VIA U.S. CERTIFIED MAIL. Tim Morrow, Director San Antonio Zoological Gardens & Aquarium 3903 N. St. Mary's Street San Antonio, Texas,

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1 Melissa Lesniak, Esq. Attorney & Counselor at Law 4839 San Cristobal San Antonio, Texas Phone: Fax: VIA U.S. CERTIFIED MAIL Tim Morrow, Director San Antonio Zoological Gardens & Aquarium 3903 N. St. Mary's Street San Antonio, Texas, Steve McCusker, Resident Agent for Service San Antonio Zoological Gardens & Aquarium 3903 N. St. Mary's Street San Antonio, Texas San Antonio Zoological Society Executive Board: On Information and Belief: Chris Bathie, President 607 Ivy Ln. San Antonio, Texas Norborne P. Cole, Jr., 1 st Vice-President 605 Terrell Rd. Terrell Hills, Texas Frank Z. Ruttenburg, 2 nd Vice-President 6200 Utsa Blvd Apt. 2 San Antonio, Texas William Freed, Treasurer 1920 Nacogdoches Rd San Antonio, Texas Todd Brockwell 155 Hillview Dr. San Antoni0o, Texas Becky Canavan 6338 N. New Braunfels Ave

2 Elizabeth Feldman W. Birdsong San Antonio, Texas Brandon Grossman 200 Patterson Ave San Antonio, Texas Richard Kleberg III PO Box San Antonio, Texas Robert Miggins 309 E. Hermosa Dr. San Antonio, Texas Mike Molak 131 W. Agarita Ave San Antonio, Texas Jim Satel 418 Harrison Ave San Antonio, Texas Caroline Walker 700 E. Hildebrand Ave Ste. 100 San Antonio, Texas VIA ELECTRONIC MAIL Hon. Sally Jewell, Secretary U.S. Department of the Interior 1849 C Street, N.W. Washington, D.C exsec@ios.doi.gov; feedback@ios.doi.gov Daniel M. Ashe, Director U.S. Fish and Wildlife Service 1849 C Street, N.W. Washington, D.C d_m_ashe@fws.gov 2

3 April 9, 2015 Re: NOTICE OF INTENT TO FILE SUIT FOR VIOLATIONS OF THE ENDANGERED SPECIES ACT Dear Director Morrow, Mr. McCusker, President Bathie, Vice President Cole, Vice President Ruttenberg, Treasurer Freed, Mr. Brockwell, Ms. Canavan, Ms. Feldman, Mr. Grossman, Mr. Kleberg, Mr. Miggins, Mr. Molak, Mr. Satel, Ms. Walker, Secretary Jewell, and Director Ashe: This letter and the accompanying declaration of Scott D. Blais are provided pursuant to Section 11(g) of the Endangered Species Act ( ESA ), 16 U.S.C. 1540(g), on behalf of Jim Graham, Jacqueline Fonseca, Noah B. Khoshbin, and Elizabeth Wymer ( Complainants ), on behalf of Lucky the Asian elephant, by and through their attorneys Melissa Lesniak, Esq., and the Animal Legal Defense Fund ( ALDF ). Complainants invite the San Antonio Zoo to retire Lucky to sanctuary, at no cost to the Zoo, but are prepared to sue for the violations described herein and in the accompanying declaration if the Zoo fails to remedy and abate those violations within sixty days. I. Statutory and regulatory requirements of the Endangered Species Act The ESA is the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. 1 Finding that fish, wildlife and plants have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation, 16 U.S.C. 1531, Congress afforded endangered species the highest of priorities. 2 Persons violating the ESA risk facing civil and criminal penalties. 3 Private parties may bring enforcement actions in court so long as they provide adequate notice of sixty days to both the violator and the Secretary of the Interior. 4 A. Section 9 Take Provision Defined ESA Section 9 prohibits the take of an endangered species by any person, and makes it unlawful for any person to possess, sell, deliver, carry, transport or ship, by any means whatsoever, any such species so taken. 5 Congress defined the term take broadly to mean harass, harm, pursue, hunt, wound, kill, trap, 1 Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). 2 Defenders of Wildlife v. Adm r, EPA, 882 F.2d 1294, 1300 (8th Cir. 1989). 3 See 16 U.S.C. 1540(a)-(b). 4 Id. 1540(g). 5 Id. 1538(a). 3

