Zoo Refuses to Give Up Lucky the Elephant

SAN ANTONIO (CN) - The San Antonio Zoo will not forfeit its endangered Asian elephant that animal-rights activists claim is suffering from physical and psychological injuries from captivity.

The Animal Legal Defense Fund and three city residents sued the San Antonio Zoological Society in Federal Court in December, accusing the zoo of violating the Endangered Species Act (ESA) through its "inhumane" treatment of Lucky the elephant .

They claim the 56-year-old elephant suffers continuing harm from the conditions of her captivity, without companionship of other Asian elephants, and with limited shelter from the heat.

In a Dec. 23 motion to dismiss, the San Antonio Zoo rebutted those allegations and argued that only the government, not private citizens, can initiate a forfeiture complaint through the ESA.

"Lucky's living conditions at the San Antonio Zoo far exceed the minimum requirements imposed by the Animal Welfare Act, but even assuming plaintiffs' false factual allegations are true, they must be dismissed as a matter of law because the AWA rather than the ESA supplies the legal standards and their enforcement with regard to Lucky's conditions at the zoo," the zoo said in the motion.

"Because the ESA expressly grants forfeiture rights to the United States while withholding them from private citizens, plaintiffs' apparent request for forfeiture of Lucky to a private 'sanctuary' must be dismissed for failure to state a claim."

The animal-rights activists asked that Lucky be sent to a world-renowned elephant sanctuary in Tennessee, at the Animal Legal Defense Fund's expense.

Lucky was plucked from her family in the Thailand wilderness when she was a baby and spent her first two years of captivity at Brookfield Zoo in Illinois. She has been on display at the San Antonio Zoo since 1962.

The zoo says that the lawsuit's illegal possession claim doesn't hold water because its possession of Lucky is lawful.

"Plaintiffs have not claimed that the zoo's possession of Lucky is the result of an illegal taking. Rather, plaintiffs allege that because the zoo's enclosure constitutes 'harm' or 'harassment,' its 'possession' is also, automatically, illegal. Even if plaintiffs could state a claim for a taking due to harm or harassment (which they cannot), there is no automatic possession violation for the reason." (Parentheses in complaint.)

The San Antonio Zoo has previously declined to comment on the lawsuit.

Its website includes a "Get the Facts About Lucky the Elephant" section that says the animal is well cared for, healthy, and in a sufficient living environment.

"She knows her habitat; she is familiar with her zookeepers and staff that care for her 365 days a year; and regardless of all the variables, there is no question that a move from the San Antonio Zoo would be stressful," the zoo says on its website.

The San Antonio Zoo has been targeted by animal rights activists since at least 2008, when In Defense of Animals rated it No. 1 on the list of 10 Worst Zoos for Elephants. In 2010 it was the only American zoo listed as one of the World's Worst Zoos by the international publication GlobalPost.

Lucky's treatment is cited as one of the main reasons San Antonio has made its way onto the worst-zoo lists.

Zoo officials have publicly stated that the zoo intends to keep Lucky without any Asian elephant companionship until she dies, according to the complaint.

"Plaintiffs' lawsuit seeks to pry her away from her home at the zoo through a novel forfeiture claim, or, alternatively, to judicially force what they perceive as improvements to her enclosure at the zoo," the zoo says in the motion to dismiss.

"Because the AWA does not contain a citizen suit provision, animal rights groups - including the Animal Legal Defense Fund - have repeatedly attempted to enforce the AWA indirectly through the citizen suit provisions of the ESA and other statutes. These attempts have been rejected. This is because plaintiffs face an insurmountable obstacle - i.e., there is no private cause of action available for alleged violations of the AWA."

The zoo seeks dismissal for failure to state a claim. It is represented by Matthew Baumgartner with Graves, Dougherty, Hearon & Moody of Austin.

Follow @@eidelagarza

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit