Choose Your Battles: Why Standing for Non-Human Animals May Not Protect Them

By: Nico Banks

Animal welfare advocates frequently attempt to protect animal welfare through impact litigation. One of their main goals is to convince courts to grant standing to non-human animals. In this post, I will summarize some of the recent cases that have addressed animal standing at the state and federal levels. I will then argue that achieving legal standing for non-human animals in courts does little to protect the rights of non-human animals and is at best a symbolic victory for animal rights activists.

Animal rights activists have had some success in arguing for standing for non-human animals at the federal level. In 2004, inCetacean Community v. Bush, the Ninth Circuit opined that non-human animals may have Article 3 standing to sue in federal courts. The court still dismissed the case, however, because the non-human animals in that case lacked statutory standing. Earlier this year, in Naruto v. Slater, the Ninth Circuit reaffirmed that non-human animals may have Article 3 standing. Naruto had Article 3 standing because the complaint plausibly alleged that Naruto the monkey was the author and owner of “monkey selfies,” that he had suffered a concrete and particularized economic harm as a result of the infringing conduct by the defendants, and that the harms could be redressed by a judgment declaring Naruto the author and owner of the Monkey Selfies. However, citing Cetacean, the court held that “if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.” Since Naruto the Monkey had brought suit under the Copyright Act, which does not state that animals have statutory standing, the court dismissed the claim for lack of statutory jurisdiction.

Animal rights groups have also pursued standing for non-human animals at the state level. For example, in September, a Pro Tem Circuit Court Judge for Washington County in Portland, Oregon dismissed a lawsuit filed by animal rights activists in the name of a horse named Justice. Justice the horse was suing its previous owner for neglect. In March of 2017, Justice had been found covered in lice and 300 pounds underweight with frostbitten genitals. Its owner was found guilty of first-degree animal neglect and paid close to $3,700 in restitution. The restitution, however, did not cover future medical costs, so Justice the horse sued to recover those costs.

Judge John Knowles dismissed the complaint based on the horse’s lack of legal capacity to sue under Oregon Rule of Civil Procedure 21A(4)In doing so, the court held that, under Oregon law, a non-human animal lacks the legal status necessary to assert legal rights and duties in a court of law. The court reasoned that (1) allowing non-human animals to sue would lead to a “flood of lawsuits” whereby non-human animals could assert claims normally reserved just for humans; and (2) non-human animals are incapable of accepting legal responsibilities. But the court also suggested that it may be overturned on appeal by stating that “[p]erhaps an appellate court would come to a different conclusion if it wades into this public policy debate involving the evolution of animal rights. . . . This court, however, is unable to take that step.”

Even though animal rights advocates have had some success litigating to achieve animal standing, I would argue that they should move their focus away from impact litigation. Impact litigation concerning non-human animal standing is unlikely to be helpful in influencing policy because (1) the litigation is unlikely to have a long-term impact on the statutory standing of non-human animals; and (2) standing for non-human animals would have little impact on the substance of animal welfare law.

The purpose of impact litigation is usually to constrain Congress (or, sometimes the executive branch). For example, equal rights activists—be it activists for women’s rights, LGBTQ rights, etc.—often argue in court that some legislation violates a constitutional right. If a court finds that the legislation violated a right, then the legislation will be unenforceable.

The impact legislation regarding statutory standing, however, cannot constrain Congress. Suppose that animal rights advocates in Naruto were successful, and the Ninth Circuitreversed the presumption of non-standing by finding that non-human animals have statutory standing unless Congress explicitly says that they do not have standing. The only difference that such a holding would make is to shift the debate in Congress from “should we explicitly include animals from having standing?” to “should we explicitly exclude animals from having standing?” Thus, the members of Congress who oppose standing for non-human animals could pass legislation to explicitly exclude non-human animals from having standing.

The same is true of the impact litigation at the state level. If, on appeal, a higher court in Oregon interprets the procedural rules to grant standing to non-human animals, the state legislature could amend the procedural rules to prevent non-human animals from having standing.

Finally, standing for non-human animals is mostly a red herring. Congress creates private rights of action to protect animal rights by granting standing to humans to bring those private actions, Granting standing to non-human animals instead of humans would not generally affect the substance of the law or the outcome of the cases—it would only change the names of the parties. Now, while it is true that humans must have Article 3 standing to bring private rights of action, these requirements are often easy to satisfy. To acquire standing, they must show (1) an injury in fact that (2) is a result of the action of the defendant that (3) would be redressed by a decree on the plaintiff’s behalf. In the context of suing on behalf of animals, the standing requirements are usually met if a person has a non-speculative plan to visit, study, or see the animals that are allegedly being harmed. Even a person who visits a zoo and is bothered by the zoo’s illegal treatment of the animals will likely have constitutional standing to sue the zoo. Thus, animal advocates should focus on changing the substantive law protecting animals—the procedural law should be much less of a focus.