Federal Cases

This opinion represents the nine-year culmination of litigation brought by plaintiff Tom Rider and Animal Protection Institute (API) against Defendant Feld Entertainment, Inc. (“FEI”) - the operator of Ringling Bros. and Barnum & Bailey traveling circus. Plaintiffs alleged that defendant's use of bullhooks and prolonged periods of chaining with respect to its circus elephants violates the Endangered Species Act, 16 U.S.C. § 1531, et seq. This Court held that plaintiffs failed to establish standing under Article III of the United States Constitution and entered judgment in favor of defendants. Since the Court concluded that plaintiffs lack standing, it did not reach the merits of plaintiffs' allegations that FEI “takes” its elephants in violation of Section 9 of the ESA. 

This opinion vacates National Meat Ass'n v. Brown, 599 F.3d 1093 (9th Cir., 2010) and affirms the judgment of the district court.

This case resulted from a remand by the Court of Appeals after the USDA denied the plaintiff's application for additional rulemaking for the Horse Protection Act to expressly prohibit the use of ten ounce chains and padded shoes in the training of show horses. The use of these materials, argues plaintiff, constitutes soring (the act of deliberately injuring a horse's hooves to obtain a particular type of gait prized at certain horse shows. The object of soring is to cause a horse to suffer pain as its feet touch the ground). This Court denied defendant's motion to dismiss and granted plaintiff's motion for summary judgment. In doing so, it directed the Secretary of the Department of Agriculture to institute rulemaking procedures concerning the use of action devices on show horses. The Court further held that the existing regulations are contrary to law and that the Secretary ignored his mandate from Congress under the Horse Protection Act.

Defendants were charged with exporting salmon from Taiwan in violation of Taiwanese regulations.  The regulations and public announcement of the Taiwan Board of Foreign Trade restricting the export of salmon from Taiwan constituted "foreign law" as that term is used in the Lacey Act, despite the fact this was embodied in regulation, not statute.  Moreover, this provision of the Lacey Act was not void for vagueness for failing to expressly state that the term "foreign law" encompassed both foreign statutes and regulations. 

Friends of Animals (FOA), an animal advocacy group, brought an action against the Secretary of the Interior, et al, (Defendants) under the Endangered Species Act seeking declaratory and injunctive relief by claiming that the Secretary failed to make statutory 90-day and 12-month findings related to the petition to have 13 species of birds listed as threatened or endangered. The Court found that FOA's claim that Defendants failed to make a 90-day finding on its endangered-species petition was moot, and its claim that Defendants failed to meet the 12-month deadline provided by the ESA had to be dismissed due to FOA's failure to provide Defendants with proper notice. The Court did find, however, that FOA's lawsuit was the catalyst prompting Defendants to ultimately issue a 90-day finding as required. Thus, the Court here considers FOA's motion for attorneys' fees and costs. The Court held that FOA could recover fees for work on the notice letter, complaint, and petition for fees to the extent it related to the claim that prompted the 90-day finding. However, the court reduced the amount of time spent on the complaint by fifty percent.

After multiple negative reports came in about the living conditions of her animals, an animal rescue organization seized many of the plaintiff-appellant's dogs; she was then charged with five counts of animal cruelty, but was later acquitted at a state trial. Subsequently, the plaintiff-appellant and her state trial attorney filed a federal civil rights suit against the animal organization and others.  After losing at the district level, on the first appeal, and on remand from the first appeal, the plaintiff-appellant appealed the case for a second time. On this appeal, the Second Circuit held that though the animal organization was a state actor, it had qualified immunity, which protected it from the plaintiff-appellant’s charges. Additionally, the court held that investigator’s had probable cause to seize the dogs, which also defeated the plaintiff-appellant’s charges. The lower court’s decision was therefore affirmed, but for different reasons.

This case examines the requirements surrounding the issuance of an Incidental Take Statement (ITS), a statement that authorizes harm to an endangered species, but that must include a trigger for reviewing the decision (known as “re-consultation”) at the point when there is a risk of jeopardizing the species. The trigger must be a numerical trigger describing the “take” (e.g., the capturing or killing of members of an endangered species) in terms of specific population data unless it is impractical to do so.   Specifically, this case explores whether the Army Corps of Engineers and FTS were able to use an ecological surrogate in place of a numerical trigger in an ITS that was promulgated in the process of conservation work in the Everglades.   This conservation work involved manipulating water levels in the Everglades and impacted the viability of three species protected under the Endangered Species Act (the Cape Sable seaside sparrow, the Everglade snail kite, and the wood stork), as well as the well-being of the Miccosukee Tribe of Indians.

