Full opinion text
ORDER XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE On this date, the Court considered the status of the above captioned case, along with its three pending motions. After careful consideration, the Court DENIES the Zoo’s Motion to Exclude Expert Opinion Testimony of Dr. Philip Ensley (Docket no. 59), GRANTS IN PART AND DENIES IN PART the Zoo’s Motion to Exclude Expert Opinion Testimony of Scott Blais (Docket no. 61), and GRANTS IN PART AND DENIES IN PART the Zoo’s Motion for Summary Judgment (Docket no. 53). BACKGROUND I. Introduction Lucky is an endangered Asian elephant that since 1962 has lived at the San Antonio Zoological Gardens and Aquarium, a facility operated by Defendant San Antonio Zoological Society (“the Zoo”). Plaintiffs in this lawsuit are a group of San Antonio residents who have frequently visited the Zoo, and particularly Lucky, over the years. They allege that they have formed emotional bonds with Lucky, but that seeing her allegedly poor living conditions at the Zoo has caused them to suffer aesthetic harms, requiring them to choose between not visiting Lucky at all or visiting her but again suffering these aesthetic harms. Plaintiffs allege that the Zoo has violated Section 9 of the Endangered Species Act (“ESA”) by unlawfully “taking” an endangered species, which is defined to include “harming” and “harassing” such a species. Plaintiffs allege four ways in which the Zoo is harming and harassing Lucky in violation of the ESA: (1) keeping her alone without any Asian elephant companions; (2) keeping her in a small enclosure which fails to meet minimum size standards set by the Association of Zoos and Aquariums (“AZA”); (3) depriving her of adequate shelter from the sun; and (4) forcing her to live on a hard, unnatural, species-inappropriate substrate. Docket no. 1 at 15, 18, 19, 20. Plaintiffs seek a declaration that the Zoo’s current treatment of Lucky violates Section 9 of the ESA and request that this Court grant injunctive relief by either ordering the transfer of Lucky to an elephant sanctuary in Tennessee or alternatively ordering the Zoo to remedy its treatment of Lucky. II. Procedural History Plaintiffs filed their original complaint on December 1, 2015. Docket no. 1. On December 23, the Zoo filed a motion to dismiss, which this Court denied on January 27, 2016. Docket nos. 8, 16. The case proceeded through discovery; fact discovery closed on November 1, 2016, and expert discovery closed on March 6, 2017. There are currently three pending motions, all of which were filed by the Zoo. By two of these motions, the Zoo seeks to exclude the opinions of the Plaintiffs’ experts—Dr. Philip Ensley, a veterinarian, and Scott Blais, an expert on captive elephant behaviors. Docket nos. 59 (Ensley Motion), 61 (Blais Motion). The third motion is the Zoo’s motion for summary judgment. Docket no. 53. All motions are fully briefed. The Zoo argues that it is entitled to summary judgment for numerous reasons: (1) the Animal Welfare Act (“AWA”), rather than the ESA, governs the treatment of animals in captivity, such as Lucky, and the AWA contains no citizen-suit provision; (2) the Zoo’s conduct does not, as a matter of law, constitute “harm” or “harassment” under the ESA because it is not “gravely threatening”; (3) the Zoo’s simple possession of Lucky does not violate the ESA; (4) Plaintiffs’ requested injunctive relief of transfer of Lucky to an elephant sanctuary is legally inappropriate because the ESA does not provide for a forfeiture remedy; and (5) Plaintiffs’ claims lack factual support. The Zoo’s first and second arguments fail as a matter of law. The Court need not reach the third argument and the fourth argument can be addressed at trial if necessary. The Zoo succeeds in part on the fifth argument. III. Lucky’s Health, Care, and Well-Being a. Age Lucky, at 57 years old, is considered geriatric by elephant standards, and is equivalent to a 90 year-old human. Docket no. 53-2 at 5. The median life expectancy for an Asian elephant living in North America is 46 years old, and Lucky is the tenth oldest living Asian elephant in North Ameiica out of 210. Id. b. Care Lucky’s care team has five members. Docket no. 58-2 at 8. Officially titled “animal care specialists,” these team members have progressed through the ranks of novice and handler, ultimately becoming trainers. Id. at 8-10. These specialists engage in daily enrichment activities with Lucky, bathe her, train her, and provide foot care. Id. at 9,11. Two members of this team are Randee Gonzalez, the Zoo’s elephant manager who has cared for Lucky since 1998, and Mike Huff, the Zoo’s senior elephant keeper who has cared for Lucky since 2006. Id. at 4; Docket no. 53-6 at 3. The Zoo has a separate staff of three full-time veterinarians. Docket no. 53-3 at 3-4. The Zoo’s veterinary director is Dr. Rob Coke, who has been in this position since August 2002. Docket no. 53-3 at 4. Doctors Debbie Meyers and Adriana Pastor began working at the Zoo in the second half of 2016. Id. at 3. The veterinary staff performs an annual physical on Lucky, at which they examine her teeth and oral cavity, examine her whole body by making her walk, and conduct radiographs on her feet. Docket no. 53-4 at 3-4. The staff also washes her trunk and takes fecal samples on an annual basis. Id. at 4-5. About four times per year, the veterinary staff takes blood samples. Id. If Lucky’s health at a particular time requires more frequent attention than the hour-long, annual physical, the staff performs further work as-needed. Id. at 3-5. c.Health Lucky' has several health problems. Some of these problems are not at issue in this lawsuit, and will not be discussed in this order. Lucky’s other issues and their causes, however, are the crux of this dispute. i. Lucky’s Mental Health (and its Physical Manifestations) The parties dispute whether Lucky engages in “stereotypic behavior,” which Dr. Ensley, Plaintiffs’ veterinary expert, explains is “repetitive meaningless activity the result of inadequate mental stimulation, depression, frustration, and dysfunction causing as well repetitive motion injury.” Docket no. 70-1 at 8. Dr. Ted Friend, an expert on animal science for the Zoo, defines stereotypic behavior similarly. Docket no. 70-4 at 5. The Zoo acknowledges Lucky’s behavior in this regard, but characterizes it as “normal, anticipatory behavior, such as swaying back and forth on her feet by the barn door before feeding time.” Docket no. 53. Dr. Friend reviewed videos that the Plaintiffs’ experts have watched; he believes that Lucky’s behavior is merely “anticipatory,” that it reflects Lucky’s “excite[ment] about an upcoming event,” and even if it is “stereotypic,” that stereotypic behavior is not necessarily an indicator of an animal’s well-being. Docket no. 53-10 at 4. He added that Plaintiffs have no support for a causal connection between any of the allegedly deficient Zoo conditions and Lucky’s allegedly stereotypic behavior. Id. He acknowledges thaj; Asian elephants can exhibit stereotypic behavior due to being confined in solitude, although he did not state that this was the case with Lucky. Docket no. 70-4 at 9-10. Dr. Ramiro Isaza, the Zoo’s veterinary expert, made a similar acknowledgment. Docket no, 70-8 at 8-9. Plaintiffs view Lucky’s behavior as ster-eotypic and believe it has harmful effects. According to Dr. Ensley, Lucky