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Case 3:18-cv-06025 Document 1 Filed 12/18/18 Page 1 of 25

6 UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF WASHINGTON
7
AT TACOMA
8
ANIMAL LEGAL DEFENSE FUND, Case No.
9
Plaintiff, COMPLAINT FOR DECLARATORY
10 AND INJUNCTIVE RELIEF
v.
11

12
OLYMPIC GAME FARM, INC.,
13 ROBERT BEEBE, JAMES BEEBE, and
KENNETH BEEBE,
14
Defendants.
15
STATEMENT OF THE CASE
16
1. This case is about the mistreatment and unsafe captivity of numerous animals,
17
including endangered gray wolves, endangered lions, endangered tigers, threatened brown bears,
18

19 and the threatened Canada lynx, at a roadside zoo in Sequim, Washington known to the public as

20 the Olympic Game Farm (OGF).

21 2. Members of the species above and scores of other animals are housed in small
22 enclosures with no shelter from the elements, a lack of water and suitable food, and other

23
conditions that are unsuitable to meet each animal’s basic species-specific needs.
24
3. OGF is primarily a drive through animal exhibitor. Visitors purchase bread upon
25
entrance to the OGF, or bring in their own bread, which they then feed to the animals without
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1 any monitoring or supervision of how much bread the animals consume. Animals either stick

2 their heads into the visitors’ vehicles to eat the bread, or stand and wait for visitors to throw

3
pieces of bread at them.
4
4. This environment has caused casual observers, skilled veterinarians, and the
5
United States Department of Agriculture (USDA) alike to conclude that the animals are
6
suffering.
7

8 5. For instance, a routine inspection by a USDA veterinarian in March 2017 found

9 that OGF failed to give several necessary medications to animals suffering in pain, including

10 medications to treat arthritis in an older brown bear and leg injuries suffered by a Canada lynx

11
and a coyote.
12
6. Other veterinarians visited OGF recently and found the confinement of numerous
13
animals to be highly problematic. The veterinarians observed outward behavior manifestations of
14

15 severe stress among the animals and noted the often inadequate size of the enclosures, the lack of

16 companionship, the aggressive nature of certain animals, and the safety risk it created.

17 7. This case, brought chiefly under the Endangered Species Act (ESA), 16 U.S.C.
18 §§ 1531-1544, challenges the unlawful “take” – e.g., killing, wounding, harming, injuring and

19
harassment – of federally listed and specially protected species at OGF, an unaccredited
20
roadside zoo owned and operated by Robert Beebe, James Beebe, and Kenneth Beebe (“the
21
Beebes”), hereinafter collectively referred to as “OGF” or “Defendants.”
22

23 8. OGF violates the ESA by harming and harassing gray wolves, lions, tigers, brown

24 bears, and Canada lynx at the facility. Photographic evidence, visitor observations, and expert

25 analysis indicate that members of these ESA-listed species suffer both physically and

26
psychologically in their cramped and deprived conditions at OGF.
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1 9. The ESA protects not only endangered and threatened species in the wild, but also

2 those confined in captivity, such as those at OGF. See, e.g., 79 Fed. Reg. 37578, 37597 (July 1,

3
2014) (“Captive members have the same legal status as the species as a whole.”); 78 Fed. Reg.
4
33790, 33793 (June 5, 2013) (same); 80 Fed. Reg. 7380, 7399 (Feb. 10, 2015) (“[T]he ESA does
5
not treat captives differently. . . Section 9[] of the ESA [prohibiting take] applies to endangered
6
species regardless of their captive status.”).
7

8 10. The inhumane conditions in which the animals at OGF are confined amount to the

9 unlawful take of ESA-listed species. Federal courts have taken a hard position against animal

10 owners whose treatment of captive members of endangered species violates the ESA.1

11
11. This case is further brought to enjoin a public nuisance under Washington state
12
law, a claim over which this Court has supplemental jurisdiction. OGF constitutes a public
13
nuisance because it inhumanely confines not only federally-endangered species, but other
14

15 animals as well, in violation of Washington animal cruelty laws which protect all mammals,

16 birds, reptiles and amphibians from knowing or reckless infliction of unnecessary pain or

17 suffering, or the failure to provide necessary shelter, rest, sanitation, space, or medical attention

18 where the animal suffers unnecessary or unjustifiable pain as a result of the failure. RCW

19
16.52.207.
20

21

22

23
1
See, e.g., Kuehl v. Sellner, No. 6:14-cv-02034-JSS, 2016 U.S. Dist. LEXIS 17664 (N.D. Iowa Feb. 11,
24 2016) (Order for Declaratory Judgment and Injunctive Relief, Dkt. 83 at p. 72) (ordering Defendants, who were
violating the ESA at their own roadside zoo, to transfer their endangered animals “to an appropriate facility
25 which is licensed by the USDA and is capable of meeting the needs of the endangered species” and ordering
that “Defendants are enjoined from acquiring any additional animals on the endangered species list”), aff’d 887
26 F.3d 845 (8th Cir. 2018); cf. Tenn. Valley Auth. v. Hill, 98 S. Ct. 2279, 2302 (1978) (“Congress has spoken in the
plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered
27 species the highest of priorities”).

