A Horse Is a Horse of Course, Unless Given the Right to Sue 2— In Nature’s Name

August 23, 2018

Yesterday I began a discussion on giving nonhuman beings adjudicatory rights to be represented in courts of law. I introduced readers to a horse named Justice and a Celebes ape who goes by the name Naruto. Justice, through the Animal Legal Defense Fund (ADLF), seeks standing to sue his previous owner for cruelty and neglect and is asking the court to award him $100,000 to cover medical costs and living expenses. The previous owner has already pled guilty to criminal neglect.

Naruto’s case was about copyright law. While fiddling with a photographer’s equipment in the jungles of Indonesia, the ape took a selfie. Acting on his behalf PETA, the People for the Ethical Treatment of Animals, tried to establish Naruto’s right to hold the copyright as its author.

These are among a growing number of animal rights cases. On a parallel track, are efforts both in the US and abroad to give Nature, e.g., rivers and forests, similar adjudicatory rights.

Part 2 continues the discussion reviewing what some other countries have already done to provide nonhuman beings with the right to enter a courtroom. The article concludes linking these types of cases to  combating climate change and the need for Congressional action.

Many cultures throughout history have connected with Nature on a spiritual level—ascribing it anthropomorphic characteristics and a surrogate identity, e.g., Mother, Gaia or Pachamama.

Most modern-day secular societies treat Nature as property—inanimate, indifferent, soulless, something to buy, sell and exploit. A concept not much different than the one currently covering human relationships with animals like Naruto and Justice—or the way that the Trump administration views the nation’s natural resources.

The New Zealand government recognized both the economic and spiritual relationship between the Whanganui River and the Maori people when it granted the River legal status.

This from the Ministry of Environment website:

…integral to Māori identity and culture …[they] see the environment as an interconnected whole and assess its health in the same way. For Māori, all parts of the environment – animate and inanimate – are infused with mauri (life force) and are connected by whakapapa – the descent of all living things from the original creators of life….

The environment has supported the economy and provided resources for Māori.…with the privileges the environment provides come the responsibility to care for the environment and maintain it for future generations. This …is…kaitiakitanga – the practice of guardianship.

India and New Zealand are not the only nations to recognize Nature’s rights and society’s needs for a healthy and sustainable environment. Ecuador’s constitution was amended by a national referendum and now includes a chapter on the Rights of Nature:

Chapter 7: Rights for Nature Art. 71. Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. 

Within the past few years, some communities in the US have also taken steps to expand the definition of standing. Efforts such as those in Tamaqua Borough, Pennsylvania and the City of Pittsburgh that focus on preventing fracking, as were the attempts to amend Colorado’s constitution.

A relatively recent decision by Pennsylvania’s Supreme Court established a broad interpretation of the Environmental Rights Amendment to the state’s constitution. The opinion is significant for affirming the role of the Governor and General Assembly as a trustee of the Commonwealth’s natural resources.

Corporations in the US have the standing rights of an individual in a court of law. When speaking of corporate identity as a stand-alone legal entity the reference is to a structure distinct from the actual persons who comprise it.

The corporate fiction in US law has its roots in England. Through the church and its officials, corporate doctrines have come to influence English common law. An identity is given to associations, e.g., peace and trade guilds, for entirely practical reasons. Absent such a legal convenience changes in membership would cause the demise of the organization every time there was a change of any kind, e.g., members or leaders.

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New Zealand deals with the representation issue, e.g., next friend, through the appointment of guardians—one each from the Maori people and the government. Ecuador, Bolivia and other jurisdictions allow citizens to sue on behalf of Nature, whether or not the individual(s) can claim any personal harm or connection, as required for standing in a U.S. federal court. As the rights of nonhuman plaintiffs are debated and decided both by legislatures and the courts so too should the role of outside counsel be clarified.

Guardianship ad litem is well-established in the US and elsewhere, e.g., executors, counsel for indigents and child advocates in domestic cases.

