The Nonhuman Rights Project (NhRP) has put forward arguments for a third time in the Bronx Supreme Court in the United States in support of the right to liberty of an elephant named Happy, who is alone in captivity at the Bronx Zoo.

The NhRP is demanding recognition of Happy’s legal personhood and right to liberty followed by her release to a sanctuary.

Happy’s habeas corpus case “is not just about the cause of one poor elephant. It is about the cause of liberty,” the NhRP’s president and lead attorney, Steven Wise, said in court yesterday (Monday).

The NhRP will also be presenting arguments in another elephants rights case tomorrow (January 8) in Connecticut. That hearing concerns Minnie, the sole surviving elephant held captive in the Commerford Zoo travelling circus, and will take place in the Connecticut Appellate Court.

Yesterday’s proceedings in the Bronx court lasted more than three hours. Bronx Supreme Court Justice Alison Y. Tuitt has now heard about 13 hours of arguments on the merits of Happy’s case, including hearings in September and October last year.

NhRP attorney Elizabeth Stein said: “While we don’t know how Justice Tuitt will rule, the fact that the justice system is treating Happy as it would an imprisoned human being is in itself a legal victory for nonhuman animals.”

The NhRP is asking the Bronx Supreme Court to recognise Happy as a legal person with the fundamental right to liberty protected by the common law writ of habeas corpus and to then order her release to one of the two accredited elephant sanctuaries in the US, The Elephant Sanctuary in Tennessee (TES) or the Performing Animal Welfare Society (PAWS) sanctuary in California.

Happy is a 48-year-old, wild-born Asian elephant who was captured in Thailand and brought to the United States in the 1970s. She has been in the Bronx Zoo since 1977 and has lived alone for the past 13 years.

She is currently being kept in an industrial cement structure lined with windowless, barred cages (the zoo’s “elephant barn”) while the Bronx Zoo’s elephant exhibit is closed for the winter.

The Wildlife Conservation Society, which manages the Bronx Zoo, insists that she is “happy where she is”.

Wise says that elephant experts such as Joyce Poole and Cynthia Moss state clearly that Happy, like all elephants, wants and needs to live freely and this includes having the opportunity to meaningfully interact with other members of her species. She cannot do this in the Bronx Zoo’s elephant exhibit, he says.

Wise emphasises the difference between animal welfare and nonhuman animal rights.  He says the NhRP’s arguments are not about whether the Bronx Zoo is violating any animal welfare laws or the minimal standards set by the Association of Zoos and Aquariums.

“They are about whether the Bronx Zoo is unlawfully imprisoning Happy and violating her right to liberty as an autonomous being,” he said.

The NhRP lawyers said yesterday’s hearing went “very well” as a result of Justice Tuitt’s continued attentiveness to the core issues in Happy’s case, such as who counts as a legal person with rights and how sanctuaries like TES and PAWS are fundamentally different from the Bronx Zoo “because they are built to respect elephants’ autonomy”.

Wise says that the Bronx Zoo’s exhibit is too small to meet the needs of Happy or any elephant.

“Happy deserves to live the rest of her life at a sanctuary where the utmost care will be given to her individual needs and she’ll have the space and conditions needed to heal and to form psychologically necessary bonds with other elephants.”

Happy made history in 2005 as the first elephant to demonstrate self-awareness via the mirror test.

In December 2018, Happy became the first elephant in the world to be the subject of a habeas corpus hearing after the Orleans Supreme Court in Albion, New York, issued the habeas corpus order requested by the NhRP. In early 2019, the Orleans court transferred Happy’s case to the Bronx.

The NhRP’s grassroots advocacy campaign on behalf of Happy has drawn the support of influential public figures such as Queen guitarist Brian May, elected officials such as New York City Council Speaker Corey Johnson, and animal advocates in New York and around the world.

A Change.org petition calling for Happy’s release from solitary confinement has garnered more than 1.3 million signatures.

Photo of Happy by Gigi Glendinning.

“In Connecticut, New York, and across the US, elephants are suffering because they live as prisoners in travelling circuses and zoos in tiny, inappropriate environments that don’t allow them to exercise their autonomy,” Wise said after the September hearing in Happy’s case and the news that Beulah and Karen, two elephants formerly in the custody of the Commerford Zoo, had died. “They deserve freedom and justice.”

Beulah collapsed and died at the Big E fair in Massachusetts in September last year. Days later, the United States Department of Agriculture confirmed that Karen had died the previous March.

Connecticut hearing

In the case of Minnie, the NhRP is asking the Connecticut courts to recognise her as a legal person with the fundamental right to liberty and order her immediate release to  The Elephant Sanctuary or the Performing Animal Welfare Society sanctuary.

Minnie was born in the wild in Thailand and imported to the US in 1972 when she was two months old. The NhRP says she is still being held captive on a ramshackle farm in Goshen, Connecticut.

The NhRP is now appealing against a lower court’s dismissal of its second habeas petition.

Connecticut Superior Court justice Judge Dan Shaban dismissed the second petition in February last year on the grounds that the second and first petitions were “exactly alike” and were brought “to adjudicate the same issues”.

The first petition, brought on behalf of Beulah, Karen, and Minnie, was dismissed by superior court justice Judge James Bentivegna in December 2017.

The two cases are not alike, Wise says. “Even if they were, the NhRP was permitted to bring a second petition as the first petition was not dismissed on its merits and therefore could be brought again,” he added.

Minnie at Commerford Zoo. Photo by Jennifer Fermino for Animal Defenders International.

Last October, the Connecticut Appellate Court granted the NhRP permission to file a five-page supplemental brief in its case on behalf of Minnie. The brief was filed last November.