exhibits stereotypic behavior which manifests by a rocking or swaying back and forth behavior documented in her records. Stereotypic behavior is repetitive meaningless activity the result of inadequate mental stimulation, depression, frustration, and dysfunction causing as well repetitive motion injury. This repetitive, meaningless behavior is not documented in wild elephants. Lucky suffers from chronic mastitis that may have, been initiated by, and currently enhanced with stereotypic suckling of her mammary gland likely preventing resolution of this condition. Docket no. 70-1 at 8. Dr. Ensley’s report culls several instances of “Swaying/Rocking Stereotypic Behavior” from Lucky’s medical records. Id. at 53-54. These notes include several references to swaying at the gate and swaying in relation to feedings, but they also include numerous other instances of swaying. Id. For example, on March 8, 2011, pr. Ensley quotes the records as saying that Lucky “[pjarticipated in KC but spent most of the day along the back wall swaying.” Id. at 54. Contrary to Dr. Friend’s assertion that Plaintiffs lack evidence of a connection between Lucky’s living conditions and potentially stereotypic behaviors, Dr. Ensley believes that, based on a review of certain literature and his own knowledge and experience, “[t]he chaining and confining of elephants in a reduced space in captivity is a cause of stereotypic behavior.” Id. at 38. In short, Dr. Ensley concludes that “Lucky suffers mentally, which manifests in stereotypic swaying behavior.” Id. at 80. Dr. Ensley opines that Lucky’s stereo-typic behavior, sometimes in the form of a lateral “rocking” from side to side, puts abnormal pressure on Lucky’s nails. Id. at 20. He added at his deposition that Lucky has suffered from mammary gland mastitis for the past 30 to 40 years, which may have been caused by her stereotypic behavior. Docket no. 70-3 at 14. Blais, Plaintiffs’ expert on captive elephant behavior, also has opinions of Lucky’s behavior and mental health that are contrary to the Zoo’s view: As a direct result of her under stimulating environment, Lucky does not generally exhibit [the] nuanced behaviors [6f a typical elephant]. The primary aspect of her life that changes is the different people walking past whom Lucky appears to tune out or dismiss, as she frequently stands with her back to the public. Lucky’s enclosure is limited and sterile and has changed little since her arrival in 1962. Docket no. 70-7 at 9. Blais believes that Lucky “exhibits stereotypic behavioral patterns, like head-bobbing and swaying.” Id. at 18. He disagrees with the Zoo’s characterization of these behaviors as merely “anticipatory”' and believes that with appropriate changes to Lucky’s environment, they can be greatly reduced. Id. Blais also noted, though, that all elephants living in captivity exhibit “some degree of stereotypical behavior.” Docket no. 61-2 at 62. ii. Feet Lucky’s feet are a major point of contention between the parties. The Zoo characterizes Lucky’s foot problems as “minor.” Docket no. 53 at 7. According to Dr. Coke, the Zoo’s veterinary director, Lucky has “foot abscesses in the nail bed, she has had various degrees of cracking and—but people call it nail abscesses or water blisters or water abscesses.” Docket no. 53-3 at 18. Dr. Coke explains that Lucky is “very right-handed,” and so when she digs, kicks, or plays—primarily with her right foot—she suffers these lesions. Id. Dr. Coke stated that these abscesses resolve with routine foot care, such as daily cleanings and trimmings,of the nails and cuticles. Id. at 19. Dr. Coke and several others involved in Lucky’s care and medical treatment stated that these foot issues were relatively minor, tended to go away on their own with routine treatment, and never caused Lucky any serious health problems. Id. at 19; e.g., Docket no. 53-4 at 7-8. Dr. Isaza found some problems with Lucky’s feet by reviewing radiographs, but said that these problems were common in geriatric elephants. Docket no. 53-2 at 21. Still, Dr. Isaza acknowledged that there is a recognized difference of opinion among experts in the elephant community regarding the causes of foot problems (and arthritis) in captive elephants, adding that these medical issues may have numerous causes and controversies may exist as to which factors play the biggest roles. Docket no. 70-8 at 16-17. . Plaintiffs view Lucky’s foot issues as much more serious. Dr. Ensley, after examining radiographs of Lucky, stated at his deposition that, among other things, Lucky suffered from abscessed tracts (which are indicative of osteomyelitis and bone infection) and boney lysis, both of which are “life-threatening.” Docket no. 70-3 at 9-10. Later in his deposition, Dr. Ensley affirmed that, based, on a review of her medical and husbandry records, Lucky suffered from “life-threatening” foot issues, including “chronic foot abscesses with life-threatening bone infection and degenerative joint-diseases, limb impairment, and crippling lameness.” Id. at 25. iii. Arthritis Lucky has arthritis. According to Dr. Isaza, it is “clinically mild” and appropriate for her age: Lucky’s history of arthritis highlights that overall, her arthritis has beep clinically mild and manageable, throughout her geriatric years. In my .opinion Lucky has arthritis that is common for her geriatric age, however, I have' personally managed several younger elephants with much more severe arthritis. It is my opinion that her mild arthritis is far from “life-threatening” or “crippling” and that she is currently well managed with medical treatments. Docket no. 53-2 at 21. Dr. Isaza explains that Lucky’s arthritis was first treated symptomatically in October 2010 due to lameness in one of her legs. Id. at 20. That lameness resolved, Id. Five years later, Lucky was diagnosed with arthritis in her left hip, and since then, the clinical assessment of her pain due to arthritis has shifted through her legs, knees, and hips. See id. Dr. ■ Isaza said that Lucky’s arthritis has been appropriately treated, including with proper dosages of ibuprofen. Id. Dr. Isaza admitted that arthritis can have a single cause or multiple causes and that Lucky’s arthritis is likely caused by multiple factors, with the parties disagreeing over which factors are playing the most important roles in causing it. Docket no. 70-8 at 16-17. Dr. Ensley describes Lucky’s ¡arthritis in different terms, characterizing it as “life-threatening.” Docket no. 70-3 at 9; Docket no. 70-1 at 6. Ensley’s report states that Lucky’s “chronic” arthritis “has resulted in her inability to consistently lay down resulting in sleep deprivation and harassment by forcing her to sleep while standing up.” Docket no. 70-1 at 7. The report, pointing to Lucky’s medical records, recites numerous references to arthritis and accompanying treatment, beginning in 2006. Id, at 44-49. Dr. Ensley, instead of characterizing Lucky’s arthritis as a result of her old age, opines that “the cumulative effects of an inadequate enclosure with regard to space and unyielding substrate result[ ] in chronic arthritis.” Id. at 80; see also id. at 6-7 (“These conditions[, including arthritis,] are enhanced by an enclosure that may have some areas of soft sandy surface; however, taken on whole is made up of hard unnatural species-inappropriate substrate coupled with concrete or concrete