FREE WALDO!

January 17, 1996

Allan L. Egbert, Ph.D.
Executive Director
Florida Game and Fresh Water Fish Commission
Farris Bryant Building
620 South Meridian Street
Tallahassee, FL 32399-1600

Robert Crowe
Ashby Acres Wildlife Park, Inc.
1250 State Road 415
New Smyrna, FL 32168

Re: Notice of Violation of Section 9 of the Endangered Species Act -- The Illegal Taking Of An Endangered Florida Panther

Dear Dr. Egbert and Mr. Crowe:

On behalf of Dr. Mark Kane Goldstein and The Fund for Animals, in accordance with 16 U.S.C. $ 1540(g), we hereby provide the Florida Game and Fresh Water Fish Commission ("GFC" or "Commission") and Ashby Acres Animal Park, Inc. with notice of violations of the Endangered Species Act ("ESA"), in connection with the recent removal from the wild of a panther near the town of Waldo, Florida, near Gainesville. The removal of this animal from the wild by the GFC constitutes a prohibited "taking" of an endangered species under Section 9 of the ESA, 16 U.S.C. $ 1538(a)(1)(B). In addition, we also provide notice of the subsequent illegal transportation, transfer, and possession of the illegally taken animal by the GFC and Ashby Acres Animal Park, Inc.

Because the activities involving this panther represent a dire threat to this animal, as well as to the survival of the critically endangered Florida panther subspecies, we demand that the Commission immediately undertake all steps necessary to return this animal back to the wild from which he was taken.

I. Background

A. Florida panther

The Florida panther, Felis concolor coryi, is one of 30 subspecies of cougar. U.S. Fish and Wildlife Service. Amended Florida Panther Recovery Plan (1995)(Recovery Plan) at 1. The panther has been listed as endangered species since 1967. 50 C.F.R. $ 17.11(h).

The panther originally ranged from eastern Texas eastward through Arkansas, Louisiana, Mississippi, Alabama, Georgia, Florida, and parts of Tennessee and South Carolina. Recovery Plan at 1. Although there have been numerous sightings of panthers in recent years in several counties throughout Florida, the federal Fish and Wildlife Service ("FWS") maintains that the "documented . . . reproducing panther population" only exists in Collier, Dade, Hendry, and Lee counties in south Florida. Todd Logan, et al, Florida Panther Habitat Preservation Plan at 3 (1994).

Habitat destruction, hunting, other human intrusions, and other factors have so decimated the population that the panther is the nation's most endangered large mammal, with a known population of only 30 to 50 animals remaining in the wild. Id. at 4. The panther has been so devastated that in 1990, the FWS concluded that "the loss of a single animal . . . could seriously jeopardize the survival of the subspecies." 55 Fed. Reg. 34944 (Aug. 27, 1990) (emphasis supplied).

Historically, natural gene exchange existed between populations of the panther and other cougar subspecies to the north, west, and northwest. Genetic Management Strategies and Population Viability of the Florida Panther at 5. However, the panther has become isolated from these subspecies and gene exchange is no longer possible. Id.

The panther is distinguished from other subspecies by a skull that has a "relatively broad, flat, frontal region with remarkably broad and highly arched or upwardly expanded nasals." Recovery Plan at 1. In addition, three external characteristics are "often observed on Florida panthers which are not found in combination on other subspecies . . . -- a right angle crook at the terminal end of the tail, a whorl of hair -- a 'cowlick' -- in the middle of the back, and irregular white flecking on the head, nape, and shoulders." Id.

B. The Endangered Species Act

1. Prohibitive Acts.

As the Supreme Court has observed, "the Endangered Species Act of 1973 represent[s] the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978); Babbitt v. Sweet Home Chapter Of Communities For A Great Oregon, 132 L.Ed. 2d 597 (1995). Finding that animal and plant species were disappearing at an alarming rate, Congress "deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage should more species disappear." TVA v. Hill, 437 U.S. at 177. Concluding that "the value of this genetic heritage is, quite literally, incalculable," Congress recognized that it is "in the best interests of mankind to minimize the losses of genetic variations." Id. at 178 quoting H.R. Rep. No. 93-412, 93rd Cong. 1st Sess. at 4-5 (1973). Thus, the Act was enacted "to halt and reverse the trend toward species extinction, whatever the cost." TVA v. Hill, 437 U.S. at 184.

The ESA prohibits the "taking" of any animal that belongs to a species that is listed as "endangered," 16 U.S.C. $ 1538(a)(1)(B), a prohibition that has been extended by regulation to species listed as "threatened" as well. An "endangered" species is one which the FWS has determined is "in danger of extinction;" a "threatened" species is one that is "likely to be come an endangered species within the foreseeable future." 16 U.S.C. $$ 1532(6), (20).

