadequate.

While Plaintiffs Complaint is directed at the San Antonio Zoo, the declaration of Plaintiffs
elephant expert reveals Plaintiffs much more fundamental and wide-reaching motivations
1

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Plaintiffs Complaint should be dismissed under Rule 12(b)(6) because the ESA does not
regulate zoo animals living conditions through its citizen suit provision. Instead, the Animal
Welfare Act (AWA) regulates zoo animals living conditions. The AWA is administered by
the United States Department of Agriculture, Animal and Plant Health Inspection Service
(USDA APHIS or APHIS). The AWA and USDA APHIS regulations require zoos to obtain
licenses to hold and exhibit animals in captivity and impose standards that govern all aspects of
the animals welfare in captivity. The AWA authorizes USDA APHIS to revoke licenses, seize
animals in danger, and take civil and criminal action against zoos for violations of the AWA.
But the AWA does not authorize citizen suits, thereby precluding judicial review of citizen
complaints that the conditions of zoo animals violate the AWAs standards. The Plaintiffs
Complaint must be dismissed because its allegations all concern the conditions of Luckys
captivity at the Zoo, which is the subject matter of the AWA and the regulations APHIS has
promulgated thereunder, and not the proper subject matter of an ESA citizen suit.
II.
MOTION TO DISMISS STANDARD
Motions to dismiss are generally limited to the factual allegations in the Complaint. See
Lormand v. US Unwired, Inc., 565 F.3d 228, 2512 (5th Cir. 2009) (In addition to accepting all
of the factual allegations in the complaint as true, courts must consider the complaint in its
entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the complaint by reference, and

regarding all zoos. See Blais Decl. at 10 (There is a rapidly growing need for healthy
alternatives to zoos . . . . Zoo elephants are ailing, and zoos lack the space to adequately expand
to meet these elephants needs.).
2

Hyperlinking for case, Federal Register, and law review citations is to WestlawNext.
Hyperlinking for U.S.C. and C.F.R. citations is to the Legal Information Institute or the U.S.
Government Printing Office.
2

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matters of which a court may take judicial notice.). The Court must accept specific, nonconclusory facts in the complaint as true. Those facts, however, must plausibly suggest a right to
relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (replacing the no set of facts
standard for 12(b)(6) motions with the plausible right to relief standard); Amacker v. Renaissance
Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011) ([A] claim may be dismissed when a
plaintiff fails to allege sufficient facts that, taken as true, state a claim that is plausible on its
face.). Here, even if Plaintiffs allegations are taken as true, they must be dismissed as a matter
of law because they do not form the basis of a legally viable ESA citizen suit. See Atchafalaya
Basinkeeper v. Chustz, 682 F.3d 356, 360 (5th Cir. 2012) (per curiam) (affirming dismissal of
claim not authorized under citizen suit provision).
III.
PLAINTIFFS FACTUAL AND
LEGAL ALLEGATIONS
Plaintiffs allegations regarding Luckys enclosure. Plaintiffs ESA take allegations
all address the conditions in which Lucky is held by the Zoo.3 In Count I, Plaintiffs complain
that there has not consistently been a second elephant in Luckys enclosure with whom she can
bond following her long-time enclosure mates passing.4 In Counts II-IV, Plaintiffs complain
that Luckys enclosure is too small, offers nearly no shade from the sun, does not provide a pool
that is deep enough . . . and is made of unnaturally hard and species-inappropriate substrate.5
Plaintiffs harass claims. Plaintiffs allege the current lack of a companion and other
enclosure conditions fall short of generally accepted husbandry practice within the meaning of

See Compl. (Dckt. # 1) at 1; see also id. at 13 (alleging that all of Plaintiffs aesthetic
injuries are caused by the Zoo and the ways in which it maintains Lucky).
4

Id. at 1, 31-34, and Count 1 at 53-66.

Id. at 35; see also Counts II-IV at 67-82.

3

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the ESA definition of harass as it applies to captive wildlife, citing 50 C.F.R. 17.3the Fish
and Wildlife Service ESA regulation that defines harass as part of take.6 However, the FWS
excludes from its definition of harass generally accepted animal husbandry practices that meet
or exceed the minimum standards for facilities and care under the Animal Welfare Act. See 50
C.F.R. 17.3. Plaintiffs evidently assert that the question of whether the Zoos care and
possession of Lucky meets the AWA standards is the proper subject of an ESA citizen suit. As
explained below, ESA citizen suits cannot be used to enforce AWA compliance.
Plaintiffs harm claims. Plaintiffs also make the cursory contention that these same
conditions constitute a harm in the definition of take. But any complaints about Luckys
maintenance at the Zoo are within the exclusive authority of USDA APHIS to determine within
its regulatory regime (which includes licensure, revocation, and civil and criminal punishment).
Moreover, Plaintiffs fail to allege (and could not possibly allege) an actual injury or death, which
is required to establish harm.
Plaintiffs illegal possession claim. Plaintiffs also contend the Zoo violates ESA 9s
prohibition on illegally possessing an endangered animal because Luckys conditions amount to
an illegal take.7 But the Zoos possession of Lucky is legal: it is licensed by the Secretary of
Agriculture under the Animal Welfare Act. Moreover, the ESA 9 possession prohibition

Id. at 65, 72, 76 (citing to a USDA APHIS regulation for shade promulgated under the
AWA). Plaintiffs claim the lack of a companion and the enclosure conditions violate the
Association of Zoos and Aquariums (AZA) standards, though Plaintiffs acknowledge that
AZA has provided the Zoo a variance from the requirement for multiple elephants. As Plaintiffs
also acknowledge, the AZA is a non-governmental trade organization whose standards are not
included in any ESA provision or regulation and therefore provide no cause of action. Id. at 16
61 (The AZAs variance has no legal effect on the requirements of the ESA.).
7

Id. at 22 (For the same reasons, the San Antonio Zoo is currently in possession of an
endangered Asian elephant who has been unlawfully taken, in violation of Section 9 of the ESA,
16 U.S.C. 1538(a)(1)(D).).
4

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applies only to animals who have been directly taken, not animals subject to an indirect or
incidental take, such as through habitat modification that constitutes harm or harassment.
Plaintiffs requested relief.