4 capture, or collect, or to attempt to engage in any such conduct. 6 The Supreme Court of the United States upheld the term take as defined in the ESA to include every conceivable way in which a person can take or attempt to take any fish or wildlife. 7 The United States Fish and Wildlife Service ( FWS ), which oversees enforcement of the ESA, further defined harass, in regulations it promulgated pursuant to the ESA, to include acts that create the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering. 8 FWS likewise further defined harm to mean an act which actually kills or injures wildlife. 9 B. Section 9 Take Provision applies to both wild and captive species Section 9 s take prohibitions apply equally to all members of listed species whether living in captivity or in the wild. The term fish or wildlife, which are protected by the prohibition of take of listed fish or wildlife, is defined as any member of the animal kingdom. 10 FWS has repeatedly explained that the Act applies to both wild and captive populations of a species. 11 Indeed, courts have come to the same conclusion regarding the unlawfulness of assigning captive wildlife a legal status different from that assigned to non-captive wildlife Id. 1532(19). 7 Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 704 (1995) C.F.R (2014) C.F.R (2014) U.S.C. 1532(8) Fed. Reg (May 23, 1979), see also 63 Fed. Reg , (Sept. 11, 1998) (explaining that take was defined by Congress to apply to endangered or threatened wildlife whether wild or captive and the statutory term cannot be changed administratively ); 79 Fed. Reg. 4313, 4317 (Jan. 27, 2014) (proposed rule to list the captive orca Lolita as a member of the Endangered Southern Resident Killer Whale Distinct Population Segment) ( The ESA does not support the exclusion of captive members from a listing based solely on their status as captive.... Section 9(a)(1)(A)-(G) of the ESA applies to endangered species regardless of their captive status. ); id. ( Further, based upon the purposes of the ESA and its legislative history, the USFWS has recently concluded that the ESA does not allow captive animals to be assigned different legal status from their wild counterparts on the basis of their captive status. ). (quoting Tenn. Valley Auth., 437 U.S. at 174); 80 Fed. Reg. 7380, 7388 (Feb. 10, 2015) (final rule listing Lolita as a member of the Endangered Southern Resident Killer Whale Distinct Population Segment) ( Congress recognized the value of captive holding and propagation of listed species held in captivity but intended that such specimens would be protected under the ESA, with these activities generally regulated by permit. ). 12 See, e.g., Safari Club Int l v. Jewell, 960 F. Supp. 2d 17 (D.D.C. 2013) (upholding FWS listing of captive-bred antelope as endangered in the face of challenge by commercial hunting outfits). 4

5 II. Factual Background Affected Species FWS has listed Asian elephants (Elephas maximus) as an endangered species since The Convention on International Trade in Endangered Species of Wild Fauna and Flora ( CITES ) lists Asian elephants in Appendix 1, i.e. the most endangered of all CITES-listed animals and plants. 14 Asian elephants inhabit grasslands, semi-evergreen forest, most deciduous forest, dry thorn forest, and tropical evergreen forest. 15 Lacking sweat glands, they rely on other physical and behavioral adaptations to keep their massive bodies from overheating and to prevent sunburn. 16 Asian elephants are active primarily during twilight, the coolest part of the day. 17 Shade and water are essential during the hottest parts of the day. 18 Asian elephants require shade to regulate their body temperatures. 19 Known as a water-dependent species, Asian elephants submerge in water to regulate their body temperature when it rises above normal. 20 According to former Association of Zoos and Aquariums ( AZA ) Conservation and Science Director Michael Hutchins, [Elephants] need to walk throughout the day for exercise and muscle tone. 21 Asian elephants living in the wild are moving approximately 20 out of 24 hours of the day, actively engaged in foraging, exploring, socializing and searching for other Asian elephants. 22 The home range for wild female Asian elephants extends up to 96 square miles, some 62,000 acres. 23 Asian elephants are extremely social creatures. 24 By nature they live in strong family groups composed of interrelated individuals, primarily females and preadolescent 13 Endangered Species Act, 41 Fed. Reg , (June 14, 1976). 14 CITES, Appendix A.U. Choudhury, Status and Conservation of the Asian elephant Elephas maximus in north-eastern India. Mammal Review 29, (1999); see also generally Jeheskel Shoshani, Elephants, Majestic Creature of the Wild, (2000). 16 Natalia Elias, What Adaptations Help Elephants Keep Cool? (2015), available at htttp://animals.pawnation.com/adaptations-elephants-keep-cool-7475.html. 17 Jeheskel Shoshani & John F. Eisenberg, Elephas maximus, Mammalian Species No. 182, 1-8 (Jun. 18, 1982), available at 18 Id. 19 Robin C. Dunkin, Dinah Wilson, Nicolas Way, Kari Johnson, & Terrie M. Williams, Climate Influences thermal balances and water use in African and Asian elephants: physiology can predict drivers of elephant distribution, The Journal of Experimental Biology, 2939 (2013), available at 20 Id. 21 Jeffery P. Cohn, Do Elephants Belong in Zoos?, BioScience, Vol. 56 No.9 (Sept. 2006). 22 Id.; Declaration of Scott D. Blais, 15 (hereinafter Blais Declaration ), attached hereto. 23 Blais Declaration, Jeheskel Shoshani, Elephants, Majestic Creatures of the Wild, (2000). 5

