A Horse Is a Horse of Course, Unless Given the Right to Sue— Which Could Be Good for the Environment

August 22, 2018

The legal “industry” is much like any other. It needs to innovate to stay current. For lawyers it often means finding new—at times called novel—theoretical approaches to accomplish a desired outcome. Over the past several years I have written about law cases premised on rarely used or untested legal theories. These efforts have included citizen cases against state and federal governments to establish the constitutional right to a habitable environment, i.e., Juliana v US, and negligence suits by state and local governments against oil companies.

Within recent months I’ve been bumping into an increased number of animal rights cases. Last week a horse name Justice was given 15 minutes of fame in the Washington Post (WaPo). The article triggered an “ah/hah” moment; today’s article is the result.

The article focuses on the legal rights of nonhuman beings—primarily animals and Nature[i]. There is an active link between the protection of animals—human and nonhuman–and safeguarding their habitats as well as our own. Expanding the legal rights of animals and allowing suits by attorneys and organizations on behalf of Nature will help to make certain that the inanimate objects, which are the very core of America’s beauty, have spokesmen before they are destroyed.

Before dismissing the discussion as a tree-hugger’s induced fantasy, note that there are already legal rights given to nonhumans. Two primary examples are corporations and ships—both are treated in law as “persons” for adjudicatory purposes. There are others. To an extent animals and natural resources are already recognized as “persons” with standing to sue in a court of law. Still relatively new ideas, the rights of animals and Nature are emerging and expanding legal concepts.

Moreover, there are already earnest on-going dialogues concerning the place of artificial intelligent robots in society and the law. There is a strong possibility that in the not-too-distant future, artificial intelligences (AIs), perhaps in the form of robots, will become capable of sentient thought. Whatever form it takes, this dawning of machine consciousness is likely to have a substantial impact on human society.

Readers should note that the following paragraphs are just me thinking out loud—or perhaps they are a cry for “Help,” as I would welcome any thoughts others may have on the subject.

As is my usual conclusion when waxing on about novel lawsuits, innovative approaches—successful or otherwise—are rarely an end in themselves. They are but a tool to leverage the government into to devising and deploying a stable national integrated energy and environment policy.

With those caveats in mind–

Justice is an 8-year old American quarter horse who had been severely neglected before being rescued by Sound Equine Options (SEO). Due to the wanton desertion of his owner, the horse once known as Shadow was 300 pounds underweight, lice-ridden and suffered frostbite damage to his genitals so severe as to require partial amputation of his penis.

Sound Equine Options is a licensed rescue program in Oregon that depends upon volunteers, contributions, adoption fees and revenues from events to support its work. In Justice, it now has a horse who requires long-term care for his various health problems. Kim Mosiman, the executive director of Sound Equine Options, is searching for someone to adopt Justice but knows once a potential adopter finds out they’re going to have to be financially responsible for him, he’s never going anywhere.

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Although Justice’s owner has pled guilty to criminal neglect, she has not been ordered to pay for his continued care. State cruelty laws are only half the answer. Civil suits for damages are accorded human victims of accidents and assault. For Justice to be truly served, he should be given standing to raise funds needed to cover his medical and everyday expenses.

The logical provider of those funds is the person who has harmed him. Based on various prior lawsuits, however, Justice is likely to have a difficult time suing for the damages done to him in civil court. Neither is it clear that anyone else can act on his behalf as a guardian or what is known in law as a next friend. 

For Justice’s sake, the Animal Legal Defense Fund (ALDF) filed suit in an Oregon county court seeking at least $100,000 for veterinary care, as well as damages “for pain and suffering,” to fund a trust that would stay with him no matter who is his caretaker. 

There are laws against cruelty and neglect of sentient nonhuman beings; Oregon’s are among the strictest of any state. Oregon is not alone in its efforts to make animal cruelty a criminal offense. In 2016 Connecticut enacted a law allowing judges to appoint lawyers and law students as advocates for dogs and cats in cases of brutality, abuse, and neglect. According to ALDF, there are 167 law schools in the U.S. and Canada, and 11 in Australia and New Zealand that have offered a course in animal law. 

In 2015 Virginia announced the establishment of the nation’s first Attorney General’s “Animal Law” unit. The unit consists of a small group of staff attorneys who will spend a portion of their time serving as a resource for local law enforcement and state agencies on issues involving animal welfare and animal fighting or abuse.

Motivating establishment of the new unit is the link between organized animal fighting, e.g., dogs and roosters, and other serious crimes such as drug distribution and the illegal possession of firearms. The Commonwealth Attorney for Caroline County stated that “over the past twenty years, there has been a growing realization that cruelty toward animals is a criminal act that cannot be tolerated in a civilized society. All of the evidence shows a straightforward link between animal cruelty and violence against women and children.”

