Habeas corpus for animals? Why not?

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By Christopher Stone
Saturday, June 12, 2010

It is not uncommon for a law professor to have a client on death row. Mine is a sea lion. He goes by C657, an identity branded into his flesh by the Army Corps of Engineers. C657 got onto the wrong side of the law by, allegedly, eating salmon at the base of the Bonneville Dam spillway in the Pacific Northwest. That, the National Marine Fisheries Service says, is a federal offense, punishable by rifle fire. We lost in the lower court, which ruled that sea lions had no standing. His case is before an Oregon appeals court.

C657's case involves much more than the fate of a single sea lion, and not merely because six similarly situated sea lions were shot in March when a stay of execution expired. The larger principle is the right of nonhumans to sue in their own names, with lawyers as their guardians. I believe the facts of C657's case illustrate the merits of permitting some such suits.

Some background: The idea of standing for nature emerged in the 1970s. Lawsuits brought to protect the environment were

being turned away on the grounds that the groups bringing them had not themselves suffered injuries, as the rules of standing

required.

I proposed in the 1972 law review essay "Should Trees Have Standing?" that we might better designate, for example, the threatened wilderness area as the plaintiff "adversely affected," let attorneys characterize themselves as legal guardians and get on with the trial on that basis.

The proposal went over well with the public but failed to take the legal system by storm. Justice William O. Douglas notoriously endorsed the proposal, but that was in dissent. One lawyer versed his skepticism:

How can I rest beneath a tree

If it may soon be suing me?

Or enjoy the playful porpoise

While it's seeking habeas corpus?

Granted, the idea of rights for nature invites many objections. Among them I would not the include that:


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