## Facts

- Lolita, a captive orca from the endangered Southern Resident killer whale distinct population segment, has been held at Miami Seaquarium since 1970.
- Lolita lived in an oblong tank approximately 80 feet wide and 20 feet deep at its maximum dimensions, with a concrete island occupying part of the tank.
- Advocacy groups and individuals sued Miami Seaquarium and its parent entity under the Endangered Species Act (ESA), alleging an unlawful “take” by “harm” or “harass” based on captivity conditions.
- The alleged conditions included inadequate space and configuration of the tank, insufficient protection from sun exposure, social isolation from other orcas while being housed with Pacific white-sided dolphins, and physical “rake” marks attributed to dolphin interactions.
- Plaintiffs sought injunctive relief requiring the defendants to relinquish Lolita for relocation to a sea pen.
- The district court granted summary judgment to defendants, applying a standard requiring conduct that “gravely threatens or has the potential to gravely threaten” the animal’s survival.

## Issues

1. What standard governs whether captivity conditions for a captive endangered animal constitute “harm” or “harassment,” and thus a prohibited “take,” under ESA § 9(a)(1)(B)?
2. Under the proper standard, did the record permit a reasonable factfinder to conclude that the defendants’ conduct constituted a prohibited “take” of Lolita?

## Decision

- The Eleventh Circuit affirmed summary judgment for the defendants.
- The court rejected the district court’s “grave threat to survival” test as too narrow for captive-animal ESA “take” claims.
- The court held that “harm” or “harassment” requires conditions that pose a threat of serious harm to the individual animal, not merely conditions approaching death or extinction.
- Applying that standard, the court concluded the evidence—viewed in the light most favorable to plaintiffs—did not show that the complained-of conditions posed a threat of serious harm to Lolita.
- The court treated reported rake marks and the challenged husbandry conditions as insufficient, on this record, to meet the statutory threshold for “harm” or “harass.”

## Legal Principles

- ESA § 9(a)(1)(B) prohibits “take” of an endangered animal, including by “harm” or “harass,” and the prohibition applies to captive endangered animals.
- For captive animals, actionable “harm” or “harassment” requires conditions that pose a threat of serious physical or psychological harm to the individual animal.
- The ESA’s “take” prohibition is not limited to conduct that gravely threatens survival, but it also does not reach minor annoyances, trivial injuries, or suboptimal conditions absent a serious-harm threat.
- On summary judgment, the nonmovant receives favorable inferences, but a claim fails where no reasonable factfinder could find a threat of serious harm on the record presented.

## Conclusion

The Eleventh Circuit held that an ESA “take” claim challenging captivity conditions must show a threat of serious harm to the captive endangered animal; because plaintiffs’ evidence did not meet that threshold, the court affirmed summary judgment for Miami Seaquarium.


People for the Ethical Treatment of Animals, Inc. v. Miami Seaquarium, 879 F.3d 1142 (11th Cir. 2018)