Denied family and freedom

Nolwazi is a female African elephant believed to be 27 years old. She was born in Hlane National Park in eSwatini (formerly known as Swaziland).

Amahle is a female African elephant believed to be 12 years old. She is Nolwazi’s daughter and was also born in Hlane National Park.

Nolwazi and Amahle were among 39 elephants who roamed approximately 12,000 acres of the 54,000-acre park. In 2016, they and 15 other elephants, most of them breeding-age females, were taken from their natural habitat and imported to US zoos–a highly controversial arrangement which Charles Siebert detailed in a 2019 investigative essay for The New York Times Magazine (“Zoos Called It a ‘Rescue.’ But Are the Elephants Really Better Off?”).

As Siebert wrote:

Conservation managers in Swaziland determined that the increasing number of elephants in two of the country’s three Big Game Parks (B.G.P.) reserves were overtaxing the already drought-stricken landscape and posing a threat to the planned growth of their populations of both black and white rhinos. In response, the founder and executive director of B.G.P., Ted Reilly, decided to reduce the elephant population. Relocating them elsewhere in Africa was deemed, in the wording of the exhibit, ‘not feasible,’ and thus Reilly declared that they would have to be slaughtered if alternate homes couldn’t be found.

Three US zoos–the Dallas Zoo in Texas, the Sedgwick County Zoo in Wichita, Kansas, and the Henry Doorly Zoo and Aquarium in Omaha, Nebraska–then agreed to donate $450,000 to Big Game Parks as part of a relocation deal, with B.G.P. ignoring offers to give refuge to the elephants in Africa, according to Siebert.

In 2016 the US Fish & Wildlife Service approved the zoos’ request despite global public outcry, including from 80 respected elephant and conservation experts around the world and in the face of a lawsuit filed in the US by Friends of Animals to try to stop the importation. Nolwazi, Amahle, and the other elephants were sedated, crated, and loaded onto a cargo plane and split up across the three zoos. Nolwazi and Amahle spent two years in captivity in the Dallas Zoo before they were transferred to the Fresno Chaffee Zoo, where they remain today. The zoo’s deputy director has said the zoo plans to use them for breeding: “We have been looking to grow our African elephant herd. Having Nolwazi and Amahle join enables us to do that.”

Vusmusi (also known as Moose and Musi) is an 18-year-old male African elephant. He was born in the San Diego Zoo Safari Park to an elephant named Ndulamitsi, who was pregnant with him when she was imported to the US from eSwatini in 2003, also despite global public outcry and with zoo and eSwatini officials making the same claims about the elephants needing to be killed otherwise.

Vusmusi was transferred from San Diego to the Fresno Chaffee Zoo in 2015. In 2017, after he cracked and broke his tusks numerous times, the zoo had metal covers made for them, which other zoos have also done. “He had a history of being tough on his tusks, and he would break them on things,” Fresno Chaffee Zoo’s curator for elephants told the Sacramento Bee in 2017. As Keith Lindsay writes in his affidavit (but the zoo has not acknowledged in news stories touting the metal covers), this behavior is “an unnatural behavior indicative of stress and/or boredom” (elephants living freely in their natural habitats use their tusks “to pry bark off trees or dig for roots, and in social encounters as an instrument of display or as a weapon”). The zoo plans to also use Vusmusi for breeding.

The Fresno Chaffee Zoo

This year the Fresno Chaffee Zoo was named one of the 10 Worst Zoos for Elephants in the US by In Defense of Animals. This designation comes seven years after the zoo remodeled its elephant exhibit at a cost of $55.7 million.

IDA based its assessment of the Fresno Chaffee Zoo in part on the fact that three of the elephants in its custody died prematurely in a relatively short period of time. Amy, a 30-year-old wild-born African elephant, was euthanized two years after arriving at the zoo because of a torn ligament in her leg that impacted her mobility. Kara, a 42-year-old wild-born Asian elephant, was euthanized because of pain from chronic osteoarthritis after spending 34 years in captivity in the zoo.

In 2019, several months after Nolwazi and Amahle’s arrival at the zoo, Amy’s daughter, Miss Bets–originally presented by the zoo as being a similarly aged companion for Amahle–died from EEHV, an elephant herpesvirus that causes hemorrhagic disease. It was not detected until after Miss Bets’ autopsy. That same year, Amahle was diagnosed with EEHV. Upon her diagnosis, she “went to restraint school real fast,” the zoo’s Chief Veterinary Officer and Curator of Elephants wrote of her treatment plan in a PowerPoint presentation delivered as part of a 2020 African Elephant EEHV Workshop.

Keith Lindsay sees Amy and Miss Bets’ deaths as “indicative of a poor husbandry record” at the zoo.

