905 F.3d 1307
11th Cir.2018Background
- Plaintiff-appellants (PETA and others) challenged conditions of captivity for Lolita, a ~51-year-old captive killer whale at Miami Seaquarium, alleging violations of the ESA’s prohibition on "taking."
- Lolita is unusually old for her species, has received continuous veterinary care for ~48 years, and was previously subject to an unsuccessful federal challenge about her captivity.
- Record shows certain physical markings ("rakes") from tankmates and other health issues; appellants argue these demonstrate "harm" or "harassment" under the ESA.
- District court granted summary judgment to defendants; the Eleventh Circuit panel affirmed and denied a petition for panel rehearing.
- The panel stressed the uniqueness of Lolita’s circumstances (age, long-term care, inability to be returned to wild) in concluding no reasonable factfinder could find a "threat of serious harm."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lolita’s injuries/conditions constitute an ESA "take" (harm/harass) | Captivity conditions (e.g., rakes, chronic care) amount to actionable "harm/harassment" under the ESA | Injuries are minor or managed; do not pose a threat of serious harm sufficient to constitute a "take" | Court: No. On these facts, no reasonable factfinder could find a "threat of serious harm." |
| Proper use of noscitur a sociis in interpreting "harm" in ESA definition of "take" | Argued noscitur a sociis should not be used to limit "harm" (relying on Babbitt) | Panel used noscitur a sociis to read surrounding terms and set a severity threshold without collapsing terms | Court: Noscitur a sociis may be applied; Babbitt does not bar its use here—the panel’s use preserved independent meanings while setting a "threat of serious harm" threshold. |
| Whether ESA’s broad language covers de minimis or unrelated harms (scope of "harass") | ESA’s broad drafting means many persistent annoyances count as "harass" regardless of relation to extinction risk | ESA should be read in light of its purpose (preventing extinction); not all annoyances are actionable; threshold required | Court: The panel required a severity threshold tied to the statute’s purpose—harassment or harm must pose a threat of serious harm to be actionable. |
| Whether regulatory definitions (50 C.F.R. §222.102) dictate the actionable severity of "harm" | Regulation shows conduct meeting "harm" threshold without additional court-imposed severity rule | Regulation clarifies indirect harm via habitat change but does not define the level of injury severity required for actionable "harm" | Court: Regulation is consistent with panel’s approach; it does not answer the question of what degree of injury is actionable, so panel’s "threat of serious harm" rule stands. |
Key Cases Cited
- Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) (Supreme Court rejected a court of appeals’ restrictive use of noscitur a sociis to interpret "harm" under the ESA; panel interprets Babbitt as not forbidding use of the canon generally and distinguishes improper application)