On February 4, 2009, a trial began in the US District Court for the District of Columbia that may decide whether future generations will be able to see elephants in circuses. The American Society for the Prevention of Cruelty to Animals, along with other animal welfare organizations and a former elephant handler, sued Ringling Brothers and Barnum & Bailey Circus and its parent corporation in 2000, alleging that the circus’s regular abuse of its Asian elephants violates the Endangered Species Act (ESA), 16 USC § 1531 et seq. Am. Soc’y for the Prevention of Cruelty to Animals, et al. v. Feld Entm’t, No. 03-2006 (EGS/JMF).  The coalition of animal rights groups claims that chaining Asian elephants for long periods of time; disciplining them with sharp bullhooks, used to beat and even puncture the elephants; and forcibly separating baby elephants from their mothers violates the ESA’s ban on “taking,” i.e., harming, harassing, wounding, and killing, endangered species. See 16 USC § 1538(a).  The animal activists seek an injunction barring Ringling Brothers from engaging in such allegedly abusive practices.

Ringling Brothers argues that its trainers use bullhooks like dog leashes, simply to “guide” elephants; and that its tethering and other training methods are necessary and comply with federal regulations. The circus maintains that its elephants are healthy and well cared for, and that the training methods it employs are commonly used by circuses for safety reasons. Ringling Brothers further points out that its spends tens of thousands of dollars per year to care for each of its elephants, and that its elephant conservation and breeding program in fact aims to save the Asian elephants from extinction, in line with the ESA’s purpose. According to Ringling Brothers’ Web site, it has donated money to the National Zoo to study elephant reproduction and viruses. On the legal front, the circus has argued that the part of the ESA under which the animal activists are suing, which until now has dealt mostly with animals in the wild, was never intended to apply to wild animals in captivity.

The animal activists are suing under a provision of the ESA that allows for private citizens suits, so long as the plaintiffs can demonstrate some personal stake or injury. Of the plaintiffs (which include the American Society for the Prevention of Cruelty to Animals, Animal Welfare Institute, The Fund for Animals, and former Ringling Brothers employee Tom Rider), the only one who has actual standing to sue under the ESA is Rider, a former elephant handler who allegedly quit his job at Ringling Brothers because of the emotional distress he suffered due to animal cruelty by the circus’s elephant trainers. Accordingly, the case has been narrowed to the protection of the six elephants Rider himself handled.  Ringling Brothers, for its part, has filed a separate conspiracy claim against the plaintiffs, alleging Rider, who never complained to the circus during his employment, only spoke out against Ringling Brothers after the animal welfare organizations paid him six figures to testify. This conspiracy claim has been stayed pending the outcome of the alleged mistreatment case.

Legal arguments aside, many see this case as an ideological debate about whether it is humane to keep wild animals in captivity. Attorneys for Ringling Brothers argue that a ruling for the plaintiffs could mean the end of the use of elephants in circuses and other forms of entertainment. Such a ruling would result in huge losses in revenue for circuses, whose shows revolve around the iconic elephant. Any ruling may not be applicable to zoos, however, since zoos keep their Asian elephants and other endangered species in largely natural settings designed to replicate life in the wild, and they do not make their animals perform tricks, as do circuses. The Ringling Brothers trial is expected to last approximately one month.

Arent Fox is monitoring this case for further developments. For more information, please contact:

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Loni J. Sherwin
sherwin.loni@arentfox.com
202.715.8581