The elephant exhibit is approximately four acres, although the area able to be used by the elephants appears to be approximately three acres, according to elephant expert Keith Lindsay in an affidavit submitted in support of this case. When the remodeled exhibit opened, the then zoo director said: “Elephants also will live in a typical matriarchal setting as they do in Africa … The zoo will start with three and could build up to six or eight on the 4-acre portion of the expansion.” The exhibit consists of an outdoor yard with a pond-like water feature that separates the elephants from the rhinos, a waterfall-like water feature, a fake rock wall with holes the elephants can reach into to grab food, and a pole with hay hanging from it.

The exhibit is across from a nightclub and restaurants and surrounded by major transportation arteries and railways. When the handlers are off duty or it’s too cold outside, the elephants are further confined in a largely concrete barn. 

The yard is separated into a front and back yard with a gated walkway the elephants can pass through to access each yard. The elephants appear to be able to access the barn from both sections of the yard. There is also a small pen that the elephants are put in for public training sessions.

The primary substrate of the exhibit is natural grass, and there are different types of trees the elephants are able to touch. Some trees appear to be wrapped in wire to prevent the elephants from touching them.

The NhRP’s Change.org petition calling for sanctuary for Nolwazi, Amahle, and Vusmusi has over 30,000 signatures and continues to grow.

CURRENT STATUS: Preparing to challenge denial of habeas corpus petition

A timeline of Nolwazi, Amahle, and Vusmusi’s case:

5/3/22: The NhRP files a habeas corpus petition in the San Francisco Superior Court, demanding recognition of Amahle, Nolwazi, and Vusmusi’s legal personhood and fundamental right to bodily liberty, followed by their release from the Fresno Chaffee Zoo to an elephant sanctuary.

The Fresno Chaffee Zoo’s “imprisonment of Amahle, Nolwazi, and Vusmusi,” the NhRP writes, “violates their common law right to bodily liberty protected by habeas corpus and is therefore unlawful because it deprives the elephants of their ability to meaningfully exercise their autonomy and extraordinary cognitive complexity, including the freedom to choose where to go, what to do, and with whom to be. Whether Respondents are in compliance with animal welfare statutes is irrelevant to the lawfulness of the elephants’ imprisonment as none of those statutes address the right to bodily liberty.”

In an affidavit submitted with the petition, elephant expert Dr. Keith Lindsay describes the physical and psychological suffering of the Fresno elephants caused by their lack of freedom:

The life of these three elephants at Fresno Chaffee Zoo is nothing but a succession of boring and frustrating days, damaging to their bodies and minds, and punctuated only by interaction with their keepers. Their physical and psychological health has been severely compromised by the sustained deprivation of their autonomy and freedom of movement. They spend at least half, if not more, of each day in a barn with very little cushioning for their feet and joints. When allowed outside, they are unable to walk more than 100 yards in any direction, they have limited shade from the sun, and their artificial water features are not deep enough to allow proper bathing. The elephants receive predictable enrichment activities, are unable to communicate over large distances, and their acute hearing is bombarded by constant auditory disturbances from major transportation arteries on all four sides of their enclosure.

Read and download the affidavits submitted in support by Keith Lindsay, Lucy Bates and Richard W. Byrne, Bob Jacobs, Karen McComb, Cynthia Moss, and Joyce Poole.

The Court must issue an order to show cause or deny the petition within 60 days of the filing date or, of its own volition, extend the deadline for a decision.

Read our press release here.

6/13/22: The Fresno Chaffee Zoo files an emergency motion asking the San Francisco Superior Court to transfer the venue of the case from San Francisco to Fresno. Following a short hearing, the Court denies the Fresno Chaffee Zoo’s emergency motion asking the Court to transfer venue on procedural grounds, ruling that the zoo has to submit its transfer request by regularly noticed motion, which gives the NhRP time to reply in opposition. The Fresno Chaffee Zoo files a noticed notion the same day.

6/27/22: The NhRP files our opposition to the Fresno Chaffee Zoo’s motion asking the court to transfer venue. In it, we make clear that a transfer can only be ordered for a substantial reason, and no substantial reason exists in this case. Moreover, the Fresno Chaffee Zoo is wrong to request a transfer on the grounds that the zoo is in Fresno and the Fresno County community “stands the most to lose from the [elephants’ habeas corpus] petition.” As we write, this argument “completely ignores that this is a habeas corpus proceeding. Whether the Fresno County community may want to see Amahle, Nolwazi, and Vusmusi kept at the zoo is no basis for transferring the Petition. When an individual is illegally imprisoned, it is irrelevant whether members of the community want to see that individual kept in prison.”

Also today, the NhRP’s Jake Davis and Steven Wise are granted admission pro hac vice. 

