Cherokee Bear Zoo survives lawsuit

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Cherokee Bear Zoo survives lawsuit

fr grizzlybear After two-and-a-half years of litigation, the verdict is in on the Cherokee Bear Zoo — the case is dismissed, and business may continue as usual at the controversial menagerie.

But the decision, U.S. District Judge Martin Reidinger wrote in his March 30 decision, shouldn’t be interpreted to mean that all is well at the bear zoo. In fact, Reidinger wrote in no uncertain language, all evidence suggests that the concrete pits where the bears live out their days are subpar at best.

“It appears to be the general consensus of nearly all involved that the pit enclosures at issue are not ideal,” Reidinger wrote. “While such enclosures may have been the standard practice twenty years ago, they are now generally considered archaic … The issue before the Court, however, is not whether the bears could be in a better environment. Undoubtedly they could.”

The suit, which tribal members Peggy Hill and Amy Walker filed against bear zoo owners Barry and Collette Coggins, contended that conditions there were so deplorable that they amounted to a “taking” under the Endangered Species Act — the bear zoo houses black bears, which are not protected under the ESA, and four grizzly bears, which are. The concrete pits, devoid of shade and vegetation, are inhumane, Hill and Walker testified.

“The bears were pacing,” Hill testified as she recounted her visit to the bear park. “And one was just lying there unable to get up — or it would look like to me not having the energy to get up or was overcome with heat, I don’t know. The other was begging for food.”

The animals were “listless,” she said, and “their eyes, their spirit, all were just empty.”

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Defining ‘taking’

While Reidinger agreed that conditions might well be lower than what many people might call “good enough,” he ruled that they weren’t poor enough to meet the definition of “harming” or “harassing” the bears — actions that can cause the ESA to kick in. “Harm” is defined as an action that actually kills or injures the wildlife; “a mere potential for future injury is insufficient to establish a ‘harm,’” Reidinger wrote. Likewise, “harassment” applies to situations in which animal husbandry practices fall below the minimum standards of the federal Animal Welfare Act.

The Cherokee Bear Zoo meets those minimum standards, having never had seen its license from the U.S. Department of Agriculture suspended or revoked, but the plaintiffs did their best to show that the zoo fails when set alongside industry standards considered “generally acceptable.” For instance, testified animal behaviorist Else Poulson, the enclosures aren’t large enough to meet North Carolina’s state standards — those standards don’t govern facilities on tribal lands. Public feeding, which is allowed at Cherokee Bear Zoo, is prohibited under standards from the Association of Zoos and Aquariums, but the bear zoo is not accredited with that organization. The lack of shade structures, high walls preventing airflow from wind and lack of enrichment activities also fall outside of what would be considered “generally accepted” by those in the industry, Poulson testified.

Poulson also took issue with the U.S. Department of Agriculture’s assessment that the zoo is in compliance with the intent of the Animal Welfare Act.

“That’s a disagreement that the captive community as a whole has with the USDA and their interpretation of the law … Congress is currently in the process of trying to set up bear-specific regulations. So it’s not just me who disagrees with that, it’s many other organizations, zoos, people who work with bears and maybe Congress,” she testified.

However, Reidinger noted, the fact remains that the USDA has never cited the bear zoo for violating the Animal Welfare Act, and the bear zoo has promptly responded to any corrective actions the USDA has ordered in its 24 years of existence.

Thus, the ruling. In addition to dismissing the charges, Reidinger ordered the plaintiffs to cover the defendants’ court costs.

Not giving up

But they’re not giving up just yet, Walker said. Though no decisions have yet been made, there’s a good possibility she and Hill will appeal the case.

“We’re not finished yet,” she said. “It ain’t over till the fat lady sings.”

Indeed, while Reidinger’s ruling didn’t come down on Walker and Hill’s side, the decision brought some encouragement, said Brittany Peet, deputy director of captive animal law enforcement for People for the Ethical Treatment of Animals. Though PETA did not litigate this case, the organization has been following the Cherokee Bear Zoo case carefully as part of its active campaign to close facilities keeping bears in concrete pits. It has sued the bear zoo in the past.

“After looking at this ruling, there are a couple of really bright spots,” Peet said. “Two of the most difficult physical hurdles to cross in this case the elders actually prevailed on.”

For one, the court ruled that the plaintiffs did have standing. The bear zoo had argued that Walker and Hill didn’t even have a right to bring the lawsuit, as they hadn’t been directly injured by anything happening to the bears there. But the two women had responded that seeing the bears’ condition caused them emotional pain, especially considering the bears’ revered place in Cherokee culture. They would have liked to visit the bears again, they testified, but couldn’t while they were being held in that condition.

The plaintiffs “suffered aesthetic and emotional harm from observing the bears living in virtually barren concrete pits and being subjected to public feeding,” Reidinger wrote. “The Plaintiffs have established that they have a spiritual and cultural connection with the bears and developed a strong personal and emotional attachment to them.”

The second hurdle that Walker and Hill had to overcome was to prove that the bears in question were, in fact grizzlies. The bear zoo contains about 35 animals, according to court documents, including bears, monkeys, lemurs, goats and a tiger. The bear zoo had identified four of the bears as grizzlies, including a grizzlies page on its website and posting signs at the zoo to identify at least three of the four as grizzlies. Veterinary records also refer to the bears as grizzlies.

However, when the suit was filed, the bear zoo claimed that the bears weren’t grizzlies at all — they were Eurasian brown bears, they said, a species not protected by the ESA.

“The Defendants presented no credible evidence that the subject bears are anything other than grizzly bears,” Reidinger wrote.

Peet considers those two points of Reidinger’s decision to be wins for the bears and thinks the case could turn out differently in a higher court.

“I think there is a great chance for this case on appeal,” Peet said.

The bears’ future

In the meantime, however, Peet wants to see the bears moved from the pits immediately.

“The most important thing is that the bears are out of the pits without delay and that they are removed to large, naturalistic enclosures where they can act like bears for the first time in their lives,” she said. “The best way for that to happen is for the tribe to allow the bears to be relocated to a reputable, existing animal shelter. And that could happen in a matter of weeks.”

According to Peet, PETA has offered to relocate the bears to a sanctuary where they could live out their days in a large, natural environment, but the Coggins haven’t taken them up on it.

Collette Coggins tells a different story.

“They’ve never reached out to me, period,” she said. “They’ve always just wanted to go the media route and the trouble-causing route.”

David Perle, senior media coordinator for PETA, emphasized that’s not the case. PETA relayed the offer directly to Coggins, he said, through an attorney.

“That’s Collette Coggins trying to use semantics to justify her continuing unjustifiable confinement of bears in archaic concrete pits,” he said.

Moreover, Coggins claims that the lawsuit and PETA’s involvement are actually the reason the bears are still living in concrete pits. Before the suit was filed, she said, she and Barry were making plans to build a new, more natural facility, but attorney’s fees totaling in the tens of thousands of dollars have sidelined those plans.

“I love my animals and I take very good care of my animals, and they would be in a different facility now at this time if we had not gotten sidebarred and then the whole distraction,” she said. “The reality of it is that PETA and their cronies have hurt the animals moreso. It’s their fault that we haven’t expanded by now.”

If PETA wanted to help the animals, she said, why not help the bear zoo update its facility rather than insisting on taking the bears — which are her livelihood — away?

From PETA’s perspective, the Cherokee Bear Zoo has already had its chance — 24 years’ worth of it.

“Barry and Collette Coggins have abused the bears in the Cherokee bear pits for years,” Peet said.

“All I know is that we’re trying to get those bears out of those pits to a decent habitat,” Walker added.

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