This article has been updated with the news that a judge has issued a habeas corpus order in Happy’s case, and information about the latest court hearing.
The US-based Nonhuman Rights Project (NhRP) has filed a new petition in its battle to obtain personhood for elephants and other self-aware, autonomous nonhuman animals.
The petition for a common law writ of habeas corpus was filed in the New York Supreme Court, Orleans County, on behalf of a 47-year-old female Asian elephant, ironically named Happy, who lives alone in captivity at the Bronx Zoo.
In its petition, the NhRP says Happy is being “unlawfully imprisoned”.
Happy was the first elephant in the world to demonstrate self-awareness via the mirror self-recognition test.
The NhRP is demanding recognition of Happy’s legal personhood and fundamental right to bodily liberty and her transfer to an elephant sanctuary.
The founder and president of the NhRP, Steven Wise, said: “The zoo’s imprisonment of Happy deprives her of her ability to exercise her autonomy in meaningful ways, including the freedom to choose where to go, what to do, and with whom to be.
“Our world-class experts say that, like all elephants, Happy is an autonomous being who evolved to walk twenty or more miles a day as a member of a multi-generational, large social group.”
Wise says the new petition is the latest filed by the NhRP “on behalf of captive nonhuman animals scientifically proven to be self-aware and autonomous” and follows two recent nonhuman rights victories in New York.
The space provided for Happy is far less than one percent of the space she would roam in a single day in the wild, Wise says.
“She doesn’t belong to a social group. Her autonomy is thwarted daily.”
The NhRP supports its petition with a Memorandum of Law and five expert affidavits.
In her affidavit, elephant expert Joyce Poole writes: “Active more than twenty hours each day elephants move many miles across landscapes to locate resources to maintain their large bodies, to connect with friends and to search for mates.
“Elephants have evolved to move. Holding them captive and confined prevents them from engaging in normal, autonomous behaviour and can result in the development of arthritis, osteoarthritis, osteomyelitis, boredom and stereotypical behaviour.”
Held in isolation, Poole says, elephants become bored, depressed, aggressive, and catatonic and fail to thrive.
“Human caregivers are no substitute for the numerous, complex social relationships and the rich gestural and vocal communication exchanges that occur between free-living elephants.”
The habeas corpus petition brought on behalf of Happy’s is the third one filed by the NhRP on behalf of captive elephants.
The NhRP has filed two habeas corpus petitions on behalf of three other elephants – Beulah, Karen, and Minnie – who are in captivity at a Connecticut-based traveling circus called the Commerford Zoo.
In September this year, the NhRP filed a brief in The Appellate Court of Connecticut seeking a review of a lower court’s dismissal of its first petition for habeas corpus on behalf of Beulah, Karen, and Minnie and citing errors made by the Connecticut Superior Court.
The NhRP argues that the Connecticut court erred not only in dismissing the NhRP’s petition on the grounds that is frivolous, but also in claiming that the NhRP lacked standing to bring the claim because it lacked a relationship with the elephants.
For two centuries, Connecticut courts have permitted anyone to seek habeas corpus on behalf of someone who is imprisoned and unable to seek habeas corpus himself or herself, the NhRP says.
The NhRP is asking the appellate court to reverse the trial court’s decision.
For the past 12 years, Happy has been housed alone, separated from elephants Patty and Maxine who, in 2002, fatally injured Happy’s long-time companion, Grumpy.
In an article entitled “The Bronx Zoo’s Loneliest Elephant”, Tracy Tullis wrote that Happy, who was born in the wild, was captured as a baby, probably from Thailand, in the early 1970s, along with six other calves, possibly from the same herd. The seven elephants were shipped to the United States.
The NhRP says that Happy was sold for $800 to the now defunct Lion Country Safari, Inc. in Laguna Hills, California, which named the calves after the dwarves in Snow White and the Seven Dwarves.
That same year, Sleepy died, and the corporation relocated Happy, Grumpy, Sneezy, Doc, Dopey, and Bashful to Loxahatchee, Florida.
In 1977, the proprietors dispersed the six elephants to circuses and zoos across the US.
Happy and Grumpy were sent to the Bronx Zoo (operated by the Wildlife Conservation Society, formerly the New York Zoological Society) to be part of the newly created Wild Asia Monorail exhibit, then called the Bengali Express Monorail.