with essentially unyielding barn flooring materials.”). At his deposition, he explained that there may be numerous causes of arthritis in elephants. Docket no. 70-3 at 6-7. He added that arthritis in elephants can be caused by stereotypic behavior. Id. at 6. Blais opines that the size of Lucky’s enclosure contributes to her arthritis. Docket no. 70-6 at 18. He explains that because her enclosure is too small, Lucky is unable to walk long distances, as is typical for elephants. Id. As a result, Lucky’s lifestyle is more sedentary than ideal, resulting in a shortened gait that caused her arthritis. Id. Blais acknowledges that it is unclear whether Lucky’s shortened gait caused her arthritis or vice versa. Id. at 18, 21. Regardless of whether Lucky’s shortened gait is a cause or an effect of her arthritis, Blais stated that her lack of a full range of motion will continue to contribute to the degeneration of her arthritis. Id. at 21. As Blais further explained, “[ejlephants naturally walk 30 to 50 miles a day over diverse and challenging substrates,” which “force[s] the animals to utilize their muscles in a way that does not occur in small spaces.” Id. at 22-23. Blais expressed concerns over the Zoo’s treatment of Lucky’s arthritis because the long-term use of ibuprofen has been linked to kidney failure. Docket no. 70-7 at 20. iv. Overall Welfare In general, Dr. Isaza sums up the Zoo’s view of Lucky’s welfare in his report: Lucky is in good physical condition for an Asian elephant of her age. Any abnormalities noted above were all minor and typical for a geriatric elephant. In my opinion, there was no evidence of any condition that is “life-threatening” or even negatively influencing her current welfare and quality of life. In my opinion, the most important clinical finding is the abnormal wearing of all of her molar teeth. However, although the teeth are worn, she is able to chew and digest enough food to maintain a 4/5 body condition score. Docket no. 53-2 at 8. Dr. Isaza recognizes that when it comes to elephant welfare, “Welfare is difficult to measure ... Welfare is a state of being, a subjective assessment and subjective to each person that makes that. So what I call a healthy person, another person may say, no, that’s not healthy. And similar with welfare.” Docket no. 70-8 at 10. Dr. Ensley’s report is to the contrary: Lucky is an Asian elephant, estimated to be 56 years of age, with multiple chronic medical problems, some of which are life threatening, as a direct result of her past and current standard of care and living conditions at the San Antonio Zoo. Lucky suffers from chronic life threatening foot abscesses, chronic arthritis, and degenerative joint disease with digital bone infection, bone lysis, and limb impairment all documented in her medical records which manifest in the form of chronic lameness, and a stiffened unnatural gait. Lucky’s chronic musculoskele-tal disease, rendering her essentially to be cripple [sic], relies upon non-steroidal anti-inflammatory medications which in effect provide pain masking relief. Docket no. 70-1 at 6-7. Blais, who thinks that Lucky is in “moderate” physical condition, is somewhere in the middle: There is no indication that I see with Lucky, based on what I viewed, that Lucky is near death.... The simple truth is that because of the lack of space that’s being offered every day as to her compromise [sic]. Does that mean she’s in grave risk of dying tomorrow? Not necessarily. But every day does influence and negatively influence her overall well-being. Docket no. 53-16 at 8. IV. Lucky’s Living Conditions and Their Relationship to Her Health Plaintiffs allege four main ways in which the Zoo’s treatment of Lucky and her living conditions violates the ESA. The following facts are organized based on Plaintiffs’ claims. a. Companionship The parties do not dispute Lucky’s history of companionship during her time at the Zoo: When [Lucky] arrived, she was first paired with Ginny, an unrelated Asian elephant that was five years older than Lucky. They lived together for 42 years, and apparently socially bonded together. During that time, they also lived with two other female Asian elephants and one African elephant named Alport. After Ginny died in 2004, Lucky was housed with Alport for about three years until she died in 2007. While looking for a companion elephant, Lucky was housed alone for about three years until the arrival of Boo, a 56 year-old female Asian elephant, in 2010. Boo was housed at the [Zoo] with Lucky for only three years because she died of cancer. Again, Lucky was housed alone for about three years until the arrival of Nicole and Karen in early 2016. She is currently living with these two elephants. Docket no. 53-2 at 6 (Dr. Isaza’s report summarizing Lucky’s social history) (citations omitted). In total, the 57 year-old Lucky has lived at the Zoo for 55 years. Id. She has lived with the companionship of another elephant there for approximately 50 years. Id. Nicole and Karen—Lucky’s current companions—were circus elephants and are owned by Feld Entertainment, a company affiliated with the Ringling Brothers Circus. Docket no. 70-2 at 7. Nicole and Karen live at the Zoo pursuant to a loan agreement between the Zoo and Feld. Id. Either party can terminate the agreement for either or both of Nicole and Karen at any time after giving 30 days’ notice. Id. at 8. In the event that the loan agreement is terminated, Nicole and/or Karen would return to Feld’s Center for Elephant Conservation in Florida. Id. Though the Zoo views this arrangement as indefinite and does not believe that it or Feld have any intention of terminating the agreement, it is possible that Feld could terminate the agreement, leaving Lucky alone in her enclosure. Docket no. 70-2 at 8. The parties dispute the effects of Lucky’s companionship (and lack thereof). The Zoo, in short, argues that “Plaintiffs put forth no competent evidence to prove that Lucky has been—or would be— ‘harmed’ or ‘harassed’ by being the only elephant in the Zoo’s elephant enclosure.” Docket no. 53 at 11. As affirmative evidence of this point, the Zoo cites Dr. Friend’s report, which states that “there is no indication that [Lucky’s] welfare is poor.” Docket no. 53-10 at 7. Beyond this broad assertion, Dr. Friend explains that Lucky’s allegedly stereotypic behavior is in fact not stereotypic, and is in fact normal, anticipatory behavior. Id. at 6-9. Dr. Friend also asserts that, even if this behavior is “stereotypic” or somehow indicative of Lucky being in a “trance-like” state, “applied ethologists have warned that the simple occurrence of stereotypic behavior should néver be used as the sole index of welfare.” Id. at 8. Dr. Friend acknowledged, however, that captive Asian elephants can exhibit stereotypic behavior as a result of being separated from other elephants. Docket no. 70-4 at 9-10. He remembers this being the case with a male Asian elephant living in a Houston zoo whose stereotypic “rocking” was “probably stimulated by his being separated,” Id. Similarly, Dr. Izasa stated that living alone could hypothetically be a factor in the development of abnormal behavior, although some elephants may actually prefer to live alone. Docket no. 70-8 at 8-9. Plaintiffs’ view of Lucky’s allegedly ster-eotypic behavior is discussed above—in short, they argue that Lucky’s behavior is stereotypic