Davis & Whitlock has prevailed on appeal to the Fourth Circuit Court of Appeals and obtained the reversal of a 2016 decision of the District Court for the Western District of North Carolina. The case involves four threatened grizzly bears who are confined to two tiny, virtually barren and archaic concrete pits at the Cherokee Bear Zoo in Cherokee, North Carolina. Davis & Whitlock, on behalf of two enrolled members of the Eastern Band of Cherokee Indians, brought suit against this roadside zoo in 2013, alleging that such treatment constituted the unlawful “take” of these protected grizzly bears in violation of the federal Endangered Species Act. On appeal, in a published opinion, the Fourth Circuit agreed with Davis & Whitlock and held that the District Court’s interpretation of the regulatory definition of “harass” under the Act – and specifically the definition’s exception for captive held wildlife – was legally incorrect, and vacated the District Court’s decision and remanded the case to the District Court for further proceedings consistent with its opinion. This is a landmark decision, not only for the potential it presents for a better future for these four grizzly bears, but also because it is the first time a Circuit Court of Appeals has applied Section 9 of the Endangered Species Act to protected wildlife held in captivity. On behalf of our clients, we look forward to taking the next steps to ensure that these four bears are removed from these outdated pit enclosures and are allowed to live out the rest of their lives in an appropriate natural habitat with meaningful environmental enrichment.
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