‘There, in addition to displaying the elephants, the zoo, through the 1980s, compelled them to give rides, participate in tug-of-war contests, and perform tricks, as publicised by The New York Times and the New Yorker,” Wise said.
In 2002, the zoo euthanised Grumpy after she was attacked by two other elephants held in captivity there, Patty and Maxine.
The zoo separated Happy from Patty and Maxine and introduced a younger female Asian elephant named Sammie to be Happy’s companion.
In 2005, Happy became the first elephant to “pass” the mirror self-recognition test, considered to be an indicator of self-awareness.
In 2006, the zoo euthanised Sammie after she suffered kidney failure. Shortly afterwards, the zoo announced that it would end its captive elephant programme if one or more of the other elephants died.
If one elephant died, the other two might not get along, zoo officials were quoted as saying, and, if two died, it would be inhumane to sustain an exhibit with a single elephant.
From 2006 to the present day, Happy has lived alone.
According to an article by Brad Hamilton in the New York Post, “Happy spends most of her time indoors in a large holding facility lined with elephant cages, which are about twice the length of the animals’ bodies”. The public, Hamilton wrote, never sees this.
The Bronx Zoo has issued several statements in recent years saying that Happy is not lonely.
In 2016, Bronx Zoo director Jim Breheny acknowledged that Happy did not share the same physical space with the zoo’s two other elephants because they didn’t get along, but said that she was in “tactile and auditory contact” with them.
It is unclear what Breheny means by tactile contact, Wise says. “He insists the zoo is prioritising Happy’s best interests and has questioned the capacity of elephant sanctuaries to provide long-term care to elephants like Happy compared to what zoos can provide.”
Breheny said in a statement that the NhRP was “exploiting the Bronx Zoo elephants to advance their own failing cause in the courts”.
A Change.org petition calling for an end to Happy’s solitary confinement has more than 200,000 signatures. In 2015, the organisation In Defense of Animals included The Bronx Zoo in its “Hall of Shame” list because of its refusal to allow Happy to go to a sanctuary.
The NhRP has launched a #RumbleForRights for elephants campaign and has provided an online activists’ toolkit complete with graphics and other resources such as legal documents.
NhRP petitions on behalf of chimpanzees
In May this year, New York Court of Appeals Judge Eugene M. Fahey wrote in a concurring opinion in an NhRP case brought on behalf of chimpanzees Tommy and Kiko: “While it may be arguable that [a chimpanzee] is not a ‘person’, there is no doubt that it is not merely a thing.”
The Court of Appeals refused to hear the NhRP’s motion for further review of a lower court’s decision about Tommy and Kiko, but the NhRP said Judge Fahey’s opinion was a “historic mark of progress in the fight to secure fundamental legal rights for nonhuman animals”.
Judge Fahey found that all three intermediate appellate courts of New York that had ruled against the Nonhuman Rights Project in its chimpanzee rights cases had decided wrongly.
He wrote that the issue of whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus “is profound and far-reaching”.
He added: “It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it.”
The NhRP filed its first habeas corpus petitions in New York in December 2013 on behalf of Tommy, Kiko and two other chimpanzees, Hercules, and Leo.
In March this year, Hercules and Leo were freed from the University of Louisiana’s New Iberia Research Center (NIRC) and were sent to the Project Chimps sanctuary in Morgantown, north Georgia.
They were transferred from the NIRC to the 236-acre sanctuary in the Blue Ridge Mountains along with seven younger male chimps.
Wise points out that Judge Fahey’s ground-breaking opinion was followed by another “tremendously promising” decision in the People v. Graves case in New York’s Fourth Judicial Department appellate court in which it was stated that “it is common knowledge that personhood can and sometimes does attach to nonhuman entities like corporations or animals”.
There are many entities that are not human, and not even alive, but are considered to be legal persons, Wise says. They include corporations, ships, and partnerships. In New Zealand, for instance, the parliament has passed a bill that recognises the legal personhood of the Whanganui River.
In the ruling in the Fourth Judicial Department, which related to a case about the vandalising of cars belonging to an auto dealership, the person alleged to have committed the crime that was the subject of the appeal claimed that the dealership whose property he damaged was not a “person”, as only human beings could be persons, and he therefore could not be convicted of damaging the property of a “person”. The court, citing the NhRP’s case on behalf of Kiko, disagreed.
