21 October 2021 by Samuel March
On 15 October 2021, the United States District Court for the Southern District of Ohio made an unprecedented order which, in a specific and limited context, recognised a community of hippopotamuses as having legal personhood.
The applicant was a community of hippopotamuses living in the Magdalena River in Colombia (“the Community”). The Community are the feral descendants of animals originally imported into the region by the infamous drug dealer Pablo Escobar. After Escobar’s death, animals escaped from his property and built their home in the Magdalena River. They have since reproduced at a such a rate that some biologists have expressed concern over their environmental impact and threat to human safety. A group of scientists and government officials have proposed that the animals be killed.
This led to litigation in Colombia when local lawyer Luis Domingo Gómez Maldonado filed a claim on behalf of the Community. One of the central issues in that litigation is the safety and effectiveness of possible contraceptives as a means of population control. This sparked satellite litigation in Ohio when the Animal Legal Defence Fund (“ALDF”) filed an application to depose two Ohio-based wildlife experts, Dr. Elizabeth Berkeley and Dr. Richard Berlinski (“the Witnesses”), both of whom have expertise in nonsurgical sterilization. The ADLF believes that the Witnesses’ testimony could bolster support for a particular type of contraceptive, which could allow the population to be controlled without slaughter.
The highest constitutional authority in Colombia, the Constitutional Court, has previously recognized that animals have standing to file a lawsuit in that jurisdiction [Ruling C-666 of 2010; see also Rulings C-123 of 2014, T-445 of 2016, C-225 of 2017 and C-032 of 2019]. Relying on these authorities, the Community has brought a claim in Colombia.
The case found itself before the United States District Court for the Southern District of Ohio by way of an ex-parte application filed by the ALDF pursuant to 28 U.S.C. § 1782 (“Section 1782”). Section 1782 authorizes “[t]he district court of the district in which a person resides or is found [to] order him to give his testimony or statement . . . for use in a proceeding in a foreign or international tribunal. . . .”.
The Applicants argued that the application met the statutory requirements for a Section 1782 application because the Witnesses each “reside” in the relevant district and the discovery sought was “for use” in foreign proceedings in which the Community are plaintiffs, and therefore “interested persons” for the purposes of Section 1782. The applicants also detailed the various discretionary factors that apply in determining whether to grant an application under Section 1782, and why these militated in favour of making the order.
On 15 October 2021, Magistrate Judge Karen L. Litkovitz ordered that:
“1. The Application is granted.
2. Counsel for Applicant is authorized to issue subpoenas […].
3. This Court shall retain such jurisdiction as is necessary to effectuate the terms of such subpoenas”
There is a long history of cases seeking to establish animals as legal persons with standing to bring cases in their own right in the United States. Dr Joe Wills touched on some of these cases in our previous blog. Since 2013, the US-based Nonhuman Rights Project (NhRP), have filed lawsuits on behalf of animals such as chimpanzees and elephants, seeking to release them from the facilities where they are detained. NhRP’s approach has been to petition for writs of habeas corpus on behalf chimpanzees and elephants. Habeas corpus is a centuries-old means of testing the lawfulness of one’s imprisonment before a court, and was used extensively in the 18th and 19th centuries to fight human slavery. Unfortunately, despite increasingly sympathetic comments from judges, as-of-yet no US courts have recognised any of the NhRP’s clients as legal persons for the purpose of their lawsuits.
Clearly the right enshrined in Section 1782 is far more limited and technical than habeas corpus and does not touch on the sorts of fundamental rights to freedom or bodily integrity raised in the NhRP cases. The recognition that the Community could be applicants for the purposes of Section 1782 depended on their standing in Colombian proceedings. Colombia remains a progressive and unusual jurisdiction in this regard and so the case does not in-and-of-itself establish a wider free-standing right for cases brought on behalf of animal communities to be heard by US courts.
As Animal Law Program Director and Visiting Associate Professor at Vermont Law School, Delcianna Winders explained on Twitter:
“The statute gives the court broad discretion to order such discovery, and doesn't require the court to make a finding re "interested persons". The court's order makes no reference to "persons," much less explicitly find that hippos are persons. But it effectively recognizes at least limited legal personhood for these hippos.”
With this in mind, this case is nevertheless an historic one. For the first time, a community of non-human animals has successfully applied for a court order in a US court without being dismissed for lack of standing. It may provide a useful precedent in convincing future courts that there is no fundamental difficulty with US Courts hearing cases brought by animals.
Animal Legal Defense Fund Executive Director Stephen Wells said
“The court’s order authorizing the hippos to exercise their legal right to obtain information in the United States is a critical milestone in the broader animal status fight to recognize that animals have enforceable rights.”
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