The term "take" is broadly defined to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. $ 1532(19); see also Babbitt v. Sweet Home Chapter, supra (recognizing that Congress intended the prohibition against the "taking" of endangered animals to be as broad as possible in furtherance of the conservation purposes of the ESA).

Under the ESA, it is also illegal to "possess, sell, deliver, carry, transport, or ship" any endangered animal that was unlawfully "taken." 16 U.S.C. $ 1538(a)(1)(D). As described herein, these provisions of the statute have been violated with respect to the panther that was removed from the wild sometime after June 30, 1995, and who is known as "Waldo Cat # 1."

2. The Similarity of Appearance Rule.

Under the ESA, the Secretary of the Department of Interior may treat any animal as an "endangered" or "threatened" species even though it is not listed as such, if he finds that (a) such species "so closely resembles" a listed species that "enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;" (b) this difficulty is an "additional threat" to the survival of the species; and (c) such treatment will "substantially" further the conservation purposes of the Act. 16 U.S.C. $ 1533(e).

In 1991, pursuant to this statutory authority, the FWS issued a final rule listing all free living Felis concolor in Florida as a threatened species and prohibiting their take, except as authorized under certain limited conditions. 56 Fed. Reg. 40265 (August 14, 1991). The FWS found that "enforcement personnel, as well as nearly all other persons, would be unable to routinely separate the listed Florida panther from unlisted subspecies of Florida panther," and that federal protection from unauthorized takings was necessary because "the loss of a single animal could seriously jeopardize the survival of the subspecies." 55 Fed. Reg. 34943, 34944 (August 27, 1990) (emphasis supplied).

In response to a public comment that "[i]t is not possible to determine in the field whether or not the animal in question is a Florida panther, since genetic testing is required," the service specifically added a special rule to "allow non-lethal take of Felis concolor in Florida by Service or State employee" but only for the purpose of determining the identity of an animal whose background is uncertain. Id. at 40366 (emphasis supplied).

C. The Waldo panther

On March 3, 1995, a member of the public notified a GFC wildlife officer that he had found "cat tracks" on the Donaldson Tract near Waldo, Florida. GFC Waldo Lion Notes at 1 ("Notes") Attachment A. Plaster casts were made of the tracks, and, on March 7, 1995, Roy McBride, an internationally known expert on tracking and capturing wild large cats, "verified" the tracks as belonging to a "mountain lion." Id. After a series of surveys for sign and tracks, Rowdy McBride treed a 118 pound cougar on the Donaldson Tract on April 29, 1995. Id. at 2.

Without notifying the FWS, the GFC removed the panther and took it to the GFC wildlife lab in Gainesville, where it was examined by the GFC veterinarian, who noted that the cat "possess[es] several of the physical characteristics normally attributed to the Florida panther." Memo from Vic Heller, GFC, to Allan Egbert, et al (April 29, 1995). Attachment B. Indeed, the panther has a "cowlick" at the base of the skull, as well as white flecks and a "roman nose." GFC Exam and Treatment Sheet. Attachment C. The cat also has a heart murmur, which is shared by many of the panthers in south Florida. Attachment B. In addition, "examination of the lion revealed no evidence that the animal ha[d] recently been in captivity," Waldo Mountain Lion Report, and the panther was "wild in behavior." Attachment D. See also Memo from Vic Heller to Allan Egbert ("Our biologists agree that the cat has been in the wild for a long time, and exhibits wild behavior") Attachment B.

Most important, the Waldo Cat was approximately 2.5 years of age, so he "was too old to be the progeny" of any of the cougars that the GFC had released in north Florida as part of a reintroduction feasibility experiment. Memo from Frank Montalbano to Tom Logan (November 7, 1995) Attachment E; see also Report of Florida Panther Technical Advisory Council (January 4, 1996) at 1 ("[t]his cat was described at capture . . . as a three year old male in excellent condition and appearing never to have been in captivity. If the latest explanation put forth is that the cat is the offspring of one of the surrogate reintroduction females, it appears that further explanation is necessary, as at the time of initial capture, he would have to be some months less than two years of age") Attachment F.

On May 2, 1995, GFC executive director Allan Egbert stated to Vic Heller, a GFC employee, that "YOU SHOULD MOVE QUICKLY AND RETURN THE CAT TO THE WILD AS SOON AS POSSIBLE. I REALLY SEE NO POINT IN HOLDING IT." Memo from Allan Egbert to Vic Heller (May 2, 1995). Attachment G. That same day, the panther was released near the capture site. Waldo Mountain Lion Notes. Attachment A.