The NhRP says that Fahey’s opinion – the first from a high court judge anywhere in the United States to hold that “there is no doubt that [a chimpanzee] is not merely a thing” – together with the Graves decision constitute a breakthrough in the worldwide struggle for legal personhood for nonhuman animals.
“In May, Judge Fahey opened the door to nonhuman animal legal personhood in New York and throughout the United States,” Wise said. “A month later, a New York appellate court walked right through that doorway.”
In November 2016, litigation modelled on the NhRP’s lawsuits resulted in a landmark decision by Judge María Alejandra Maurico in Argentina.
The judge ruled that a chimpanzee named Cecilia, who was in captivity at the Mendoza Zoo, was a “non-human legal person” with “inherent rights” and Cecilia was transferred to a sanctuary in Brazil.
After a hearing last Friday (November 16), a justice of the Orleans County Supreme Court, Tracey A. Bannister, issued a habeas corpus order in favour of Happy.
The “order to show cause” was made in the case brought by the Nonhuman Rights Project (NhRP) on October 2, 2018, against the Wildlife Conservation Society, which operates the Bronx Zoo, and the director of the zoo, James Breheny.
A habeas corpus hearing on the merits of the case is scheduled for December 14, 2018, in the same court in Albion, Orleans County, New York.
NhRP president Steven Wise said: “The judge has ordered representatives of the zoo to come into court and say why they are imprisoning Happy. We are thrilled that Happy’s case is moving forward and we look forward to litigating her case on the merits on December 14.”
The NhRP is seeking Happy’s immediate release from the Bronx Zoo. Wise says that, if the court in Albion makes such a ruling, the NhRP will urge it to order Happy’s transfer to an elephant sanctuary “where she can meaningfully exercise her autonomy to the greatest extent possible, including having the opportunity to live and interact with other elephants”.
Wise said this was the second habeas corpus order issued on behalf of a nonhuman animal in the United States, and the first issued anywhere on behalf of an elephant.
The first such order in the US was issued in New York County in response to the NhRP’s lawsuit on behalf of Hercules and Leo, who were then being imprisoned at Stony Brook University.
In April 2015, New York County Supreme Court Justice Barbara Jaffe issued Hercules and Leo a writ of habeas corpus. The NrHP saw this as a tacit recognition of the chimps’ personhood.
Justice Jaffe also ordered the state university’s legal representative (the New York Attorney General’s office) to appear in court to justify the chimps’ detainment.
“This is the first time in history a court has granted a hearing to determine the lawfulness of a nonhuman animal’s detainment,” Wise said at the time.
On April 21, 2015, Justice Jaffe amended her order, striking out “writ of habeas corpus” and leaving the “order to show cause”.
In July 2015, she issued a ruling in which she rejected the NhRP’s petition for a writ of habeas corpus on behalf of Hercules and Leo.
She said that “for now”, she was bound to follow the previous determination of the New York State Supreme Court, Appellate Division, Third Judicial Department in the case of another chimp, Tommy.
She said: “Efforts to extend legal rights to chimpanzees are … understandable; some day they may even succeed.
“Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of the law.”
The NhRP says that, although Justice Jaffe did not free Hercules and Leo from captivity or recognise the chimps’ rights, believing herself bound by the ruling of an appellate court, the court, in ordering such a hearing, treated Hercules and Leo just as it would have treated human beings.
Maxine was euthanised at the Bronx Zoo on Tuesday (November 20). She was 48 years old.
The Wildlife Conservation Society said in a statement that the elephant was euthanised after a progressive illness.
“Maxine was being treated for elevated liver and kidney enzymes and had experienced neurologic deterioration and generalised muscle weakness. The decision to euthanise her today was made when she was no longer able to eat,” the society said.
The NhRP said it lamented not only the death of Maxine, but also her life.
“With the death of Maxine, Patty is left without the meaningful companionship of another elephant and will be alone as Happy has been since the Bronx Zoo’s euthanisation of Sammy in 2006,” Steven Wise said.
“As reflected in the scientific affidavits the NhRP submitted in support of Happy’s habeas corpus petition by such world-renowned elephant experts as Joyce Poole and Cynthia Moss, elephants are autonomous, self-aware individuals who empathize, engage in complex communication, problem-solve, and grieve.”
Patty is also aged 48.