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1 12. OGF also constitutes a public nuisance because it violates the Washington State

2 Endangered Species Act, which designates the gray wolf, Canada lynx, and grizzly bear as

3
endangered. WAC 220-610-010.
4
13. OGF is also a public nuisance because it unlawfully possesses and displays
5
Roosevelt Elk. Under Washington state regulations, Roosevelt elk may be possessed only by
6
zoos that are accredited by the Association of Zoos & Aquariums (AZA). OGF is not AZA-
7

8 accredited, and, therefore, the possession of the Roosevelt elk contravenes WAC 220-450-030.

9 14. OGF’s ongoing mistreatment and demonstrated inability to provide proper care
10 for the animals on its property, including, but not limited to gray wolves, brown bears, lions,

11
tigers, and Canada lynx, demonstrates that OGF is unfit to properly care for its animals. Not only
12
have OGF’s failures harmed the animals physically and psychologically, but they harm the
13
general public at large.
14

15 15. For example, OGF has been cited by the USDA in its inspection reports for the

16 improper nutrition of feeding the animals an unmonitored amount of bread, disrepair of the

17 facilities, the unsanitary conditions of the area used to prepare food for the animals, and the risk

18 of harm to the public from OGF’s failure to supervise contact between the animals and the park

19
visitors. These conditions highlight the continued health and welfare risks to all animals confined
20
at OGF, including the members of federally and state-listed endangered species. The Beebes’
21
continuing mistreatment of the animals at OGF, including their failure to provide adequate
22

23 enclosures, amounts to an actionable public nuisance.

24

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1 PARTIES
2 Plaintiff
3 16. ANIMAL LEGAL DEFENSE FUND (ALDF) is a national non-profit

4 organization headquartered in Cotati, California with over 200,000 members. ALDF pursues its

5
mission of protecting the lives and advancing the interests of animals by persistently advocating
6
for the protection of animals used and sold in commercial enterprises. ALDF frequently focuses
7
on animal husbandry practices and the confinement of animals used for entertainment and
8
exhibition purposes. ALDF has engaged in significant advocacy and public education efforts to
9

10 improve the welfare of animals who are held in captivity. ALDF has members who have visited

11 OGF and have observed and developed aesthetic and emotional connections to the animals at

12 OGF, including the bears, tigers, lions, wolves, coyotes, and lynx, among others. Several

13
members have visited OGF only once or twice and, after witnessing Defendants’ lack of
14
treatment and care for the animals at OGF and the keeping of animals in small, barren, and
15
unprotected-from-the-elements enclosures at OGF, have become too upset to return to visit the
16

17 animals in their current conditions. Other ALDF members have visited OGF several times over

18 the past decade, and during each visit remain distressed and “leave with a bad feeling” from the

19 animal mistreatment and suffering that they witness. ALDF brings this action on behalf of its

20 members, as well as the public at large. ALDF’s members’ interests in observing and otherwise

21
enjoying animals at OGF have been, and will continue to be, harmed by Defendants’
22
mistreatment of animals through their operation and management of OGF. The relief sought in
23
this lawsuit—including, but not limited to, the transfer of animals to a bona fide sanctuary—
24

25 would redress ALDF and its members’ ongoing harms from Defendants’ activities at OGF.

26

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1 Defendants

2 17. OLYMPIC GAME FARM, INC., is a Washington State corporation that operates
3
Olympic Game Farm, a roadside zoo located at 1423 Ward Road, Sequim, Washington.
4
18. ROBERT BEEBE is, upon information and belief, a citizen and resident of
5
Clallam County, Washington. Robert Beebe is a governor of Olympic Game Farm, Inc., and an
6
owner and operator of OGF.
7

8 19. JAMES BEEBE is, upon information and belief, a citizen and resident of Clallam

9 County, Washington. James Beebe is a governor of Olympic Game Farm, Inc., and an owner and

10 operator of OGF.

11
20. KENNETH BEEBE is, upon information and belief, a citizen and resident of
12
Clallam County, Washington. Kenneth Beebe is a governor of Olympic Game Farm, Inc., and an
13
owner and operator of OGF.
14

15 JURISDICTION AND VENUE

16 21. The Court has jurisdiction over this action under 28 U.S.C. § 1331 because

17 Plaintiff alleges violations of federal law.

18 22. Pursuant to 28 U.S.C. §§ 2201-2202, the Court is authorized to provide


19 declaratory and injunctive relief. The ESA’s citizen suit provision further authorizes the Court to

20
enjoin violations of the ESA and its implementing regulations. See 16 U.S.C. § 1540.
21
23. Plaintiff provided notice of their intent to sue Defendants on September 27, 2018,
22
at least sixty days in advance of this Complaint, as required by the ESA. 16 U.S.C.
23

24 § 1540(g)(2)(A). Defendants have not remedied the violations set out in the 60-day notice. On

25 information and belief, Defendants have not applied for any permit to lawfully take members of

26 federally listed species at OGF.

