Animal Legal Defense Fund v. Olympic Game Farm Inc

• Court: District Court, W.D. Washington
• Decided: March 22, 2024
• Docket: 3:18-cv-06025
• Status: Unknown

Opinion

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6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 ANIMAL LEGAL DEFENSE FUND, 11 CASE NO. 3:18-cv-06025-RSL 12 Plaintiff, v. 13

14 OLYMPIC GAME FARM, INC., et al., ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION 15 FOR SUMMARY JUDGMENT Defendants. 16 17 18

19 This matter comes before the Court on “Defendants’ Second Motion for Summary 20 Judgment.” Dkt. # 306. Defendants seek summary determinations that (a) plaintiff lacks 21 standing to pursue its cheatgrass-related claims, (b) the Court does not have jurisdiction 22 over the cheatgrass-related claims because there are no on-going violations, and 23 24 (c) plaintiff cannot show that the brown bears at Olympic Game Farm (“OGF”) are 25 harmed, wounded, or harassed by cheatgrass in violation of the Endangered Species Act 26 (“ESA”). ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 1 1 Summary judgment is appropriate when, viewing the facts in the light most 2 favorable to the nonmoving party, there is no genuine issue of material fact that would 3 preclude the entry of judgment as a matter of law. Colony Cove Props., LLC v. City of 4 5 Carson, 888 F.3d 445, 450 (9th Cir. 2018) (the court will “view the evidence in the light 6 most favorable to the nonmoving party . . . and draw all reasonable inferences in that 7 party’s favor.”). The party seeking summary dismissal of the case “bears the initial 8 responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. 9 10 Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the 11 record” that show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). 12 Once the moving party has satisfied its burden, it is entitled to summary judgment if the 13 non-moving party fails to designate “specific facts showing that there is a genuine issue for 14 15 trial.” Celotex Corp., 477 U.S. at 324. Although the Court must reserve for the trier of fact 16 genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, 17 summary judgment should be granted where the nonmoving party fails to offer evidence 18 from which a reasonable fact finder could return a verdict in its favor. Singh v. Am. Honda 19 Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 20 21 Having reviewed the memoranda, declarations, and exhibits submitted by the 22 parties, the Court finds as follows: 23 1. Standing 24 Article III of the U.S. Constitution “confines the federal judicial power to the 25 26 resolution of ‘Cases’ and ‘Controversies.’ For a case or controversy to exist, the plaintiff ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 2 1 must have a ‘personal stake’ in the case—in other words, standing.” TransUnion LLC v. 2 Ramirez, 594 U.S. 413, 423 (2021) (citation omitted). Requiring a “personal stake” ensures 3 “that the named plaintiff was actually injured and is entitled to an adjudication of the claim 4 5 asserted, not merely abstractly distressed by unfounded fears or a wrong suffered by the 6 public at large.” Waste Action Project v. Draper Valley Holdings LLC, 49 F. Supp. 3d 799, 7 802 (W.D. Wash. 2014) (citing Friends of the Earth, Inc. v. Gaston Copper Recycling 8 Corp., 204 F.3d 149, 154, 156 (4th Cir. 2000)). Plaintiff has the burden of establishing that 9 10 an actual case or controversy exists, Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 11 (2013), and must make the required showing “with the manner and degree of evidence 12 required at the successive stages of the litigation,” Lujan v. Defenders of Wildlife, 504 U.S. 13 555, 561 (1992). In order to pursue its cheatgrass-related citizens suit under the 14 15 Endangered Species Act (“ESA”), plaintiff must show, inter alia, that one or more of its 16 members has suffered an injury that is “concrete, particularized, and actual or imminent; 17 fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto 18 Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). 19 Plaintiff alleges that three of its members’ appreciation of and emotional interests in 20 21 the brown bears at OGF have been impaired because they are unable to visit or view the 22 bears while the animals are at risk of cheatgrass wounds and/or defendants’ treatment 23 methods. “An organization can satisfy the concrete harm requirement by alleging ‘an 24 injury to the recreational or even the mere esthetic interests’ of its members.” Cottonwood 25 26 Envt’l Law Ctr. V. U.S. Forest Serv., 789 F.3d 1075, 1079 (9th Cir. 2015) (quoting Jayne ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 3 1 v. Sherman, 706 F.3d 994, 999 (9th Cir. 2013)). “The alleged injury need not be large: an 2 actual and genuine loss, even if a trifle, will suffice for standing purposes.” Draper Valley 3 Holdings, 49 F. Supp. 3d at 802 (citations omitted). The interruption of the members’ 4 5 recreational and esthetic enjoyment of the OGF brown bears is sufficient to satisfy the 6 “injury in fact” component of Article III standing.1 7 8

