Next month, Ringling Bros. and Barnum & Bailey Circus will likely announce its arrival in Washington, D.C., the way it does most years, with a parade of elephants trundling down Massachusetts Avenue toward the Verizon Center, where the self-declared “Greatest Show On Earth” will perform for five days. Depending on how things unfold in court starting this week, it could be the last time the elephants ever make that walk.
After more than eight grinding years of litigation, lawyers for Ringling Bros. will appear at the U.S. District Court for the District of Columbia on Wednesday to square off against a handful of animal welfare organizations, which have filed suit against the circus alleging that it routinely violates federal law by abusing its elephants.
The long march to trial has seen Ringling Bros. swap legal teams, trading counsel from Covington & Burling for a team from Fulbright & Jaworski, while earning a stinging rebuke from Judge Emmet Sullivan over missing documents.
The case is a major test for the reach of the Endangered Species Act, which for the first time is being used by private citizens to try to influence the care of animals already in captivity.
If Ringling Bros. loses its bench trial — expected to take about a month — many supporters on both sides believe it could spell the beginning of the end for the use of elephants in circuses or any other kind of entertainment.
“If [the plaintiffs] had their way, the only way that Americans are going to be able to see elephants is in books and videos,” says Michelle Pardo, a senior associate at Fulbright & Jaworski, which is representing Ringling Bros. and its parent company, Feld Entertainment.
COMMON PRACTICE OR CRUELTY?
At issue in the case are Ringling Bros.’s methods of training and controlling its elephants, techniques which it says are considered common practice at other circuses and zoos around the country. The activist groups, led by the American Society for the Prevention of Cruelty to Animals, claim that by chaining the elephants in barns and freight trains for up to 20 hours at a time, and by disciplining them with bullhooks — essentially long rods with sharp, skin-piercing tips — Ringling Bros. violates the ESA’s ban on “harming,” “harassing,” or “wounding” an endangered animal.
The activists are asking the court for an injunction to stop Ringling Bros. from using these handling techniques. The circus says that its care methods have been approved by federal regulators, and that abandoning them would effectively make it impossible to use elephants in their shows. Moreover, it has argued in court that the animal rights groups are trying to hijack the government’s role by suing under parts of the ESA that were never meant to apply to animals in legal captivity.
Experts agree that, at the very least, the plaintiffs are attempting to break a new legal path. Like many environmental statutes, the ESA includes a provision that lets private individuals file suit against anyone they believe is violating the law, as long as they can demonstrate some sort of personal stake or injury. These kinds of citizen suits aren’t rare, but they are usually aimed at protecting fauna that is still in its natural habitat, says David Favre, a professor of animal law at Michigan State University who has been closely following the Ringling Bros. suit.
“The ESA until now has more or less dealt with nameless animals in the wild,” Favre says. “This is the first time its dealing with wildlife in a captive situation.”
Favre says that he, like many other animal-rights supporters, sees this case as part of a much broader debate about whether it is humane to keep wild animals in captivity. Ringling Bros.’s lawyers, as it happens, hope the public views the case exactly the same way.
“It’s not quibbling about what tools can be used with an elephant. This is a philosophical debate,” Fulbright’s Pardo says.
Fulbright has long served as legal counsel for Feld — some have described them as the personal lawyers for its chief executive, Kenneth Feld. But the firm only took over the elephant case in March 2006, replacing Eugene Gulland and Joshua Wolson of Covington & Burling. Neither of the firms, nor Feld Entertainment, will discuss the reasons for the switch. It came six months after a hearing at which Sullivan tore into the company for failing to hand over 2,100 pages of elephant medical records despite more than two years of discovery requests.
While speaking from the bench, Sullivan praised Covington’s own record of integrity, while calling Feld Entertainment’s justification for the delay — that there had been miscommunication — “crap.” He then threatened its executives with contempt of court.
“I think your clients are hiding the ball from you,” Sullivan told Gulland at the time, according to a transcript of the Sept. 16, 2005, hearing.
Fulbright’s opponent in the case is Meyer Glitzenstein & Crystal, a seven-lawyer public-interest firm based in Washington, that specializes in environmental law. Katherine Meyer, a name partner, says the case is not an ideological battle. Rather, she insists it is very specifically about stopping Ringling Bros. from using “antiquated old-school” industry practices that harm elephants.
Ringling Bros. has tried “to paint this as an extremist position and as a Pandora’s box to end all animals in captivity,” Meyer says. “We have voluminous evidence that Ringling mistreats their Asian elephants in ways that are not used by zoos and other organizations that keep elephants in captivity.”
Despite those assurances, some conservation groups, particularly zoos, are eyeing this week’s trial warily. They worry that a decision against Ringling Bros. could put another arrow in the quiver of animal-rights groups looking to push their agenda in court, by encouraging them to file similar suits against other organizations that own or care for elephants.
“We do have a concern. We have noticed that there have been a number of instances where nonanimal experts have been trying to make decisions about the care of endangered species,” says Christina Simmons, spokeswoman for the San Diego Zoo who, as an example, cited protests against the Los Angeles Zoo‘s decision to build an elephant walk. “It’s important that conservation decisions regarding their management be kept in the hands of people with decades of experience.”
The case against Ringling Bros., however, may be difficult to replicate. While there are five plaintiffs on the docket, the only one with actual standing is former elephant handler Tom Rider, who worked for the circus between 1997 and 1999. In court documents, Rider has claimed that he left the circus because of the alleged abuse the animals suffered at the hands of their trainers. The court has accepted his grief over the elephants’ treatment as the plaintiffs’ only grounds for standing, and in a partial summary judgment, Sullivan ruled that the plaintiffs could only sue to protect the elephants with which Rider had a personal emotional connection. As a result, the case is technically limited to the treatment of just six animals, though Meyer says she is hopeful he will deliver a ruling that applies to Ringling Bros.’s entire 54-elephant herd.
In February 2007, Ringling Bros.’s lawyers tried to make Rider’s credibility a central issue in the case, filing a RICO counterclaim alleging that the activist groups had paid Rider more than $100,000 over the years to serve as a key fact witness as part of a conspiracy to defraud the circus of its elephants. Sullivan rejected the claim, calling it a “dilatory move.” When Ringling Bros. tried to re-file the conspiracy claim as a separate suit, Sullivan stayed it until the completion of the elephant case, writing that the activists had “put forth serious allegations of mistreatment of an endangered species, allegations which, if true, have tremendous public import.”