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Lanny Sinkin, the Hawaii attorney who recently lost a bid to have the 9th U.S. Circuit Court of Appeals grant legal standing to the world’s whales, dolphins and porpoises, says he was a victim of bad timing. Had the presidential election not been so close, and the country not so politically polarized, Sinkin said, the panel of judges would have gone in his favor. But giving whales the right to halt government sonar testing would have been another ruling along the lines of taking “under God” out of the Pledge of Allegiance, he said. “I think I lost because if the Ninth Circuit came out and said whales can sue [President] Bush, every talk show would trash this court,” said Sinkin, of the Rainbow Friends Animal Sanctuary in Hilo, Hawaii. Sinkin said the three-judge panel — Senior Judges Procter Hug Jr. and Arthur Alarcon and Judge William Fletcher — appeared to like his oral arguments, and he left their courtroom Feb. 12 feeling confident. But the judges found a way to go against him. “This decision is judicial activism at its worst,” Sinkin said. According to environmentalists, military sonar kills and injures cetaceans. The Natural Resources Defense Council successfully blocked some use of the technology, but warned this summer that sonar still threatens ocean mammals. In his complaint, filed in Cetacean Community v. Bush, 04 C.D.O.S. 9331, Sinkin says a friendship between humans and cetaceans could help both communities but warns that the current administration wants to keep people and whales from becoming closer. The filing is written from the animals’ point of view: “We, the Cetacean Community, come to this honorable court to offer what we consider a gift, not a complaint.” That may sound a little strange even for the supposedly wacky 9th Circuit, but the legal standing of animals and inanimate objects has long been controversial. Environmentalists sometimes list non-humans as plaintiffs, but usually they also include human organizations to ensure standing. University of Southern California Law School professor Christopher Stone — author of “Should Trees Have Standing? And Other Essays on Law, Morals and the Environment” — says the opinion, although it declined to give cetaceans the right to seek redress in court, does have a silver lining. “It does acknowledge that animals at least could constitutionally have standing,” Stone said. “That’s a major step.”

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