6 males within a matriarchal society. 25 Estimates of herd size vary, ranging from as few as six to as many as The family units are well organized and integrated both socially and structurally. 27 Members of the family are rarely separated from other members. 28 Asian elephant family members rely heavily on the matriarch for knowledge and guidance to survive in their environment. 29 Elephants have one of the longest lifespans of any mammal, living well into their sixties and seventies. 30 III. Conditions of the San Antonio Zoo Elephant Exhibit create continuing violations of the Endangered Species Act Lucky is an Asian elephant born in, and captured from, the wilds of Thailand. 31 She arrived at the San Antonio Zoo in April 1962 and has spent 53 years on display 32 in an exhibit that bears no resemblance to her natural home in the forests of Thailand. 33 Lucky lives in a tiny, barren enclosure that does not provide the space, natural conditions, or companionship that elephants need. 34 Lucky s solitude inflicts special harm, since keeping a member of such a highly 25 Id. at 107; see also Blais Declaration, 15, 19 (estimating family size at 12 to 25 members but sometimes coalescing into larger, extended family groups as large as 100 individuals). 26 Asia [sic] Elephants, WORLD WILDLIFE FUND, (last visited Apr. 8, 2015) ( Asian elephants are extremely sociable, forming groups of 6 to 7 related females that are led by the oldest female, the matriarch. ); Asian Elephant (Elephas Maximus), SAN DIEGO ZOO GLOBAL (July 2008), available at ( Herds consist of about 8-12 individuals, but sizes can vary. ); Blais Declaration, 15 ( Asian elephants live in strong family groups composed of interrelated individuals, primarily females and preadolescent males, ranging in size from 12 to 25 members, but sometimes coalescing into larger extended family groups that reach over 100 members ). 27 Jeheskel Shoshani, Elephants, Majestic Creatures of the Wild, 107 (2000). 28 Id. 29 Id.; Blais Declaration Jeheskel Shoshani, Elephants, Majestic Creatures of the Wild, 100, 106 (2000); see also Jaimi Dolmage, Exposed! The San Antonio Zoo: One of the Worst Zoos in America (Aug. 26, 2014), available at 31 Asian Elephant North American Regional Studbook, ASSOC. OF ZOOS AND AQUAR..,p. 58, available at 32 Zoo elephant celebrates 53 years in San Antonio, Fox 29 (April 4, 2015,) available at 33 Blais Declaration, 17; Jaimi Dolmage, Exposed! The San Antonio Zoo: One of the Worst Zoos in America, (August 26, 2014) available at also Lucky, ONE WORLD CONSERVATION, (last visited Apr. 8, 2015). 34 Blais Declaration, 17; Jaimi Dolmage, Exposed! The San Antonio Zoo: One of the Worst Zoos in America, (August 26, 2014) available at see also Lucky, ONE WORLD CONSERVATION, (last visited Apr. 8, 2015). 6