Judge Smith wrote in the Naruto case:

We have no idea whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures. 

But the interests of animals? We are really asking what another species desires…

Is it so hard to understand at a fundamental level what animals may want? Like most humans, they likely want to live their lives in peace with food to eat, a place out of the elements to rest, freedom to roam, good health and a safe place to raise their kids.

Justice and Naruto may not be capable of communicating in words, but they are sentient beings more than capable of having and expressing their feelings—and, they do. When it comes to getting out of the rain Justice, and Naruto are the equal of any rocket scientist—just as they are in exhibiting sadness or hunger.

Opponents of animals being granted standing in law courts warn of slippery slopes. Richard L. Cupp, a law professor at Pepperdine University, fears that giving Justice and other animals their day in court would open wide courtroom doors—overrunning the courts. Cupp has been quoted as saying–

We should not fool ourselves into minimizing the implications of these lawsuits by thinking that they are, in the long run, only about the smartest animals…it’s only a start.

Once you say a horse or dog or cat can personally sue over being abused, it’s not too big a jump to say, “Well, we’re kind of establishing that they’re legal persons with that. And legal persons can’t be eaten.”

US courts would not be the first to declare animals sentient nonhuman beings to give them limited legal rights. The European Union (EU) recognizes animals as sentient beings through an Article in the Treaty of Lisbon. The Treaty declaration is likely to cause the UK to do the same after Brexit. France, New Zealand and Quebec also have made similar averments.

An Argentine court has declared a chimpanzee named Cecilia a nonhuman being and accorded her certain legal rights. Judge María Alejandra Mauricio ordered the chimp’s release pursuant to a writ of habeas corpus filed by two NGOs on her behalf. As a result of the order, Cecilia was moved from her sterile and singular confinement at the Mendoza Zoo to a sanctuary in Brazil where she will be with other chimps in a natural habitat.

Had Cecilia’s case been brought in the US she would likely still be living in the Zoo. US courts have refrained from issuing writs of habeas corpus for fear that doing so would create a back way into “personhood” for animals, NGOs, and others as next friends.

In her verdict, Judge Mauricio stated that nonhumans possess rights related to their animalism distinguishable from the rights of humans–

We’re not talking about the civil rights enshrined in the Civil Code, but instead the species’ own rights: to [development], to life in their natural habitat.

In a recent New York case one of the three appellate court judges (Fahey), who denied the Nonhuman Rights Project’s (NhRP) habeas corpus request for two chimpanzees, expressed discomfort in his concurring opinion. Although comfortable enough about the decision, Judge Fahey recognized that the laws governing the matter are inadequate to the task and fail to answer the moral questions involved:

I write to underscore that [the] denial of leave to appeal is not a decision on the merits of petitioner’s claims. The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus?

The habeas corpus statute does not define “person,” but dictionaries instruct us that the meaning of the word extends to any entity…that is recognized by law as having most of the rights and duties of a human being. 

The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing. (emphasis added)

Judge Fahey is saying here that the question of animal rights—and to this, I would add Nature’s, e.g., rivers and forests–is only incidentally for the courts to decide. With the noted exception of Article III standing, the judicial decisions that have gone against the plaintiffs are based on what a particular statute says or more precisely doesn’t say.

In Naruto’s case, the Ninth Circuit Court’s denial was firmly based on a lack of statutory standing.  The copyright law makes no mention or suggestion that a crested macaque meets the Act’s definition of an “author.” Although Naruto was granted standing under Article III of the US Constitution, it was begrudged—based on a single case (Cetacean), which happened to be decided in the Ninth Circuit. The appellate panel made clear it believed the case was incorrectly decided and seemed to encourage its reversal in some future case—presumably outside of the Ninth Circuit.

Recognition of the need for congressional action is a common concept running through the animal rights suits. The Ninth Circuit panel in Naruto directly stated they would not recognize the right of next friends to bring suit on behalf of animals absent express authorization from Congress. 

