By SCOTT MCKIE B.P.
ONE FEATHER STAFF
The Fourth Circuit Court of Appeals has overturned a lower court’s decision in a case involving bears kept at the Cherokee Bear Zoo in downtown Cherokee. It will now be sent back to District Court for further review. The plaintiffs in the case are Peggy Hill and Amy Walker, both EBCI tribal elders. Fourth Circuit Court of Appeals decision
“This ruling is a win for the four grizzly bears kept in the archaic and virtually barren concrete pits at the Cherokee Bear Zoo and for the Endangered Species Act, which provides vital protection for these threatened animals held in captivity,” the Coalition for the Cherokee Bears said in a statement following the ruling. “These grizzly bears should be exploring a vast, natural, habitat at a reputable wildlife sanctuary and not begging for food from tourists from their pits. The Fourth Circuit’s ruling brings them one step closer to this goal.”
James S. Whitlock, an attorney with Davis & Whitlock, P.C. in Asheville, argued the case before the Fourth Circuit Court on behalf of the plaintiffs (appellants in this instance). He told the One Feather, “We are very pleased with the Fourth Circuit’s opinion and, of course, are very happy that they saw things our way; in particular, the issue on the interpretation of the definition of harass as applied to captive wildlife. That was the basis for our appeal, and I’m very pleased for the plaintiffs, Ms. Hill and Ms. Walker, and potentially for the bears depending on how things play out moving forward.”
While happy with the decision, Whitlock said there is much work to be done. “This is not a victory yet. It’s certainly a step back in the right direction. We’ll have to see how things unfold. We remain committed to doing what we initially set out to do and that’s to have the four grizzly bears removed from the pits.”
A request for comment from Mark Melrose, an attorney with Melrose Law, PLLC in Waynesville, who represented the defendants (appellees) was not returned by press time.
The case was argued on March 24 before Fourth Circuit Court of Appeals Judges Henry Franklin Floyd and Pamela Harris and John Preston Bailey, U.S. District Court Judge for the Northern District of West Virginia. Their decisions were released on Monday, Aug. 14.
Judge Floyd wrote in his opinion, which was joined by Judge Harris, plaintiffs Hill and Walker, both EBCI tribal elders, brought suit against the Zoo following a visit in 2013 that they described as an “inhumane setting”.
He wrote, “In response, Plaintiffs brought the instant suit against the Zoo, claiming that the Zoo’s allegedly poor maintenance of its bears constitutes an unlawful taking proscribed by the Endangered Species Act. The District Court approved of Plaintiff’s standing to bring their suit, and found that the four subject bears were grizzly bears protected by the ESA. The court nonetheless concluded that the manner in which the Zoo maintains its bears – although ‘archaic,’ (Hill v. Coggins, No. 2:13-cv-47) – does not amount to an unlawful taking.”
Judge Floyd went on to write, “We affirm the District Court’s rulings in favor of Plaintiffs on the issues of standing and the subject bears’ status as protected grizzly bears. We conclude, however, that the court’s ruling against Plaintiffs on the issue of whether the Zoo is committing an unlawful taking was premised on incorrect legal analysis. We therefore vacate that ruling and remand this case for further proceedings.”
In discussing the District Court’s initial ruling, Judge Floyd wrote, “After examining the relevant regulations, the court concluded that the Zoo’s manner of maintaining its bears did not – for ESA purposes – harm or harass the bears, and by extension did not subject the bears to a taking. Of note, the court based its conclusion that the Zoo did not harass its bears entirely on its determination that the Zoo’s animal husbandry practices complied with applicable standards under the Animal Welfare Act. The court explicitly declined to consider whether the Zoo’s practices complied with ‘generally accepted’ animal husbandry practices, despite language in the relevant regulation referencing a ‘generally accepted’ standard.”
Judge Bailey wrote a dissenting opinion in which he affirmed the District Court’s judgement. “The prohibition on ‘take’ means that it is unlawful ‘to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. In particular, the term ‘harm’ refers to ‘an act which actually kills or injures wildlife…”
He added, “When applied to captive animals, the definition for ‘harass’ does not include the ‘generally accepted’ practices of animal husbandry, breeding, or aspects of veterinary care.”
Judge Bailey went on to write, “The District Court was correct in its conclusion of law that according to the plain language of 50 C.F.R. 17.3, an exhibitor’s husbandry practices which comply with the minimum standards for facilities and care under the AWA fall outside the definition of ‘harassment’ as set forth in the ESA and in concluding that ‘only when the exhibitor’s practices fail to meet the minimum standards established by the Animal Welfare Act can such practices constitute ‘harassment’ of a captive endangered or threatened species.”
In recent years, the bears have been discussed by leaders of the Eastern Band of Cherokee Indians. Last year, then-Principal Chief Patrick Lambert submitted legislation (Ord. No. 116 – 2016), which was later withdrawn, that would ban the confinement of bears in a pit or any underground enclosures.
In addressing his legislation in April 2016, he noted, “This Ordinance gets to the heart of what I think, and a lot of members feel, is a cruel and inhumane treatment of animals. Twenty years ago, when these concrete pits were created, no one really thought anything about it, but times change.”
During that same discussion, Collette Coggins, owner of the Cherokee Bear Zoo, stated, “When we built the business 24 years ago downtown, we built it to, actually, the Tribe’s standards. I’ve had people come up here and make allegations that we’ve been cited, that we’ve had fines, and we’ve had none of it. We’re regulated by the USDA. We’ve always been regulated by the USDA.”
For more than four years, Coggins has proposed the idea of opening an animal sanctuary, but she’s related on numerous occasions that she will need a different parcel of land as expansion at her current site is not possible. “I’ve came to Council with three different pieces of property and been denied all three times for absolutely no reason,” she stated during the discussion in April 2016.