Thursday, October 21, 2004

9th Cir Rules whales and dolphins cannot sue Bush

Saw this on the Jurist - Paper Chase yesterday:

The Ninth Circuit Court of Appeals ruled Wednesday that the world's population of marine mammals do not have standing to sue President George W. Bush or Defense Secretary Donald Rumsfeld. The lawsuit, filed by attorney and animal activist Lanny Sinkin, was brought on behalf of the world's population of whales, dolphins and porpoises, described by their attorney as the Cetacean Community. The lawsuit claimed that the US Navy violated the Endangered Species Act because it damaged marine mammal tissue through the Navy's use of long range, low-frequency sonar. In its opinion, the Ninth Circuit held that the reason animals could not sue was not merely the fact that they were animals, but that they had not been granted the right to sue. Read the Ninth Circuit's opinion. More here.

After you look past the sheer oddity of the case - it is actually really interesting from a Civil Procedure perspective. Standing to sue involves two questions. First, the issue or injury involved must satisfy the "case or controversy" requirement in Article III in the Constitution. The 9th Circuit held that there is nothing within the Constitution that limits suits to only human individuals. But if a Plaintiff has sastisfied the "case or controversy" clause, the second question is whether a statute has conferred "standing" on the plaintiff. The plaintiff in this case (The Cetacean Community) was suing under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act. After an analysis of each of these pieces of federal legislation, the Court determined that each confirmed standing only to "persons". That becomes a really facinating question, however, because several of those Acts - and legislation in general - define "persons" as including inanimate entities (corporations, associations, agencies, etc.). In an absolute stellar piece of lawyering, the attorney was careful to argue that he was not bringing suit on behalf of individual whales, dolphins and porpoises - but the Cetacean Community - an association of the animals. He argued that the association would have standing. The Court rejected that argument based on the assumption that an agency has standing because its individual members would have standing if suing on their own. A really great bit of lawyering and a really nicely formed opinion from the Court...which leaves open the opportunity for the legislature to confer standing upon animal groups in environmental law in the future. Really good stuff!


Jason said...

Next thing you know...whales and dolphins will be clamoring for National Healthcare and will be claiming disenfranchisement as a voting block. LOL

Blake said...

Hmmm...I'll have to do some research on what the Constitution defines as "voters". :)