PETA also recognizes the importance of congressional involvement. In its response to an action[i] by the three-judge panel PETA wrote:

The panel identifies a series of “policy” reasons why affording nonhuman animals standing to bring suit would result in a parade of horribles: “For example, if animals may sue, who may represent their interests? If animals have property rights, do they also have corresponding duties? 

…there is no reason why affording animals standing would create greater difficulties than affording standing to, for example, infants, entities, or objects. Each of these legal “persons” gives rise to representational questions that have been addressed by statutory and common law doctrines…Legislatures are capable of tackling these difficulties. Yet the panel suggests that they should be constitutionally prohibited from doing so. (emphasis added)

Professor Cupp has emphasized his support for progressive animal cruelty laws and admitted that legislation might be a more reasonable way of going about it. According to the Professor, we do need to evolve. We’re not doing enough to protect animals. I would also suggest that we are not doing enough to protect Nature

Words of Fiction

Justice Douglas called the conferment of “personhood” on ships a fiction found useful for maritime purposes. Some fictions are better than others. In this Trumpian era of alternative facts and truth isn’t the truth, it somehow seems fitting to expand further the fiction of personhood to include animals and Nature in the effort to save the environment. After all, it is their environment too.

Justice and the Missouri River are not the only ones who have difficulty obtaining standing. It is not unusual for the courts to deny standing to an environmental organization that cannot demonstrate it meets all of the standing requirements, e.g., suffering a specific harm. If the Animal Legal Defense Fund (ALDF) is denied the opportunity to sue on Justice’s behalf for damages, then it will be up to the kindness of strangers to pay for the damage done to him by his owner. Where is the justice in that?

If the Big Muddy becomes the sewer for a manufacturing plant, who will be able to stand up for it in court? In this Trumpian era, it is not likely that the Environmental Protection Agency or the Department of Interior will step in to defend the River. Even under more environmentally protective administrations, federal and state agencies may not fulfill a guardian’s role.

Justice Douglas foresaw this problem nearly a half-century ago and recommended that environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court – the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community.

In Juliana v US, a case looking to establish a habitable environment as a Constitutional right is basing part of its arguments on the Public Trust Doctrine (PTD). The Doctrine extends back to early Roman law and rests on a judicial understanding that some natural resources are so vital to society’s protection and survival as to be held in a public trust with the government as trustee.

Professor Mary Wood of the University of Oregon is the nation’s leading PTD advocate. According to Wood:

A major source of administrative dysfunction arises from the vast discretion [environmental] agencies enjoy – and the way they abuse it to serve private, corporate and bureaucratic interests.  As long as the decision-making frame presumes political discretion to allow damage, it matters little what new laws emerge, for they will develop the same bureaucratic sinkholes that consumed the 1970s laws. Only a transformational approach can address sources of legal decay.

A part of the transformational approach called for by Professor Wood should involve giving Nature and her many animal creatures the voice and standing they need to be in court.

Nonhuman adjudicatory rights are not merely a definitional question, but a deep dilemma of ethics and policy that demands attention. There are problems and complexities that must be worked out. What does it mean for a river to have rights? Is giving Naruto a copyright on an accidental work of art a bridge too far? Where should the line be drawn between nonhuman and human rights? How does placing the nation’s natural resources in a trust impact Congress’ right to enact environmental laws, or the executive branch’s duty to regulate based on those laws?

Nonhuman adjudicatory rights are not a question that can be answered entirely by the courts. Although addressed in the courts, the judiciary is clearly uncomfortable in its role. It is well agreed by all parties to the various suits that this is a matter best decided by Congress. Whether it can be decided by a Congress so conflicted by partisan politics is another matter.

Who knows, if Congress continues its dysfunctional ways, it may give the technology time enough to invent Congressional bots to do the work of today’s elected leaders and confer upon other nonhuman beings the right to fair trials.

[i] The action referred to is the Court’s sua sponte order regarding an en banc review.

Lead photo:  Ex Machina  (Screenshot YouTube)

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, civil rights, nature