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A judge for the U.S. Court of Appeals for the Seventh Circuit compared the treatment of endangered species to child porn during oral arguments in the Special Memories Zoo lawsuit yesterday.
Special Memories Zoo was a roadside zoo in Greenville and Hortonville, Wisconsin, accused of horrific animal neglect and mistreatment, resulting in the deaths of hundreds of animals.
Last year, Judge William Griesbach ruled that the owner of the zoo, Dona Wheeler, and the zoo manager, Gretchen Crowe, were not liable for paying more than $70,000 to the Animal Legal Defense Fund (ALDF) for their successful Endangered Species Act (ESA) lawsuit which resulted in the closure of the Wisconsin roadside zoo.
ALDF appealed the judge’s ruling. Three judges for the Seventh Circuit Court of Appeals heard arguments in the case yesterday. Click here to listen to the oral arguments.
Attorney for ALDF Michael Kirkpatrick explained each of the four reasons that the award of legal fees was denied and then told the judges why none of those reasons qualify as special circumstances that justify denying the payment of legal fees.
First, Griesbach speculated that the outcome of the case may have been different if Special Memories Zoo would have made different strategic litigation choices. Kirkpatrick argued that no court has ever found that the speculated outcome of a case, based on possible ulterior litigation choices, qualifies as a special circumstance and it would be unfair to deny fees to ALDF based on issues it never had a chance to brief, argue or appeal from.
The second reason Griesbach gave for denying fees is that he questioned whether ALDF’s lawsuit was the catalyst that resulted in the transfer of the animals, or whether that transfer occurred because Dona’s husband, the late Gene Wheeler, had received a cancer diagnosis. Kirkpatrick argued that the circumstances that caused the endangered animals to be transferred were irrelevant because the judge ruled that ALDF was the prevailing party in the lawsuit.
The third reason that Griesbach gave was that he had concerns that Dona and Crowe would not be able to afford to pay the legal fees. Kirkpatrick argued that the court has specifically held that a defendant’s ability to pay is not a special circumstance that would render an attorney fee as unjust.
“And here, of course, there is no evidence of the record about defendants’ ability to pay, in fact, the property where the zoo was located and the zoo equipment indicates that they probably do have the ability to pay,” Kirkpatrick said.
The fourth reason Griesbach gave was that ALDF is not dependent on fee awards and it receives donations to support its litigation. Kirkpatrick said the court has previously rejected that argument and said it does not constitute a special circumstance.
Kirkpatrick also addressed a “friend of the court” brief that was filed by The Cavalry Group, an anti-animal welfare group that supports roadside zoos. The Cavalry Group asserted the ESA does not protect endangered animals in captivity unless they have a role to play in restocking the wild population.
Kirkpatrick said protecting endangered animals in captivity furthers the goals of the ESA because it discourages wildlife trafficking.
“If captive animals are healthy and live longer it lowers the demand for wild sourced animals and it’s that constant replacement of these animals that have died in captivity that we’re trying to guard against because that’s where poachers come in and they start taking wild animals and smuggling them in this small zoo network,” he said.
The lawyer for Special Memories Zoo, Andrew Michelletti, argued that the purpose of ALDF’s lawsuit was not to protect endangered species, but to collect information to use against other roadside zoos.
“It was difficult to explain to an elderly woman why the ALDF continued to pursue and harass her and her dying husband when they knew from the get go that Mr. Wheeler was about to die and because of that the zoo was going to be closing,” Michelletti said.
Micheletti told the judges he submitted a letter to the court stating that Gene was diagnosed with cancer and the zoo had already started rehoming the animals. Judge Candace Jackson-Akiwumi addressed that letter.
“That letter also said that because Mr. Wheeler is dying, and because of this lawsuit, my clients aren’t going to defend it,” Jackson-Akiwumi said. “That’s a paraphrase but that’s what the letter said.”
“Do you want me to expound on that?” Micheletti questioned.
“No, I’m just making sure you do want us to pay attention to the letter,” Jackson-Akiwumi responded.
Micheletti said Gene was the sole license-holder for the zoo and Dona and Crowe had no intentions of applying for a license.
“What you have here is an injunction that was granted against a zoo that was closing; against a woman in her mid-seventies who currently works as a part time lunch lady; and Ms. Crowe is an administrative assistant who left Special Memories Zoo with so little she now lives in a trailer in her parents property,” Micheletti said.
Judge David F. Hamilton compared the treatment of captive endangered species to child pornography.
“The reason that child pornography can be prosecuted despite the First Amendment is because of the actual abuse of children,” he said. “Fake child pornography is not illegal. The reason that possession, exchanges, anything short of production is [also] criminal and can result in severe penalties is to discourage the demand and thus try to discourage actual abuse of children. The parallel occurred to me, at least, when we’re talking about the captive animals that are endangered species here. Why is it not furthering or consistent with the purpose of the Endangered Species Act to ensure appropriate treatment of endangered species in captivity?”