Animal Law Litigation:

Choosing your allies and adversaries wisely

(…or not)

American Society for the Prevention of Cruelty to Animals, et al.

v. Feld Entertainment, Inc.

US District Court Circuit 11 November 2011

The ASPCA argued that the use of bull hooks and chains to handle elephants violated the Endangered Species Act

You can’t buy love

The Court ruled that the ASPCA lacked standing to sue the owners of the country's largest collection of endangered Asian elephants, some of which perform in the Ringling Brothers and Barnum & Bailey Circus, for alleged violations of the Endangered Species Act

The ASPCA made two arguments for standing :

• ‘Informational harm’: The circus is depriving the public of information contained in permit applications.

The Court ruled that nothing in section 9 of the Endangered Species Act gives ASPCA a right to any information

• ‘Organisational injury’: ASPCA must spend resources on public education to ‘counter the misimpression that the circus’ treatment of animals is permissible.’

The Court ruled that there is nothing in the record to support the ASPCA’s claim that the circus’ practices had created a public sense that the treatment of elephants is harmless.

The other plaintiff, Tom Rider, a former Ringling Brothers barn helper, sought standing on the basis that he had a ‘special emotional attachment‘ to the elephants and suffered a ‘direct injury’ as a result of their mistreatment.

The Court ruled that:

• Rider was not a credible witness, as he joined the lawsuit only after receiving payment from the animal rights organisation:

‘Rider complained publicly about the elephants’ mistreatment only after he was paid $190,000 from the organizational plaintiffs to do so’.

• Rider failed to credibly prove an emotional attachment to any particular elephant a finding based on factual findings, including Rider's difficulty recalling the elephants' names, his lack of forthrightness about payments he received from the organizational plaintiffs, and various inconsistencies in his testimony.

Tilikum, Katina, Corky, Kasatk, and Ulises, Five Orcas by their next friends, People for the Ethical Treatment of Animals, Inc., Richard

O’Barry, Ingrid N. Visser, Howard Garrrett, Samantha Berg, and Carol Ray

vs.

Sea World Parks and Entertainment, Inc.

8 February 2012

‘With friends like these…’

In a legal action which has been described as ‘creative lawyering’, PETA, three marine-mammal experts and two former orca trainers sought a federal court declaration that five wild-caught orcas forced to perform at SeaWorld were held as slaves in violation of the 13th Amendment to the U.S. Constitution:

‘Neither slavery nor involuntary servitude. . . shall exist within the United States or any place subject to their jurisdiction.’

The plaintiffs are members of the Orcinus orca or ‘killer whale’ species

The plaintiffs, their ‘friends’ allege, are being ‘held captive’ by Sea World at their entertainment facilities in Orlando, Florida, and San Diego, California.

PETA argued that ‘slavery doesn't depend upon the species of the slave, any more than it depends upon the race, gender or ethnicity of the slave. SeaWorld's attempts to deny [orcas] the protection solely based on their species is the same kind of prejudice used to justify any enslavement. ‘

On 8 February 2012 U.S. District Judge Jeffrey Miller dismissed the case, writing in his ruling that ‘the only reasonable interpretation of the Thirteenth Amendment's plain language is that it applies to persons, and not to non-persons such as orcas.’

Standing

Sea World argued that the Plaintiffs lack standing to bring this action and, alternatively, the ‘Next Friends’ lack capacity to bring the action.

A plaintiff must show that :

(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by

a favorable decision.

HELD: The Constitution limits the federal judicial power to designated 'cases' and 'controversies.' A party invoking federal jurisdiction has the burden to show the likelihood that the alleged injury will 'be redressed by a favorable decision.' Here, there is no likelihood of redress under the Thirteenth Amendment because the Amendment only applies to humans, and not orcas. Because Plaintiffs are without standing to bring this action, no 'case' or 'controversy' exists and this court lacks subject matter jurisdiction.

