As animal law has developed into a specialty over the past few decades, lawyers have wrestled with how to get their interests to matter in court proceedings. Animals are property under the law, a concept that has broad implications. It means that, even where statutes exist that ostensibly protect them from abuse, animals cannot bring a case to enforce those protections. The Endangered Species Act (the ESA) protects listed species from a broad array of harms but, bringing an enforcement action requires finding a human who can meet the statutory and prudential standing requirements. For example, when elephants in the Ringling Brothers circus were subject to conditions, including the use of bullhooks, that advocates believed violated the protections afforded them under the ESA, even though the ESA clearly provides a private right of action to enforce its protections, they could not sue on behalf of the elephants. Animal lawyers needed to find a human plaintiff who could meet the standing requirements. That meant finding someone sufficiently close to the situation that they suffered a “concrete and particularized harm” such that they were emotionally harmed by seeing the elephants treated in that way. That person might be a circus employee with a sufficiently long-standing relationship with the elephants that the claim of special harm could withstand intense scrutiny but they also had to not be afraid to speak up against the practices of their employer. That is no simple task but they did find a former employee who they thought fit the bill. But, after nine years, the case was in fact lost on the standing issue without the court ever reaching the merits of the ESA violations. Such is the nature or the problem of trying to protect the interests of “property “in court.

In one case, a court apparently granted standing to sue to an animal. In Palila v. Hawaii Department of Land & Natural Resources, 639 F.2d 495 (9th Cir. 1981), the Sierra Club and others brought an action under the ESA in the name of the Palila, a native Hawaiian bird, alleging that the state’s practice of maintaining feral goats and sheep for sport hunting purposes threatened the extinction of the bird. The court noted, “as an endangered species … the bird (Loxioides bailleui), a member of the Hawaiian honey-creeper family, also has legal status and wings its way into federal court as a plaintiff in its own right … represented by attorneys for the Sierra Club, the Audubon Society and other environmental parties.” But, in that case, the defendants did not move for dismissal on standing grounds and, since the court granted summary judgment to the defendants on the merits, it did not need to address standing sua sponte.