and is harmful. As this behavior relates to Lucky’s lack of companionship, Plaintiffs point to Blais’ report, and deposition. Blais, describing the natural familial structure of an Asian elephant (which consists of at least 25 members), stated that “Lucky’s social life has . been far from normal” due to her captivity at the Zoo. Docket no. 70-7 at 11; see also id. at 8 (“[Lucky’s] life in the zoo has not offered any semblance of normalcy for her species.”). Blais points out that the Zoo has not met AZA standards governing the social interactions of captive elephants, both by mixing Lucky (an Asian elephant) with Alport (an African elephant) and by failing to keep- three total elephants in Lucky’s enclosure at all times. Id. at 11, n. 5. According to Blais, “[a]s a direct result of her under stimulating environment, Lucky does not generally exhibit [the] nuanced behaviors” that are indicative of-a normal elephant’s extensive cognitive abilities, Id. at 9; see also Docket no, 70-6 at 11 (indicating that Lucky’s abnormal- gait and stereotypical behavior are caused in part by her limited social opportunities). Blais believes that “[w]ith a change of environment, within the complex[,] stimulating and nurturing life of an expansive sanctuary, these stereotypic behavior patterns are generally reduced by up to 80%, and in some [elephants] they are eliminated entirely.” Docket no. 70-7 at 18. Despite his acknowledgement that all elephants in captivity (with or without companionship) exhibit “some degree of stereotypical behavior,” Blais did not elaborate on the degree and severity of Lucky’s stereotypic behavior in relation to that of other captive elephants. Docket no. 61-2 at 62. b. Size of Enclosure As of October 27, 2016, Lucky’s enclosure was 16,883 square feet, or about .37 acres. Docket no. 53-11; Docket no. 70-7 at 9. The parties disagree as to whether this is adequate space for Lucky,- Dr. Isaza’s report states that “[t]here is a legitimate controversy about the amount of area needed for Asian elephants and how much an elephant needs to walk to maintain good health.” Docket no. 53-2 at 12. Clarifying what he meant by “legitimate controversy,” Dr. Isaza explained “[t]hat means among informed professionals, one person may have a—one opinion, the other person may have another opinion and they discuss them and therefore it’s both—both sides can be valid, so it’s a legitimate controversy.” Docket no, 70-8 at 14. Dr. Isaza believes that, based on his inspection of the enclosure and certain studies and standards, Lucky’s enclosure is adequately sized. Docket no. 53-2 at 10-12. Dr. Isaza believes there is no evidence to support Plaintiffs’ claim that Lucky’s enclosure is inadequately size and insinuates that Lucky living past the median age for a captive Asian elephant in the same enclosure means that the enclosure is adequately sized. Id. at 12. According to Plaintiffs’ own complaint, AZA regulations recommend that an enclosure for three elephants should be a minimum of 16,200 square feet. Docket no. 1 at 18. Plaintiffs nonetheless argue that the 16,833 square foot enclosure is too small. Blais states that the AZA’s minimum standards “are deemed grossly insufficient by elephant experts around the globe,” Docket no. 70-7 at 9. With respect to Lucky’s particular enclosure, Blais notes that part of the 16,883 square foot measurement includes a holding area, which the elephants cannot always access; because he estimates this area blocks off about 1,000 feet from the elephants, subtracting it from the. total 16,883 square feet of the enclosures drops it below AZA recommendations. Id. Blais attributes numerous health issues at least in part to Lucky’s small enclosure, including arthritis, gait limitations, foot infections, and various mental health issues. Docket no. 70-6 at 10-11. In his report, Blais emphasizes that an undersized enclosure limits an elephant’s social and mental well-being. Docket no. 70-7 at 15. In sum, Blais stated that “Lucky is ailing in captivity because of— substantially because of the limited space” of her enclosure. Docket no. 70-6 at 7. Blais’ opinions about the space required for elephants living in captivity go beyond Lucky. At his deposition, he stated that “I would be confident to say that the vast majority of captive elephants are ailing because of the confinement that is associated with zoological facilities.” Docket no. 61-2 at 21. Blais’ report asserts that “[z]oo elephants are ailing, and zoos lack the space to adequately expand to meet these elephants’ needs.” Docket no; 70-7 at 5-6. He stated that, the inadequate amount of space provided by many zoos and elephant sanctuaries is “a significant reason for their ailments.” Docket no. 61-2 at 22. Though he was non-committal on stating an exact, ideal amount of space for a captive elephant—in part because differences in terrain give different amounts of space a different character—Blais acknowledged that in some eases even as much as 100 acres would not suffice. Id. at 22-23. Blais agreed with the following statement taken from the website of his elephant sanctuary: “The end result of the multimillion dollar expansions [of zoos’ elephant enclosures] have little increased, benefit for the elephants, it matters little if the space is 1/2 an acre or 3 acres, it is still woefully inadequate.” Id. at 23. Blais is aware of no zoos in North America that “provide substantial enough space to adequately care' for—adequately provide the psychological, social, and physical stimulation necessary for health and well-being.” Docket no. 61-2 at 34. c. Shelter from the Sun The .ZoO states that throughout different times of the day, the many various structures in Lucky’s enclosure, will cast shade in different directions. The Zoo identifies a pool, “two large shade tarps” in the center of the enclosure, “two wooden umbrella-shaped structures” in the center’ of the enclosure, and “a large rock wall”. on the western side of the enclosure, all of which cast shade throughout the day and allow “Lucky [to walk] into shaded areas whenever she wants to.” Docket no. 53 at 12. These assertions are supported by descriptions of,Lucky’s enclosure and pool, a survey, a Google Earth image, and video of Lucky in her enclosure. See id. at 12-13 (citing Docket no. 53-1 at 18-19, Docket no. 53-8 at 7-9, Docket no. 53-11, Docket no. 53-13 at 3). The Zoo also points out that its veterinarians have never diagnosed Lucky with sunburns or. heat exhaustion. Docket no. 53-3 at 11-13. Dr. Isaza likewise found no evidence-of sunburn or heat exhaustion in Lucky’s medical records or after conducting a physical examination. Docket no. 58-2 at 22. Dr. Ensley’s report recites several instances of heat stress by quoting Lucky’s medical records. Docket no. 70-1 at 50-51 (“vet alert: began showing signs of heat stress at =1:00 p.m.; did not get into barn until 3:00 p.m.”). Plaintiffs also point out that, aside from exposing Lucky to too much heat, the lack of shade in the enclosure contributes to certain eye problems. Dr. Ensley stated at his deposition that Lucky is “constantly standing out in the sun, which enhances her, in my opinion, eye condition, her keratitis.” Docket no. 70-3 at 17; see also Docket no. 70-1 at 8 (“Lucky’s medical record reveals that she suffers from chronic corneal opacities, which are further exacerbated by exposure to bright sunlight.”). d. Substrate