Animal Law Litigation: Choosing your alliesand adversaries wisely (…or not)
You can’t buy love American Society for the Prevention of Cruelty to Animals, et al. v. Feld Entertainment, Inc. US District Court Circuit 11 November 2011The ASPCA argued that the useof bull hooks and chains tohandle elephants violated theEndangered Species Act
The Court ruled that the ASPCA lacked standing to sue the owners of the countryslargest collection of endangered Asian elephants, some of which perform in theRingling Brothers and Barnum & Bailey Circus, for alleged violations of theEndangered Species ActThe ASPCA made two arguments for standing :• ‘Informational harm’: The circus is depriving the public of information contained in permit applications.The Court ruled that nothing in section 9 of the Endangered Species Actgives ASPCA a right to any information• ‘Organisational injury’: ASPCA must spend resources on public education to ‘counter the misimpression that the circus’ treatment of animals is permissible.’The Court ruled that there is nothing in the record to support the ASPCA’sclaim that the circus’ practices had created a public sense that thetreatment of elephants is harmless.
The other plaintiff, Tom Rider, a former Ringling Brothers barnhelper, sought standing on the basis that he had a ‘special emotionalattachment‘ to the elephants and suffered a ‘direct injury’ as a result oftheir mistreatment.The Court ruled that:• Rider was not a credible witness, as he joined the lawsuit only after receiving payment from the animal rights organisation: ‘Rider complained publicly about the elephants’ mistreatment only after he was paid $190,000 from the organizational plaintiffs to do so’.• Rider failed to credibly prove an emotional attachment to any particular elephant a finding based on factual findings, including Riders difficulty recalling the elephants names, his lack of forthrightness about payments he received from the organizational plaintiffs, and various inconsistencies in his testimony.
‘With friends like these…’ Tilikum, Katina, Corky, Kasatk, and Ulises, Five Orcasby their next friends, People for the Ethical Treatment of Animals, Inc., Richard O’Barry, Ingrid N. Visser, Howard Garrrett, Samantha Berg, and Carol Ray vs. Sea World Parks and Entertainment, Inc. 8 February 2012
In a legal action which has been described as ‘creativelawyering’, PETA, three marine-mammal experts and two former orcatrainers sought a federal court declaration that five wild-caught orcasforced to perform at SeaWorld were held as slaves in violation of the 13thAmendment to the U.S. Constitution: ‘Neither slavery nor involuntary servitude. . . shall exist within the United States or any place subject to their jurisdiction.’The plaintiffs are members of the Orcinus orca or ‘killer whale’ speciesThe plaintiffs, their ‘friends’ allege, are being ‘held captive’ by Sea Worldat their entertainment facilities in Orlando, Florida, and SanDiego, California.PETA argued that ‘slavery doesnt depend upon the species of theslave, any more than it depends upon the race, gender or ethnicity of theslave. SeaWorlds attempts to deny [orcas] the protection solely based ontheir species is the same kind of prejudice used to justify anyenslavement. ‘
On 8 February 2012 U.S. District Judge JeffreyMiller dismissed the case, writing in his rulingthat ‘the only reasonable interpretation of theThirteenth Amendments plain language is thatit applies to persons, and not to non-personssuch as orcas.’
StandingSea World argued that the Plaintiffs lack standing to bring this actionand, alternatively, the ‘Next Friends’ lack capacity to bring the action.A plaintiff must show that :(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;(2) the injury is fairly traceable to the challenged action of the defendant; and(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.HELD: The Constitution limits the federal judicial power to designated cases andcontroversies. A party invoking federal jurisdiction has the burden to show thelikelihood that the alleged injury will be redressed by a favorable decision.Here, there is no likelihood of redress under the Thirteenth Amendment because theAmendment only applies to humans, and not orcas. Because Plaintiffs are withoutstanding to bring this action, no case or controversy exists and this court lackssubject matter jurisdiction.
