As we have reported previously (here, here, here, here), an animal rights group called the Nonhuman Rights Project (NhRP) has a history of filing fruitless cases to establish that animals should have the same basic rights as people. NhRP has used the common law and statutory writ of habeas corpus in an effort to “liberate” elephants and apes from various U.S. zoos and other facilities. None of these cases has succeeded. The most recent failure occurred this month in Colorado where a state court judge denied a habeas writ with respect to five African elephants residing at the Cheyenne Mountain Zoological Society. Nonhuman Rights Project, Inc. v. Cheyenne Mountain Zoological Society, et al., No. 23CV31236 (Colo. Dist Ct., El Paso County Dec. 3, 2023).
Like virtually every case before it, the Colorado court noted that “[b]ecause the NHRP seeks an expansion of existing legal rights rather than enforcement of already-existing rights, its project is appropriately directed to the legislature, not to this Court. Existing law, which it is this Court’s responsibility to interpret and apply, compels dismissal.” Slip. op. at 9.
The court held that neither the elephants nor NhRP had standing to sue and, even if they did, the petition did not make a prima facie showing that the elephants are unlawfully confined.
The elephants had no standing because they are not “persons” entitled to invoke the writ of habeas corpus under Colorado law. As the court explained:
Our laws provide certain protections to animals through animal welfare statutes, but it is humans who determine the scope of those protections; and the laws of this country (again, for better or worse) have never treated animals as “persons” with rights and responsibilities comparable to humans’. Had elephants, rather than humans, compacted together to form a society, the result, of course, would have been different. The result may also be different at some time in the future. But wishing does not make it so, and this Court lacks the authority to create new rights out of thin air. In sum, because elephants fall outside the category of “person[s]” who are entitled to relief under the habeas corpus statute, this Court lacks subject-matter jurisdiction to hear the case. [Slip op. at 19].
NhRP likewise had no standing as the elephants’ “next friend.” The court saw this issue as illustrated by the well-known Dr. Seuss character, the “Lorax who proclaims, ‘I am the Lorax, I speak for the trees.’” Slip. op. at 20. Here, there was no evidence that NhRP actually spoke for the elephants at issue or had any relationship with them at all:
[NhRP] cannot claim any significant relationship with these elephants, or indeed any relationship at all; the extent of its contact with Missy, Kimba, Lucky, LouLou, and Jambo is the two hours that one of its experts, Bob Jacobs, spent at the Zoo (17 months ago) observing them, plus an additional, more recent short visit by an NHRP representative.
This is not just a technicality. There is a legitimate question in this case as to who properly speaks for the elephants (or, in other words, who gets to be the “elephant Lorax”) – the NHRP, which represents that it wants to improve their lives by moving them to an accredited elephant sanctuary, or the Zoo, which has fed them, nurtured them, and taken care of them for many years. It appears to be the Zoo, and not the NHRP, that has the more significant relationship with Missy, Kimba, Lucky, LouLou, and Jambo. [Slip op. at 21-22].
Even if the petitioner had standing, there was no evidence that the elephants were unlawfully confined and entitled to immediate release – even if the court were to credit everything that NhRP claimed about the conditions in which the elephants are being held. To the contrary, there was no dispute that the elephants were being held in compliance with existing legal standards:
The crux of the issue is whether the NHRP’s affidavits, taken as true, establish that the Zoo’s elephants are being confined in violation of any cognizable legal standard. They do not. The NHRP does not – and cannot – contend that the Zoo is holding these five elephants in violation of any existing law. To the contrary, it is beyond dispute that the Zoo holds these elephants under a broad framework of laws that permit zoos to hold nonhuman animals for public display in exactly the manner the Zoo is doing.
Nor does the NHRP ask the Court to evaluate the elephants’ specific living conditions against state or federal statutes or regulations, or even against applicable zoo industry standards. Colorado has comparatively strong animal-welfare laws; the federal Animal Welfare Act sets out standards intended to ensure that animals exhibited at zoos and other facilities “are provided humane care and treatment,” 7 U.S.C. 2131; and the Association of Zoos and Aquariums (the AZA) sets out basic standards for the care of elephants. The NHRP, however, does not contend that the Zoo is in violation of any of these laws or standards.
To the contrary, the NHRP’s affidavits demonstrate that the Zoo, to all appearances, is in compliance with applicable zoo standards and regulations. The quarrel that the NHRP’s experts have is not with the Zoo’s compliance with existing standards for American zoos, but with the standards themselves. They take the position that “the enclosure space provided by any zoo is simply insufficient.” That position appears well-supported by the facts, but it is entirely unsupported by any enforceable legal standard. [Slip op. at 24].
So, NhRP goes down in flames again. (What is it that someone once said somewhere about doing the same thing over and over and expecting a different result?) In any case, don’t expect NhRP to go away anytime soon. Their IRS Form 990 tax return filed on October 15, 2022 for the year ended December 31, 2021 shows current revenue of $1,688,392 and net assets or fund balances of $3,164,422. That can pay for a fair amount of habeas petitions.