It was a lawsuit foretold, but it surprised even those filing it. On Friday the Elephant Justice Project, the newly-incorporated nonprofit incarnation of the long-time activist campaign Friends of Woodland Park Zoo Elephants, sued to block what it calls the “imminent” transfer of Bamboo and Chai, the zoo’s last two resident eles, to the Oklahoma Zoo.
What the group’s lawyers contend is so basic to the zoo’s operation, it’s astonishing they thought of it less than a week before the filing. They claim the 2002 agreement delegating management of the city-owned zoo to the nonprofit Woodland Park Zoological Society is unconstitutional.
The alleged reason: because it transferred not only the elephants, but all the other animals and “personal property” necessary to operate the zoo to the Society, the agreement was contrary to the state constitution’s prohibition on gifting public assets. Because the agreement includes no severability clause, this would invalidate the entire management scheme. By sending the elephants to Oklahoma, or anywhere else, the zoo will compound the violation.
Neighborhood and animal-care watchdogs squinted skeptically at the agreement when it was adopted, but none seems to have noticed such a fundamental flaw. “Everybody assumed that the 2002 thing was legal – that the Zoo Society owned the elephants,” says Knoll Lowney, the attorney representing the Justice Project. “This assumption was unsupported.”
Necessity was the mother of scrutiny. As the elephants’ prospective departure approached, Lowney’s firm (which has a specialty in animal-welfare law) went digging for a way to stop it and looked at the agreement afresh.
That suggests the suit might be more tactical than a serious legal move — a gambit to delay Chai’s and Bamboo’s departure and raise a stink in hopes Mayor Murray and the City Council will come around and intervene, as they until recently seemed inclined to do. Already Lowney has claimed an initial victory; he told a press conference Monday at City Hall that the zoo has agreed not to move the elephants until April 3, when a judge is expected to rule a motion for a preliminary injunction. A robust contingent of reporters turned out, but slogan-wearing supporters still outnumbered them 5-to-1.
But Lowney insists this 11th-hour case is serious: “I think we’re going to win this lawsuit if it has to go the distance. But it would be crazy for the Zoo Society to let the decision ultimately go to a judge when there’s a simple remedy that respects the wishes of the citizens and the elected officials.” Send the old girls to a sanctuary.
The longer you look at the Oklahoma City Zoo, the more unlikely and inauspicious a home it seems for Chai and Bamboo. The winters get colder and the summers hotter than here. Add Seattle’s elephants and Oklahoma’s exhibit will have less space per elephant than Seattle’s does. That would be mitigated if a large group continues to share the 2.6-acre main yard. But Seattle’s Bamboo hasn’t gotten along with other elephants, save the submissive Chai and timid Sri. She might well spend the rest of her days alone in a half-acre side yard. The Woodland Park Zoo’s chipper announcement that she and Chai will be “aunties” to the Oklahoma herd’s calves would be laughable if it weren’t so sad.
Then there’s the noise. Elephants have famously sensitive hearing; some advocates have worried about the effects of Zoo Tunes concerts and the hum of nearby Aurora Avenue in Seattle. But those are white noise compared to Oklahoma’s adjacent Zoo Amphitheatre, a self-described “whole new animal” that seats 6,000-plus and features concerts like this, complete with light shows and fireworks:
And finally, there’s the disease factor, or factors. The Oklahoma zoo has two young calves and an active breeding program. Chai and Bamboo may carry the herpes virus that killed Chai’s calf Hansa in 2007, which is devastating to young Asian elephants, but often resides asymptomatically in adults.
On the opposite side, one elephant there has tested positive for antibodies to the other leading elephant plague, tuberculosis, and others have been exposed to it. That’s not unusual. Many zoos and both the major elephant sanctuaries in the United States have had more TB problems than that. But it’s one more hazard, which Chai and Bamboo haven’t yet been exposed to.
“Truthfully, they’re better off here than in Oklahoma,” sighs Elephant Justice Project co-founder Alyne Fortgang, after nine years of denouncing Woodland Park as elephant hell. It would be a bitter pill indeed if Woodland Park, forced (though its managers would never admit it) by anti-zoo campaigners to divest its elephants, were to send them to a worse zoo.
Fortgang also thinks Chai and Bamboo would fare better at the Los Angeles Zoo, which seemed to others in the zoo world the likeliest destination for them. The LA Zoo has had its share of controversy and condemnation. Inviting as its new $42 million elephant exhibit looks, it’s still an exhibit rather than a habitat, built for display first, the elephants’ use second; the trees and grass are subtly wrapped in electrified mesh to keep the eles from eating them. But LA would also afford Chai and Bamboo more space, an ideal climate, a shorter haul, and elephant care that seems to have improved from its bad old days.
The sanctuaries would allow them much more space, somewhat more freedom and, in the case of the Performing Animal Welfare Society (PAWS), an even shorter trip. But sanctuaries too are far from ideal, as Fortgang and PAWS president Ed Stewart both acknowledge.
However well they may be run, private sanctuaries afford less transparency than public zoos; the public can’t monitor their elephants directly (as the activists have Woodland Park’s) or FOIA their records. Access to Woodland Park records under Zoological Society management is a contentious issue, but watchdogs have obtained more than they could from a private sanctuary.
One sanctuary the advocates have urged the zoo and city to consider, the Elephant Sanctuary (TES) in Hohenwald, Tennessee, is “a mess,” in the words of one of several former top staffers who’ve left dismayed in recent years. TES took in a number of tuberculosis-afflicted elephants from a notorious rent-an-elephant operation in Illinois, many of which have since died; in 2009, eight keepers tested positive for TB after handling infected animals without sufficient safeguards.
TES has since reported successfully treating its last active case and gotten clearance to resume accepting new elephants. But doubts persist, even among sympathetic observers, about how well the problem has been controlled, among other health issues, and whether TES has recovered from the turmoil of seeing its co-founder/director fired and a successor leave two years later in a collision with its board.
PAWS has had much more leadership continuity; co-founder Ed Stewart is still in charge. But sending Chai and Bamboo there would entail a wait while PAWS raises funds and builds a barn for them. And TB questions also haunt PAWS.
Still, the sanctuaries have one big advantage in dealing with the tuberculosis epidemic in America’s elephants. Unlike the zoos, they have the space to quarantine infected elephants and still give them some room to roam. “They have woods, grass, trees,” says Fortgang, and no gawking crowds to perform shows for. For her, that trumps the other risks.