A trustee in a bankruptcy proceeding sought turnover of Sioux Indian Ghost Dance Shield containing eagle feathers.  The court observed that normally the laws of the UCC would prevail and the merchants to whom the item was entrusted would have legitimate title to transfer, but since the BGEPA prohibits the sale of eagle artifacts, only the original owner had title to the shield, not the bankrupt who allegedly tried to sell the shield nor the potential purchasers.  The court held that the underlying public policy outlined in Allard weighed heavily in the decision to invalidate what it termed an illegal contract.  For further discussion on commerce in eagle parts under the BGPEA, see Detailed Discussion of Eagle Act .

The appellant in this case, the Ernest Hemingway Home and Museum in Key West, Florida ("Museum"), appeals the lower court's determination that it is an animal exhibitor for purposes of the Animal Welfare Act ("AWA"). Appellant contends that while admission is charged for the Museum, it does not exhibit the Hemingway cats to the public for compensation; thus, the cats are not distributed through interstate commerce. The court, however, found that since the AWA itself is ambiguous on the question of whether "distribution" includes the fixed-site commercial display of animals, the USDA's broader interpretation of "distribution" and "exhibitor" are entitled to legal deference. While the court sympathized with the museum's frustrations, it affirmed the district court's findings of law and held that Museum is an AWA animal exhibitor subject to USDA regulation

After a government agent recorded a sale of eagle parts using a concealed audio visual device, the agent obtained a warrant and arrested the defendant for violating the Bald and Golden Eagle Protection Act. Upon appeal, the defendant challenged his jury conviction arguing two Constitutional violations, a Federal Rules of Evidence violation, and multiplicitous counts. The appeals court affirmed the jury conviction on all claims except the multiplicitous counts claim; this conviction was reversed. This opinion was Amended and Superseded on Denial of Rehearing by U.S. v. Wahchumwah , 710 F.3d 862 (9th Cir., 2012).

Several whalers brought suit against Paul Watson and the Sea Shepard Society—of Animal Planet fame—under the Alien Tort Statute for acts that amounted to piracy and that violated international agreements regulating conduct on the high seas. Though the district court denied the whalers a preliminary injunction and dismissed the whalers' piracy claim, the Ninth Circuit found in favor for the whalers. The case was reversed and instructed to be transferred to another district judge; Circuit Judge Smith dissented on the instruction to transfer.

The United States Fish and Wildlife Services investigated a tip that the defendant was selling eagle parts in violation of the Bald and Golden Eagle Protection Act. Upon appeal, the defendant argued that his Fourth Amendment rights were violated by the undercover agent’s warrantless use of a concealed audio visual device to record the transaction inside the defendant’s home, but the appeals court disagreed.  However, the appeals court reversed  the defendant's conviction on Counts 2 or 3 and Counts 4 or 5 because those counts were multiplicitous.

In this Illinois case, plaintiff Judy Carl was riding her horse on a trail in the Cook County Forest Preserve when the horse upon which defendant was riding pinned its ears back, turned its body toward plaintiff's horse, and kicked plaintiff and her horse. One hoof struck plaintiff's leg, causing her injury.  In interpreting the state's Equine Act, the court observed that plaintiff's complaint against defendant was not barred by the Equine Act unless plaintiff's recreational riding of her own horse on a public trail was one of the limited activities sought to be encouraged by the Act.  After determining that there was no conflict between the Illinois EALA and Animal Control Act, the court reversed the trial court's order denying plaintiff's motion for summary judgment and entered summary judgment for plaintiff on Count I as to liability under the Animal Control Act (510 ILCS 5/16 (West 1995)).