9 1 This conclusion is somewhat at odds with the Supreme Court’s standing analysis in Clapper. The plaintiffs in that case feared that a provision of the Foreign Intelligence Surveillance Act (“FISA”) would be used to intercept 10 their communications with foreign contacts, and they therefore took costly and burdensome measures to protect the confidentiality of those communications. Similarly, ALDF’s members fear that OGF’s brown bears will be injured by 11 the cheatgrass in their enclosures and therefore stay away from the bears rather than witness their injury and/or treatment. In Clapper, the Supreme Court focused not on what plaintiffs had done to avoid a potential harm, but rather 12 on whether the potential harm itself was “imminent,” which it defined as being “certainly impending” or a substantial risk. Clapper, 568 U.S. at 409 (quoting Lujan, 504 U.S. at 565, n.2) (emphasis in original) and 414 n.5 (quoting 13 Monsanto, 561 U.S. at 153-54). After finding that interception of plaintiffs’ communications, while possible, was not certainly impending, the Court then considered plaintiffs’ argument that they had suffered injury-in-fact in the form of the expenses and inconvenience incurred to protect their communications. The Supreme Court concluded that actions 14 taken to avoid a non-imminent harm cannot be used to “manufacture standing:” to hold otherwise would transform the Article III analysis from one requiring a showing of actual or imminent harm to one requiring a fear of harm plus 15 some self-inflicted expense or deprivation. 568 U.S. at 416. Because the harm plaintiffs’ sought to avoid was not certainly impending, the injury caused by such avoidance could not, in and of itself, create standing under Article III. 16 Applying the Clapper analysis to this ESA case would result in dismissal of the cheatgrass claim for lack of standing. It is undisputed that OGF has been operating for more than fifty years, and that the only cheatgrass injuries 17 to brown bears occurred in 2019 and involved two brown bears that were sharing the same enclosure. (Plaintiff’s assertion that Samantha was injured by cheatgrass a second time in 2020 is not supported by the record.) Defendants 18 thereafter adjusted their cheatgrass management procedures to include removal of a foot of topsoil from and reseeding of the enclosure. Dkt. # 204 at ¶ 68. There is no evidence that any other brown bear suffered cheatgrass-related 19 injuries before or after this episode. While it is possible that a brown bear could be injured as a result of cheatgrass exposure and/or defendants’ failure to adequately treat cheatgrass-related injuries, on the record before the Court, no 20 reasonable jury could conclude that the brown bears at OGF face a substantial risk of cheatgrass-related injuries or that such an injury is certainly or clearly impending. Where the risk of future harm is not significant or certainly 21 impending, the fact that ALDF’s members have isolated themselves from the bears is insufficient to manufacture a case or controversy. 22 In 2015, two years after Clapper was decided, the Ninth Circuit decided Cottonwood, an ESA case in which the claimed injury was impairment of plaintiffs’ recreational, esthetic, scientific, and spiritual connection to the forests 23 and animals that might be impacted by defendants’ action or inaction. 789 F.3d at 1080-81. The Ninth Circuit found that injury sufficient to establish standing without more. Other post-Clapper decisions in the environmental context 24 continue to find that esthetic or recreational injury to the plaintiff is an injury-in-fact without any need to show that environmental harm has occurred or was imminent. See, e.g., Save Bull Trout v. Williams, 51 F.4th 1101, 1106 (9th Cir. 2022); Inland Empire Waterkeeper v. Corona Clay Co., 17 F.4th 825, 832 (9th Cir. 2021); Nat’l Fam. Farm Coal. 25 v. U.S. Env’t Prot. Agency, 966 F.3d 893, 911-12 (9th Cir. 2020). The Court is not free to ignore this precedent. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (“[A] published decision of [the Ninth Circuit] 26 constitutes binding authority which ‘must be followed unless and until overruled by a body competent to do so.’”) (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)). ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 4 1 Defendants also challenge plaintiff’s ability to establish that its members’ injury – 2 i.e., their inability to visit and enjoy the brown bears at OGF – is fairly traceable to the 3 presence of cheatgrass and/or would be redressed by a favorable ruling on the cheatgrass 4 5 claim. Redressability does not pose a problem here: plaintiff seeks to have the brown bears 6 removed from defendants’ care, which would then allow its members to visit and enjoy the 7 bears. The “fairly traceable” argument finds some support in Clapper, however. In that 8 case, the plaintiffs claimed that the surveillance program to which they objected forced 9 10 them to take steps to protect the confidentiality of their communications. But the evidence 11 in the record showed that government surveillance had been a problem for plaintiffs before 12 the program at issue was created, so they had a previous “incentive to engage in many of 13 the countermeasures they are now taking,” making it “difficult to see how the safeguards 14 15 [plaintiff] now claims to have implemented” could be traced to the challenged provision. 16 568 U.S. at 417. 17 Similarly here, plaintiff filed a lawsuit in 2018 that was based on the premise that its 18 members were unable to observe and enjoy the animals at OGF, including the brown bears, 19 because of other, non-cheatgrass related concerns. More than three years later, plaintiff 20 21 ascribed the same injury to the presence of cheatgrass in the bear enclosures. Plaintiff’s 22 members have testified that there are non-cheatgrass problems at OGF, such as the 23 predator enclosure (Dkt. # 307-1 at 88-90), the size of the bear enclosure (Dkt. # 307-1 at 24 143-44; Dkt. # 313-1 at 12), and the feeding of bread (Dkt. # 307-1 at 54; Dkt. # 313-1 at 25 26 11-12), that keep them from returning to the facility. One could reasonably infer from this ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 5 1 evidence that the members’ inability to visit and enjoy the animals at OGF predated their 2 discovery of cheatgrass-related problems and is not fairly traceable to its presence. But 3 there is also evidence that at least one of plaintiff’s members has visited select portions of 4 5 the OGF facility and would, if circumstances change for the brown bears, visit them again. 6 See Dkt. # 301 at ¶ 16; Dkt. # 307-1 at 87-88. Thus, whether the injury claimed – the 7 inability to visit and enjoy the brown bears at OGF -- is fairly traceable to the cheatgrass- 8 related issues originally raised in ALDF II is a matter of fact to be determined at trial. 9 10 2. Jurisdiction Over ESA Claim 11 “The Endangered Species Act of 1973 . . . contains a variety of protections designed 12 to save from extinction species that the Secretary of the Interior designates as endangered 13 or threatened.” Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 14 15 687, 690 (1995). See also 16 U.S.C. § 1533; Tenn. Valley Auth. v. Hill, 437 U.S. 153, 159- 16 60 (1978). The ESA makes it unlawful for “any person” to “take” a listed species. 16 17 U.S.C. § 1538(a)(1)(B). The term “take” is defined in the ESA as “harass, harm, pursue, 18 hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such 19 conduct.” 16 U.S.C. § 1532(19). Plaintiff argues that cheatgrass has killed, wounded, and 20 21 harmed brown bears at OGF and that defendants harass the bears by housing them in 22 cheatgrass-infested enclosures and by failing to appropriately treat cheatgrass-related 23 injuries. Dkt. # 315 at 13. 24 The ESA’s citizen suit provision authorizes a civil suit to enjoin alleged violations 25 26 of the ESA. 16 U.S.C. § 540(g)(1). Because only injunctive relief is at issue, plaintiff must ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 6 1 show that the statutory violation is on-going or that there is at least a reasonable likelihood 2 that the violation will continue in the future. Gwaltney of Smithfield, Ltd. v. Chesapeake 3 Bay Found., Inc., 484 U.S. 49, 57 (1987) (interpreting identical language in the Clean 4 5 Water Act). See also Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 6 787 (9th Cir. 1995) (ESA claim of future harm may proceed because plaintiff proffered 7 sufficient evidence to show that defendant’s conduct “is reasonably certain to harm the 8 [endangered species] and that such harm is imminent”).2 9 10 Taken in the light most favorable to plaintiff, there is evidence from which a 11 factfinder could conclude that there is a reasonable likelihood that OGF’s brown bears will 12 suffer cheatgrass wounds or injuries in the future. It is undisputed that the brown bears are 13 exposed to cheatgrass in their enclosures, that cheatgrass seed pods can work into an 14 15 animal’s skin, that cheatgrass harmed two brown bears in 2019, that older bears, such as 16 those at Olympic Game Farm, are particularly susceptible to cheatgrass injuries, and that 17 defendants have been unable to eliminate cheatgrass from OGF’s grounds. While 18 defendants have provided evidence that cheatgrass is not the dire threat to brown bears that 19 plaintiff paints it to be, that their cheatgrass management procedures have been largely 20 21 successful over a half-century of operations, and that they improved those procedures after 22 the 2019 incident, whether there is a reasonable likelihood of future cheatgrass-related 23 24 25

