Penny Conly Ellison.

As animal law has developed into a specialty over the past few decades, lawyers have wrestled with how to get their interests to matter in court proceedings. Animals are property under the law, a concept that has broad implications. It means that, even where statutes exist that ostensibly protect them from abuse, animals cannot bring a case to enforce those protections. The Endangered Species Act (the ESA) protects listed species from a broad array of harms but, bringing an enforcement action requires finding a human who can meet the statutory and prudential standing requirements. For example, when elephants in the Ringling Brothers circus were subject to conditions, including the use of bullhooks, that advocates believed violated the protections afforded them under the ESA, even though the ESA clearly provides a private right of action to enforce its protections, they could not sue on behalf of the elephants. Animal lawyers needed to find a human plaintiff who could meet the standing requirements. That meant finding someone sufficiently close to the situation that they suffered a “concrete and particularized harm” such that they were emotionally harmed by seeing the elephants treated in that way. That person might be a circus employee with a sufficiently long-standing relationship with the elephants that the claim of special harm could withstand intense scrutiny but they also had to not be afraid to speak up against the practices of their employer. That is no simple task but they did find a former employee who they thought fit the bill. But, after nine years, the case was in fact lost on the standing issue without the court ever reaching the merits of the ESA violations. Such is the nature or the problem of trying to protect the interests of “property “in court.

In one case, a court apparently granted standing to sue to an animal. In Palila v. Hawaii Department of Land & Natural Resources, 639 F.2d 495 (9th Cir. 1981), the Sierra Club and others brought an action under the ESA in the name of the Palila, a native Hawaiian bird, alleging that the state's practice of maintaining feral goats and sheep for sport hunting purposes threatened the extinction of the bird. The court noted, “as an endangered species … the bird (Loxioides bailleui), a member of the Hawaiian honey-creeper family, also has legal status and wings its way into federal court as a plaintiff in its own right … represented by attorneys for the Sierra Club, the Audubon Society and other environmental parties.” But, in that case, the defendants did not move for dismissal on standing grounds and, since the court granted summary judgment to the defendants on the merits, it did not need to address standing sua sponte.

In a later case brought on behalf of the “Cetacean Community,” creative lawyers latched onto that passage in Palila and argued that the “Cetacean Community” consisting of all the world's whales, dolphins and porpoises had standing to sue for violations of the Marine Mammal Protection Act, the National Environmental Policy Act, the Endangered Species Act and the Administrative Procedure Act for injuries incurred as a result of Navy sonar exercises. The court dismissed the Cetaceans' argument that Palila granted them standing holding that the reference to the Palila bird having standing in its own right was nonbinding dicta..

The most recent strategy to gain standing on behalf of an animal is novel and represents an easier incremental step for a court to take. It does not require the court to deal with the thorny issue of whether an animal can be a “person” under thee law, which has generated so much interest and controversy in the animal law community. It deals with issues which are, at this point in time, unique to Oregon law but which could lay the foundation for similar incremental steps to be taken in other states allowing animals to sue parties who injure them.

The case involves a badly neglected horse. Horses are generally covered by state animal cruelty laws. If neglected or abused, they can be seized by authorities and their owners or caretakers can be criminally prosecuted. In all animal cruelty cases where the abuse or neglect has risen to the level that seizure of the animals is deemed necessary, expense is an issue. Extensive veterinary care is almost always required and that care usually must be provided by a nonprofit humane society that relies on donations to do its work. As such, enforcement can only occur if there are funds there to not only pay the enforcement officers but also house and care for the animals seized. Equine abuse cases present unique challenges because both the veterinary care and the housing and feeding requirements are far more expensive than for dogs and cats. Thus, seizure of horses presents a tremendous (and often insurmountable) financial hurdle for humane societies. In most cases, prosecutors request the criminal court to order restitution as part of a sentence but that only covers the period of care through the date of sentencing. Assuming the animal is not returned to its abuser, who pays for care after that? In the case of dogs and cats, they can be adopted out to new owners who will provide that care but, for horses with a lifetime special medical needs ahead, it can be impossible to find a new owner willing to step up and adopt knowing the financial commitment involved for a thousand pound animal that could have more than a decade left to live. This is the issue the new case seeks to solve.

In May, the Animal Legal Defense Fund (ALDF) filed a civil suit in Oregon on behalf of a horse aptly named Justice. Justice's owner pleaded guilty to first degree animal neglect for starving Justice and neglecting his medical needs. Justice's owner's failure to provide him with basic care, including food and shelter, resulted in permanent injuries that will require ongoing and costly medical care for the rest of his life. ALDF 's suit seeks to place the cost of that care on Justice's neglectful former owner. ALDF is often the plaintiff in the animal protection cases it brings, but not this time. This time it is Justice himself whose name heads the case caption.

Justice's case was set up by the 2012 ruling of the U.S. Court of Appeals of Oregon in State v. Nix, 283 P.3d 442 (Or. App., 2012) . In Nix, the defendant farm owner had been convicted of neglecting and starving 20 farm animals but the trial court only issued a single conviction. The state appealed and argued the court should have imposed 20 separate convictions based on its interpretation of the word “victims” under Oregon law. The trial court concluded that the defendant's repeated violations of the animal cruelty statute did not involve “two or more victims” because animals do not fit the definition of “victim” because, among other things, they are not “persons.” The appeals court reversed, finding that “victims” are not limited to persons under the law but rather, the term “victim” in this context draws its meaning from the underlying substantive criminal statute that the defendant violated. The case was remanded for entry of separate convictions on each guilty verdict.

Once the principal that animals could be crime victims was established, ALDF took that one step further and argued that, since human victims of crime can sue the perpetrator for damages, animal victims should also be able to sue their abusers. They also rely on an explicit statement by the Oregon legislature in the animal cruelty law that “animals are sentient beings capable of experiencing pain, stress and fear.” Since violation of the criminal statue is already established, the cause of action is negligence per se and Justice, through his human guardian, seeks to recover the cost of his lifetime of care (in excess of $100,000) as well as damages for pain and suffering (which have never to date been awarded for an animal's pain since, under the law, they are property that cannot suffer). Not surprisingly, a motion to dismiss arguing that Justice lacks the legal capacity to sue is pending.

Because of the unique caselaw developed in Oregon for victims of crime, the outcome of this case could be that incremental step that animal advocates have been looking for to open the door to allowing courts to view animals as something other than inanimate property, a novelty in the law but, as a matter of reality, a fact that anyone who has ever loved an animal would find self evident.

Penny Conly Ellison is an adjunct professor at the University of Pennsylvania Law School, teaching animal law and ethics, and a member of the board of directors of the Pennsylvania SPCA.