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1 24. Venue is proper in this Court, pursuant to 28 U.S.C. § 1391(b), because

2 Defendants reside in this district and a substantial part of the events or omissions giving rise to

3
the claim occurred in this district. In addition, Plaintiff may bring suit in this district because
4
violations of the ESA occur in the district. See 16 U.S.C. § 1540(g)(3)(A).
5
25. This Court has jurisdiction over the Washington state law claims under 28 U.S.C.
6
§ 1367(a) because this Court has original jurisdiction under 28 U.S.C. § 1331 and 16 U.S.C.
7

8 § 1540(g), and the state law claims are so related to the underlying federal claims that they form

9 part of the same case or controversy under Article III of the United States Constitution.

10 STATUTORY AND REGULATORY FRAMEWORK OF THE ESA


11 26. Congress passed the ESA in recognition that species in danger or threatened with
12
extinction “are of esthetic, ecological, educational, historical, recreational, and scientific value to
13
the Nation and its people,” and that the United States has pledged to the international community
14
“to conserve to the extent practicable various species of fish or wildlife and plants facing
15

16 extinction.” 16 U.S.C. § 1531(a)(3)-(4).

17 27. The ESA defines an “endangered species” as “any species which is in danger of

18 extinction.” Id. § 1532(6).

19 28. The Act requires the Secretary of Interior to identify which species are
20
endangered or threatened and list them accordingly. Id. § 1533. The Secretary fulfills this
21
obligation through the United States Fish and Wildlife Service.
22
29. Section 9 of the ESA prohibits the “take” of endangered species. Id. § 1538(a)(1).
23

24 Pursuant to its statutory authority to “by regulation prohibit with respect to any threatened

25 species any act prohibited under [Section 9(a)(1)], in the case of fish or wildlife,” the Department

26

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1 of Interior has generally extended the take prohibition to species listed as threatened. 50 C.F.R.

2 § 17.31.

3
30. The prohibitions of the ESA apply to endangered or threatened animals bred or
4
kept in captivity as well as those in the wild. See, e.g., 79 Fed. Reg. 37578, 37597 (July 1, 2014)
5
(“Captive members have the same legal status as the species as a whole.”); 80 Fed. Reg. 7380,
6
7399 (Feb. 10, 2015) (“On its face the ESA does not treat captives differently. . . Section 9[] of
7

8 the ESA [prohibiting take] applies to endangered species regardless of their captive status.”); 78

9 Fed. Reg. 33790, 33793 (June 5, 2013) (“Certain provisions in sections 9 and 10 show that what

10 Congress intended was that captive-held animals would generally have the same legal status as

11
their wild counterparts by providing certain exceptions for animals held in captivity.”); 50 C.F.R.
12
§ 17.3 (defining the “take” definition’s term “harass” in the context of captive animals).
13
31. The ESA defines “take” to include “harass, harm, pursue, hunt, shoot, wound,
14

15 kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

16 Congress intended for “take” to “be defined in the broadest possible manner to include every

17 conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S. Rep.

18 No. 307, 93d Cong., 1st Sess. (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2995 (emphasis

19
added).
20
32. The Department of Interior has defined the term “harass” to mean “an intentional
21
or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to
22

23 such an extent as to significantly disrupt normal behavioral patterns which include, but are not

24 limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. It has defined the term “harm” to

25 mean “an act which actually kills or injures wildlife.” Id.

26

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1 33. Section 9 also makes it unlawful to “possess, sell, deliver, carry, transport, or

2 ship” any endangered or threatened species that has been unlawfully taken in violation of Section

3
9(a)(1)(B). 16 U.S.C. § 1538(a)(1)(D). In addition, Section 9 makes it unlawful to “deliver,
4
receive, carry, transport, or ship in interstate or foreign commerce . . . in the course of
5
commercial activity” any endangered or threatened species, regardless of whether the species
6
was taken. Id. § 1538(a)(1)(E).
7

8 FACTUAL BACKGROUND

9 Olympic Game Farm


10 34. OGF is an unaccredited roadside zoo at 1423 Ward Road, Sequim, Washington.
11 At OGF, Defendants confine and exhibit approximately 300 animals, a number of which are

12
endangered or threatened species, which they display to the public for a fee. Defendants’
13
confinement, husbandry, veterinary care, public feeding, and exhibition activities are injuring,
14
harming, and harassing several of the animals at OGF. Those activities are not generally
15

16 accepted practices, and are also likely to result in injury to these animals.

17 35. Among the many species kept by OGF are zebra, lions, tigers, Canada lynx, gray

18 wolves, and brown bears. OGF also possesses and displays Roosevelt elk.

19 36. OGF is known for its drive-through viewing. Upon entrance, OGF sells loaves of
20
bread to visitors who remain in their cars, roll down their windows, and either throw pieces of
21
bread at some of the caged animals, or invite certain roaming animals (such as the bison) to stick
22
their heads into the car to eat the bread as the visitors continue to drive. The amount of bread fed
23

24 to the animals is not monitored, nor is whether visitors bring in or feed the animals outside food.

25 37. OGF is also known for its bears that “wave” at cars from their enclosure.