Gary Young vs Peter Wright

NSW Local Court, 19 December 2011

The complainant, Gary Young, accused the head of the RSPCA, Dr Peter Wright, of acts of cruelty and aggravated cruelty on a horse while performing veterinary dental work at Goulburn in New South Wales in July 2011.

The court heard that neither the RSPCA nor police would bring charges against Dr Wright over the complaint.

A lack of jurisdiction or of sense?

The case was struck out because the complainant had no jurisdiction to bring the case privately without the consent of the NSW Primary Industries Minister.

The Minister, Katrina Hodgkinson denied consent, and advised Mr Young to go to either the RSPCA, the Animal Welfare League or the NSW police.

Magistrate Dennis Burdett dismissed the matter based on a lack of jurisdiction.

A strategic alliance

Australian Alliance for Native Animal Survival and RSPCA Australia v National Parks and Wildlife Service

(Federal Court of Australia, pending)

The indigenous group Australian Alliance for Native Animal Survival is seeking a Federal Court injunction to challenge the new NSW Kangaroo Harvest Management Plan, approved on 21 December 2011 by the federal government.

The ‘harvest management plan’ allow about 850 licensed kangaroo shooters to operate, much of the kill destined for the European Union . In January – October 2011 325,438 kangaroos were commercially harvested.

The AANAS and RSPCA alliance opposes the harvesting partly because indigenous people, who have lived with and from kangaroos for thousands of years, believe they should be consulted over plans for mass killing of the animal.

They also object on the grounds of ‘humanity and hygiene’ and have been joined by the RSPCA, which has questioned the justification for harvesting kangaroos at all.

The RSPCA has stated that ''Kangaroo killing is now viewed primarily as a means of sustaining a commercial industry, rather than one premised upon the basis of long-term population control and environmental damage mitigation.

A test case for standing?

Australian Alliance for Native Animal SurvivalEstablished: 5 May 2010

The aims of AAFNAS are:

· To educate the Australian and international communities about our unique native flora and fauna. This includes the Aboriginal concepts of caring for country, natural resources and all life past, present and future.

· To link Indigenous and non-Indigenous Australians and international supporters to work together to help native species and their carers both locally and nationally.

· To tap into the ancient and intimate knowledge held by the Aboriginal people and build a grass roots national organisation.

· To re-establish land rights and allocate the resources necessary to establish carers’ centres/safe tracts of land for native species along the dreaming tracks.

Friends in high places

The Australian Competition and

Consumer Commission and the Federal Court

Free to roam and free to range?

December 2011

Free range farmers are urging the ACCC to investigate the RSPCA's standards for pork products sold in supermarkets, warning the RSPCA logo dupes consumers into thinking they are buying free-range.

Humane Choice, which accredits free-range egg, beef and pork farms, has lodged a complaint with the Australian Competition and Consumer Commission, alleging the RSPCA's labelling is misleading.

23 January 2012

The Australian Competition & Consumer Commission is taking some of Australia's biggest chicken producers to court. It claims that ads declaring chickens are free to roam are misleading.

The ACCC argues the term is misleading and deceptive for shoppers, and wants it banned. Its case centres around the space each chicken has in the shed, and if the chickens are therefore ‘free to roam’.

The industry body has conceded it would be happy to abandon the term but that won't be enough for animal activists.

In a month's time the chicken meat industry will find out whether it can keep using the marketing catchphrase ‘free to roam’.

7 February 2012

Court penalises wholesaler for 'cruel deception' on free range eggs

Following Australian Competition and Consumer Commission action, the Federal Court has declared that Western Australian wholesalers C.I. & Co Pty Ltd, and Antonio Pisano and Anna Pisano misled the public by labelling and selling cartons of eggs labelled 'free range' when a substantial proportion of the eggs were not free range. 

ACCC chairman Graeme Samuel said the ACCC remained committed to protecting both consumers and businesses operating within the law against those who falsely label eggs in the Australian market.