The substrate refers to the ground’s surface in Lucky’s enclosure. The parties offer differing accounts of the appropriateness of the substrate, and whether it detrimentally affects Lucky’s health. They also offer differing accounts of scientific literature that purports to analyze the San Antonio Zoo’s substrate. Plaintiffs’ soil expert, Philip King, conducted geotechnical engineering testing and evaluated the near surface soil conditions of Lucky’s enclosure. Docket no. 53-14. His report indicates that the outdoor substrate is composed of the following materials in different areas: grass (comparable to a grass lawn); five to six inches of sand (comparable to a volleyball court) over top of a harder base (comparable to an unpaved road or parking lot); eight inches of mulch (comparable to a playground) over top of crushed limestone; clay (ranging from medium to very dense); and concrete (in the elephants’ pool). Docket no. 53-14 at 2-3. At his deposition, King estimated that about 60% enclosure was sand-covered, 30%' clay, and 10% grass and mulch. Docket no. 53-15 at 3-4; Docket no. 61-8 at 2. According to King, with the exception of the concrete pool, the substrate was composed of “natural” materials. Id. at 3. Beyond the outdoor enclosure, the Zoo points out that the floor of Lucky’s barn has a concrete foundation that is covered by a rubber matting that is commonly used in zoos. Docket no. 53-10 at 12. The elephant sanctuary in Tennessee—to which Plaintiffs seek to relocate Lucky—also uses a rubber-coated concrete floor in its barn. Docket no. 53-16 at 9. From the Zoo’s perspective, Dr. Friend’s report states that “there is no evidence that the substrate at the San Antonio Zoo is unnaturally hard, nor is there any evidence that the substrate is causing any harm to Lucky. Further, I am aware of no scientific studies or literature that support Plaintiffs’ theory that ‘hard substrate’ causes stereotypic behavior in elephants—or any other animal for that matter. In any case, as explained above, Lucky does not exhibit spontaneous ster-eotypic behavior.” Docket no. 53-10 at 12. Dr. Isaza reaches similar conclusions, and notes that some scientific literature characterizes surfaces such as grass, sand, and rubber padding as “soft” surfaces. Docket no. 53-2 at 14. Dr. Isaza, like Dr. Friend, questions the effects of “hard” surfaces, including their contribution to Lucky’s arthritis, sleep deprivation, and inability to he down. Id. at 14-18. Somewhat to the contrary, though, the Zoo’s veterinary director, Dr. Coke, acknowledged that soil density is important to the health of an elephant’s foot: “The harder the substrate has been—the hardness of the substrate, harder being more negatively impactful to the health of the foot of the elephant.” Docket no. 70-9 at 5. For Plaintiffs, Dr. Ensley does not challenge the underlying results of King’s surface analysis, but characterizes some of the surfaces as hard. For example, Dr. Ensley states that the sand and grass surfaces in the enclosure are compacted. Docket no. 70-1 at 59. He explains that “[t]he lack of space causes the natural substrates to become hard packed because the elephants are walking over the same ground constantly.” Id. at 81. Plaintiffs also point out that the substrate has been altered since this lawsuit began, and the present substrate that has been analyzed by King and others is not the same as the one that Lucky lived on for many years, such that the Zoo does not account for the substrate’s past effects on Lucky. See Docket no. 70 at 27-28. The Zoo disputes this assertion. Docket no. 71 at 24-25. Dr. Ensley cites scientific literature that supports a causal link between elephant health problems and substrate hardness. See, e.g., Docket no. 70-1 at 16-17 (quoting a veterinary text, The Elephant’s Foot, to support the “general consensus that ‘lack of exercise, long hours, standing on hard substrates, and contamination resulting from standing in their own excreta are major contributors to elephant foot problems.’”). One of these sources is a study by Michele Miller, Jennifer N. Hogan, and Cheryl L. Meehan entitled Housing and Demographic Risk Factors Impacting Foot and Musculoskeletal Health in African Elephants [Loxodonta africana] and Asian Elephants [Elephas maximas] in North American Zoos. Docket no. 59-9 [hereinafter Miller Study]. It characterizes “grass, sand, and rubber padding” as “soft” substrates. Id. at 13. This study found that “one of the main housing risk factors for increased foot and musculoskeletal abnormalities was time spent on hard surfaces.” Id. In reaching this conclusion, the Miller Study examined numerous elephant enclosures and discounted areas with mixed substrate types: “While many environments had multiple substrate types, our modeling process only included environments that had 100% coverage of hard or soft substrate.” Id. at 9-11; see also id. at 13 (“Since our objective was to measure the amount of time the elephants spent in contact with different substrate types, we therefore focused the analysis on substrate categories where we knew the environment consisted of 100% coverage of hard substrate or 100% coverage of soft substrate. This is a conservative approach, as time spent in environments with substrate coverage that was large, but less than 100%, was not captured in this analysis.”). The Miller Study examined the San Antonio Zoo and Lucky’s enclosure at the time the study was conducted in 2012. Dr. Cheryl L. Meehan, one of the study’s coauthors, provided a declaration explaining the data collected from the San Antonio Zoo. Docket no. 71-5. Dr. Meehan said that when the Zoo was examined for the study, the majority of the substrate was sand or rubber padding. Id. at 2. Dr. Meehan stated that because “[n]one of the enclosures at the San Antonio Zoo met the criterion for 100% hard substrate,” Lucky spent no time on “hard flooring,” which the study defined as “areas with 100% hard flooring.” Id. at 2. Therefore, based on the study’s analyses, “the elephants of the San Antonio Zoo would not be expected to have increased risk of foot abnormalities or musculoskeletal disorders as a result of enclosure substrate.” Id. The parties disagree over the application of the Miller Study. Because the majority of Lucky’s enclosure is “soft” substances— sand, grass, an4 rubber-coated concrete— the Zoo argues that the Miller Study forecloses the Plaintiffs’ argument that the substrate is harming Lucky. See Docket no. 52 at 18.