Plaintiffs Prayer for Relief requests only general

injunctive relief against the conditions about which they complain (no companion elephant,
enclosure size, shade and surface) and, apparently, for forfeiture (which Plaintiffs
mischaracterize as injunctive relief: Plaintiffs request that this Court enter a judgment . . .
Enjoining the San Antonio Zoo from continuing to possess Lucky . . . .).8 Plaintiffs seek
forfeiture not to the government as the ESA contemplates in a government enforcement action,
but instead to one of two non-party, private, self-described sanctuariesThe Elephant
Sanctuary in Tennessee or PAWS in San Andreas, California.9
IV.
ARGUMENT
A.

The conditions of animals held in captivity are governed by the Animal Welfare Act,
which standards are not to be enforced through ESA citizen suits.
Luckys living conditions at the San Antonio Zoo far exceed the minimum requirements

imposed by the Animal Welfare Act, but even assuming Plaintiffs false factual allegations are
true, they must be dismissed as a matter of law because the AWA rather than the ESA supplies
the legal standards and their enforcement with regard to Luckys conditions at the Zoo.
No authority supports an ESA Section 9 taking claim against zoos legally holding listed
animals in captivity pursuant to a USDA APHIS license issued under the AWA. Congress
plainly did not intend for all zoo animals who happen to be among ESA-listed species to be
subject to ESA take prohibitions based on their captivity; if Congress had intended that result, all
8

Id. at 22-23.

Id. at 2; see also page 5, fn. 2, and page 11 41 (There are only two GFAS-accredited
elephant sanctuaries in the United States, both of which are capable of providing Lucky a much
better home . . . .)
5

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zoos with an endangered animal would have been in violation of the ESAs take prohibition
since 1973 (when the ESA was passed). In recognition that Congress did not intend this result,
the Department of Interior, United States Fish and Wildlife Service (FWS), as the agency
charged with implementing the ESA, exempted captive wildlife from ESA take claims (like
those raised by Plaintiffs) as long as the wildlifes living conditions meet the AWAs
requirements requirements that are determined by USDA APHIS during its mandatory
licensing process and are enforced through regular USDA APHIS inspections and license
renewals. The AWA does not permit citizen suits to enforce its standards. Therefore, the subject
matter of Plaintiffs Complaint is addressed not by the ESA and its citizen suit provision, but by
the AWA and its administrative licensing regime, which is described in detail below.
1.

The ESAs take prohibition does not generally apply to lawfully held zoo
animals.

Congress passed the ESA primarily to protect the habitat and populations of endangered
and threatened species. 16 U.S.C. 1531(b) (purposes of ESA). Congress did not describe the
living conditions of zoo animals as an intended target of the ESA.
The ESA provides that with respect to any endangered species of fish or wildlife listed
[as endangered], the ESA makes it unlawful for any person . . . to . . . take any such species
within the United States . . . . 16 U.S.C. 1538(a)(1)(B) [ESA 9s take prohibition].
The ESA defines take to mean to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or to attempt to engage in such conduct. Id. 1532(19) [ESA 3 Definitions].
The ESA authorizes civil and criminal penalties. It authorizes enforcement actions by the
federal government, including the Secretary [of the Interior], the Secretary of the Treasury, or
the Secretary of the Department in which the Coast Guard is operating, or all such secretaries.

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Id. 1540(e)(1) [ESA 11]. ESA 11 authorizes forfeiture to the United States, but does not
prescribe any private cause of action for forfeiture. Id. 1540(e)(4)(A).
The ESA authorizes citizen suits to (A) enjoin any person . . . who is alleged to be in
violation of any provision of this chapter or regulation issued under the authority thereof; or (B)
to compel the Secretary [of the Interior] to apply . . . the prohibitions set forth in or authorized
pursuant to . . . 1538(a)(1)(B).
Congress has charged the United States Department of Interior, Fish and Wildlife Service
(FWS) with implementing the ESA. FWS has never interpreted the ESA either (i) to preclude
the holding by zoos of endangered animals, or (ii) to govern the conditions of the captivity under
which endangered animals live in zoos. See 63 Fed. Reg. 48634, 48635 (Sept. 11, 1998) (The
Service considers the purpose of the Act to be best served by conserving species in the wild
along with their ecosystems. Populations of species in captivity are, in large degree, removed
from their natural ecosystems . . . .).
In its rulemaking implementing the ESAs 9 take prohibition, FWS has addressed the
issue of the potential application of the ESA to exhibition animals lawfully living in captivity.
With respect to such animals, the FWS in 1998 amended the definition of harass in the take
definition to exclude captive animals held pursuant to the standards of the Animal Welfare Act:
Harass in the definition of take in the Act means 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. This definition,
when applied to captive wildlife, does not include generally accepted:
(1)

Animal husbandry practices that meet or exceed the minimum

standards for facilities and care under the Animal Welfare Act,

(2)

Breeding procedures, or

(3)

Provisions of veterinary care for confining, tranquilizing, or

anesthetizing, when such practices, procedures, or provisions are
not likely to result in injury to the wildlife.
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50 C.F.R. 17.3.
In that 1998 rulemaking, FWS explained its reasoning for deferring to the AWA to
determine the living conditions of ESA-listed animals held in captivity:
Harass under the definition of take in 17.3 is an act or omission that
creates the likelihood of injury by annoying wildlife to such an extent as to
significantly disrupt normal behavior patterns. The applicability of this concept to
captive-held animals has been unclear, since human activities, including normal
husbandry practices, provided in caring for captive-held wildlife in all probability
disrupt behavior patterns.
In light of this, the definition of harass in 50 CFR 17.3 is modified
to exclude normal animal husbandry practices that are not likely to result in
injury such as humane and healthful care when applied to captive wildlife. While
no permit is required to possess lawfully acquired listed wildlife, a person
cannot possess wildlife without doing something to it that might be construed
as harassment under a literal interpretation of the definition in use since
1979, e.g., keep it in confinement, provide veterinary care, etc. Under this
scenario, a person who legally possessed wildlife without a permit could be
considered in violation of the prohibition against harassment unless they obtained
a specific permit that authorized them to conduct normal animal husbandry
activities. Had Congress intended this result, the prohibition on possession in
section 9 of the Act would not have been limited to endangered species taken
in violation of the Act.
However, maintaining animals in inadequate, unsafe or unsanitary
conditions, physical mistreatment, and the like constitute harassment because
such conditions might create the likelihood of injury or sickness. The Act
continues to afford protection to listed species that are not being treated in a
humane manner.
63 Fed. Reg. at 48638.
FWSs exclusion of listed animals held in captivity under the AWAs requirements
recognizes that the captivity itself could constitute a take, but that Congress did not intend that
result. Id. ([N]o permit is required to possess lawfully acquired listed wildlife.). Thus, it has
been well understood since its enactment that the ESA does not prohibit possession of
endangered species. Id. Indeed, there are currently listed animals in zoos and aquaria across the
country, just as there were when the ESA was first enacted in 1973. Nor does the ESA dictate

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the conditions under which such animals held in captivity must live. Instead, because Congress
authorized USDA APHIS to enforce AWA standards for living conditions of animals in
captivity, FWS defers to that regime to ensure the humane treatment of endangered animals in
captivity.
2.