26

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1 38. Many of the animals at OGF reside in cages or enclosures that are unacceptably

2 small and devoid of proper enrichment activities. Moreover, the enclosures fail to provide a

3
suitable environment for the animals to behave as they would in the wild, including running,
4
foraging, feeding, digging, finding and creating shelter, swimming, mating, and other species-
5
specific behaviors.
6
39. The animals at OGF are suffering from lack of water, shelter, sanitation, and
7

8 veterinary care. Veterinarians visiting OGF observed empty water bowls in several enclosures, a

9 lack of shelter from both the extreme cold (for the lions) and the extreme heat (for the bears), and

10 a general lack of clean enclosures. This concern aligns with many USDA inspection reports,

11
which have found deteriorating indoor and outdoor enclosure fencing, roofing, and vegetation.
12
40. OGF is widely recognized as providing sub-standard care for the animals it
13
houses. On the website TripAdvisor, where visitors can rate attractions, reviewers note the
14

15 depressing and inhumane conditions of OGF, writing that it is “[a] sad community of listless,

16 depressing animals littered with slices of unwanted bread,” that the “[a]nimals are distressed,”

17 and that there is “endless pacing,” a sign of psychological stress.

18 41. Similarly, on Yelp, comments are replete with disgust at the “cruel” and
19
“heartbreaking” conditions and concern over the well-being of the animals confined there.
20
42. It is not just the public that is concerned. Over the past five years, the USDA has
21
performed numerous inspections of OGF and found multiple violations. For example, in March
22

23 2017, the USDA noted OGF’s non-compliance with the Animal Welfare Act because “[s]everal

24 prescription medications for the animals had not been given by the facility as directed by the

25 attending veterinarian.” The medications were prescribed to treat arthritis in a 24-year old brown

26
bear and leg injuries suffered by a lynx and a coyote. All three bottles still contained the full
27
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1 quantity of tablets or capsules prescribed. The medications were prescribed in December 2015,

2 August 2016, and October 2016; meaning that each animal suffered from arthritis or a leg injury

3
for 5 to 15 months without the proper medical treatment.
4
43. In addition, in June 2014, a USDA inspector cited OGF because “hoof stock
5
(llama, yak, fallow deer, zebra) are sticking their heads into car windows.” A veterinarian
6
visiting OGF observed in September 2018 that animals were continuing to stick their heads into
7

8 car windows, mainly to eat the bread purchased or brought by visitors to feed the animals.

9 44. The USDA has also “strongly advised” that “a more species appropriate snack
10 [than bread] be implemented . . . as soon as possible.” It has also found the facilities and fencing

11
to be in disrepair, OGF’s food preparation areas to have sanitation issues, and that no OGF
12
attendants were present to observe the visiting adults and children interacting with the animals.
13
45. The inadequate care and housing of wild animals also threatens the safety of
14

15 OGF’s employees, visitors, and neighbors. For example, in 2001, at OGF, a 3-year-old received

16 ten stitches after a zebra dragged him from his parents’ car while the boy was feeding bread to

17 llamas.

18 46. Defendants’ continued failure to provide care for its animals that meet generally
19
accepted practices demonstrates that it lacks the capacity, resources, and/or desire to properly
20
maintain and keep the animals at its roadside zoo.
21
Gray Wolves
22

23 47. The gray wolf, Canis lupus, is listed as endangered in Western Washington under

24 the ESA and under Washington State law. See 50 C.F.R. § 17.11; 43 FR 9607 (March 9, 1978)

25 (listing gray wolves); WAC 232.12.014.

26
48. Defendants keep gray wolves at OGF.
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1 49. In the wild, gray wolves live, travel, and hunt in social groups called “packs” that

2 average four to seven individuals. The species requires large, environmentally complex spaces

3
that allow the packs to express a wide range of natural movements and behaviors, from choosing
4
den sites to hunting to avoiding competition and confrontation. Wolf packs cover territories
5
ranging in size from 50 to 1,000 square miles, and will travel as far as 30 miles in one day to hunt.
6
50. The wolves are confined in tiny enclosures at OGF with little to no enrichment
7

8 objects.

9 51. For wolves in captivity, choice and control are the two most significant criteria for
10 improving animal welfare. To meet these needs, their enclosures must be large enough to allow a

11
choice among different regions, to allow animals to be visually separated from the visitors, and
12
to give them control over their activities. One aspect of choice and control for wolves is the
13
ability to retreat from view.
14

15 52. OGF’s confinement of gray wolves in tiny, barren, inadequate enclosures gives

16 them no choice or control over their surroundings and frustrates their essential natural behaviors.

17 The lack of visual barriers and inability to retreat from view, in addition to loud and incessantly

18 honking cars, barking dogs, and other aspects of the constant public visitation at OGF causes

19
stress to the wolves. Not surprisingly, the wolves confined to tiny, barren, and inadequate
20
enclosures at OGF engage in stereotypic pacing. This stress behavior indicates that the wolves’
21
well-being is compromised.
22

23 53. The confinement of the wolves in their small cages “significantly disrupt[s]

24 normal behavioral patterns,” and therefore constitutes “harassment” under the ESA. 50 C.F.R.