A lack of jurisdiction or of sense? Gary Young vs Peter WrightNSW Local Court, 19 December 2011The complainant, Gary Young, accused thehead of the RSPCA, Dr Peter Wright, of actsof cruelty and aggravated cruelty on a horsewhile performing veterinary dental work atGoulburn in New South Wales in July 2011.The court heard that neither the RSPCA norpolice would bring charges against Dr Wrightover the complaint.
The case was struck out because the complainanthad no jurisdiction to bring the case privatelywithout the consent of the NSW PrimaryIndustries Minister.The Minister, Katrina Hodgkinson deniedconsent, and advised Mr Young to go to either theRSPCA, the Animal Welfare League or the NSWpolice.Magistrate Dennis Burdett dismissed the matterbased on a lack of jurisdiction.
A strategic alliance Australian Alliance for Native Animal Survival and RSPCA Australia v National Parks and Wildlife Service (Federal Court of Australia, pending)The indigenous group Australian Alliance forNative Animal Survival is seeking a FederalCourt injunction to challenge the new NSWKangaroo Harvest Management Plan,approved on 21 December 2011 by the federalgovernment.The ‘harvest management plan’ allow about850 licensed kangaroo shooters to operate,much of the kill destined for the EuropeanUnion . In January – October 2011 325,438kangaroos were commercially harvested.
The AANAS and RSPCA alliance opposes the harvesting partlybecause indigenous people, who have lived with and from kangaroosfor thousands of years, believe they should be consulted over plans formass killing of the animal.They also object on the grounds of ‘humanity and hygiene’ and havebeen joined by the RSPCA, which has questioned the justification forharvesting kangaroos at all.The RSPCA has stated that Kangaroo killing is now viewed primarilyas a means of sustaining a commercial industry, rather than onepremised upon the basis of long-term population control andenvironmental damage mitigation.
A test case for standing? Australian Alliance for Native Animal Survival Established: 5 May 2010The aims of AAFNAS are:· To educate the Australian and international communities about our unique native flora and fauna. This includes the Aboriginal concepts of caring for country, natural resources and all life past, present and future.· To link Indigenous and non-Indigenous Australians and international supporters to work together to help native species and their carers both locally and nationally.· To tap into the ancient and intimate knowledge held by the Aboriginal people and build a grass roots national organisation.· To re-establish land rights and allocate the resources necessary to establish carers’ centres/safe tracts of land for native species along the dreaming tracks.
Friends in high places The Australian Competition and Consumer Commission and the Federal CourtFree to roam and free to range?
December 2011Free range farmers are urging the ACCC to investigate the RSPCAsstandards for pork products sold in supermarkets, warning theRSPCA logo dupes consumers into thinking they are buying free-range.Humane Choice, which accredits free-range egg, beef and pork farms, haslodged a complaint with the Australian Competition and ConsumerCommission, alleging the RSPCAs labelling is misleading.
23 January 2012The Australian Competition & Consumer Commission is takingsome of Australias biggest chicken producers to court. It claimsthat ads declaring chickens are free to roam are misleading.The ACCC argues the term is misleading and deceptive forshoppers, and wants it banned. Its case centres around the spaceeach chicken has in the shed, and if the chickens are therefore ‘free toroam’.The industry body has conceded it would be happy to abandon theterm but that wont be enough for animal activists.In a months time the chicken meat industry will find out whether it cankeep using the marketing catchphrase ‘free to roam’.
7 February 2012Court penalises wholesaler for cruel deception on free range eggsFollowing Australian Competition and Consumer Commissionaction, the Federal Court has declared that Western Australianwholesalers C.I. & Co Pty Ltd, and Antonio Pisano and Anna Pisanomisled the public by labelling and selling cartons of eggs labelled freerange when a substantial proportion of the eggs were not free range.ACCC chairman Graeme Samuel said the ACCC remained committedto protecting both consumers and businesses operating within the lawagainst those who falsely label eggs in the Australian market.