The AWA comprehensively regulates conditions of zoo animals.

In passing the AWA, Congress found that it was essential to regulate, as provided in this
chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by
carriers or by persons or organizations engaged in using them for . . . exhibition purposes. 7
U.S.C. 2131.
Congress authorized the USDA to implement regulations that insure that animals
intended . . . for exhibition purposes . . . are provided humane care and treatment. Id. 2131
and 2132(b).
Under the AWA, individuals and businesses who exhibit animals to the public, such as
zoos, are required to obtain a license from USDA APHIS. Id. 2132 and 2133. Before APHIS
will issue a license, the applicant and its facilities must be in compliance with all AWA standards
and regulations, which include by reference all federal laws. Id. 2133; see also APHIS
implementing regulations at 9 C.F.R. 2.11(a) (A license will not be issued to any applicant
who: (1) Has not complied with the requirements of 2.1 [Requirements and application], 2.2
[Acknowledgement of regulations and standards], 2.3 [Demonstration of Compliance with
standards and regulations.], and 2.4 [Non-interference with APHIS officials] and has not paid the
fees indicated in 2.6 [Annual license fees]; (2) Is not in compliance with any of the regulations
or standards in this subchapter; (3) Has had a license revoked or whose license is suspended . . .
.).

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APHIS will issue a license only after it has performed an inspection of the applicants
premises and any animals in order to ascertain the applicants compliance with all AWA
standards and regulations. 9 C.F.R. 2.3(a)-(b). If the applicants animals, premises, facilities,
vehicles, equipment, other premises, or records do not meet the requirements of this subchapter,
APHIS will advise the applicant of existing deficiencies and the corrective measures that must be
completed to come into compliance with the regulations and standards. Id. 2.3(b). A licensee
must renew its license each year by certifying compliance with all AWA standards, submitting
an annual report detailing the number of animals held, and paying an annual fee. See generally
Animal Legal Def. Fund v. U.S. Dept. of Agric., 789 F.3d 1206, 1211 (11th Cir. 2015) (citing 9
C.F.R. 2.2(b); 2.6; 2.7(d) and describing APHISs regulatory licensing regime).
The AWA covers elephants held in zoos. See 7 U.S.C. 2132(g) (The term animal
means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster,
rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is
intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet . . . .);
id. 2132(h) (The term exhibitor means any person (public or private) exhibiting any animals,
which were purchased in commerce or the intended distribution of which affects commerce, to
the public for compensation, as determined by the Secretary, and such term includes carnivals,
circuses, and zoos exhibiting such animals whether operated for profit or not . . . .).
The AWA requires licensed exhibitors, including zoos, to provide their animals with
adequate care and treatment in all areas: handing, housing, feeding, watering, sanitation,
ventilation, shelter from extremes of weather and temperatures, and adequate veterinary care.
Id. 2143(a)(2)(A).

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To ensure that all licensed facilities continue to comply with the AWA, USDA APHIS
officials make unannounced inspections, including in response to public complaints. See 9
C.F.R. 2.3; 7 C.F.R. 1.133(a)(1) (authorizing public complaints of AWA violations to USDA
APHIS). If an inspection reveals AWA violations, APHIS can temporarily suspend a license
pending notice and hearing requirements, can require corrections, can impose civil penalties
(subject to administrative hearing), can pursue criminal penalties before United States magistrate
judges, and can confiscate animals that are suffering or in immediate danger.

7 U.S.C.

2149(a)-(d) (Violations by licensees).

The AWA regulations further provide that a license may be terminated during the
license renewal process or at any other time for any reason that an initial license application may
be denied pursuant to 2.11. 9 C.F.R. 2.12. Thus, if USDA APHIS determines at any time
that a zoos conditions fall short of generally accepted animal husbandry practices, it can
terminate the zoos license to hold the animal in question.
This AWA regime is regulatory; it does not include citizen suit enforcement. As
explained in the next section, myriad courts have rejected citizen attempts to judicially enforce
AWA compliance.
3.

The ESA does not permit citizen suits to enforce the AWAs standards
for animals held in captivity. Instead, USDA APHIS must consult with
FWS as to any endangered animal covered by an AWA license.

As explained above, FWSs take regulations defer to the AWA as implemented by USDA
APHIS to ensure listed animals in captivity are held under the proper conditions. 50 C.F.R.
17.3 (excluding from the definition of harass animals held in captivity under the standards
imposed by the AWA). As explained above, this is necessary, reasoned the FWS, because any
conditions of captivity would otherwise constitute harassment and therefore a take, but it

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was not Congresss intention in passing the ESA to prescribe the specific conditions of animals
lawfully held in captivity. See 63 Fed. Reg. at 48638. Plaintiffs now seek to turn this common
sense implementation of the ESA on its head, claiming that alleged AWA violations can form the
basis of an ESA taking lawsuit. The AWA does not authorize citizen suits to enforce its
standards, and the ESA citizen suit provision cannot be used for that purpose either.
Courts have for decades dismissed complaints seeking to enforce AWA standards
because of the lack of a citizen suit provision in that statute. See, e.g., Intl Primate Prot. League
v. Inst. for Behavioral Research, Inc., 799 F.2d 934, 940 (4th Cir. 1986) (The Act . . . does not
imply any provision for lawsuits by private individuals as a complement to the authority of the
Secretary of Agriculture); Moor-Jankowski v. Bd. of Trustees of New York Univ., No. 96 CIV.
5999JFK, 1998 WL 474084 at *8 (S.D.N.Y. Aug. 10, 1998) (Congress explicitly placed in the
hands of the Secretary of Agriculture all investigative and enforcement authority for the AWA
and its implementing regulations. See 7 U.S.C. 2146, 2149. Nowhere does the AWA provide
for private citizens, or whistleblowers in particular, to file private causes of action for violations
of the statute or of any its implementing regulations promulgated by the Secretary.); In Def. of
Animals v. Cleveland Metroparks Zoo, 785 F. Supp. 100, 103 (N.D. Ohio 1991) (Plaintiffs
could not state a cause of action under the AWA, since that statute does not provide for private
suits to enforce its terms).
The AWAs standards are simply not intended to be enforced in citizen suits alleging
inadequate conditions of captivity. See generally Animal Legal Def. Fund v. U.S. Dept. of Agric.
[ALDF v. USDA], 789 F.3d 1206, 1225 (11th Cir. 2015) (As long as USDA refuses to initiate a
discretionary enforcement proceeding, the remedy ALDF and Lolitas legion of supporters seek
lies not in the federal courts, but in the halls of Congress. Our democratically elected leaders