- Additionally,.the Zoo cites Dr. Meehan’s specific insight into the San Antonio Zoo as. establishing that the Miller Study supports their position. Docket no. 71..at 23-25. Plaintiffs, on the other hand, argue that simply categorizing any sand-covered surface as “soft” does not account for the . compaction of sand-covered surfaces observed by Dr. Ensley. See Docket no. 7Q at 27. By, all accounts, though, the Miller Study supports a causal link between hard substrates and health problems. e. Inspection Results The Zoo is subject to inspections by an individual from Animal Plant Health Inspection Services (“APHIS”), a division of the United States Department of Agriculture (“USDA”). As summary judgment evidence, the Zoo produced its past three years’ worth of APHIS inspection reports. Docket no. 53-7. Inspections from November 2016', September 2016, June 2016, July 2015, March 2015, October 2014, July 2014, and April 2014 revealed no non-compliant items with resppct to Lucky or any other Asian elephants. Id.; see also Docket no. 53-8. at 3 (“[-T]he USDA has consistently inspected the zoo for years ... and there’s never been a violation of the AWA found in relation to elephants at the San Antonio Zoo.”). At his deposition, Blais was asked “[d]o you know or have you heard that there have been focused inspections by USDA at the San Antonio Zoo in connection with the elephant enclosure, and USDA .has not found violations when it’s done those inspections?” Docket no. 61-2 at 64. He replied “I’m not aware that they’ve had focused inspections. It doesn’t surprise me that there’s no violations because the standards are grossly minimal.” Id. Blais also acknowledged that he had not seen the Zoo doing anything that does not meet the minimal standards for normal animal husbandry practices. Id. ANALYSIS The. procedural posture of this case, its several pending motions, and the complexity of its legal theories make the Court’s task more difficult than simply determining whether there is a genuine issue of material fact. First, the Court will consider the Zoo’s two pending Daubert motions in order to define the scope of permissible summary judgment evidence; because a court on summary" judgment should only consider admissible evidence, if Plaintiffs’ experts are disqualified by the Zoo’s Dau-bert motions, it would be inappropriate to consider those experts at this stage. See Fed. R. Civ. P. 56(c). Next, the Court will define Plaintiffs’ claims and burden of proof, as this will set the proper context for determining whether the Zoo is entitled to summary judgment. After setting forth the nature of Plaintiffs’ claims and burden of proof, along with the scope of permissible summary judgment evidence, the Court will determine whether there are any genuine issues of material fact. I. The Zoo’s Daubert Motions The Zoo seeks to exclude testimony from Dr. Ensley and Blais. Docket no, 59 (Ensley Motion); Docket no. 61 (Blais Motion). The experts’ substantive opinions are set forth in the background section above; this section will add factual details from each expert relating to the bases for their opinions. The court will first set forth the legal standards applicable to both motions, then address each motion in turn. a. Standard of Review Rule 702 of the Federal Rules of Evidence provides for the.admissibility of expert testimony if it will “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed, R. Evid. 702. Additionally, the. testimony must be “based on sufficient facts or data” and be “the product of reliable principles and methods” that the expert has “reliably applied” to the facts of the case at hand. Id. As a preliminary matter, the Court must determine whether the proffered witness qualifies as an expert. “Before a district court may allow a witness to testify as an expert,, it must be assured that the proffered witnesses qualified to testify by virtue of his ‘knowledge, skill, experience, training, or education.’” United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Fed. R. Evid. 702). Generally, if there is some reasonable indication of qualifications, the court may admit the expert’s testimony, and then the expert’s qualifications become an issue for the trier of fact, rather than for the court. Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999). If the expert is qualified, then the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) provides the analytical framework for determining the admissibility of expert testimony. Daubert requires the district courts to act as “gatekeepers” to ensure expert testimony meets Rule 702’s standards. Id. at 589, 113 S.Ct. 2786. This role requires “that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 597, 113 S.Ct. 2786; Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) (“In short, expert testimony is admissible only if it is both relevant and reliable.”). The reliability inquiry entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can be properly applied to the facts in issue. Id. at 592-93, 113 S.Ct. 2786. In Daubert, the Supreme Court enumerated five nonexclusive factors to consider when assessing whether the methodology upon which an expert.rests his opinion is reliable: (1) whether, the expert’s theory can be or has been tested, (2) whether the theory has been subject to peer review and publication, (3) the known or potential rate of error of.a technique or theory when applied, (4) the existence and maintenance of standards and controls, and (5) the degree to which the technique or theory has been generally accepted in the scientific community. Id, at 593-94, 113 S.Ct. 2786; Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th Cir, 2004). The test for determining reliability is flexible and can adapt to’ the particular circumstances underlying the testimony at issue. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 138, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); see also Black v. Food Lion, Inc., 171 F.3d 308, 311-12 (“In the vast majority of cases, the district court first should decide whether the factors mentioned in Daubert are appropriate.”). The point of this inquiry “is ’to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same- level " of intellectual rigor that characterizes the practice of an' expert in the relevant field.” Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. , In applying the Daubert test, the proponent of expert testimony has the burden to prove by a preponderance of the evidence that evidence is reliable (not that it is correct). Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). Expert testimony must be reliable “at each and every step” because “[t]he reliability inquiry applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, the link between the facts and the conclusion, et alia.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007) (quoting Heller v. Shaw Indus, Inc., 167 F.3d 146, 155 (3d Cir. 1999)). Meanwhile, “[t]he expert’s assurances that he has utilized generally accepted scientific methodology [are] insufficient.” Moore, 151 F.3d at 276. Critically, however, the district court must “approach its task with proper deference to the jury’s role as the arbiter of disputes between conflicting opinions.” United States v. 14.38 Acres of Land, More or Less Sit. in Leflore Cty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (internal quotations omitted). Somewhat independently, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. b. Discussion i. The Zoo’s motion to exclude testimony from Dr. Philip Ensley is denied. Dr. Ensley is a retired practicing zoo veterinarian of over 30 years who worked with Asian elephants (among many other species) while employed by the Zoological Society of San Diego. Docket no. 70-1 at 4. In reaching his opinions in this case, he reviewed video footage and photographs of Lucky, Lucky’s medical and husbandry records, numerous depositions of Zoo staff and others, and King’s expert report on Lucky’s substrate, among other things. Id. at 9. Dr. Ensley spent about a day and a half observing Lucky at the Zoo, but he did not conduct his own, full-fledged veterinary examination of Lucky. Docket no. 59-3 at 36. His 82-page expert report spends about 30 pages reviewing scientific and veterinary literature and texts. Id. at 11-42. The Zoo does not challenge his qualifications. 