7/1/22: The Fresno Chaffee Zoo replies to our opposition to their motion. Following a short virtual hearing, the San Francisco Superior Court grants the Fresno Chaffee Zoo’s motion to transfer venue.

7/27/22: The NhRP files a petition for a writ of mandate in the 1st District Court of Appeal (the relevant appellate court) in order to challenge the transfer order. We argue the transfer order is invalid because the Court failed to provide a substantial reason for transferring our case, and the erroneous reason it gave (i.e., that the NhRP is challenging the elephants’ conditions of confinement in Fresno as one might in an animal welfare case, while we’re actually challenging the legality of their imprisonment) could adversely impact our case in the Fresno Superior Court if the transfer order is allowed to stand. Our petition asks the appellate court to stay further proceedings until it has decided our petition for a writ of mandate.

8/3/22: The 1st District Court of Appeal denies the NhRP’s requested writ of mandate.

8/11/22: The NhRP sends a letter to lawyers for the Fresno Chaffee Zoo, offering to drop the lawsuit if the zoo agrees to release the elephants to a sanctuary.

8/15/22: The Fresno Superior Court files the case and notices the receipt of papers and pleadings.

8/16/22: The Fresno Chaffee Zoo responds to our letter offering to drop the lawsuit if the zoo agrees to release the elephants to a sanctuary.

8/22/22: The NhRP files a motion for an order transferring the elephants’ case back to the San Francisco Superior Court. The San Francisco Superior Court had previously ordered the case transferred to the Fresno Superior Court on the basis of a rule that permits a court to transfer a case to the county in which the habeas petitioner is confined if the habeas corpus petition “challenges the conditions of an inmate’s confinement.” This reason for transfer, the NhRP argues, is inapplicable because the petition, importantly, does not challenge the conditions of the elephants’ confinement at Fresno Chaffee Zoo, but rather the legality of their imprisonment itself.

8/26/22: The Fresno Chaffee Zoo files a peremptory challenge asking for Fresno County Judge Stephanie Negin to be removed from the case, which the zoo can do under California law without being required to establish prejudice.

8/30/22: The Fresno Chaffee Zoo’s peremptory challenge is granted, and Fresno County Judge Mark Cullers is assigned to the case.

8/31/22: The Fresno Chaffee Zoo files its opposition to our motion to send the case back to San Francisco.

9/7/22: The NhRP files a reply to the Fresno Chaffee Zoo’s opposition to our motion to send the case back to San Francisco.

9/14/22: NhRP Staff Attorney Jake Davis argues before Fresno Superior Court Judge Mark Cullers in a hearing on our motion asking the Court to transfer the elephants’ case back to the San Francisco Superior Court. Adam Hofmann, arguing for the Fresno Chaffee Zoo, argued that the NhRP’s petition does challenge the conditions of the elephants’ confinement and that this case belongs in Fresno because that’s where the elephants are located. At the conclusion of the hearing, Judge Cullers denies the NhRP’s motion, stating he agrees with San Francisco Superior Court Judge Richard Ulmer’s ruling (which granted the Fresno Chaffee Zoo’s motion to transfer venue) and what the Fresno Chaffee Zoo had argued. This means the case will stay in the Fresno Superior Court, where Judge Cullers will rule on the merits of the NhRP’s habeas corpus petition.

10/17/22: The NhRP files a Notice and Request for Ruling.

10/18/22: Judge Cullers responds to the NhRP’s Request for Ruling by asking the Fresno Chaffee Zoo to submit an “informal response,” a unique responsive pleading that asks Respondents to refute the habeas corpus petition without the formality of a Return (which is required if an Order to Show Cause is issued).

10/19/22: Judge Cullers vacates his Order and transfers the Habeas Corpus petition to Fresno’s criminal division without explanation.

10/24/22: The NhRP is notified we’ve been assigned to Judge Gary Orozco for all purposes, and the elephants are issued a new case number (22CRWR686796).

11/1/22: The NhRP files a Peremptory Challenge to Judge Orozco presiding over the case.

11/3/22: The NhRP is notified we’ve been assigned to Judge Arlan L. Harrell for all purposes.

11/12/22: The NhRP learns the Fresno Chaffee Zoo has transferred Vusmusi back to the San Diego Safari Park and brought in another elephant, Mabu, to be used for breeding upon the recommendation of the Association of Zoos & Aquariums (AZA). We post a short statement on social media.

11/15/22: Judge Harrell denies the elephants’ habeas corpus petition on the grounds that the petition does not allege, as the Court believes it must, that the elephants are held in “state custody” (due to, for example, a prison sentence imposed by a court). We announce we will challenge this decision and will share our next legal steps in the coming weeks. We also announce our plans to take on Mabu as a client.