12

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alone have the authority to limit USDAs license-renewal discretion in this matter and to demand
annual, substantive compliance with animal welfare standards.) (emphasis added).
4.

The ESAs own terms preclude factual and legal determinations in an ESA
citizen suit that the AWAs standards are being violated.

The plain language of the ESA evinces Congresss intent to preclude private citizens
from seeking to enforce alleged AWA violations through the ESAs citizen suit provision. ESA
11(h) addresses Coordination with other laws and makes clear that the ESAs terms
including its citizen suit provisiondo not impinge upon the USDAs administration of its laws
and regulations:
Nothing in this Act or any amendment made by this Act shall be construed as
superseding or limiting in any manner the functions of the Secretary of
Agriculture under any other law relating to prohibited or restricted importations
or possession of animals and other articles and no proceeding or determination
under this Act shall preclude any proceeding or be considered determinative of
any issue of fact or law in any proceeding under any Act administered by the
Secretary of Agriculture.
16 U.S.C. 1540(h).
The ESA by this language precludes the statutes generalized application to USDAlicensed possession of animals in deference to USDA APHISs administration of its licensing
regime. In other words, because USDA APHIS licenses and ensures zoos possession of animals
as compliant with the AWAs standards, the ESAs citizen suit provision cannot be used to gain
factual or legal determinations that the AWA standards are being violated.
Instead, as to zoo animals, the ESA applies administratively, and in coordination with
USDA APHISs authority to license possession of animals held in captivity. ESA 7(a)(1)
requires that [a]ll other Federal agencies shall, in consultation with and with the assistance of
the [FWS], utilize their authorities in furtherance of the purposes of [the ESA] by carrying out

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programs for the conservation of endangered species and threatened species listed pursuant to
section 1533 of this title. 16 U.S.C. 1536(a)(1).
Similarly, ESA 7(a)(2) requires that each federal agency in consultation with and with
the assistance of the [USFWS] insure that any action authorized, funded, or carried out by such
agency . . . is not likely to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of [critical habitat]. Id.
1536(a)(2).

The ESA 7 consultation regulations define action to mean all activities or

programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies
in the United States or upon the high seas. Examples include, but are not limited to: (a) actions
intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the
granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d)
actions directly or indirectly causing modifications to the land, water, or air.

50 C.F.R.

402.02 (emphases added).

Thus, the ESA requires: (1) USDA APHIS to use its regulatory, licensing, inspection,
and enforcement authorities under the AWA to ensure that individuals who possess listed captive
animals employ animal husbandry practices that conserv[e] . . . endangered species. 16 U.S.C.
1536(a)(1); and (2) USDA APHIS to consult with FWS regarding licensure of zoos and
aquaria that possess and exhibit federally-listed endangered animals. Id. 1536(a)(2); 50 C.F.R.
402.02.
Accordingly, FWS implements the ESA with respect to animals lawfully held in captivity
by consulting with APHIS, but it does not itself administer animal welfare standards. As FWS
stated in its 1998 rulemaking: [t]o evaluate facilities and care provided to [captive bred wildlife

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permit] applicants, the Service will continue to consult with experts such as . . . [APHIS] which
is charged with administering the Animal Welfare Act. 63 Fed. Reg. at 48636.
In sum, under the ESA and AWA and their respective regulations, it is the AWA
administrative scheme which governs, and it is USDA APHIS which enforces the standards
applicable to listed animals held in captivity. Allowing Plaintiffs to use an ESA citizen suit to
enforce AWA standards would ignore Congresss carefully structured legislative and
administrative scheme. Further, as explained in the next section, Plaintiffs attempt to end run
Congresss intent to delegate AWA enforcement to USDA APHIS is a strategy that has been
rejected under strikingly similar facts. See Am. Socy For The Prevention of Cruelty To Animals
v. Ringling Bros. & Barnum & Bailey Circus [Ringling Brothers], 502 F. Supp. 2d 103, 113
(D.D.C. 2007).
5.

Plaintiffs Complaint is the latest attempt to evade limits on judicial review of

zoos and aquaria holding of listed animals.

Because the AWA does not contain a citizen suit provision, animal rights groups
including the Animal Legal Defense Fundhave repeatedly attempted to enforce the AWA
indirectly through the citizen suit provisions of the ESA and other statutes. These attempts have
been rejected.

This is because Plaintiffs face an insurmountable obstaclei.e., there is no

private cause of action available for alleged violations of the AWA.

It has long been widely understood that the ESA was never intended to protect captive
wildlife from AWA violations or, more generally, to regulate the conditions of captivity. Put
simply, zoo habitats are not the subject matter of the ESA. See, e.g., Geordie Duckler, Toward A
More Appropriate Jurisprudence Regarding the Legal Status of Zoos and Zoo Animals, 3 Animal
L. 189, 199-200 (1997) ([The ESA] has proven to be a vehicle used more to protect animal
habitats than animals themselves. The statutory scheme encompassing the ESA would be hard