Plaintiffs to this suit — organizations and individuals that support sustainable hunting of the Canadian Wood Bison — alleged that the Secretary of the Department of Interior violated several provisions of the ESA in his treatment of that species. Specifically, Plaintiffs contend that the Secretary failed to: (1) make a twelve-month finding as to the status of the Canadian Wood Bison upon petition and (2) process Plaintiffs’ applications to import bison hunting trophies. In granting the Defendant's motion to dismiss, the court found that Plaintiffs’ intent to sue letter did not specify to the Secretary that they intended to challenge his subsequent failure to issue a twelve-month finding. Since Plaintiffs gave the Secretary inadequate opportunity to review his actions and take corrective measures, the claim was dismissed. Plaintiffs — four individuals who each successfully hunted a Wood Bison in Canada — sought declaratory judgment against the Service under the ESA for failure to process their applications to import bison trophies. The court also held that the request for declaratory judgment was moot where Plaintiffs failed to demonstrate that they ever intended to again apply for import permits.

This case arose after twelve-year old Samantha Zuckerman sustained injuries when she fell the pony she was riding during a horseback riding lesson at Camp Laurel in Mount Vernon, Maine. Samantha alleged that her instructors improperly saddled the pony, which caused her saddle to slip. In appealing the Magistrate's recommended decision, Camp Laurel again claims that it is immune from liability under Maine Equine Activities Act because a slipping saddle is a risk inherent to the sport of horseback riding. Camp Laurel contends that the faulty tack exception is limited to situations where the tack cracks, breaks, or frays and does not include  an “improperly tightened girth” or an “inappropriate pony” or “faulty horse.” This Court agreed with the Magistrate Judge that the record raises a genuine issue of material fact concerning the “faulty” tack exception. The Court found that the negligence here was tied to an exception to the liability shield - faulty tack.

Richard "Dick" Robinson was charged by the Department of Agriculture with violating the Animal Welfare Act for transporting a wolf from Utah to California for exhibition on television without a license. Robinson exhibited the wolf on several television programs to promote his most recent book about his exploits as an animal trainer and producer of animal films. Respondent once held a valid exhibitor's license under the AWA, but the license was revoked in 1979 when Robinson failed to comply with the terms of a consent decision requiring him to install more adequate plywood cover for his bear cages. After a hearing, the Administrative Law Judge (ALJ) for the Department of Agriculture issued a cease and desist order to prevent Robinson from further illegally transporting and exhibiting his animals and assessed a $500 civil penalty against him. The Judicial Officer of the Department of Agriculture affirmed the order of the ALJ on appeal. The 10th Circuit affirmed the ALJ's conclusion that a cease and desist order by itself was insufficient and that a $500 penalty was necessary to impress Robinson with the need to comply with the Act's requirements in the future.

Hunters and hunting organizations sued the Secretary of Interior, the Director of the U.S. Fish and Wildlife Service, and the Service itself after the Service listed the polar bear as a threatened species under the Endangered Species Act (ESA) and barred the importation of polar bear trophies under the Marine Mammal Protection Act (MMPA). On appeal, the appeals court affirmed the lower court’s decision to grant the defendants' motion of summary judgment.

When animal rights activists, who were protesting the treatment of animals at a race sponsored by a circus, were arrested for criminal trespass and obstruction of free passage,  the filed a section 1983 lawsuit for false arrest, unlawful retaliation, malicious prosecution, and interference with free expression under both the U.S. and Connecticut constitution against the city and the officer.  Upon appeal of the lower court’s rejection of the activists’ First, Fourth, and Fourteenth Amendment claims, the court (1) affirmed the lower court’s decision on the ground of qualified immunity under section 1983, (2) would not address whether a pro se attorney who represented plaintiffs in addition to himself may be awarded fees because the issue was not raised in district court, and (3) vacated the judgment only in order to remand the case for the limited purpose of having the district court clarify whether it awarded the activists the costs incurred as a result of a discovery certification violation.

The Progressive Animal Welfare Shelter ("PAWS") and fourteen other environmental and animal rights groups brought this action for a preliminary injunction against the Navy's plan to "deploy" Atlantic bottlenose dolphins at the Bangor submarine base.

Associations of dog owners sued Dade, County, Florida seeking declaratory judgment that an ordinance that regulated “pit bull” dogs was unconstitutionally vague. Plaintiffs contend that there is no such breed as a pit bull, but rather a three breeds that this ordinance has mistakenly lumped together. The District Court held that ordinance sufficiently defined “pit bull” dogs by specifically referencing three breeds recognized by kennel clubs, including a description of the characteristics of such dogs, and provided a mechanism for verification of whether a particular dog was included. The uncontradicted testimony of the various veterinarians reflected that most dog owners know the breed of their dog and that most dog owners look for and select a dog of a particular breed.