On Tuesday, Judge Robert S. Lasnik issued a pair of opinions in an Endangered Species Act (ESA) citizen suit brought by non-profit the Animal Legal Defense Fund against Olympic Game Farm Inc. and its shareholders (together, OGF). One opinion considers whether some of OGF’s animals, including grizzly bears, gray wolves, and Canada lynxes, are exempt from ESA illegal “takings” protection due to their place-of-origin, ancestry, and captive status, respectively.
According to the court’s May 2019 order denying dismissal of the plaintiff’s public nuisance claim, the court wrote that the case “alleges the mistreatment and unsafe captivity of numerous animals kept at a roadside zoo in Sequim, Washington known to the public as the Olympic Game Farm.” The Animal Legal Defense Fund’s claims include improper feeding practices, veterinary treatment, and unsuitable enclosures, amounting to state and federal law violations.
This week’s opinion concerning OGF’s motion first analyzed whether grizzly bears born at the farm are not “of the 48 conterminous States” because one or more of their ancestors hailed from Alaska or Canada, thereby exempting them from ESA protection. The court found that interpretation “unreasonable,” pointing to the plain text of the statute and the lack of support offered by the defendants.
Judge Lasnik also considered an argument as to whether mixed genetic ancestry, namely a hybrid of wild and domestic animals, could exempt OGF’s gray wolves from ESA protection. The court opined that OGF’s proof as to the canines’ precise ancestry was vague. “The most defendants’ expert can say is that the Olympic Game Farm wolves ‘may have some level of domestic dog ancestry,’” the opinion explained before concluding that the wolves fell within ESA protective bounds.
In addition, the court determined that an OGF Canada lynx did not deserve ESA protection because it was born captive and lawfully obtained. “Plaintiff has failed to offer any evidence that Purrsia was born in the wild or otherwise falls outside of the definition of a captive lynx,” the court wrote. Judge Lasnik further pointed to evidence that the animal was born to two captive parents in Montana.
The court granted summary judgment for the defendants on the plaintiff’s public nuisance claim, finding that it was a bridge too far. “Plaintiff has accused defendants of serious statutory violations, but they are entirely unrelated to plaintiff’s use and enjoyment of property or to public health or safety,” the court opined. It found cases relied on irrelevant and ultimately declined the argument that OGF’s violations of the ESA or the state analogue law “suppl[ied] a predicate for a public nuisance action.”
Several of the plaintiff’s other claims fared better. The court ruled, in its opinion on the Animal Legal Defense Fund’s motion, that though it could not grant summary judgment, the plaintiff raised disputes of fact as to several claims about OGF’s treatment of its game. “Plaintiff has raised a triable issue of fact regarding whether the feeding of unrestricted bread to bears, the housing and care of wolves, the failure to provide adequate veterinarian care to tigers for renal disease, and/or the failure to provide timely and adequate care for Purrsia’s broken femur violates the ESA.”
The plaintiff is represented by Smith & Lowney PLLC and its own counsel. OGF and the individual defendants are represented by Stoel Rives LLP.