15

Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 18 of 31

pressed to apply to the complete populations of the nations zoological parks, primarily because
zoos are geographically independent of natural animal habitats.); see also In Def. of Animals v.
Cleveland Metroparks Zoo, 785 F. Supp. 100, 103 (N.D. Ohio 1991) (in case challenging zoos
allegedly harmful transport of captive gorilla, plaintiffs did not allege nor could they allege, that
some provision of the [ESA] would be violated).
Advocacy groups have only recently sought to use the ESA to make federal courts the
policemen of zoo animals conditions. See Joyce Tischler,10 A Brief History of Animal Law,
Part II (1985 - 2011), 5 Stan. J. Animal L. & Poly 27, 68 (2012) (stating that Ringling Brothers,
502 F. Supp. 2d 103 (D.D.C. 2007), discussed below, marks one of the first attempts by animal
lawyers to use the Endangered Species Act to protect captive wildlife and as such, is a portent of
possible future litigation). This Court should, as most other courts have done, reject that role.
Attack on captive bred wildlife permits through ESA: In Ringling Brothers, 502 F.
Supp. 2d at 111-112, the plaintiffs argued that a defendants failure to meet the AWA standards
mandated under a FWS-issued captive-bred wildlife permit was actionable under the ESA.
captive-bred wildlife permitees must comply with the same AWA standards that apply to USDA
APHIS licensees, and which Plaintiffs here contend have been violated. See 50 C.F.R. 13.41.
The Ringling Brothers court held the ESA citizen suit provision did not authorize suits over
alleged non-compliance with the animal welfare requirements of a captive-bred wildlife permit.
[O]nly the government, through the Secretary of the Interior, could bring actions for violations
of a permit issued by FWS.11 Id.

10

Co-Founder and General Counsel of the Animal Legal Defense Fund.

11

See also Envtl. Prot. Info. Ctr. v. U.S. Fish & Wildlife Serv., C 04-04647 CRB, 2005 WL
3021939, at *8 (N.D. Cal. Nov. 10, 2005) (Plaintiffs may not seek [take] permit enforcement
directly under ESA . . . .); Atl. Green Sea Turtle v. County Council of Volusia County, Fla.,
16

Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 19 of 31

Attack on USDA licenses through APA: Complainants have also attempted, but failed,
to judicially force the USDA to revoke licenses. As explained above, the AWA prohibits the
exhibition of animals without a license from [USDA], 7 U.S.C. 2134, and no such license
shall be issued unless the subject facilities comply with the standards promulgated by
[USDA], id. 2133. In ALDF v. USDA, 789 F.3d 1206, 1211 (11th Cir. 2015), the Animal
Legal Defense Fund (among other plaintiffs) sued USDA alleging that the renewal of an
exhibitors license violated the AWA because the conditions in which the exhibitor held a killer
whale violated the AWAs standards for animal husbandry. The 11th Circuit rejected that
approach, holding that USDA has discretionary enforcement authority to revoke a license due to
noncompliance, and [o]nly Congress, not this Court, possesses the power to limit the agencys
discretion and demand annual, substantive compliance with animal welfare standards. Id. at
1210.12
Plaintiffs attack on USDA licensing through the ESA. Under Ringling Brothers, citizen
plaintiffs are barred from suing under the ESA for alleged non-compliance with the AWA
requirements of a captive-bred wildlife permit; and under ALDF v. USDA, they cannot sue
USDA under the APA for an alleged failure to enforce compliance with the AWA. With these
two avenues of attack foreclosed, Plaintiffs here invoke yet another theory: that the ESA allows
citizen suits against a USDA APHIS licensee for allegedly failing to meet the AWA

2005 WL 1227305, at *14 n.8 (M.D. Fla. May 3, 2005) (vacated as moot) (holding same because
it would require nothing less than the Court to police the Countys permit compliance.).
Following dismissal of these claims, the plaintiffs sued again in the Southern District of Florida
on allegations nearly identical to those at issue here: that the orcas captivity violates the ESAs
take prohibition because of a small enclosure with inadequate shade and no companion orca. See
People for the Ethical Treatment of Animals, Animal Legal Defense Fund, et al. v. Miami
Seaquarium, et al., Case No. 15-cv-22692-UU (S.D. Fla.). Defendants Motion to Dismiss and
For Judgment on the Pleadings is currently pending. See Dckt. Nos. 25 (Motion), 30 (Response
in Opposition) and 34 (Corrected Reply).
12

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Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 20 of 31

requirements of care for animals held in captivity.13 This theory fails for the same reasons the
plaintiffs failed in Ringling Brothers and ALDF v. USDA. Just as only the government, through
the Secretary of the Interior, could bring actions for violations of a permit issued by FWS,
Ringling Bros., 502 F. Supp. 2d at 111-12, only USDA APHIS has discretionary enforcement
authority over alleged violations of AWA standards required under a USDA license, ALDF v.
USDA, 789 F.3d at 1210. Plaintiffs cannot use an ESA citizen suit to circumvent the USDA
APHISs licensure of zoos in compliance with AWA standards.
Plaintiffs attempt to bring the subject matter of the AWA and its regulations within the
scope of an ESA citizen suit should be rejected just as courts have rejected other attempts to
bring before the courts issues Congress has deemed to be regulatory and not the proper subject of
judicial review. See, e.g., Heckler v. Cheney, 470 U.S. 821, 834-835 (1985) (agency decision not
to pursue enforcement action for violation of permit is not judicially reviewable); Atchafalaya
Basinkeeper v. Chustz, 682 F.3d 356, 359-60 (5th Cir. 2012) (per curiam) (holding that Clean
Water Act 1344 permit violation is not actionable under citizen suit provision); Atl. Green Sea
Turtle, 2005 WL 1227305 at *14 (rejecting plaintiffs attempt to use ESA citizen suit to
enforce terms of incidental take permit). In Chustz, the Fifth Circuit noted the the Supreme
Courts warning to lower courts not to infer private rights of action from . . . oblique statutory