At the request of the GFC, Dr. Stephen O'Brien of the National Institutes of Health analyzed blood that was purportedly taken from the Waldo panther. Based solely on the fact that the panther did not have some of the same genetic markings as the severely inbred population of South Florida, he stated that "[o]ur conclusion would be that the known cougar Waldo likely derived from a cougar subspecies that resides west of the Mississippi and is not genetically derived from F.c. coryi." Letter from Dr. Stephen O'Brien to Dr. Tom Logan (July 20, 1995). We understand that the GFC did not consult with the FWS concerning this determination, nor did it obtain the opinions of any other experts on this matter.

Sometime after June 30, 1995, the panther was recaptured by the Commission -- again without permission of the FWS -- and removed from the wild. On or about October 2, 1995, the Waldo panther and eight cougars who were part of the reintroduction feasibility experiment were transferred from the GFC to Robert Crow of Ashby Acres Wildlife Park, Inc. See Letter from James Brady, GFC, to Robert Crowe, Ashby Acres Wildlife Park (October 2, 1995), Attachment H. Ashby Acres then transferred or sold the panther, as well as at least one of the other cougars to an animal dealer or exhibitor in Anderson, Missouri. Attachment I. In an alarming development that raises serious questions about the care the Waldo cat has received since the GFC transferred him, we understand that one of the cats has already died in captivity.

Meanwhile, it is now clear that the genetic data do not support Dr. O'Brien's initial conclusion that the Waldo cat is not a Florida panther. As Dr. Robert C. Fleischer, an evolutionary geneticist and Head of the Molecular Genetics Laboratory at the National Zoological Park recently observed:

While the data presented by Dr. O'Brien do suggest that this panther is more closely related to his sample of western pumas, they are by no means conclusive that "Waldo #1" was not native to the area in which it was caught. In fact, without data concerning the historical distribution of haplotypes in northern Florida the results are nearly meaningless. That is, the Waldo # 1 specimen could be representative of a population of central and northern Florida panthers historically contained a "western haplotype," rather than a "southern Florida haplotype."

Letter from Dr. Fleischer to Dr. Goldstein (Nov. 27, 1995) (emphasis supplied) Attachment J. Likewise, Dr. William Hauswirth, a Professor of Molecular Genetics and Microbiology and Ophthalmology at the University of Florida, noted that the "genetic data is simply too sparse geographically and too few in potentially informative sites to support or refute any such inference" that the Waldo panther "is a native Western U.S. animal." Letter from Dr. William Hauswirth to Dr. Mark Goldstein (August 22, 1995) Attachment K.

Faced with this information from two nationally recognized experts in DNA analysis, at the end of October, Dr. O'Brien has conceded that:

two explanations that fit the data are: 1) Waldo is a western cougar transported to Florida; 2) Waldo represents a relict population of cougars descended from historic eastern or Florida panthers that have persisted undiscovered in some refuges in North Florida for 100 years. Although Dr. O'Brien has stated that he "prefer[s] option one," he has also admitted that he "cannot exclude [option] number two."

Letter from Stephen O'Brien to Dr. Tom Logan (October 30, 1995) (emphasis supplied) Attachment L.

In a letter to Jack Pons, Chairman of the Florida Panther Technical Advisory Committee, David S. Maehr -- one of the nation's leading experts on the Florida panther -- stated that "[w]ithout a definite determination of this animal's origin, it legally falls under 'look alike' protection [of the ESA] and should be treated as a Florida panther." Letter to Jack Pons from David S. Maehr (November 2, 1995) Attachment M (emphasis supplied). Mr. Maehr also stated that "[w]hen one considers the dispersal capabilities of the species, it is not unreasonable to imagine this animal originating far from Waldo; perhaps even outside of Florida (much of which includes the original range of the subspecies F. c. coryi)." Id. (emphasis supplied). He further concluded that the disposition of this animal is "of paramount importance" for recovery efforts being conducted for the species, and that "[t]his panther should be returned to the wild." Id. at 1, 2.

Most recently, by letter dated January 4, 1996, Jack Pons informed the GFC, Governor Chiles, and the Florida Legislature that "[i]n the opinion of the [Florida Panther Technical Advisory] Council . . . this event [the removal and transfer of the Waldo Cat] was not handled in a proper manner." Attachment F. (emphasis supplied). Mr. Pons further stated that, "[b]ecause this seems to be a local political issue," the Council "chooses not to make any further recommendation, even though some Council members feel that unless parentage is established beyond a reasonable doubt, the Commission should consider releasing the animal back to the wild." Id. (emphasis supplied).