7 social species by herself results in unmistakable psychological pathology, which Lucky exhibits 35. The species-inappropriate conditions to which Lucky the Asian elephant is subjected at the San Antonio Zoo amount to and will almost certainly continue to constitute a take under the Endangered Species Act. Stress caused by her intense confinement, boredom from her barren environment, and social trauma caused by her lack of appropriate socialization produce aberrant behaviors. 36 The inadequacies of Lucky s enclosure, a lack of social and psychological stimulation, her physical discomfort, and a lack of emotional support all contribute to Lucky s repetitive neurotic behavior. 37 So also do these conditions, along with others described below and in the accompanying declaration, collectively undermine Lucky s physical health and wellness. A. Inadequate Shelter of the Elephant Exhibit violates the ESA The species-inappropriate barren enclosure in which Lucky the Asian elephant lives at the San Antonio Zoo amounts to and will almost certainly continue to constitute a take under the Endangered Species Act. Elephants require shade for protection from the sun. 38 There are no trees within the Zoo s elephant exhibit, and the exhibit provides insufficient shade. 39 The pool of water available to Lucky likewise provides only limited refuge from the sun and heat of the Texas climate, especially its hot summers. The pool s inadequate depth prevents Lucky from submerging fully, as elephants do in their natural habitat. The San Antonio Zoo harasses Lucky by exposing her to the heat and speciesinappropriate weather without adequate shelter. To expose captive wildlife to inclement weather or otherwise inappropriate climatic conditions is not a generally accepted animal husbandry practice. Regulations pursuant to the Animal Welfare Act require that [w]hen sunlight is likely to cause overheating or discomfort of the animals, sufficient shade by natural or artificial means shall be provided to allow the animals kept outdoors to protect themselves from direct sunlight. 40 Regulations require moreover that [n]atural or artificial shelter appropriate to the local climatic 35 Blais Declaration, 17, Blais Declaration, 20, 30-31; In Defense of Animals, Sanctuaries: Setting the Standard of Care for Elephants in Captivity Today, available at 37 Blais Declaration, 17-23, Shoshani, J, Eisenberg, & J. F. Eisenberg, "Elephas maximus". Mammalian Species 182 (182): 1 8. doi: / JSTOR ; see also, Jeheskel Shoshani, Elephants, Majestic Creatures of the Wild, 106 (2000). 39 See Addendum Photos 1-3, 6; Blais Declaration, Addendum Photo 1; see also Jaimi Dolmage, Exposed! The San Antonio Zoo: One of the Worst Zoos in America, (Aug. 26, 2014), available at Lucky, ONE WORLD CONSERVATION, (last visited Apr. 8, 2015) C.F.R (a) (2014). 7

8 conditions for the species concerned shall be provided for all animals kept outdoors to afford them protection and to prevent discomfort to such animals. 41 Denying Lucky the means to protect herself from the sun and to cool herself from the heat harms and harasses her, and will almost certainly continue to constitute a take under the Endangered Species Act. B. Inappropriate Substrate of the Elephant Exhibit violates the ESA The species-inappropriate substrate on which Lucky the Asian elephant lives at the San Antonio Zoo amounts to and will almost certainly continue to constitute a take under the Endangered Species Act. Luck s exhibit consists of a thin layer of sand compacted on a hard undersurface of limestone. 42 An inappropriately firm substrate can cause orthopedic issues in elephants, including arthritis, joint calcification, and osteomyelitis. 43 Such orthopedic issues may in turn cause inactivity, weigh gain, loss of muscle mass and muscle tone, foot infections, abbreviated gate or loss of range of motion, and decreased physical and cardiovascular health. 44 Indeed, Lucky exhibits many of these very problems, 45 which cause harm to her physical health and wellbeing in other words, which injure her. To expose captive wildlife to injury-inducing substrata is not a generally accepted animal husbandry practice. The Zoo s inappropriate substrate therefore harms and harasses Lucky, and will almost certainly continue to constitute a take under the Endangered Species Act. C. Inadequate Space of the Elephant Exhibit violates the ESA The species-inappropriate size of the enclosure in which Lucky the Asian elephant lives at the San Antonio Zoo amounts to and will almost certainly continue to constitute a take under the Endangered Species Act. The AZA s minimum space requirement for an elephant in captivity is only 5400 square feet (approximately acres). 46 The San Antonio elephant exhibit, in contrast, consists at most of C.F.R (b) (2014). 42 Lucky, ONE WORLD CONSERVATION, (last visited Apr. 8, 2015). 43 Id.; see also Blais Declaration, 28-29; Jaimi Dolmage, Exposed! The San Antonio Zoo: One of the Worst Zoos in America (Aug. 26, 2014), available at 44 Blais Declaration, Id. at 26-28, Addendum Photos 3 and Jaimi Dolmage, Exposed! The San Antonio Zoo: One of the Worst Zoos in America (Aug. 26, 2014) available at (citing AZA Standards for Elephant Management and Care, ASSOCIATION OF ZOOS & AQUARIUMS (Mar. 2011), available at ElephantStandards.pdf). 8