Animals are playing an expanding role in society. Sixty-eight percent of US households or about 85 million families are pet owners according to the National Pet Owners Survey—an increase of 56 percent over 1998. Justice is one of the 7.6 million horses the survey lists as being owned in the US.

Animals are part of half the divorce settlements in the US. It is estimated that 10 percent of marital splits end up getting “rough and rocky” over dogs and cats. In today’s world animals are often treated like any other member of its nuclear family.

Justice’s case is one of a growing number that hopes to persuade lawmakers and courts to expand the traditional legal view of animals — beyond property — to reflect their role in society. Karen Bruillard summarizes the argument being made by the ALDF attorneys this way–

While some state cruelty laws were written to protect animal owners or public morals, Oregon’s anti-cruelty law makes plain it is intended to protect animals, which it calls “sentient beings.” What’s more, state courts have ruled that animals can be considered individual victims. And because victims have the right to sue their abusers, the lawsuit says, Justice should be able to sue his former owner.

The growing number of animal rights cases are not just about criminalizing human cruelty and granting an animal “victim” status allowing it to seek damages in a civil court. The Nonhuman Rights Project (NhRP), for example, attempts to free mistreated animals from their captors/owners through writs of habeas corpus which are used to challenge the reasons or conditions of a person’s confinement. NhRP argues that although animals are not people, they are not “things” and should be considered in law as nonhuman persons.

People for the Ethical Treatment of Animals (PETA) have recently filed a copyright lawsuit on behalf of Naruto, a crested macaque also known as the Sulawesi (Celebes) black ape. The case involved the ownership rights to the lead image of this column.

The picture in question is a “selfie” and was taken by the crested macaques who goes by the name of Naruto. The photo was published in newspapers in July 2011 and later hosted by Wikimedia Commons and the blog Techdirt over the objections of the British nature photographer David Slater.

Slater had left his camera unattended while in the Indonesian jungle. Naruto’s natural curiosity caused him to fiddle with Slater’s equipment resulting in the first known photo of a black ape by a black ape. He argued that he is the valid copyright holder based on his having engineered the situation by traveling to Indonesia, befriending a group of wild macaques, and setting up his camera equipment in such a way that a “selfie” picture might come about.

The Wikimedia Foundation considered the photo to be in the public domain. It based its refusal to remove the picture from the Wikimedia Commons image library on the understanding that the creator, in this case, was not considered a legal person. Had Naruto been considered a human for adjudicatory purposes he could have been the holder of record. PETA is acting on Naruto’s behalf claiming “next friend” status.

The District Court for the Northern District of California ruled that Naruto lacked standing under the Copyright Act. It was also the trial court’s opinion that PETA did not meet established “next friend” requirements because it could not prove that it had a significant relationship with “the monkey.” The decision was appealed to Ninth Circuit of Appeals and heard by a three-judge panel, which issued its ruling on April 23, 2018.

The panel agreed with the lower court that Naruto lacked standing under the Copyright Act and that PETA failed to qualify as a “next friend.” However, the appellate court panel held that Naruto met the standing requirements of Article III of the US Constitution.

There are four first-order questions a federal court must answer in the affirmative before a case is heard, beginning with:

  1. Has the plaintiff suffered an actual injury or harm?
  2. Is the harm suffered traceable to the actions of the defendant?
  3. Is the harm suffered capable of redress by the court?

The fourth question flows directly from Article III, Section 2 of the U.S. Constitution: is there a justiciable controversy? 

Although the appellate judges granted Naruto standing, it was clear they were not happy about their decision. Standing was allowed solely based on what the judges considered the binding precedence of an earlier Ninth Circuit Court case–Cetacean Community v Bush. The Cetacean Community is the name chosen by the Cetaceans’ self-appointed attorney for all of the world’s whales, porpoises, and dolphins.

Without going into much detail, the Cetacean plaintiffs sought to compel President Bush and Secretary of Defense Rumsfeld to undertake a regulatory review of the use of an underwater sonar system during threat and wartime conditions. The regulations, governing routine peacetime training and testing were the subject of a separate lawsuit.

The harm claimed by the Cetacean’s lawyers was due to the sonar’s soundings. Sonar sends out loud pinging signals that are bounced back after hitting a solid object—much the way blind bats avoid flying into things. According to the court record:

[V]ery strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity.  In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration, and other functions. This trauma may include minor to severe hemorrhage.

The role played by precedents in the Naruto case is of note as it relates to the current fight over Judge Kavanaugh’s nomination to the Supreme Court as well as to other of Trump’s judicial appointments. American justice is a continuum mainly because it adheres to the doctrine of stare decisis—to stand by things decided.
The doctrine is multi-directional. Horizontal stare decisis refers to a court’s adherence to the precedents it has itself established, e.g., Cetacean; it is vertical when it applies those that are set by a higher court, e.g., SCOTUS.

