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Habeas corpus for animals? Why not?

By Christopher Stone
Saturday, June 12, 2010; A15

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:

The courts, besieged on every hand,

Will crowd with suits by chunks of land.

Lawyers value their time, and brooks have shallow pockets. Lawsuits on behalf of nonhumans are therefore unlikely to be frivolous. More confounding is the fact that the more insensate the client, the more difficult it is to apply familiar legal norms of harm. A court may be able to put itself into the hooves of a thrashed horse -- to comprehend its pain. But when claims are raised on behalf of inanimate objects, how do we figure what a wilderness wants or a mountain minds? And what to do in the face of conflicts: sea lions vs. salmons? If rights are to be established, only people can decide which "things" will benefit and what will count as infringements.

Still, over the years several cases have been brought in the name of nonhumans. These cases frequently take legislative action, such as the Endangered Species Act, as resolving which things legally count. The plaintiffs have included a river, a marsh, a brook, a beach, a tree, several sea turtles, endangered birds and whales hoping to challenge navy sonar tests. Success of the "Nature's rights" thesis has been blurred by the fact that in most, but not all, of these cases lawyers who named a nonhuman as primary plaintiff added as co-plaintiff a human who could allege a personal (if only nominal) injury. For example, a lawyer defending whales may find it useful, in getting through the courthouse door, to add a whale-watcher, portraying the risks to whales as theoretical harms to her. To me, the franker acknowledgment that the suit is about whales would better credit, and foster, our moral aspirations. But in most cases where standing was granted, it has been left unclear whether the nonhuman alone would have sufficed.

Back to C657. The claim that his rights are being violated is not a figment of wild-eyed lawyers. With the Marine Mammal Protection Act, Congress in 1972 established a national policy of far-reaching safeguards for individual marine mammals. The charges against C657 arise from what was intended to be a narrow exception. An amendment permits the killing of "individually identifiable pinnipeds" that are having "a significant negative impact on the decline" of salmon stocks.

No one denies that some sea lions, including C657, have figured out that the Bonneville Dam is an ideal spot for lolling about and intercepting salmon heading up the Columbia River. Sea lions have found favorite spots to lie in wait for thousands of years; it is part of the natural order. But to pin the decline of salmon on pinnipeds is simply ludicrous.

First, the National Marine Fisheries Service blames sea lions for eating, in the aggregate, no more than 4 percent of the run in the "worst" years. The take of fishermen, both commercial and sports, and native tribes dwarfs that. The mortality from hydropower projects and land-use changes is far larger still. If conservation of a healthy salmon run requires reduced "budgets," let it come from, say, sports fishers. The sea lions, here first, have the priority.

Second, the law provides that the individual wrongdoer must have had a significant impact on the decline. The government has interpreted this to authorize the execution of an animal that has been observed eating a single salmon. We cannot believe that Congress, in legislation dedicated to the preservation of marine mammals, could have intended a rule of "one strike and you're out." In fact, the state observation team did not originally cite C657 as having eaten any salmon. C657 made it onto the federally maintained "hit list" only because state observers retroactively, and controversially, attributed to him the single predation of another animal.

C657 (currently reprieved in a Texas aquarium) wants his day in court. More than that, C657 wants to contest humankind's self-appointed place atop the planet.

The writer, a professor at the University of Southern California School of Law, specializes in environmental law.

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