9 approximately one half acre, and may consist of as little as one third of an acre, considerably smaller than the AZA requirement. 47 Even if the substrate were species-appropriate, such a miniscule enclosure an extraordinary fraction of an Asian elephant s natural range of 62,000 acres 48 clearly provides insufficient space for Lucky to exercise her joints properly and to maintain a healthy weight, which together may lead to arthritis and joint degeneration. 49 Sadly, zoos euthanize elephants as a result of arthritis at least as often as for any other reason. 50 Additionally, such limited space offers limited psychological and emotional stimulation. 51 Lucky s resulting inability to exercise or express her natural migratory behavior reduces her lifespan and affects her overall health and wellbeing in other words, the size of her enclosure injures her. 52 To expose captive wildlife to grossly insufficient space is not a generally accepted animal husbandry practice. Maintaining Lucky in such an inadequately sized enclosure at the San Antonio Zoo harms and harasses Lucky, and will almost certainly continue to constitute a take under the Endangered Species Act. D. Inadequate Social Opportunities violates the ESA Finally and most significantly, the species-inappropriate isolation to which Lucky the Asian elephant is subjected at the San Antonio Zoo amounts to and will almost certainly continue to constitute a take under the Endangered Species Act. Perhaps insurmountably, the San Antonio Zoo lacks the space to house the number of elephants sufficient merely to approximate the kinship groups that wild elephants form, let alone to encourage the natural behaviors wild elephants display. Elephants are social creatures, exhibiting the same tendency as other social creatures sometimes to engage socially and sometimes, space permitting, to disengage or to withdraw when circumstances or mood require. The amount of space in an elephant s environment therefore directly affects his or her social behavior and social, psychological, and emotional wellbeing Blais Declaration, 17, Addendum Photo 1; see also Lucky, ONE WORLD CONSERVATION, (last visited Apr. 8, 2015). 48 Blais Declaration, Blais Declaration, Id., Id., Id., See Catherine Doyle and Suzanne Roy, Comments of In Defense of Animals on USDA Docket No. APHIS Captive Elephant Welfare (Dec. 11, 2006) (describing observations of social incompatibility at Riverbanks Zoo in Columbia, South Carolina), available at 9

