Rowley v. City of New Bedford

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JOYCE ROWLEY, Plaintiff, v. CITY OF NEW BEDFORD, MASSACHUSETTS, Defendant.

Civil Action No. 21-11649-FDS

United States District Court, D. Massachusetts

October 31, 2024

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR DIRECTED VERDICT AND PARTIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW UNDER RULE 52(C)

F Dennis Saylor IV, Chief Judge, United States District Court

This is an action brought under the citizen-suit provision of the Endangered Species Act (“ESA”). Plaintiff Joyce Rowley is a resident of New Bedford, Massachusetts, and a member of the Buttonwood Park Zoological Society. The City of New Bedford (the “City”) is the municipality that owns and operates the Buttonwood Park Zoo. The subjects of the lawsuit are “Ruth” and “Emily,” two Asian elephants at the zoo.

Plaintiff brought this action for declaratory and injunctive relief against the City on October 8, 2021. She contends the City is harming and harassing the elephants in violation of the ESA and seeks, among other things, an injunction permitting her to remove the elephants from defendant's care and transfer them to a sanctuary in Tennessee or Georgia. She is proceeding pro se.

This is plaintiff's second effort at removing the elephants from the zoo. On September 21, 2017, she filed a complaint in this court seeking declaratory and injunctive relief against the City. The case involved the same parties and the same legal issues as those involved in the present action. The case proceeded to a bench trial before United States District Judge William G. Young, and he entered a final judgment on the merits in favor of the City on September 24, 2019. See Rowley v. City of New Bedford, Massachusetts (Rowley I), 413 F.Supp.3d 53 (D. Mass. 2019), aff'd, 2020 WL 6111190 (1st Cir. Sept. 24, 2020).

Judge Young's decision, which was affirmed on appeal, has preclusive effect, preventing plaintiff from re-litigating issues that were raised, or should have been raised, in that proceeding. Accordingly, the only issues presented here are whether the City has harmed or harassed the elephants, within the meaning of the ESA, since September 2019.

The Court held a three-day bench trial on those issues in May 2024. At the conclusion of plaintiff's evidence, the City moved for a directed verdict in its favor.

Plaintiff's evidence at the trial was directed in large part to proving that as a general matter elephants should never be held in captivity in zoos, and that therefore Ruth and Emily would be better off in a sanctuary. Whatever the merits of that position, that is not what the ESA requires. Zoos have their flaws, certainly, but they also provide substantial conservation and educational benefits to the public. Whether elephants should not be held in zoos, or only in certain types of zoos, or whether zoos should be abolished altogether, are questions that are properly committed to the legislative and political processes.

Plaintiff also contended that one of the elephants, Ruth, was suffering from certain physical and other issues as a result of the conditions at the zoo. She did not, however, offer any expert veterinary or other evidence as to either the existence of those conditions or their cause.

The only substantive question for this Court is to decide, under the ESA, whether the City complies with generally accepted husbandry practices. Because plaintiff failed to offer any proof that the City does not, a directed verdict for defendant-or, more accurately, a judgment under Rule 52(c)-is appropriate.

Accordingly, and for the reasons set forth below, defendant's motion will be granted.

I. Background

A. Background from Rowley I

On September 21, 2017, plaintiff filed a complaint for declaratory and injunctive relief against the City of New Bedford. (“Rowley I”).^[1]As amended, the complaint asserted that the City was harming and harassing Ruth and Emily in violation of the ESA by failing to provide adequate shelter (Count 1), adequate space (Count 2), and adequate social opportunities (Count 3); by failing to prevent Ruth from being attacked by Emily (Count 4); by failing to provide adequate veterinary care (Count 5); and by failing to provide proper feeding and adequate enrichment (Count 6). (Rowley I, Am. Compl. ¶¶ 104-30).^[2]The court held a three-day bench trial in March 2019.

1. Findings of Fact in Rowley I

The court in Rowley I examined conditions at the zoo from 1968 until 2019. In doing so, it made the following relevant findings of fact, and this Court adopts those findings here:

The City of New Bedford owns and operates the Buttonwood Park Zoo, an institution accredited by the Association of Zoos and Aquariums. The Buttonwood Park Zoo owns two Asian elephants, Emily and Ruth. Asian elephants are an endangered species.