13

It is worth noting that, if Lucky were born in captivity, she would be covered by the San
Antonio Zoos captive-bred wildlife permit (permit no. MA680140-0), and Plaintiffs suit would
be foreclosed just as in Ringling Brothers. By alleging that Lucky was born in the wild in
Thailand, Compl. at 29, Plaintiffs attempt to fit through a perceived regulatory loophole.
However, this distinction is immaterial since the FWS expressly exempts all captive wildlife
not only captive-bred wildlifefrom the ESAs take prohibition. 50 C.F.R. 17.3; see also
63 Fed. Reg. at 48635 (describing Services intent to refer to captive wildlife, not captivebred wildlife). Whether Lucky is covered by a captive-bred wildlife permit or a USDA APHIS
license, the result is the same: Plaintiffs are barred from using the ESAs citizen suit provision to
challenge alleged non-compliance with animal welfare requirements because enforcement of
those standards is regulatory.
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Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 21 of 31

interpretations. Where a statute has elaborate enforcement provisions, as does the [Clean
Water Act], the Supreme Court has warned that: [I]t cannot be assumed that Congress intended
to authorize by implication additional judicial remedies for private citizens. Chustz, 682 F.3d at
359 (quoting Middlesex Cnty. Sewerage Auth. v. Natl Sea Clammers Assn, 453 U.S. 1, 1415
(1981)). Here, Congresss carefully structured legislative scheme for enforcement of AWA
standards by USDA APHIS does not contemplate additional judicial remedies for private
citizens.
Further, Plaintiffs attempt to use one statutethe ESAin order to enforce the
provisions of another statute that does not allow a private cause of action or judicial reviewthe
AWAis a commonly used, but routinely rejected tactic. For example, in Salk v. Regents of
Univ. of California, No. A120289, 2008 WL 5274536 at *6 (Cal. Ct. App. Dec. 19, 2008,
unpublished), plaintiffs alleged AWA violations through a state statute allowing taxpayer suits
over any illegal expenditure or waste of public funds. Plaintiffs asserted the holding of
[animals] was illegal because it violated the AWA standards. Thus, there, like here, the plaintiffs
attempted use of a broad citizen suit statute to assert alleged AWA violations. The Court
dismissed the complaint because [a] state action to enforce this federal law would violate the
congressional intent precluding a private right of action [under the AWA]. Id.
Outside of the AWA arena, numerous courts, including those in the Fifth Circuit, have
rejected similar tactics in connection with a wide variety of statutes. See, e.g., C&E Services,
Inc. of Washington v. D.C. Water & Sewer Auth., 310 F.3d 197, 201-02 (D.C. Cir. 2002)
(dismissing Declaratory Judgment Act claim that defendant violated Service Contract Act
because this would constitute an end-run around Congresss clear intent that the Department of
Labor interpret and enforce the SCA in the first instance); Texas Med. Assn v. Aetna Life Ins.

19

Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 22 of 31

Co., 80 F.3d 153, 159 (5th Cir. 1996) (holding that Texas Uniform Declaratory Judgment Act
does not provide appellants with a cause of action by which to enforce violations of or ensure
compliance with health insurance regulations, because state agency was solely responsible for
enforcing regulations and there was no private cause of action for enforcement); Morrison v.
Back Yard Burgers, Inc., 91 F.3d 1184, 1187 (8th Cir. 1996) (rejecting plaintiffs attempt to
plead violation of Federal Trade Commission Act, which lacks citizen suit provision, as part of
state common law fraud case because doing so would effectively extend[ ] a private cause of
action); Davis v. United States, 722 F.2d 1157, 1158 (4th Cir. 1983) (dismissing purported Tort
Claims Act action because the action was premised on alleged violations of the Clean Water Act,
which did not provide a private cause of action, and holding that the Tort Claims Act cannot be
used to circumvent the legislative scheme of the [Clean Water Act]); Gallier v. Woodbury Fin.
Services, Inc., CIV.A. H-14-888, 2015 WL 1296351 at *7 (S.D. Tex. Mar. 23, 2015) (Rosenthal,
J.) (rejecting plaintiffs attempt to recharacterize FINRA claims as breach-of-contract claims to
circumvent the absence of a private right of action for violations of FINRA rules); Grove Fresh
Distributors, Inc. v. Everfresh Juice Co., 89 C 1113, 1989 WL 152670 at *3 (N.D. Ill. Nov. 29,
1989) (stating that plaintiff cannot base its Lanham Act claim upon the violation of the [Food,
Drug, and Cosmetic Act] because Congress has precluded private causes of action under the
FDCA).
B.

Plaintiffs have not alleged an actionable harm.

Plaintiffs allegations of a take by harm fail for two reasons.
First, the harm allegations fail for the same reason their harass allegations fail: they all

concern the conditions in which Lucky lives at the Zoo as licensed by USDA APHIS under the
Animal Welfare Act. The ESA states that it will not supersede or limit in any manner the

20

Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 23 of 31

functions of the Secretary of Agriculture under any other law . . . . 16 U.S.C. 1540(h). This
includes the USDA APHISs licensure of zoos to exhibit animals under the conditions required
by the Animal Welfare Act, as described above. Any judicial finding that the Zoos conditions
harm Lucky would necessarily limit the functions of USDA APHIS to determine whether the
Zoos conditions meet the standards for humane captivity.
Moreover, in excluding animals licensed under the AWA to be held in captivity, FWS
intended to exclude such animals not just from harass but from take generallyas long as
USDA APHIS licenses the facility as compliant with the AWA.
In its 1993 proposed rulemaking, FWS stated [s]uch a construction of the concepts of
harass and take would virtually result in a comprehensive prohibition on the possession of
listed wildlife species; mere possession of the listed species would then require the issuance of
Section 10 permits. If Congress had intended this result, the prohibition [on possession] in
Section 9 of the ESA would not have been limited to endangered fish or wildlife taken in
violation of the ESA. 58 Fed. Reg. 32632, 32635 (June 11, 1993) (emphasis added).
FWS repeated the point in the 1998 final rulemaking: Since Congress chose not to
prohibit the mere possession of lawfully-taken listed species in Section 9(a)(1) of the [ESA], the
[FWS] believes that congressional intent supports the proposition that measures necessary for the
proper care and maintenance of listed wildlife in captivity do not constitute harassment or
taking. 63 Fed. Reg. at 48636 (emphasis added).
For the reasons stated above, the facts of whether a particular zoo falls short of proper
care and maintenance of the animals it is licensed to possess is within the ambit of USDA
APHISs administrative licensing regime and not the ESA citizen suit provision.

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Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 24 of 31

Second, Plaintiffs harm allegations fail because they do not allege an actual physical
injury or death. 50 C.F.R. 17.3 is the FWS regulation defining harm and provides: Harm in
the definition of take in the Act means an act which actually kills or injures wildlife. Such act
may include significant habitat modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or
sheltering. (emphasis added). In this rulemaking, FWS explained that this definition of harm
sought to preclude[] a taking where no actual injury is shown. 46 Fed. Reg. 54748, 54749
(Nov. 4, 1981).
The Supreme Court in Babbitt v. Sweet Home Communities for a Great Oregon, 515 U.S.
687, 697 (1995), upheld this definition of harm as a permissible interpretation of the ESA.
The majority stated that every term in the regulations definition of harm is subservient to the
phrase an act which actually kills or injures wildlife.