25 § 17.3. The wolves’ confinement also injures them physically and psychologically, and therefore

26
constitute “harm” under the ESA. Id.
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1 54. Further, the wolves are suffering psychologically due to the solitary nature of

2 their confinement by Defendants—a practice known to be cruel to wolves, who are pack animals.

3
The wolves’ psychological suffering caused by their confinement is event to both causal
4
observers and skilled veterinarians.
5
55. The wolves’ physical and psychological harm caused by the Defendants will only
6
exacerbate over time if not remedied by their relocation to a proper sanctuary.
7

8 Lions

9 56. The lion, Panthera leo, is an endangered species. See 50 C.F.R. § 17.11; 80 FR
10 79999 (Dec. 23, 2015) (listing lions).

11
57. Defendants keep lions at OGF.
12
58. Lion home ranges vary by location from 8-17 square miles to over 800 square
13
miles. Species with large territories are particularly vulnerable to stress in captivity. Chronically
14

15 high stress levels can have deleterious effects on an animal’s well-being, including the animal’s

16 immune function, development, and reproductive function. Chronic stress may also decrease

17 individual fitness by muscle atrophy. The absence of chronic stress is a prerequisite of animal

18 welfare.

19
59. Lions travel up to eight miles a day. Stereotypic pacing, a stress behavior in
20
captive animals, is best predicted by the daily distance travelled in nature. The AZA manual,
21
compilation of animal care and management knowledge sourced from recognized species experts
22

23 that AZA accredited institutions are required to have copies of, and ensure that all animal care

24 staff has access to, sets a minimum of 10,000 square feet for lion enclosures. In addition, because

25 lions are accustomed to a warm environment, the AZA manual calls for access to indoor

26
enclosures or a supplemental heat source in temperatures below 50 °F. Lions are very social,
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1 with females and cubs living in prides averaging 4-6 adult females, and up to 8 males with a

2 lifelong alliance with the pride.

3
60. Captive felids, such as lions, have particularly high needs for environmental
4
enrichments. Enrichments can enhance captive animals’ well‐being by stimulating active
5
behaviors and reducing stereotypic behaviors commonly seen in captive felids. Because of the
6
complexity of lions’ exploring and hunting in the wild, it remains difficult to provide fully for
7

8 this complex array of behaviors within captivity.

9 61. OGF keeps lions isolated in tiny, barren, inadequate enclosures, frustrating their
10 essential natural behaviors. The lions at OGF do not have shelter from the cold, despite the

11
climate of Sequim being markedly colder than that of their home ranges in Africa.
12
62. The confinement of the lions in their small cages “significantly disrupt[s] normal
13
behavioral patterns,” and therefore constitutes “harassment” under the ESA. 50 C.F.R. § 17.3.
14

15 The lions’ confinement also injures them physically and psychologically, and therefore constitute

16 “harm” under the ESA. Id.

17 63. The physical and psychological harm being done to the lions due to their
18 inappropriate and harmful confinement by the Defendants will only exacerbate over time if not

19
remedied by their relocation to a proper sanctuary.
20
Tigers
21
64. The tiger, Panthera tigris, is listed as endangered under the ESA. See 50 C.F.R.
22

23 § 17.11; 35 FR 8491 (June 2, 1970) (listing tigers).

24 65. Defendants possess and display at least two tigers at OGF.

25 66. Tigers originally ranged from eastern Turkey to southeastern Siberia and the
26
Malay Peninsula, Sumatra, Java, and Bali.
27
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1 67. In the wild, female tigers maintain a range of around seven square miles, while

2 males may cover a range up to forty square miles. Tigers require large, environmentally rich,

3
natural spaces that allow them to express a wide range of movements and behaviors, such as
4
seeking food and escaping competition and confrontation.
5
68. Tigers are also avid swimmers, keeping cool on hot days by bathing in rivers and
6
lakes and swimming up to 18 miles a day. Research supports that large enclosures with a pool
7

8 with clean water are essential for tigers because they reduce stress and promote naturalistic

9 behavior. The AZA Tiger Care Manual says that all tiger exhibits should include relatively large,

10 complex outdoor space, and water pools, moats, and/or running streams, and the addition of a

11
concrete pool is key in tiger exhibits.
12
69. Like the wolves’ enclosure, the tigers’ enclosures at OGF are far too small,
13
without enrichment, and lack adequate water features for the tigers’ natural swimming behaviors.
14

15 Visitors have observed an empty tub flipped upside down in a tiger enclosure, with no water

16 feature provided.

17 70. Adequate space, enrichment, and water features have been cited by both scientific
18 researchers and zoo associations as essential for tiger welfare.

19
71. The tigers’ small, unenriched enclosures “significantly disrupt normal behavioral
20
patterns,” and therefore constitute “harassment” under the ESA. 50 C.F.R. § 17.3. Their
21
confinement also injures them physically and psychologically, and therefore constitute “harm”
22

23 under the ESA. Id.