In April 1968, when she was four years old, the City purchased Emily from the Mendon Animal Farm, and transferred her to the zoo. Emily was a healthy, young elephant at the time of the City's purchase.

Ruth was delivered into the City's care at approximately 28 years old after being rescued by the Animal Rescue League of Boston and seized by the United States Department of the Interior. While she was once owned by Benson's Animal Farm in New Hampshire, she was found abandoned in 1986 in a truck on a dump site in Danvers, Massachusetts. A United States Department of the Interior report from the time she was seized indicates that Ruth suffered from the following issues, among others: her ear condition was fair, with one hole and ragged edges on each ear; her skin condition was fair to poor; her tail and skin had an extreme build-up of necrotic tissue; she had scars on her legs (indicative of excessive chain wear) and chin (more than twenty hook scars); she had partial trunk paralysis; and she was underweight.

At the time of Rowley 1, Emily was 55 years old, and Ruth was approximately 61 years old. They were among the oldest living Asian elephants in a zoo setting in America. Indeed, the average life expectancy for Asian elephants in captivity in North America is 44.8 years. Aside from a brief period from November 1983 to July 1985, Emily at the time of Rowley 1 had resided at the Buttonwood Park Zoo for 49 years of her 55 years, and Ruth had resided at Buttonwood Park Zoo for 33 years.

As of September 2019, the court found that the City had supported its zoo with an adequate budget; had attracted a cadre of dedicated, professional, empathetic, and innovative zookeepers; and had employed top-notch veterinarians wherever necessary. In addition, the court found that the pace of change at the zoo was commensurate with the evolution of elephant husbandry. Hydraulic fences lined the elephant stalls within their barn, allowing the elephants to move in accordance with zookeepers' desire without the need for bullhooks. The barn's concrete floor was covered with thick sand (which is easier on the elephants' feet), and sand was banked up against one wall of each stall so the elephants could lean against the sand banks rather than kneeling and lying down (which is more difficult for geriatric elephants with aging joints). Outside, forage was made available not only on the ground but on a raised, lattice-like wooden structure in order to replicate the elephants' natural environment and encourage them to exercise their trunks.

In 2019, the court also considered whether Ruth and Emily engaged in stereotypic behaviors, or behaviors with no purpose, which can indicate a captive animal's mental stress. The court found that while plaintiff suggested that they engaged behaviors such as swaying, bobbing, and pacing, she failed to prove that those behaviors were stereotypic. Moreover, she did not prove that the City's action or inaction caused the behaviors that she described as stereotypy.

2. Rulings of Law in Rowley I

Based on the evidence presented during the March 2019 bench trial, Judge Young determined that the City had not violated the ESA. See Rowley I, 413 F.Supp.3d at 67. The court held that the City had provided care that complied with the Animal Welfare Act and generally accepted veterinary practices, and had neither harmed nor harassed the elephants; that the food and shelter provided by the City was consistent with generally accepted animal-husbandry practices and did not harm or harass the elephants; that there was insufficient evidence to establish the likelihood of a significant disruption of normal behavioral patterns; and that plaintiff had not proved that the City harmed or harassed Ruth by negligently allowing Emily, the larger of the two elephants, to attack her. Id. at 64-67.

B. Procedural Background

Approximately two years after judgment entered for the City in Rowley I, plaintiff commenced the present action (“Rowley II”), alleging that there had been “substantial changes” at the zoo since 2019. (See Am. Compl. at 1).^[3]Specifically, the amended complaint asserts that the facilities housing the elephants have become “dilapidated” and that the management of the facilities and elephants has changed, resulting in the elephants developing pododermatitis. (Id.). It further alleges that since the judgment in Rowley I, Ruth has lost “[t]wo of her toe bones in her left foot” and has been restricted from moving, eating, and drinking. (See id. ¶¶ 24-25). As in Rowley I, it asserts violations of the ESA and seeks declaratory and injunctive relief. (See id. ¶¶ 77-84).^[4]

The Court held a bench trial in Rowley II on May 13, May 14, and May 22, 2024. At the close of the trial day on May 22, plaintiff was on the witness stand. Her direct testimony and cross-examination had been completed; all that remained of her case was an opportunity for redirect examination (and recross, if necessary). During cross-examination, ...