In its statement about the euthanisation of Maxine, the NhRP says that elephants “require a vast amount of space in which to exercise their autonomy, to explore their worlds as members of multi-generational herds, and to make free choices about how to spend their days and live their profoundly complex emotional and social lives”.
At the Bronx Zoo, the NhRP says, the elephants are merely prisoners, “forced to live in just a tiny fraction of the space a wild elephant would roam in a single day”. In the winter months, when the exhibit is closed to the public, the elephants are kept in an indoor holding facility, the NhRP points out.
Wise added: “Maxine now joins the thousands of other elephants in the US and around the world who never had a choice and found freedom from imprisonment only in death.
“It is time for Happy and Patty to find sanctuary in life and for the Wildlife Conservation Society and the Bronx Zoo to act on the decision they rightly made in 2006.”
In 2006, after Sammie was euthanised, officials at the zoo announced that the captive elephant programme there would be ended if one or more of the other elephants died.
The NhRP urged the Wildlife Conservation Society and the Bronx Zoo to send Patty and Happy to an appropriate elephant sanctuary “where they can live more natural lives and exercise their autonomy to the greatest degree possible in North America”.
Zoo director Jim Breheny said: “Everyone at the Bronx Zoo is deeply saddened by the loss of Maxine. Some of us have known and worked with her for over forty years as she came to the zoo in 1973. We have great memories of Maxine; she was a wonderful animal with a great personality.”
He added: “After exhausting all options to treat Maxine and since she was no longer able to eat, we made the decision to euthanise her. She died a peaceful death, surrounded by the keepers, curators and veterinarians who had cared for her throughout her life.”
Breheny said that, with the death of Maxine, the zoo’s “elephant programme” would be assessed.
Yesterday, the New York Supreme Court in Orleans County heard oral arguments in Happy’s case, which is now expected to be moved to Bronx County.
In his opening statement before Justice Tracey A. Bannister, Steven Wise argued that Happy is an autonomous being and therefore a legal person with the fundamental right to bodily liberty protected by a common law writ of habeas corpus.
Wise said in his arguments before Justice Bannister that nonhuman animal personhood, i.e. nonhuman animals’ capacity to bear at least one legal right, was consistent with more than two centuries of New York law.
He added that New York’s pet trust statute implicitly recognised companion animals as legal persons with the capacity to be beneficiaries of a trust.
Wise said that justices in the New York courts, including a judge in New York’s highest court, had recently embraced nonhuman legal personhood as “common knowledge” and “a deep dilemma of ethics and policy that demands our attention”.
The Wildlife Conservation Society was represented by Phillips Lytle LLP, whose lawyer argued that the NhRP had not properly alleged violations of an animal welfare statute, that the zoo had no intention of transferring Happy, and that the case should be heard in Bronx County, the location of the Bronx Zoo.
Wise said that, by issuing the NhRP’s requested Order to Show Cause, Justice Bannister had already ruled that the venue in which the NhRP filed suit was proper and that she had already had the opportunity to change the venue when she had made the filings returnable to Orleans County.
The NhRP stated that, according to New York habeas corpus procedure, it can file in any county in New York regardless of where the imprisoned person is located.
It added that it had filed suit in Orleans County because the Fourth Judicial Department, of which the Orleans County court is a part, had correctly rejected tying legal personhood to being human.
Saying that she had “always enjoyed elephants,” Justice Bannister indicated that she would likely grant the Wildlife Conservation Society’s motion to have the case heard in Bronx County.
“The NhRP awaits the actual order and will determine its next steps after it has an opportunity to review it,” Wise said.
“The NhRP’s options include having the case heard in Bronx County, seeking to have Happy’s case heard in another county, and/or appealing the decision to the Fourth Department appellate court in Rochester.”
NhRP attorney Elizabeth Stein said after the hearing that the NhRP appreciated Justice Bannister’s “careful and respectful” hearing of its arguments and looked forward to deciding its next steps to secure Happy’s release.
The NhRP writes in its Memorandum of Law: “The Bronx Zoo imprisons Happy in a tiny, cold, lonely, un-elephant-friendly, and unnatural place that ignores her autonomy as well as her social, emotional, and bodily liberty needs, while daily inflicting further injury upon her that would be remedied by transferring her to any American elephant sanctuary.”
Categories: Animal rights