Zoo’s Bear Exhibit Maybe Too Grizzly

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By Bernie Pazanowski

A zoo’s cramped grizzly bear exhibit may harass the animals in violation of the Endangered Species Act, the U.S. Court of Appeals for the Fourth Circuit held Aug. 14 ( Hill v. Coggins , 2017 BL 283228, 4th Cir., No. 16-1457, 8/14/17 ).

To determine what’s harassing, courts must look at generally accepted animal husbandry practices, the court said in an opinion written by Judge Henry F. Floyd. He was joined by Judge Pamela A. Harris.

The zoo houses four grizzly bears in two small concrete pits that each have a small pool but no vegetation. The bears generally pace the pit and beg for food sold to patrons by the zoo. The plaintiffs’ experts called this abnormal behavior.

The plaintiffs argued that the zoo’s exhibit was a taking of endangered animals in violation of the ESA. Under the statute an animal is taken if it is harassed. But under Animal Welfare Act regulations, “generally accepted ... animal husbandry practices” are excluded from harassment.

The district court called the zoo’s practices “archaic,” but ruled they complied with AWA regulations and didn’t violate the ESA.

But it didn’t decide whether the zoo’s practices were generally accepted animal husbandry practices, the appeals court said. Courts must look at whether AWA-compliant practices are generally accepted, it said, remanding for a proper analysis.

Judge John P. Bailey, sitting by designation, dissented, arguing that the majority ignored the ESA’s clear intent “to allow the AWA to establish the standards regarding acceptable animal husbandry practices.”

Davis & Whitlock PC represented the plaintiffs. Melrose Law PLLC represented the zoo.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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