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Judge Says He’s Not Fit to Say What’s Best for a Gorilla

Despite warnings that a 37-year-old ape might die if transferred to an Ohio zoo, a federal judge said Thursday he can only settle matters of law, not what's best for the well-being of the late Koko the gorilla’s longtime friend Ndume.

SAN FRANCISCO (CN) – Despite warnings that a 37-year-old ape might die if transferred to an Ohio zoo, a federal judge said Thursday he can only settle matters of law, not what's best for the well-being of the late Koko the gorilla’s longtime friend Ndume.

“I’m not the sterling professor of gorilla care," U.S. District Judge Richard Seeborg said in court Thursday. "I'm a judge. I have to look at the contractual terms and see if the risks are so great as to defeat the contractual purpose."

In a lawsuit supported by People for the Ethical Treatment of Animals, the Cincinnati Zoo claims Ndume's caretakers are forcing the adult male primate to live in isolation at a gorilla sanctuary in the Santa Cruz Mountains.

The Cincinnati Zoo loaned Ndume to animal psychologist Francine “Penny” Patterson and her organization, The Gorilla Foundation, in 1991. The loan was intended to provide companionship for Koko, the famous sign-language-capable gorilla that befriended celebrities, including Mr. Rogers and Robin Williams, on television. Koko died in June 2018.

Despite an updated 2015 contract that requires Ndume be transferred to an accredited zoo upon Koko's death, Patterson's lawyer argued in court Thursday that moving Ndume would endanger the gorilla in ways that violate state and federal law.

"This transfer is going to harm the animal," the foundation's attorney Kirk Comer, of Casselman Law Group, said in court Thursday. "It seems that would make it illegal under California's penal codes and the Endangered Species Act."

Comer insisted Ndume would not fit in at the Cincinnati Zoo, where the "introverted" ape was once "regurgitating" and "throwing feces at the public" before he left the zoo more than 27 years ago.

The foundation also questioned the zoo's safety record, noting that it was forced to kill 17-year-old gorilla Harambe in 2016 after a 4-year-old boy managed to crawl inside the animal’s enclosure.

Cincinnati Zoo lawyer Aaron Herzig of Taft Stettinius Hollister dismissed the event as "one incident over an 80-year span."

The Cincinnati Zoo has been caring for gorillas since 1931, and since 2007 it has overseen the successful transfer of 160 gorillas, nine of whom were 31 to 42 years old, according to its motion for summary judgment.

Under the terms of a contract, Ndume was to be transferred to an accredited zoo selected by the Gorilla Species Survival Plan, a group of scientists, veterinarians and experts who oversee the health and welfare of endangered Western gorillas in 51 North American zoos.

Despite the group's August 2018 recommendation that Ndume be transferred to Cincinnati "as soon as possible," the foundation's five experts, including defendant Patterson, say the transfer will likely cause "severe stress" and "anxiety" that could lead to a fatal flare-up of Ndume's gastrointestinal disease, Balantidium coli.

But the judge seemed unconvinced that those warnings rise to the level of making the transfer plan contrary to state and federal laws or public policy goals for protecting animals.

"You're just telling me, 'We have serious concerns,'" Seeborg said. "That's not the same as saying, 'There's a plan to injure this animal.' There's no suggestion of that here."

Comer insisted the experts' warnings go beyond mere risk. He said they predict imminent harm that could kill the 37-year-old ape. The defense lawyer urged the judge to consider altering the "impractical" and "illegal" requirements of the contract, even if he finds the agreement legally binding.

Seeborg did not appear to favor that approach, noting that it would be "rather meaningless" to rule in favor of the zoo but deny it the only remedy it seeks.

When Comer suggested an award of monetary damages could replace the requirement that Ndume be transferred, the zoo's legal team scoffed.

"You can't put a real monetary value on gorillas. It's illegal to sell gorillas," Herzig said, adding he does not believe a judge has the power to "essentially rewrite the contract."

After an hour of debate, Seeborg took the arguments under submission.

Koko and Ndume lived side by side in Woodside, California, at the foundation’s gorilla sanctuary in the Santa Cruz Mountains for 27 years until Koko died at the age of 46 on June 19, 2018. Ndume was intended to breed with Koko, but the two never procreated. They lived in separate enclosures since at least 2013, but they could see each other, according to the Cincinnati Zoo's lawsuit.

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