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Missouri Primate Foundation v. People for Ethical Treatment of Animals, Inc.

United States District Court, E.D. Missouri, Eastern Division

March 22, 2018

MISSOURI PRIMATE FOUNDATION, et al. Plaintiffs/Counterclaim Defendants,
v.
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., et al. Defendants/Counterclaim Plaintiffs.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of counterclaim defendants Missouri Primate Foundation, et al. (referred to collectively as MPF) to dismiss the counterclaim filed by counterclaim plaintiffs People for the Ethical Treatment of Animals, et al. (referred to collectively as PETA). The PETA counterclaim alleges that MPF holds chimpanzees in conditions that “harm” and “harass” the chimpanzees, thus violating the “take” prohibition of the Endangered Species Act (ESA).

         In the motion to dismiss, MPF argues that the Animal Welfare Act (AWA) and not the ESA regulates the chimpanzees' living conditions and the AWA does not provide for the filing of private lawsuits. Because I conclude that the counterclaim states a claim for relief under the ESA, I will deny the motion to dismiss.

         Factual and Procedural Background

         The Missouri Primate Foundation is a private, nonprofit corporation located in Festus, Missouri. Other counterclaim defendants are Connie Braun Casey, president and founder of MPF, Andrew Sawyer, owner of a chimpanzee named Joey, and Vito Stramaeglia, owner of a chimpanzee named Chloe. Both Joey and Chloe, as well as other chimpanzees, are alleged to be or have been housed at the MPF facility. Counterclaim plaintiffs are People for the Ethical Treatment of Animals, Inc., a nationwide nonprofit organization focused on animals' rights, and Angela Scott, who previously worked as a volunteer at the Missouri Primate Foundation.[1]

         The counterclaim alleges that MPF and the individual counterclaim defendants are in violation of the “take” prohibition of the ESA. The counterclaim seeks 1) a declaratory judgment that counterclaim defendants have violated and continue to violate the ESA; 2) to enjoin counterclaim defendants from continuing to violate the ESA and from possessing chimpanzees in the future; and, 3) to transfer ownership of the chimpanzees to an accredited sanctuary.

         PETA's counterclaim alleges that MPF: fails to meet the chimps' fundamental social, physical, and psychological needs; confines them to a dangerous and unsanitary environment; restricts them to a dangerously unhealthy diet; and fails to provide them with adequate preventative and emergency veterinary care. PETA contends that MPF has failed to comply with even minimal animal-husbandry requirements established by the United States Department of Agriculture (USDA), which administers the Animal Welfare Act. The counterclaim states that MPF's actions cause the chimpanzees psychological harm, prevent them from carrying out their natural behaviors, and expose them to a significant risk of physical illness and injury.

         In the motion to dismiss, MPF argues that PETA's counterclaim is based on allegations that they failed to comply with the Animal Welfare Act, not the Endangered Species Act. Because the AWA does not provide for the filing of private lawsuits, MPF argues that PETA and Scott lack standing to bring a suit under the ESA based upon alleged violations of the AWA at a facility licensed pursuant to the AWA. The motion also argues that the counterclaim does not adequately state a claim that the chimpanzees were “harmed” because it does not allege an actual physical injury or death. Finally, it argues that the claims against Sawyer must be dismissed as moot since it is uncontested that Joey has been moved from the MPF facility.

         Discussion

         The Animal Welfare Act, at 7 U.S.C. § 2131, was enacted in 1966 in part to “to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment.” 7 U.S.C. § 2131. The provisions of the statute, including mandates for proper care and treatment of animals, are enforced by the Secretary of Agriculture and carried out by the Animal and Plant Health Inspection Service (APHIS). 7 U.S.C. § 2146. “Unlike the ESA, no claim can be asserted by citizens under the AWA.” People for the Ethical Treatment of Animals, Inc. v. Tri-State Zoological Park of W. Maryland, Inc., No. CV MJG-17-2148, 2018 WL 434229, at *4 (D. Md. Jan. 16, 2018).

         Section 9 of the Endangered Species Act prohibits the “take” of any endangered species. 16 U.S.C. § 1538(a)(1)(B). The term “take” is broadly defined to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The regulations promulgated under the ESA define “[h]arass” as “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.” 50 C.F.R. § 17.3. This regulatory definition, when applied to captive wildlife, has an exception for generally accepted animal husbandry practices that meet or exceed the minimum standards for facilities and care under the AWA. Id. The ESA allows citizens to bring suit to enjoin “any person ... who is alleged to be in violation” of the “take” provisions of the statute or of a regulation promulgated under the statute. 16 U.S.C. § 1540(g)(1)(A).

         In the motion to dismiss, MPF contends that because the chimpanzees at its facility were lawfully in captivity and under the auspices of the AWA as administered by the USDA-APHIS, the chimpanzees cannot be subject to a “take” under the ESA. They further argue that PETA and Scott lack standing as the AWA preempts or supersedes the ESA as to animals held at USDA licensed facilities. Because the AWA does not allow citizen suits, they argue, the case must be dismissed.

         Standing is a jurisdictional issue and, therefore, motions to dismiss for lack of standing are subject to Fed.R.Civ.P. 12(b)(1) (dismissal for lack of subject-matter jurisdiction). See A.J. ex rel. Dixon v. UNUM, 696 F.3d 788, 789 (8th Cir. 2012) (per curiam). Standing is the threshold question in every federal case, and, in ruling on a motion to dismiss for lack of subject-matter jurisdiction, a court must view the allegations in the complaint in the light most favorable to the plaintiffs. Tarsney v. O'Keefe, 225 F.3d 929, 934 (8th Cir. 2000).

         The standing challenge here is easily dealt with. As the Fourth Circuit Court of Appeals held last year in a very similar case, allegations that plaintiffs have a strong interest in viewing animals in living conditions that do not violate the ESA and who show that they would go visit the animals if the animals' conditions were improved have shown injury in fact. Hill v. Coggins,867 F.3d 499, 505-506 (4th Cir. 2017), cert. denied No. 17-865, 2018 WL 942505 ( U.S. Feb. 20, 2018). Here, as in Hill, that injury is traceable to counterclaim defendants and it is likely to be redressed by a favorable decision in this case, and so they have standing to bring this case. See Spokeo, Inc. v. Robins,136 S.Ct. 1540 (2016). To the extent MPF's standing argument is based on ...


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