The doctrine is neither flawless nor immutable. There are times when a court will decide the precedential basis of prior decisions is unworkable or so unjust as to warrant being abruptly overturned:

…the Constitution precludes the Court from exercising its overruling power as a matter of unbridled discretion…[and] constrains a Court’s power … as it constrains every other exercise of governmental power.

To put the strength of the stare decisis doctrine into some perspective, consider Roe v. Wade. The 1973 landmark abortion rights decision by SCOTUS faced political and legal challenges before the ink was even dry. Largely due to stare decisis, the case is considered settled law and still stands.

As I have written before it is not at all clear that Kavanaugh or any of the conservative judges nominated by Trump feel compelled to recognize cases that went before. A Trump nominee to an appellate court bench danced around a question in her confirmation hearing having to do with Brown v Board of Education. Judge Amy Coney Barrett, who like Kavanaugh and others on Trump’s candidate list, is a textualist was asked if she thought the 1954 case ending school segregation was decided correctly. A clear answer was never forthcoming.

The appellate judges in the Naruto case are at the opposite end of the spectrum when it comes to the power of precedents in decisionmaking. Other than Cetacean, no case has held that animals have constitutional standing to pursue claims in federal court. The appellate panel made it very clear that they believed the Cetacean case was incorrectly decided, while at the same time feeling it tied their hands.

Even though Naruto lost his case, some solace can be found in the Ninth Circuit’s having acknowledged his Article III standing. The finding will undoubtedly be cited in future animal rights cases.

A second finding of import in the Naruto case that could negatively impact future cases was the court’s denial of PETA’s request to serve as the ape’s next friend. Allowing next friend standing on behalf of an animal will enable lawyers and various interest groups to sue on behalf of nonhumans. PETA was denied the standing to sue on behalf of Naruto because the court felt it lacked a substantial relationship with the animal. It did not indicate what a significant human/animal relationship might entail.

Third-party representation in court is not at all unusual. Someone who has suffered a severe injury at the hands of another and cannot speak for themselves in court is allowed representation by an outside party, e.g., a next friend or trustee. Similarly, trustees appointed to oversee funds or property and guardians for minor children are all well recognized legal roles.

Animals like Naruto and Justice are not the only nonhuman plaintiffs hoping to take their cases to court. Justice Douglas wrote in Sierra Club v Morton, a case about a third-party’s standing to initiate legal action on behalf of Nature’s resources, that:

Inanimate objects are sometimes parties in litigation. A ship has a legal personality; a fiction found useful for maritime purposes. The corporation…a creature of ecclesiastical law…is an acceptable adversary…for purposes of the adjudicatory processes…

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches… trees… even air that feels the destructive pressures of modern technology and modern life. 

Douglas’ view of valleys, meadows, lakes and other natural resources was not shared by a majority of the justices in the Sierra Club case. It has, however, found supporters in other jurisdictions. For example, New Zealand’s Whanganui River has been given legal standing through legislation. The Ganga and Yamuna Rivers, including the Himalayan glaciers, lakes, and forests that make up the rivers eco-systems, have been granted similar status by an Indian High Court.

Most modern-day secular societies treat Nature as property—inanimate, indifferent, soulless, something to buy, sell and exploit. The concept reflects how the Trump administration views the nation’s natural resources and explains many of the decisions it has made, e.g., the reduction of national monument lands.

There are other cultures intimately entwined with Nature on a spiritual level—ascribing her anthropomorphic characteristics and a surrogate identity, e.g., Mother, Gaia or Pachamama. Because of their strong sacred connection, some countries have granted Nature, in her many guises, standing in secular courts.

Part 2 of the article highlights the nations that have chosen to confer upon Nature and animals some of the rights of humans, reviews other nonhuman rights cases in the US, and discusses in greater detail the link between these cases and combating global climate change.

[i] I am using the word Nature both to represent the elements of nature, e.g., forests, rivers, lakes, etc., and to convey the idea that the elements comprise a living, breathing environmental system.

Lead image: Naruto selfie/Wikimedia Commons

Joel Stronberg

Joel B. Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years of experience, based in Washington, DC. He writes about energy and politics in his blog Civil Notion (www.civilnotion.com) and has recently published the book Earth v. TrumpThe Climate Defenders' Guide to Washington Politics based on his commentaries. He has worked extensively in the clean energy fields for public and private sector clients at all levels of government and in Latin America. His specialties include: resiliency; distributed generation and storage; utility regulation; financing mechanisms; sustainable agriculture; and human behavior. Stronberg is a frequent presenter at conferences and workshops.

Tags: animal welfare, biocultural rights, Legal, nature