26 2 To the extent Stout v. U.S. Forest Serv., 869 F. Supp.2d 1271, 1280-81 (D. Or. 2012), held that a plaintiff can seek injunctive relief under the ESA for harms that are wholly in the past, the Court disagrees. ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 7 1 injuries and/or inappropriate treatment of such injuries is an issue of fact to be decided at 2 trial. 3 3. Cheatgrass Claim 4 5 Plaintiff argues that cheatgrass and defendants’ responses to the injuries caused 6 thereby killed, wounded, and harmed the brown bears Good Mama and Samantha in the 7 past, that future harm to other brown bears is likely because of the continuing presence of 8 cheatgrass at OGF, and that defendants harass their remaining brown bears by housing 9 10 them in cheatgrass-infested enclosures and by failing to appropriately treat cheatgrass- 11 related injuries, all in violation of the ESA’s prohibition on “take.” Good Mama and 12 Samantha were undoubtedly harmed (and possibly killed) by cheatgrass in 2019. As 13 discussed above, whether plaintiff can prove that the statutory violation is on-going or that 14 15 there is a reasonable likelihood that the violation will continue in the future must be 16 determined at trial. 17 With regards to the harassment claim, “harass” is defined to mean: 18 an intentional or negligent act or omission which creates the likelihood of 19 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, 20 feeding, or sheltering. This definition, when applied to captive wildlife, does 21 not include generally accepted:

