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Friday, January 29, 2016

Federal Judge Denies San Antonio Zoo's Motion to Dismiss Lawsuit over Lucky the Elephant

Posted By on Fri, Jan 29, 2016 at 4:20 PM

  • One World Conservation
San Antonio-based federal judge Xavier Rodriguez ruled Wednesday that a lawsuit against the San Antonio Zoo brought by the Animal Legal Defense Fund (ALDF) over how the Asian elephant Lucky is housed can proceed. 

The ALDF alleges that the San Antonio Zoo has "harmed" and "harassed" Lucky because the elephant is “(a) without the companionship of any other Asian elephants; (b) in a small enclosure; (c) with virtually no shelter from the sun; and (d) on a hard, unnatural, species-inappropriate substrate,” an alleged violation of the Endangered Species Act (ESA).

In its motion to dismiss, the San Antonio Zoo argued that the ALDF's lawsuit fails to "state a claim upon which relief can be granted" because the ESA doesn't regulate the living conditions of zoo animals, the Animal Welfare Act (AWA) does. That law doesn't provide for "the filing of private lawsuits."

"Lucky’s 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 Lucky’s conditions at the Zoo," lawyers write in the zoo's motion to dismiss.

Rodriguez disagreed.

Plaintiffs plainly and clearly allege facts that state that the Zoo has deprived Lucky of companionship with other Asian elephants; has kept her in a small enclosure with virtually no shelter from the sun; and Lucky walks on a hard, unnatural, species-inappropriate substrate. These allegations could constitute a “harm,” i.e. any act that “significantly impair[s] essential behavioral patterns, including breeding, feeding or sheltering.” ...

The Zoo’s argument that captive wildlife is not protected under the ESA is also undercut by the language in the ESA that defines “harass.” Specifically, excluded from the definition is animal husbandry practices that meet or exceed the minimum standards for facilities and care under the Animal Welfare Act. Accordingly, Congress meant to apply captive wildlife to the protections under the ESA, but exempted certain acceptable animal husbandry practices. Plaintiffs have stated a cause of action upon which relief can be granted at this procedural stage. Accordingly, Defendant’s motion to dismiss is denied. This ruling, of course, is no ruling on the merits of whether acceptable animal husbandry practices have been met.

In December, the ALDF filed suit on behalf of three Alamo City residents who want the zoo to either transfer Lucky to a animal sanctuary in Tennessee or improve the animal's habitat.

The ALDF says it will try to access zoo records for its elephant-keeping program and attempt to conduct "independent veterinary and site-specific analyses of Luck and her enclosure" during the legal process of discovery — a pre-trial evidence gathering procedure.

The zoo, which has a website to debunk animal rights activist claims, has consistently denied that Lucky is being mistreated. Not only that, the zoo says moving Lucky — a 56-year-old elephant — could kill her.

"We need to do a better job in educating people on Lucky's situation. There are activists that want Lucky moved to another location or people ask why can't you bring other elephants in to be with her? I had the same questions when I came in here," San Antonio Zoo CEO Tim Morrow said last September. "I met with the elephant staff [seven full-time keepers], got their input on what's going on, why are they doing the things they're doing, what they think we should do ... After meeting with them, I think the zoo's making the right decision."

Last August, Councilman Joe Krier called on the zoo to enter mediation with ALDF, followed by a San Antonio Express-News editorial, which agreed. Last September, at Trinity University, renowned scientist, author and activist Jane Goodall said she didn't know Lucky as an individual, but "by and large, I think keeping elephants alone is cruel.”

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