1. Dr. Ensley’s opinions are relevant, even though they do not specifically conclude whether the Zoo’s animal husbandry practices are AWA compliant. The Zoo argues that Dr. Ensley’s opinions should be excluded because “the legal issue in this case is whether the Zoo fails to meet the standards for animal husbandry required by the AWA” and Dr. .Ensley’s opinions “fail[] to address AWA compliance issues at all.” Docket no. 59 (Ensley Motion); see also Docket no. 61 at 6 n. 11 (making a similar argument to exclude Blais’ opinions). This argument fails for two reasons. First, whether the Zoo’s animal husbandry practices comply with the AWA is certainly one of the legal issues in this case, but it is not the sole legal issue involved because it relates only to whether the Zoo committed a “take” by “harassing” Lucky. As discussed below, whether the Zoo committed a take under the ESA by “harming” Lucky is a separate legal issue requiring a separate analysis of the facts, and is not at all dependent on AWA compliance. Thus, even assuming that Dr. Ens-ley’s opinions are irrelevant to whether the Zoo is AWA compliant, they are still relevant to whether the Zoo harms Lucky. Second, Dr. Ensley’s opinions are relevant to AWA compliance because they could assist the finder of fact in determining whether the Zoo’s animal husbandry practices are AWA compliant even if his opinions do not expressly make such findings. The Zoo is correct that Dr. Ensley does not explicitly address AWA compliance, as Dr. Ensley does not purport to be expert in the AWA’s standards. Nevertheless, when Dr. Ensley says, for example, that Lucky’s wounds such as “pressure sores [and] decubital ulcers are a direct result of laying down on unyielding surfaces,” this opinion (assuming it is pther-wise admissible) is relevant to certain AWA regulations regarding facilities. Docket no. 59-2 at 43 (Ensley Report); see also 9 C.F.R. § 3.125 (“The facility must be constructed of such material and of such strength as appropriate for the animals involved.”). Though Dr. Ensley does not express ultimate legal conclusions on AWA compliance, his opinions would help a fact finder make that determination. In this respect, Dr. Ensley’s opinions (and Blais’ opinions) are relevant. 2. Dr. Ensley’s opinions are sufficiently reliable to be considered by the finder of fact. The Zoo argues that Dr. Ensley’s opinions are unreliable and should be excluded under Daubert for four reasons: (1) he allegedly misstates the facts; (2) his “review of the literature” allegedly provides no basis for his opinions; (3) his reliance on the Miller Study, Docket no. 59-9, allegedly undercuts his causation opinions; and (4) there is allegedly too great an analytical gap between the facts and his opinions. On the first point, the Zoo repeatedly attacks the substance of Dr. Ensley’s opinions regarding the severity of Lucky’s arthritis and foot problems. Contrary to Dr. Ensley’s opinions, the Zoo asserts that Lucky is not a “cripple” and her conditions are not “life-threatening.” The Zoo argues that Dr. Ensley is alone among Lucky’s vets and handlers in reaching a conclusion this extreme. Similarly, the Zoo also points to instances where Dr. Ensley’s opinions allegedly miseharacterize the surfaces in Lucky’s enclosure. But as the Zoo’s own veterinary expert, Dr. Isaza, stated at his deposition, ‘Welfare [of an elephant] is difficult to. measure ... Welfare is a state of being, a subjective assessment and subjective to each person that makes that. So what I edil a healthy person, another person may say, no, that’s not healthy. And similar with welfare.” Docket no. 70-8 at 10 (emphasis added). Though the Zoo argues that “Plaintiffs’ response fails to point to any analysis (in the absence of a full veterinary exam) that Dr. Ensley conducted to provide a basis for his inflammatory opinion[s],” Dr, Ens-ley’s report itself summarizes that analysis—Dr, Ensley provides a detailed recitation of his observations and how they lead to his conclusions. See, e.g., Docket no; 70-1 at 59. On each of the points that the Zoo says Dr. Ensley “mischaracterizes,” Dr. Ensley has examined much of the same evidence available to the Zoo and has simply reached a contrary conclusion on the basis =of that evidence. The result is not an unreliable opinion but merely a different one, which, as Plaintiffs put it, “highlights the existence of questions of fact.”' Docket no. 64 at 11. In other words, what the Zoo characterizes as “false premises” of Dr. Ensley’s opinions are in'actuality contested questions of fact. The Zoo’s objections to Dr. Ensley’s review of scientific literature and reliance on the Miller Study to support his causation-theory are likewise without merit for purposes of the Daubert inquiry. The literature reviewed by Dr. Erisley (and cited in his report) provides a sound basis for his opinions. As to the Miller Study, the parties’ disagreement over its application to the present case again exemplifies the underlying fact issues over whether Lucky’s substrate is species appropriate. The Zoo is correct that the Miller Study categorizes “sand, grass and rubber padding” as “soft” and “concrete and stone aggregate” as “hard.” Docket no, 59-9 at 9. But Lucky’s substrate includes a mixture of materials (including clay) that were not mentioned by the Miller Study. Further, as Dr. Mee-han’s declaration seems to suggest, the data collected by the Miller Study from the San Antonio Zoo reveals only that Lucky spent no time on areas where the entire surface is composed of 100% hard materials. Docket no. 71-5 at 2. It is difficult to extrapolate this study to the present case to say that it renders Dr. Ensley’s analysis unreliable when Lucky’s substrate is indisputably composed of a combination of various hard and soft materials. See Miller Study, Docket no. 59-9 at 5 (“We wanted to calculate the time that elephants spent in contact with each substrate type [as between hard or soft] so to confirm this we determined which environments were comprised of 100% hard and 100% soft substrate and calculated the percent time each elephant spent in environments that met this criteria from detailed housing time budgets.”). As a result, these criticisms of the application of certain scientific literature to Dr. Ensley’s opinions go to the weight, not admissibility, of Dr. Ens-ley’s testimony, and are best left for full development on cross examination. Finally, there is not an “analytical gap” between the facts and Dr. Ensley’s opinions that renders them unreliable. Though Dr: Ensley did not perform his own veterinary exam, he bases his opinions (including his causation opinion) on his day-and-a-half long observation of Lucky and her living conditions, along with the numerous examples of scientific literature discussed above. Dr. Ensley’s citations reveal a relative scientific consensus about the potential causes of many of Lucky’s medical issues. See supra footnote 7. And though Dr. Ensley does not attribute much significance to Lucky’s age in causing many of her health problems, he at least acknowledges that it can play a role, which is consistent with the methodology and results of the Miller Study and the Zoo’s own veterinary expert. See Docket no.. 59-3 (Dr. Ensley stating at his deposition that “[a]ge can be a factor if an animal is spending its life on improper—what we consider today to be improper substrate or hardened or unyielding substrate ... There are many factors that contribute to arthritis.”); Docket no. 59-9 at 14 (Miller Study indicating that age along with several other factors contribute to fobt problems and degenerative processes of the musculoskeletal system in elephants); Docket no. 70-8 at 16-17 (Dr. Isaza agreeing at his deposition that there is a recognized difference of opinion among elephant experts and veterinarians regarding, the causes of foot problems and arthritis in captive elephants). 