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Jim Porter: Animals are persons with standing to sue

There have been efforts over the years to empower animals under the law to have “standing” to sue. Like when the Cetacean Community sued the United States Navy on behalf of whales and dolphins who were being adversely affected by the Navy’s submarine-detecting sonar tests operated off the coast of California.

The whales and dolphins lost.

TOMMY THE CHIMP

There’s an interesting new case proceeding to the New York Supreme Court filed by the Nonhuman Rights Project seeking freedom on behalf of a chimpanzee known as Tommy.

The lawsuit goes in great detail, reciting a dozen affidavits from renowned primatologists around the world, trying to make the case that a chimpanzee has legal personhood and that “Tommy is not a legal thing to be possessed, but rather is a cognitively complex autonomous legal person with a fundamental legal right not to be imprisoned.”

The lawsuit describes the “obvious deep similarities in the cognitive processes that underlie communication in chimpanzees and humans,” including trained use of American Sign Language, an awareness of death, an ability to form a thought and hold it in mind, self-awareness, the ability to recollect the past and plan for the future, episodic memory, the ability to experience pain over an event that has yet to occur, and like humans, the ability to feel grief and compassion when dealing with mortality.

Based upon precedent, the Nonhuman Rights Project has an uphill battle.

SIERRA CLUB V. MORTON

Tommy’s case, as well as Cetacean Community, is reminiscent of U.S. Supreme Court Justice William O. Douglas’ famous dissent in Sierra Club v. Morton.

Walt Disney Enterprises received a permit from the U.S. Forest Service to prepare a Master Plan for a new resort in the pristine Mineral King Valley adjacent to Sequoia National Park.

WILLIAM O. DOUGLAS’ CONSENT

The Supreme Court ruled that the Sierra Club did not have standing to sue. Associate Justice Douglas, one of my heroes in the law (I have his autographed Tribute), penned an articulate dissent, arguing that like ships and corporations, valleys, rivers and animals should have standing to sue on their own behalf, being the ones threatened with destruction:

“So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes — fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water – whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents and which are threatened with destruction.

“… With all respect, the problem is to make certain that the inanimate objects, which are very core of America’s beauty have spokesmen before they are destroyed.

“… That is why these 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.

“Ecology reflects the land ethic, and Aldo Leopold wrote in A Sand County Almanac 204 (1949), ‘The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land.’

“That, as I see it, is the issue of ‘standing’ in the present case and controversy.”

It always does me good to re-read Justice Douglas’ passionate dissent.

Merry Christmas and Happy Holidays. I appreciate your time.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.


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