Id. at 700.

Justice OConnors

concurring opinion also made clear that the definition of harm is limited to significant habitat
modification that causes actual, as opposed to hypothetical or speculative, death or injury to
identifiable protected animals. Id. at 708-709 (OConnor, J., concurring) (emphasis added).
The circuit courts have since dismissed cases alleging habitat modification or other
human activities that are likely to cause (but have not actually caused) actual injury or death. See
Am. Bald Eagle v. Bhatti, 9 F.3d 163, 166 and n.5 (1st Cir. 1993) (holding that harm is not
alleged by conditions likely to cause injury); Defenders of Wildlife v. Bernal, 204 F.3d 920, 924
(9th Cir. 2000) (same).
Unlike harm, FWSs definition of harass includes acts that create a likelihood of
injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral
patterns. 50 C.F.R. 17.3 (emphasis added).

22

Because Plaintiffs Complaint alleges that

Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 25 of 31

Luckys surroundings at the Zoo are likely to cause injury, and are disruptive to what they
would expect Luckys normal behavior to be, they are (at best) harass allegations.14
C.

Plaintiffs cannot, as a matter of law, allege an illegal possession.

Plaintiffs allegations of an ESA 9 prohibited possession fails a matter of law, for at

least two reasons.

First, the Zoos possession of Lucky is lawful. The Zoo is licensed by the United States
government under the USDA APHIS license regime described above.

The ESA does not

supersed[e] or limit[] in any manner the functions of the Secretary of Agriculture under any
other law relating to prohibited or restricted importations or possession of animals, including its
licensure of the Zoo to possess all of its animals. 16 U.S.C. 1540(h).
Second, Plaintiffs allege illegal possession because of a taking based on alleged
harm or harassment. This allegation makes no sense. By the plain language of the statute,
in order to be an ESA violation, the possession must stem from the take: [I]t is unlawful for
any person subject to the jurisdiction of the United States to . . . (D) possess, sell, deliver, carry,
transport, or ship, by any means whatsoever, any such species taken in violation of
subparagraphs (B) and (C). See, e.g., United States v. Hung Van Tran, 955 F.2d 288, 289 (5th
Cir. 1992) (describing possession violation arising from shrimp fishermens illegal capture of

14

See, e.g., Compl. at 16 63 (Lucky currently suffers from arthritis and other health issues
likely as a direct result of the inadequate conditions in which she is maintained at the Zoo) and
page 17 64 (alleging that keeping Lucky alone restrict[s] her incentive to move and
contributes to painful arthritis, which is a leading cause of death for elephants in captivity).
Plaintiffs also allege that each condition of which they complain (lack of a companion and shade,
not enough space and the allegedly hard surface) has caused Lucky to exhibit[] stereotypic
behavior: she engages in repetitive head-bobbing and swaying of her body back and forth. Id.
at 17 66. These are behavior disruptions which are (if anything at all) within the definition of
harass (a definition from which captive wildlife is exempt), but they are not actual injuries or
death.
23

Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 26 of 31

endangered sea turtle); see also 50 C.F.R. 17.21 (explaining, by way of example, that a person
who physically receives an illegally captured whooping crane possesses the crane).
Plaintiffs have not claimed that the Zoos possession of Lucky is the result of an illegal
taking.

Rather, Plaintiffs allege that because the Zoos enclosure constitutes harm or

harassment, its possession is also, automatically, illegal. Even if Plaintiffs could state a
claim for a taking due to harm or harassment (which they cannot), there is no automatic
possession violation for that reason.
FWS defines possession in ESA 9 to mean actual or constructive custody:
[T]he detention and control, or the manual or ideal custody of anything which
may be the subject of property, for ones use and enjoyment, either as owner or as
the property of a qualified right in it, and either held personally or by another who
exercises it in ones place and name. Possession includes the act or state of
possessing and that condition of facts under which one can exercise his power
over a corporeal thing at his pleasure to the exclusion of all other persons.
Possession includes constructive possession which means not actual but assumed
to exist, where one claims to hold by virtue of some title, without having actual
custody.
50 C.F.R. 10.12.
FWS has defined take by regulation to mean pursue, hunt, shoot, wound, kill, trap,
capture, or collect a listed animal. 50 C.F.R. 10.12. All of these types of direct take could
lead to the actual possession or custody of an animal or animal parts.
Although the ESA defines take to also include harm and harass, those indirect take
concepts are incongruent with actual possession or custody. Harm and harass are not actions
that lead to a person being able to possess, sell, deliver, carry, transport, or ship a federallylisted species. Thus, illegal possession of a listed animal that was illegally taken refers to
animals possessed as a result of a direct taking.

24

Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 27 of 31

Moreover, FWS nowhere applies the concepts of harm and harass in defining
possession. FWS has instead made clear in both the 1993 proposed rule and the 1998 final
rulemaking that lawfully possessing an animal under a USDA APHIS license does not constitute
harassment in the process pointing out that such possession is lawful and not prohibited by the
ESA. See 58 Fed. Reg. at 32635 (Such a construction of the concepts of harass and take
would virtually result in a comprehensive prohibition on the possession of listed wildlife species;
mere possession of the listed species would then require the issuance of Section 10 permits. If
Congress had intended this result, the prohibition [on possession] in Section 9 of the ESA would
not have been limited to endangered fish or wildlife taken in violation of the ESA.); 63 Fed.
Reg. at 48638 ([A] person who legally possessed wildlife without a permit could be considered
in violation of the prohibition against harassment unless they obtained a specific permit that
authorized them to conduct normal animal husbandry activities. Had Congress intended this
result, the prohibition on possession in section 9 of the Act would not have been limited to
endangered species taken in violation of the Act).
D.

Plaintiffs cannot allege a cause of action for forfeiture.