24 72. At least one of the tigers at OGF exhibits lameness in his back legs and manifests

25 stress by engaging in stereotypic pacing—both likely attributed to their small enclosure with

26
inadequate substrate flooring and a lack of a proper water feature.
27
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1 73. Amadeus, a tiger at OGF, died in late 2017 or early 2018. As Amadeus lay sick

2 and dying, OGF continued to display him to the public, hanging a sign on his enclosure reading

3
“Animal is under veterinarian care.”
4
74. The physical and psychological harm being done to the tigers due to their
5
improper confinement, lack of companionship, and complete inability to behave as tigers
6
naturally do is evident to both casual animal observers as well as to skilled veterinarians.
7

8 75. Because the tigers are not able to exhibit normal animal behaviors due to the

9 nature of their confinement by the Defendants, the physical and psychological harm being done

10 to them will only exacerbate over time if not remedied by relocation to a proper sanctuary.

11
Brown Bears
12
76. The grizzly bear, Ursus arctos horribilis, is listed as threatened under the ESA,
13
except for in areas of Idaho, Montana, and Wyoming. See 50 C.F.R. § 17.11; 40 FR 31734
14

15 (listing grizzly bear as threatened species). The grizzly bear is also listed as endangered under

16 Washington law.

17 77. OGF possesses and displays brown bears. On information and belief, the brown
18 bears are members of the grizzly bear subspecies Ursus arctos horribilis.

19
78. Grizzly bears naturally establish large territories. Depending on location and
20
mating season, females establish ranges from 41 to 107 square miles, while males establish
21
ranges from 164 to 345 square miles. Larger ranges have been recorded, up to 1,213 square
22

23 miles, an area roughly equivalent to Olympic National Park. Species with large territories are

24 particularly vulnerable to stress in captivity.

25

26

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1 79. Chronically high stress levels can have deleterious effects on an animal’s immune

2 function, development, and reproductive function. Chronic stress may also decrease individual

3
fitness by atrophy of tissues. The absence of chronic stress is a prerequisite of animal welfare.
4
80. Brown bears possess formidable intelligence. In fact, it is recognized that bears
5
are every bit as demanding as primates and require intense husbandry routines to keep them in
6
good mental and physical condition.
7

8 81. In the wild, grizzly bear diets include a wide variety of flora and fauna. Brown

9 bears engage in a wide variety of feeding activities and are designed to locate and procure food

10 from a multitude of different sources using a range of different techniques. Bears are designed to

11
forage for long periods of time to survive and thrive, so if this option is removed they are left
12
purposeless and unchallenged.
13
82. OGF keeps bears in small, barren enclosures, where they pace or linger by a fence
14

15 and await passing vehicles to throw bread at them. At least one of the bears engages in

16 stereotypic pacing and panting, manifesting stress. Moreover, the bears do not have adequate

17 protection from the heat.

18 83. OGF also sells loaves of bread to visitors and allows visitors to bring their own
19
bread, which they can then throw at the bears without restriction. USDA notified OGF, as early
20
as June 25, 2014, that bread is an improper food source. In over four years since this notice, there
21
is no evidence OGF has implemented more species-appropriate food.
22

23 84. The bears at OGF engage in an abnormal behavior that resembles waving.

24 85. In addition, in September 2018, a brown bear at OGF was observed with a large,

25 relatively fresh gash around five inches in length below the bear’s shoulder blades and

26
perpendicular to the spine.
27
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1 86. The treatment of bears and their conditions at OGF frustrate the bears’ natural

2 behaviors and amount to a “take” because, inter alia, they injure and “significantly disrupt [their]

3
normal behavioral patterns which include, but are not limited to, breeding, feeding, or
4
sheltering.” 50 C.F.R. § 17.3.
5
87. The physical and psychological harm being done to the bears due to their
6
inappropriate and harmful confinement by the Defendants will only exacerbate over time if not
7

8 remedied by their relocation to a proper sanctuary.

9 Canada Lynx
10 88. Canada lynx, Lynx canadensis, are listed as threatened “wherever found in the
11
contiguous USA.” See 50 C.F.R. § 17.11; 65 FR 16052 (March 24, 2000) (listing Canada lynx).
12
Proper interpretation of the regulations requires application of Section 9 of the ESA to both
13
captive and wild members of the species.
14

15 89. Canada lynx are listed as endangered under Washington law.

16 90. Canada lynx primarily inhabit the northern forests of Canada and Alaska, with

17 smaller populations in the contiguous U.S. Canada lynx typically inhabit regions where snow

18 cover continues for four months or more. Lynx density varies from one lynx per square mile to

19
one lynx per 39 square miles—this depends on the availability of their primary food source,
20
snowshoe hare. Home ranges vary in size and have been recorded from 3 to 302 square miles.
21
91. Species with large territories are particularly vulnerable to stress in captivity.
22

23 Captive Canada lynx have been found to have approximately double the levels of stress

24 hormones as their wild counterparts. This result is generally attributed to higher levels of stress

25 in captivity.

26

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1 92. Again, as noted above, chronically high stress levels can have deleterious effects

2 on an animal’s well- being, including the animal’s immune function, development, and

3
reproductive function. Chronic stress may also decrease individual fitness by muscle atrophy.
4
The absence of chronic stress is a prerequisite of animal welfare.
5
93. OGF keeps Canada lynx in tiny, barren, inadequate enclosures with minimal to no
6
snow cover throughout the year, frustrating their natural behaviors. These conditions cause a
7

8 measurable, physical stress response in Canada lynx.

