Why It’s Not About the Elephants

David Cassuto

Here now, a few words about the Ringling Brothers case.  The suit focused on the treatment of Asian elephants – an endangered species – by the circus.  Much credible evidence suggests that the elephants were mistreated, both by intent (using bullhooks to “train” them) and by the rigors of the circus life, a life which confined them for much of their lives, prevented them from socializing and from moving freely about and generally forced them to live counter to their instincts and nature.  These allegations and others seemed to place the circus in violation of the Endangered Species Act (ESA), whose “Take” provision (Section 9) prohibits the “take” of any endangered species. 16 U.S.C. § 1538(a)(1)(B).

The term “take,” as used in the ESA, includes actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The Fish and Wildlife Service defines “harm” to include any act that “actually kills or injures wildlife,” including actions that “significantly impair[ ] essential behavioral patterns.” 50 C.F.R. § 17.3. “Harass” under the ESA means: an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.  In sum, the Supreme Court has made clear that the ESA defines “take”  “in the broadest possible manner  to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.’ “ Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or.,515 U.S. 687, 704 (1995).

On the face of it, the allegations regarding the treatment of the elephants land squarely within the scope of behavior prohibited by the ESA.  This lawsuit marked the first time the ESA had been invoked to cover the treatment of performing elephants.  I do not here have time to summarize the merits and facts of the case; you can read more about it here and here and elsewhere.  I must focus on the procedural posture of the case since it ultimately proved dispositive.   Continue reading

Citizen Suits and Cruelty Laws

One would not expect to find a progressive animal cruelty law in a state that leads the (un)civilized world in the factory farming of hogs.  Yet, North Carolina’s animal protection statute contains a citizen suit provision — which means that private citizens can bring suit against violators of the law.  This private right of action (a rarity in the world of animal law) has yielded some noteworthy successes.

Private rights of action do not solve the problem of cruelty nor address the inequalities underlying the human/nonhuman dynamic.  But this is true throughout environmental law.  Most of the major environmental statutes contain citizen suit provisions even as the laws fail to resolve or even address many of the most urgent issues regarding our relationship with our surroundings.  Ultimately, though, there is no question (in my mind, anyway) that it is better to have laws than to not and that it is better to enforce those laws than to not.  Citizen suits help enforce laws and thus, despite the imperfections of the current legal regime, it would be nice if we had more of them.

David Cassuto