Plaintiffs appear to request throughout their Complaint that this Court order the San

Antonio Zoo to transportthat is, forfeitLucky to one of two non-party, private, facilities,
which Plaintiffs describe as sanctuaries. See, e.g., Compl. at 2 (Transporting Lucky to The
Elephant Sanctuary or another reputable sanctuary would further the purpose of the ESA . . . .);
id. at 48 (Plaintiffs will suffer irreparable injury if the Zoo does not agree to transport Lucky
to The Elephant Sanctuary in Tennessee . . . .). If Defendants Motion to Dismiss is granted on
the grounds argued in the previous sections, this Court need not reach Plaintiffs request for
forfeiture. However, were the Court to reach this issue, Plaintiffs apparent claim for forfeiture

25

Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 28 of 31

should be dismissed under Rule 12(b)(6) for failure to state a claim. Plaintiffs request for
forfeiture is not a cognizable ESA citizen-suit claim.
The ESA provides an express forfeiture action by the United States government in
connection with wildlife taken or possessed in violation of the ESA.

See 16 U.S.C.

1540(e)(4)(A); 1540(e)(1) (The provisions of this chapter . . . shall be enforced by the

Secretary, the Secretary of the Treasury, or the Secretary of the Department in which the Coast
Guard is operating, or all such Secretaries.). The ESA states that the United States is the only
entity to which wildlife may be forfeited. Id. 1540(e)(4)(A) (All fish or wildlife or plants
taken [or] possessed . . . contrary to the provisions of this chapter . . . shall be subject to
forfeiture to the United States.).
By contrast, the ESAs citizen suit provision authorizes individuals to sue to enjoin
persons from violating the ESA. Id. 1540(g). It does not provide a right to enforce the ESAs
forfeiture provision. Indeed, because it is limited to injunctive relief, the ESA citizen suit
provision, on its face, does not contemplate a forfeiture action.
A forfeiture action is an in rem proceeding. Id. 1540(e)(3) (expressly referring to an
action in rem for forfeiture). It is not an in personam action for injunctive relief. See United
States v. OCallaghan, 805 F. Supp. 2d 1321, 1326-27 (M.D. Fla. 2011) (A civil forfeiture
action is in rem. Equity operates not in rem, but wholly in personam . . . . An injunction, of
course, is an equitable remedy.) (citations and quotation marks omitted); Natl Assn for Stock
Car Auto Racing, Inc. v. Does, 584 F. Supp. 2d 824, 829 (W.D.N.C. 2008) (observing that
seizure of goods under Lanham Act is in rem forfeiture, not an injunction).
Accordingly, because the ESA expressly grants forfeiture rights to the United States
while withholding them from private citizens, Plaintiffs apparent request for forfeiture of Lucky

26

Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 29 of 31

to a private sanctuary must be dismissed for failure to state a claim. See Atchafalaya Chustz,
682 F.3d at 359-60 ([I]t cannot be assumed that Congress intended to authorize by implication
additional judicial remedies for private citizens . . . . [I]t is an elemental canon of statutory
construction that where a statute expressly provides a particular remedy or remedies, a court
must be wary of reading others into it.) (quoting Middlesex Cnty. Sewerage Auth. v. Natl Sea
Clammers Assn, 453 U.S. 1, 1415 (1981)); see also Bauer v. Marmara, 942 F. Supp. 2d 31, 43
(D.D.C. 2013) (dismissing citizen suit seeking forfeiture of ship under Neutrality Act because
statute, which expressly provided for governmental forfeiture right, lacked private cause of
action for forfeiture), affd on lack-of-standing grounds, 774 F.3d 1026 (D.C. Cir. 2014)).15
Finally, although Plaintiffs Complaint appears to request forfeiture of Lucky, it is worth
noting that Plaintiffs prayer for relief does not actually describe the specific injunctive relief
they are requesting.16 Accordingly, if the Court concludes that Plaintiffs request for injunctive
relief, on account of its vagueness, does not clearly request forfeiture, Defendant would move
under Rule 12(e) for a more definite statement of Plaintiffs claim for injunctive relief in the
alternative to dismissal under Rule 12(b)(6).

15

Although they have not done so, to the extent Plaintiffs request forfeiture to the United States
and not to one of their self-selected sanctuaries, this is still not an actionable claim because the
ESA only empowers the United States to enforce a forfeiture claim. See 16 U.S.C. 1540(e)(1).
Further, as a matter of statutory interpretation, it cannot be the intent of Congress to permit a
private citizen to force forfeiture of wildlife to the United States when the ESA expressly
provides the United States discretionary power over whether to seek forfeiture. Id.
1540(e)(4)(A) (providing that wildlife shall be subject to forfeiture, but forfeiture is not
mandatory).
16

See Compl. at 22-23.

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Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 30 of 31

CONCLUSION AND PRAYER

For the reasons stated herein, Defendant San Antonio Zoological Society respectfully
requests that the Court grant this Motion and dismiss Plaintiffs Complaint for failure to state a
claim upon which relief can be granted.

Respectfully submitted,
GRAVES, DOUGHERTY, HEARON & MOODY, P.C.
401 Congress, Suite 2200
Austin, Texas 78701
(512) 480-5603 Telephone
(512) 536-9913 Facsimile
By:

/s/ Matthew Baumgartner

Matthew Baumgartner
mbaumgartner@gdhm.com
Texas Bar No. 24062605
David Smith
dsmith@gdhm.com
Texas Bar No. 00788435
David King
dking@gdhm.com
Texas Bar No. 24083310
ATTORNEYS FOR DEFENDANT
SAN ANTONIO ZOOLOGICAL SOCIETY

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Case 5:15-cv-01054-XR Document 8 Filed 12/23/15 Page 31 of 31

CERTIFICATE OF SERVICE
I hereby certify that a true and complete copy of the foregoing has been served on the
counsel of record identified below in a manner authorized by the Federal Rules of Civil
Procedure on the 23rd day of December, 2015:

Matthew T. Nickel
Blake J. Brownshadel
Spencer D. Hamilton
Marina Stefanova
DENTONS US LLP
2000 McKinney Avenue, Suite 1900
Dallas, Texas 75201
mattnickel@dentons.com
blake.brownshadel@dentons.com
spencer.hamilton@dentons.com
marina.stefanova@dentons.com
Anthony T. Eliseuson
DENTONS US, LLP
233 South Wacker Drive, Suite 5900
Chicago, Illinois 60606
anthony.eliseuson@dentons.com
Carney Anne Nasser
Jeffrey Pierce
ANIMAL LEGAL DEFENSE FUND
170 East Cotati Avenue
Cotati, California 94931
cnasser@aldf.org
jpierce@aldf.org
Melissa Lesniak
4839 San Cristobal
San Antonio, Texas 78251
Melissa.a.lesniak@gmail.com
/s/ Matthew Baumgartner
Matthew Baumgartner

29