9 94. The treatment of Canada lynx and their conditions at OGF harms the animals and
10 frustrates the lynxs’ natural behaviors and amount to a “take” because they injure and

11
“significantly disrupt [their] normal behavioral patterns which include, but are not limited to,
12
breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.
13
95. The physical and psychological harm being done to the Canada lynx due to their
14

15 inappropriate and harmful confinement by the Defendants will only exacerbate over time if not

16 remedied by their relocation to a proper sanctuary.

17 Other Animals
18 96. Defendants confine numerous other animals in inhumane and unsanitary
19
conditions, including peacocks, various domestic rabbits, llamas, various domestic goats, a
20
miniature donkey, various domestic fowl, prairie dogs, yaks, Sika deer, European Fallow deer,
21
zebra, black bears, mountain lions, emus, elk, and bison.
22

23 97. On information and belief, and based on the overall conditions at OGF and

24 Defendants’ evident inability to properly care for animals as demonstrated by inadequate habitat,

25 insufficient veterinary care, limited or unsanitary food and water, and enclosure conditions that

26

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1 allow for physical injuries, many—if not all—of these animals are also suffering physically and

2 psychologically.

3
98. For example, in August 2004, the USDA cited OGF for inadequate veterinary
4
care when a male cougar named “Teo” had a broken hind leg and was “euthanized by OGF” by
5
“gunshot.” Gunshot is not an acceptable method of routine euthanasia for any animal.
6
99. For example, in March 2017, the USDA cited OGF for failing to give Koda, a 4-
7

8 year old coyote, medication to treat his leg injury. The USDA also observed Koda pacing inside

9 his enclosure, and explained in response to this observation that “[a]bnormal or repetitive

10 behavior patterns can be indicative of physical or psychological issues that may require medical

11
treatment.”
12
100. The physical and psychological harm suffered by the other animals at OGF due to
13
their inappropriate and harmful confinement by the Defendants will only exacerbate over time if
14

15 not remedied by their relocation to a proper sanctuary.

16 CLAIMS FOR RELIEF

17 Violations of the Endangered Species Act


18 Claim I—Unlawful “Take” of Protected Species
19
101. Each and every allegation set forth above is incorporated herein by reference.
20
102. The ESA, 16 U.S.C. § 1538(a)(1)(B), prohibits the “take” of “any [listed] species”
21
within the United States without a permit.
22

23 103. Defendants have violated and continue to violate the ESA and its implementing

24 regulations by taking gray wolves, lions, tigers, grizzly bears, and Canada lynx within the

25 meaning of 16 U.S.C. § 1538(a)(1)(B), without a permit, at OGF.

26

27
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1 104. This Court has the authority to issue an injunction prohibiting Defendants from

2 committing further violations of the ESA and to compel Defendants to remedy current violations

3
of the ESA. 16 U.S.C. § 1540(g)(1)(a). Moreover, this Court has the authority to award the costs
4
of litigation, including reasonable attorney and expert witness fees, to any party whenever the
5
court determines such award is appropriate. 16 U.S.C. § 1540(g)(4).
6
Claim II—Unlawful Possession of Protected Species
7

8 105. Each and every allegation set forth above is incorporated herein by reference.

9 106. The ESA, 16 U.S.C. § 1538(a)(1)(D), prohibits the possession, by any means
10 whatsoever, of any species taken in violation of § 1538(a)(1)(B) and(C).

11
107. Defendants have violated and continue to violate the ESA and its implementing
12
regulations by possessing and continuing to possess unlawfully taken species, including gray
13
wolves, brown bears, tigers, lions, and Canada lynx, within the meaning of 16 U.S.C.
14

15 § 1538(a)(1)(D).

16 108. This Court has the authority to issue an injunction prohibiting Defendants from

17 committing further violations of the ESA and to compel Defendants to remedy current violations

18 of the ESA. 16 U.S.C. § 1540(g)(1)(a). Moreover, this Court has the authority to award the costs

19
of litigation, including reasonable attorney and expert witness fees, to any party whenever the
20
court determines such award is appropriate. 16 U.S.C. § 1540(g)(4).
21
Violations of Washington State Law
22

23 Claim III—Violation of State Public Nuisance Law

24 109. Each and every allegation set forth above is incorporated herein by reference.

25 110. In Washington State, a “nuisance consists in unlawfully doing an act, or omitting


26
to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose,
27
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1 health or safety of others . . . or in any way renders other persons insecure in life, or in the use of

2 property.” RCW 7.48.120. “A public nuisance is one which affects equally the rights of an entire

3
community or neighborhood, although the extent of the damage may be unequal.” RCW
4
7.48.130.
5
111. ALDF’s members have been injured by Defendants’ nuisance because they have
6
visited the OGF for recreational purposes based on the mistaken belief that OGF was caring for
7

8 rescued exotic animals. ALDF’s members would return to OGF if the housing conditions

9 improved, or visit the animals if they were moved to a sanctuary.