3. The prejudicial effect of Dr. Ensley’s opinions does not substantially outweigh their probative value under Fed. R. Evid. 403. Last, the Zoo presents two arguments for excluding Dr. Ensley’s opinions under Federal Rule of Evidence 403, which permits a court to exclude evidence where “its probative value is substantially outweighed by a danger of ,.. unfair prejudice,” among other things. See Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987) (“[An expert opinion’s] lack of reliable support may render it more prejudicial than probative, making it .inadmissible under Fed. .R. Evid. 403.”). Under Rule 403, the Zoo first argues that Dr. Ensley’s opinions are irrelevant because they do not speak to AWA compliance, but for the reasons discussed above, Dr. Ensley’s opinions are relevant. Second, the Zoo argues that the Court should exclude Dr. Ensley’s opinions under Rule 403 because “Ensley presents his opinions as if they were facts, but they are contrary to the undisputed facts.” Docket no. 59 at 14. Specifically, the Zoo objects to Dr. Ens-ley’s statements that Lucky is a “cripple” and suffers from life-threatening health issues as “inflammatory rhetoric, unsupported by objective facts, rendering] his opinion unfairly prejudicial because it confuses the issues, misleads the fact finder, and offers no probative value.” Id. (internal quotations omitted). This argument merely restates the Zoo’s previous argument that Dr. Ensley’s opinions are unreliable because they misstate facts, and fails for the same reason—namely, that Dr. Ensley’s purported “false premises” are simply different conclusions based on different experts’ analyses of the same underlying evidence. For the foregoing reasons, the Zoo’s motion to exclude the opinions of Dr. Ens-ley is denied. ii. The Zoo’s motion to exclude testimony from Scott Blais is granted in part and denied in part. Blais has “worked with elephants for more than 25 years;” including in his recent role as founder and CEO of the nonprofit Global Sanctuary for Elephants. Docket no. 70-7 at 2. In short, he has worked with captive elephants in a variety of capacities, including training them and conducting behavioral evaluations. Id. at 3. His work with captive elephants has been featured in a variety of news outlets and publications (including scientific, ethical, and historical pieces, among others). Id. at 5. In forming his opinions on Lucky, Blais has been monitoring Lucky’s behavioral and physical health since 2010. Id. at 7. He has reviewed photos, medical documents, depositions from the Zoo’s staff, a plan of Lucky’s enclosure (including dimensions), “more than 200 hours of video,” and “direct inquiries with individuals who have observed Lucky’s behavior.” Id. at 7-8. Outside of challenges to certain aspects of his opinions that the Zoo characterizes as veterinary opinions, there are no challenges to his general qualifications. The Zoo makes several arguments to exclude Blais’ opinions. First, it argues that Blais’ opinions are not relevant because they apply to all zoo elephants and have no probative value relating to Lucky and because Blais does not offer ultimate conclusions as to the Zoo’s compliance with AWA standards. Second, the Zoo argues that Blais’ opinions lack a sufficiently reliable methodology. Finally, the Zoo argues that Blais is not qualified to give expert veterinary testimony because he is not a veterinarian. 1. Blais’ opinions are relevant even though they discuss the size of enclosures at other zoos. The Zoo characterizes Plaintiffs’ main claim with respect to the size of Lucky’s enclosure as an objection to the Zoo’s non-compliance with the AZA recommendation of a 16,200 square foot enclosure. The Zoo then attacks Blais’ broad conclusions regarding the inadequacy of zoo elephant enclosures that exceed this recommendation—“Mr. Blais’ opinion is that it matters not whether a zoo meets the AZA’s size recommendation, because all zoo elephants will continue to suffer the same ailments unless they are given access to ‘more than 100 acres.’ ” Docket no. 61 at 5-6 (quoting Blais’ deposition); see also Docket no. 69 at 3 (“Mr. Blais irrelevantly opines that even if the Zoo were to exceed the AZA size recommendation of 16,200 square feet hundreds of time over, Lucky would still experience the same harm from lack of adequate space.” (emphasis original, footnote omitted)). This view of Plaintiffs’ complaint is far too narrow. Plaintiffs’ complaint invokes AZA size mínimums, which Blais admits would be inadequate even if the Zoo minimally complied with them. But Plaintiffs do not seek simply to enforce AZA requirements. Instead, Plaintiffs’ legal theory is that the small size of Lucky’s enclosure “harms” or “harasses” her, and therefore, that the Zoo has violated the ESA by committing a “take.” This theory does not necessarily depend on AZA compliance or non-compliance, though Plaintiffs do indeed reference AZA requirements as a relevant data point in assessing the size of Lucky’s enclosure. Thus, while Blais’ opinions may be broad or even ideologically driven, the Zoo misses the mark in saying that they are irrelevant to whether Lucky’s enclosure is adequately sized. Instead, an assessment of the size of Lucky’s enclosure, how it affects her, and whether it is appropriate is precisely the determination that must be made by the finder of fact, and Blais’ opinions speak precisely to these questions. Further, to the extent that the Zoo objects to Blais’ testimony as irrelevant because it apply to other zoos’ elephant enclosures and not to Lucky’s in particular, the Zoo mischaracterizes Blais’ opinions. Though he sets forth some broad opinions about the size of elephant enclosures in general, Blais also makes specific conclusions as to Lucky’s enclosure. For example, the Zoo argues that Blais “opines that Lucky-just like all other elephants in zoos—is being ‘detrimentally impacted’ by lack of space.” Docket no. 61 at 5 (emphasis original) (quoting Docket no. 70-7 at 10). Yet this portion of Blais’ report is specifically stating that Lucky is being “detrimentally impacted” by being unable to walk with full strides for long distances due to the size of her enclosure. Docket no. 70-7 at 10. Additionally, much of Blais’ broad and allegedly irrelevant testimony was procured by the Zoo at its deposition of Blais. For example, at Blais’ deposition, the Zoo read a sentence from the website of Blais’ elephant sanctuary and asked him whether he agreed with it, even though Blais’ expert report does not contain that sentence. Docket no, 61-2 at 23. Despite being the party who asked the question, the Zoo now argues that the answer should be excluded as irrelevant. For these reasons, Blais’ opinions are relevant. 2. Blais’ opinions are excluded in part because they are unreliable. The