10 The San Antonio Zoo once maintained another Asian elephant, Ginny, along with Lucky. 54 Photographic and video evidence make clear that Ginny and Lucky bonded together, 55 attested by at least one former zookeeper. 56 Ginny died in May Lucky was kept alone in her exhibit for nearly six years until the Zoo acquired an African elephant, Alport, who died in November Lucky was again left alone in the exhibit for nearly two and a half years after Alport s death. Thereafter the San Antonio Zoo obtained another Asian elephant, Boo. 59 Before arriving at the San Antonio Zoo, Boo performed in circus acts, and suffered from age-related illnesses. 60 Contrary to the experience between Lucky and Ginny, it was evident that Boo and Lucky did not bond and that, as a result of the inadequate space they shared, conflict emerged between them. 61 Lucky attempted to befriend or at least to coexist with Boo, but Boo behaved aggressively toward Lucky, posturing for dominance and intimidation, a direct consequence of the inappropriately sized enclosure and the inappropriately unnatural living conditions thereof. 62 Lucky has remained alone since Boo s death in March The Zoo maintains that Lucky is a weird elephant, claiming that she dislikes other elephants and prefers to be with people. 64 The Zoo therefore 54 Asian Elephant, North American Regional Studbook, ASSOC. OF ZOOS AND AQUAR., at 59 (Jul. 17, Aug. 31, 2010), available at 55 See generally Lucky, ONE WORLD CONSERVATION, visited Apr. 8, Anonymous; See, e.g., Letter of Nicole Meyer to Jim Maddy, President and CEO of Association of Zoos and Aquariums, Apr. 25, 2013 ( Lucky has had several companions over the years and was reportedly bonded with Ginny, who died in ), available at 57 Asian Elephant, North American Regional Studbook, Association of Zoo & Aquariums, 59 (Jul. 17, Aug. 31, 2010). 58 Campaigns San Antonio Zoo, IN DEFENSE OF ANIMALS, (last visited Apr. 8, 2015). 59 Asian Elephant, North American Regional Studbook, ASSOC. OF ZOOS AND AQUAR., at 103 (Jul. 17, Aug. 31, 2010) 60 MySA, Elephant, 59, Dies at San Antonio Zoo (March 11, 2013), available at php. 61 Blais Declaration, 20; see also Joyce Poole, PhD, Behavioral Observations: Lucky and Boo, San Antonio Zoo (Dec. 4, 2010), available at (describing her observations that Lucky is being terrorized by Boo and concluding that the primary cause of this undesirable situation is that the elephants have too little space. ). 62 Blais Declaration, Lucky the elephant to stay at the SA Zoo despite protests (ABC KSAT broadcast, Nov. 3, 2014), available at 64 Michelle Koidin Jaffee, Lucky to remain lone elephant at S.A. Zoo, MySA Express News (Apr. 23, 2013), available at Zoo php; see also Lucky the elephant to stay at the SA Zoo despite protests (ABC KSAT 10

11 intentionally denies Lucky the opportunity to bond with other elephants. Contrary to the Zoo s claims that philosophy and science advise keeping Lucky alone, 65 moving her to a sanctuary where she has the opportunity to socialize and to exert some autonomy over the terms of her engagement with other elephants will greatly improve Lucky s psychological and physical health alike. 66 Even putting aside the natural size of kinship groups of elephants in the wild, the AZA s accreditation standards require that [e]ach zoo holding elephants must hold a minimum of three females (or the space to hold three females), two males or three elephants of mixed gender. 67 The San Antonio Zoo is accredited by the AZA. 68 Although the AZA has granted the Zoo a variance to maintain Lucky without any other elephants until 2016, such a variance from a private third party accreditation body does not and indeed cannot constitute a permit to violate the Endangered Species Act. Only FWS may grant a permit to violate the ESA, and only then under very limited circumstances. 69 In short, the Zoo is not currently set up to introduce new Asian elephants to the exhibit. Neither does the Zoo intend to introduce new Asian elephants (see below). The inadequately sized and constituted enclosure injures Lucky s health and welfare. While Lucky s social, psychological, and emotional needs require the introduction of additional Asian elephants as companions, the San Antonio Zoo lacks sufficient space to introduce such companions in a way that benefits, rather than harms, both Lucky and whatever elephants might be introduced. As a result, such inadequate space and the solitude and the inevitably species-inappropriate group interactions that would result therefrom violate the ESA. To confine an intensely social and emotionally complex animal in isolation is not a generally accepted animal husbandry practice. Maintaining Lucky in solitary confinement at broadcast, Nov. 3, 2014), available at 65 Rebecca Salinas, San Antonio Zoo's only elephant will remain, despite relocation rule, MySanAntonio.Com (Jul. 16, 2014), 66 Blais Declaration, 22-23, Standards for Elephant Management and Care, ASSOCIATION OF ZOOS & AQUARIUMS (Mar. 2011), available at ElephantStandards.pdf. 68 List of Accredited Zoos and Aquariums, ASSOCIATION OF ZOOS & AQUARIUMS, available at (San Antonio Zoological Society, Texas Accredited through March 2018). 69 See Endangered Species Act, 15 U.S.C. 1539(a)(1) (enumerating permitting requirements for takes of endangered species for scientific purposes or to enhance the propagation or survival of the affected species or where such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity ). 11