10 112. The violation of federal and state laws can supply a predicate for a public
11
nuisance action.
12
113. Defendants are violating Washington State Animal Cruelty Laws by intentionally
13
inflicting substantial pain and causing physical injury to the animals within its care, including,
14

15 but not limited to, gray wolves, lions, tigers, brown bears, and Canada lynx. See RCW 16.52.205.

16 Facilities where animal cruelty occurs offend the public morals and can be enjoined as a public

17 nuisance. See, e.g., Penn. Soc’y for the Prevention of Cruelty to Animals v. Bravo Enterprises,

18 Inc., 428 Pa. 350, 360 (1968) (“A legislative proscription, such as that found in the cruelty to

19
animals statute, is declarative of the public policy and is tantamount to calling the proscribed
20
matter prejudicial to the interests of the public. Injury to the public is the essence of public
21
nuisance. Therefore, [animal cruelty is] properly enjoinable as being contrary to law and
22

23 prejudicial to the interests of the public.”).

24 114. In the alternative, Defendants are violating Washington State Animal Cruelty

25 Laws by knowingly, recklessly, or with criminal negligence inflicting unnecessary pain or

26
suffering and failing to provide necessary shelter, rest, sanitation, space, or medical attention to
27
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1 the animals within its care—including, but not limited to, gray wolves, lions, tigers, brown bears,

2 and Canada lynx—thereby causing unnecessary or unjustifiable physical pain. See RCW

3
16.52.207.
4
115. Defendants are also violating Washington State’s Endangered Species Act, under
5
which the Washington Department of Fish and Wildlife (WDFW) has designated at least three
6
species of animals living at OGF—the gray wolf, Canada lynx, and grizzly bear—as endangered.
7

8 See WAC 220-610-010.

9 116. Like the federal ESA, Washington’s State ESA prohibits the “taking” of listed
10 animals. RCW 77.15.120(1). The state law prohibits “possession” of state-listed endangered

11
animals, when the possession has “not been authorized by rule of the commission, a permit
12
issued by the department, or a permit issued pursuant to the federal endangered species act.” Id.
13
117. OGF “possesses” state-listed endangered animals, and on information and belief
14

15 has not been authorized by rule of the commission or permit to do so. OGF is therefore violating

16 the Washington State ESA.

17 118. WDFW regulates wild animals held in captivity under Washington


18 Administrative Code chapter 220-450. See WAC 220-450-030.

19
119. Under those regulations, it is unlawful to hold or possess certain species of
20
Cervidae, including Roosevelt elk, except for display in zoos that are accredited members of the
21
Association of Zoos and Aquariums. Id. § 220-450-030(2).
22

23 120. OGF is not an AZA-accredited zoo, but possesses and displays Roosevelt elk.

24 121. OGF is not authorized by law to possess the Roosevelt elk at its facility, and is

25 therefore in violation of these regulations.

26

27
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1 122. These myriad violations of Washington State law provides a basis for Plaintiff’

2 public nuisance action.

3
PRAYER FOR RELIEF
4
A. Declare that Defendants are violating the ESA by illegally taking endangered and
5
threatened animals without a permit;
6
B. Declare that Defendants are violating the ESA by possessing individuals of
7

8 endangered or threatened species who have been illegally taken;

9 C. Enjoin Defendants from engaging in operations and activities that cause take of
10 endangered or threatened animals;

11
D. Enjoin Defendants from possessing, at OGF, endangered or threatened species
12
that have been illegally taken;
13
E. Enjoin Defendants from acquiring or disposing of endangered or threatened
14

15 animals in interstate and/or foreign commerce;

16 F. Enjoin Defendants from maintaining a public nuisance, namely by confining

17 endangered and non-endangered animals in inhumane and unsafe conditions;

18 G. Enter a permanent injunction against Defendants that terminate all Defendants’


19
ownership and possessory rights in all of the animals at OGF;
20
H. Appoint a special master or guardian ad litem to identify reputable wildlife
21
sanctuaries and to determine the most appropriate placement for the forfeited animals, consistent
22

23 with the animals’ best interests;

24 I. Charge the cost of transferring and rehoming the forfeited animals to Defendants;

25 J. Enter a permanent injunction against Defendants prohibiting Defendants from


26
obtaining other wild animals;
27
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1 K. Award Plaintiff its reasonable attorney fees and litigation costs in this action, and;

2 L. Grant Plaintiff such other and further relief the Court may deem just and proper.
3
DATED this 18th day of December, 2018.
4
By: /s/ Rob Roy Smith
5 Rob Roy Smith, WSBA #33798
Email: rrsmith@kilpatricktownsend.com
6 Rachel B. Saimons, WSBA # 46553
Email: rsaimons@kilpatricktownsend.com
7 Kilpatrick Townsend & Stockton, LLP
1420 Fifth Avenue, Suite 3700
8
Seattle, Washington 98101
9 Tel: (206) 467-9600; Fax: (206) 623-6793

10 Daniel H. Waltz, WSBA #45708


Email: dwaltz@aldf.org
11 Animal Legal Defense Fund
12 The Yard, 700 Pennsylvania Ave SE
Washington, DC 20003
13 Tel: (707) 795-2533; Fax: (707) 795-7280

14 Attorneys for Plaintiff


15

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20

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22

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