22 (1) Animal husbandry practices that meet or exceed the minimum standards 23 for facilities and care under the Animal Welfare Act,

24 (2) Breeding procedures, or

25 26 ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 8 1 (3) Provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely 2 to result in injury to the wildlife. 3 50 C.F.R. § 17.3. Plaintiff’s initial burden is to show that defendants’ housing of brown 4 5 bears in enclosures that contain cheatgrass “creates the likelihood of injury by annoying 6 [them] to such an extent as to significantly disrupt normal behavioral patterns.” As 7 described in its opposition to defendants’ motion for summary judgment,3 plaintiff’s theory 8 of harassment related to cheatgrass is based on the fact that cheatgrass can injure, harm, or 9 10 even kill brown bears, as happened to Samantha and Good Mama, and that when such 11 injuries arise, they may interfere with the bear’s normal patterns of behavior. But the cited 12 injuries occurred more than four years ago, and to establish harassment now, plaintiff must 13 demonstrate that defendants’ failure to eradicate cheatgrass from the brown bear 14 15 enclosures “annoys” the bears “to such an extent as to significantly disrupt normal 16 behavioral patterns.” 50 C.F.R. § 17.3. “Importantly, as a matter of law, harassment does 17 not merely constitute a likelihood of injury—the injury must be caused by an annoyance 18 that is significantly disruptive to normal behavior. Id. To read the definition otherwise 19 would render meaningless the word ‘annoy.’” People for the Ethical Treatment of Animals, 20 21 Inc. v. Tri-State Zoological Park of W. Md., Inc., 397 F. Supp. 3d 768, 777 (D. Md. 2019) 22 (citation omitted). See also Rowley v. City of New Bedford, Massachusetts, 413 F. Supp. 3d 23 24 3 Plaintiff’s reliance on its own motion for summary judgment to support the assertion that “OGF’s housing of 25 grizzly bears in cheatgrass-infested pens ‘creates the likelihood of injury by annoying [them] to such an extent as to significantly disrupt normal behavior patterns,’” Dkt. # 315 at 17, is inapposite. Neither its motion nor its reply thereto 26 do anything more than state that cheatgrass creates a likelihood of injury to the brown bears. Dkt. # 298 at 20; Dkt. # 314 at 11. ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 9 1 53, 65-66 (D. Mass. 2019) (absent evidence that limited social interactions and/or 2 psychological enrichment had significantly disrupted the elephants’ normal behaviors, 3 there was no harassment under the ESA); Kuehl v. Sellner, 161 F. Supp. 3d 678, 711 (N.D. 4 5 Iowa 2016) (because living in relative isolation disrupts a lemur’s normal behavioral 6 patterns, the challenged housing arrangement constitutes “harassment” and a “taking” 7 under the ESA). Plaintiff has not identified any evidence from which a reasonable fact 8 finder could conclude that the mere presence of cheatgrass in an enclosure causes 9 10 disruption to a brown bear’s normal behavior patterns. At most, grass and grass awns get 11 on the bears’ fur but are removed during their normal grooming behaviors. Plaintiff has not 12 shown any impact on the bears’ normal behaviors and has therefore failed to raise a triable 13 issue of fact regarding the first element of its cheatgrass-related harassment claim. 14 15 16 For all of the foregoing reasons, defendants’ second motion for summary judgment 17 is GRANTED in part. Plaintiff’s claim that housing brown bears with cheatgrass 18 “harasses” the bears and therefore violates the prohibition against “take” is DISMISSED. 19 20 Dated this 22nd day of March, 2024. 21

22 23 Robert S. Lasnik United States District Judge 24 25 26 ORDER GRANTING IN PART DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT - 10