12 the San Antonio Zoo therefore harms and harasses her, and will almost certainly continue to constitute a take under the Endangered Species Act. IV. Proposed Solution abating violations of the ESA The AZA Elephant Taxon Advisory Group & Species Survival Plan ( TAG/SSP ) Regional Collection Plan indicates that the San Antonio Zoo intends to change the Asian Elephant Exhibit to an African Elephant Exhibit. 70 The San Antonio Zoo has indicated it does not intend to acquire another Asian elephant; rather, [t]he Zoo will eventually have African elephants as part of the Africa Live exhibit. 71 Since the Zoo intends to hold African elephants in its new Africa Live attraction, Lucky, who has spent nearly her entire life on display, should be retired to a sanctuary. The Elephant Sanctuary in Tennessee has already promised to welcome Lucky into their facility and to integrate Lucky into their herd of Asian elephants. Moreover, the Animal Legal Defense Fund has agreed to pay the cost of relocating Lucky from San Antonio to the Elephant Sanctuary in Tennessee. According to Scott Blais, an expert in the rehabilitation of captive elephants, contrary to the Zoo s claims, Lucky is neither too old nor too weird to be relocated. 72 In retiring Lucky to sanctuary, the San Antonio Zoo, at no cost to itself, will gain the opportunity to update their elephant exhibit to house African elephants and simultaneously to come into compliance with the Endangered Species Act by abating their harm and harassment of Lucky the Asian elephant. V. Conclusion This letter and the accompany declaration of Scott Blais are notice under section 11(g) of the ESA, 16 U.S.C (g), of violations of the ESA on behalf of Jim Graham, Jacqueline Fonseca, Noah B. Khoshbin, Elizabeth Wymer, and Lucky for the violations of the ESA discussed herein. Unless these ongoing and imminent violations described herein are remedied and abated with sixty (60) days, Complainants intend to file suit against the San Antonio Zoological Society and the San Antonio Zoo to enforce the ESA. 70 Association of Zoos & Aquariums, AZA Elephant TAG/SSP Regional Collection Plan 2nd ed., 30 (2007) (indicating Future Maximum # of Asian Elephants is 0 ). 71 Get the Facts about Lucky the Elephant, SAN ANTONIO ZOO, (last visited Apr. 8, 2015). 72 Blais Declaration,

13 Complainants urge you to come into compliance with the ESA by moving Lucky to the Elephant Sanctuary. During the sixty day notice period, Complainants, by and through their attorneys, are willing to discuss effective remedies for the violations addressed in this letter and settlement terms. If you wish to pursue remedies and settlement in absence of litigation, please contact Complainants attorney Melissa Lesniak, Esq., to initiate discussion, within ten business (10) days of receiving this notice to arrange a meeting to begin negotiations. Sincerely, Melissa Lesniak Melissa Lesniak, Esq. Attorney & Counselor at Law 4839 San Cristobal San Antonio, Texas Phone: Fax: melissa.a.lesniak@gmail.com Jeffrey Pierce, Esq. Animal Legal Defense Fund 170 East Cotati Avenue Cotati, California Phone: Fax: jpierce@aldf.org Enclosures: Addendum of Photographs Declaration of Scott D. Blais 13

14 ADDENDUM Photo 1 Photo Credit One World Conservation, September 11, 2014: view of the speciesinappropriate tree-less, barren, and unprotected nature of Lucky s enclosure. 14

15 Photo 2 Photo Credit One World Conservation, September 11, 2014: view of Lucky s retreating to the only part of her enclosure that provides shade, requiring that she stand still in one place to gain protection from the Texas sun and heat. 15

16 Photo 3 Photo Credit One World Conservation, November 20, 2010: additional view of the barren nature of Lucky s enclosure and the species-inappropriate tightly packed, injury-inducing substrate thereof. 16

17 Photo 4 Photo Credit One World Conservation, September 13, 2014: view of the inadequate submersion pool in Lucky s enclosure in which Lucky cannot fully submerge herself. 17

18 Photo 5 Photo Credit One World Conservation, October 13, 2014: additional view of Lucky s inadequate submersion pool. 18

19 Photo 6 Photo Credit Margaret Coyle Goff, posted to Protest to Free Lucky the Elephant Facebook Page, September 28, 2014: aerial view of the entirety of Lucky s speciesinappropriate small, barren enclosure, taken at a time when Boo was still alive. 19

20 Photo 7 Photo Credit One World Conservation, September 24, 2010: ground-level view of Lucky s small, barren enclosure, taken at a time when Boo was still alive, showing the entire distance the elephants had to retreat from one another. 20