II. Violations of The ESA

By removing the Waldo cat from the wild, the Commission violated the prohibition against taking an endangered animal, 16 U.S.C. $ 1538(a)(1)(B); see also United States v. Billie, 667 F.Supp. 1485 (S.D. Fla. 1987) (In prosecution for section 9 violation, government need not prove that hunter recognized particular subspecies of panther was listed as endangered at time of taking, government only required to prove that person acted with general intent when he took the animal in question). By further transferring cat to Ashby Acres Animal Park, the Commission also violated the prohibition against shipping and transporting an endangered animal. 16 U.S.C. $ 1538(a)(1)(B), (D).

In addition, even if the Commission was not certain that the Waldo cat is a Florida panther, the Commission violated the similarity of appearance rule for the species, which prohibits the taking of all cougars in the wild in Florida, on the ground that they may be panthers, since -- due to the incredibly low number of verified panthers in the wild -- it is imperative that we err on the side of protecting any cat that may be a wild panther. 50 C.F.R.  17.40(h). The only relevant exception to this prohibition is that a:

mountain lion . . . may be taken in Florida by an employee or designated agent of the Service or the Florida Game and Fresh Water Fish Commission for taxonomic identification or for other reasons consistent with the conservation of the endangered Florida panther. . . . When it has been established by the Service, in consultation with the State, that the animal in question is not a Florida panther . . . or an eastern cougar (Felis concolor cougar), such animals may be removed from the wild. The disposition of animals so taken shall be at the discretion of the Florida Game and Fresh Water Fish Commission, with the concurrence of the Fish and Wildlife Service.

Id. at 17.40(h)(3) (emphasis added). Here, however, the FWS has certainly not "established" that the animal is not a Florida panther, nor could it, in light of the expert opinions cited above. Moreover, the Commission did not consult with the FWS before removing the cat. See Dennis Jordan Letter, Attachment N; see also Jacksonville Times Union (December 20, 1995) (Director Egbert "conceded his agency erred in not contacting the Fish and Wildlife Service before removing Waldo")(Attachment I). Therefore, the Commission simply cannot claim the protection of the exception to the "look alike" rule.

In addition, Ashby Acres Wildlife Park violated the provisions of Section 9 of the ESA which prohibits the possession and transfer of any endangered animal that was unlawfully "taken." 16 U.S.C.  1538(a)(1)(B), (D).

III. Conclusion

While serious violations of the Endangered Species Act have occurred, The Fund for Animals is most concerned with the health and welfare of the Waldo panther. Accordingly, The Fund for Animals requests that the Commission and the FWS, having now reobtained possession of the Waldo cat, take all necessary steps to immediately return him to the wild in the area he was originally captured.

Based on studies of the released Texas cougars who were part of the reintroduction experiment, GFC biologists have stated that cats who are maintained in captivity become acclimated to humans, making their chances of successful release less likely. Thus, irreparable harm could occur to the panther's health and well-being with each day of delay in returning him to the wild. To the extent the relevant authorities believe that further genetic testing would assist in "establishing" whether the animal is a Florida panther, we believe that the GFC and FWS must perform the comparitive analyses of the Waldo cat's genetic makeup to museum specemins of panthers of the same historical range, as iterated by Dr. Fleischer. Attachment J. In any event, the Waldo cat must be returned to the wild in the interim.

This letter constitutes the requisite notice under the citizen suit provision of the Endangered Species Act, 16 U.S.C. $ 1540(g). Please keep us advised of all actions taken regarding this matter, as soon as they occur, so that we will have an adequate basis upon which to evaluate whether we need to pursue further legal action.

Sincerely,

Katherine A. Meyer
Meyer and Glitzenstein

Sidney B. Maddock
Associate Counsel for Wildlife
The Fund for Animals

cc: Secretary Bruce Babbitt
Director Mollie Beattie
Commissioner Quinton Hedgepeth, DDS
Commissioner Gilbert Humphrey
Recovery Coordinator Dennis Jordan
Commissioner Thomas Kibler
Commissioner Julie Morris
Chairman Jack Pons

Footnote: We learned just before this notice letter was to be sent that the FWS has obtained possession of the Waldo panther. While this action is a positive step, we still believe, based on the factors outlined in this letter, that this animal should be returned to the wild. Notice should accordingly be given on the violations outlined in this letter to assure that the Commission and Ashby Acres Wildlife Park are apprised of our concerns.

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