The NhRP says that, in tomorrow’s hearing before the Connecticut Appellate Court, it will address what it says were “serious legal errors” in that court’s ruling in August last year that Justice Bentivegna “properly declined to issue a writ of habeas corpus on standing grounds” in the case of the Commerford elephants.

Wise says the NhRP will urge the court not to repeat these errors, “such as the legally wrong assertion that Minnie must have standing to sue for the NhRP to be able to file a habeas petition on her behalf”.

He added: “Our supplemental brief argues that the appellate court should disregard its decision on Petition 1 as it is clearly wrong.

“We are disappointed the Connecticut Appellate Court adopted a legally incorrect definition of personhood that other judges have rejected, refused us standing to sue on behalf of Beulah, Karen, and Minnie (to which we are entitled under the Connecticut common law of habeas corpus), and denied us the opportunity to have the hearing on the merits to which we are also entitled.

“This is especially troubling as, in order to do so, the court had to ignore a contrary binding decision of the Connecticut Supreme Court.”

In its arguments against Justice Bentivegna’s dismissal of its first petition for habeas corpus on behalf of Beulah, Karen, and Minnie, the NhRP said that the judge erred not only in dismissing the NhRP’s petition on the grounds that was 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, Wise says.

“This case is about the injustice of imprisoning an autonomous being like Minnie, especially alone, and treating her as a legal ‘thing’ with no rights simply because she isn’t human,” he added.

“Courts have the responsibility under the common law – which must evolve as human understandings of injustice evolve – to confront this injustice by recognising Minnie as a legal person with the fundamental right to liberty and freeing her to a sanctuary.

“Otherwise, she will continue to suffer, and the Connecticut courts will continue to undermine their most deeply rooted values and principles of justice every day she is denied her freedom.”

International vigil for elephants

On Saturday (January 4), animal rights activists participated in an International Candlelight Vigil for Elephants.

Activists gathered outside the Los Angeles Zoo and other zoos in the United States, and people also joined the vigil via social media under the hashtag #Vigil4Elephants. The action brought together representatives of more than two dozen animal advocacy organisations and elephant sanctuaries.

The organisation Elephant Guardians of Los Angeles said that those taking part in the vigil remembered and honoured the elephants who died in captivity during 2019 and all the elephants who have died at the LA zoo.

The elephant guardians are calling for the release of Billy, who is the only male elephant in the LA zoo. Born in Malaysia in 1985, he was acquired by the zoo in 1989.

The NhRP said that Beulah and Karen received special recognition during the vigil.

A group of US and international organisations, including Animals Asia, and animal protection organisations in India, Brazil, Cambodia, Canada, Thailand, Britain, and Romania have called on the Los Angeles city council to pass Motion #17-0453, introduced on April 19, 2017, which directs the Los Angeles Zoo to immediately cancel any current or future elephant breeding activities or programmes involving elephants, and to immediately begin the process of safely relocating Billy to a suitable sanctuary environment.

“Billy is being held in a small corral,” the Elephant Guardians of Los Angeles said. “He has, at most, about one acre of space and is isolated from the three female elephants in the zoo.”

Two of the female elephants, Tina and Jewel, who are in their 50s, are on loan from the San Diego zoo and the third, Shaunzi, who is in her late 40s, was transferred to the LA zoo from the Fresno Chaffee zoo. Prior to their zoo captivity, all three females were victims of the circus industry.

A Care2 petition organised by Karen Eisenlord from Elephant Guardians of Los Angeles states that, for most of the time that Billy has been in the LA zoo, he has endured living by himself in an extremely tiny enclosure.

“As a result, he has displayed significant signs of stress, such as swaying and rocking side to side and head-bobbing due to frustration, boredom and possibly depression,” the petition states.

“Elephants naturally need to roam several miles a day to maintain healthy joints and feet. They are also highly intelligent, sensitive, and social animals who need to be engaged by their surroundings in order to be happy. Billy has none of this.”

Eisenlord says that, after public protests and a lawsuit filed on Billy’s behalf a few years ago, the Los Angeles Zoo promised to close down the old elephant exhibit and build a bigger, better enclosure for Billy that would be more like his natural environment.

“Upon visiting the new exhibit, however, I was shocked to find that poor Billy is still being kept in a tiny area separate from the other elephants,” Eisenlord states.

“He was still displaying the same repetitive swaying and head-bobbing behaviour that demonstrates his stress, boredom, and depression.”

The LA zoo says on its website that Billy exhibited the repetitive behaviour of head bobbing when he arrived at the zoo as a four-year-old.

“More than 4,000 hours of research has shown that Billy’s head bobbing is most often anticipatory in nature,” the zoo states.

“Similar to when people tap their toes or fidget, Billy will bob his head when he expects food or is waiting for a specific activity. To minimize the behaviour, we break up Billy’s routine on a daily basis, with no two days being exactly the same. And it works.”

The zoo says that it has been able to reduce Billy’s head bobbing, but “once this kind of behaviour is set in early life, it’s impossible to eliminate completely”.

The LA zoo states that the living conditions for its elephants are “nothing short of exceptional” and that they live in one of the best elephant habitats in North America.

“Elephants of Asia features 3.6 acres of soft surfaces that are covered in 2.5 feet of sand that is rototilled on a monthly basis,” the zoo states.

“The entire facility is 6.56 acres, with varied terrain and hills that offer plenty of opportunities for exercise as well as physical and mental enrichment.”

The zoo says Billy has enjoyed elephant companions for the entirety of his three decades there and had the opportunity for daily contact with Tina, Jewel, and Shaunzi.

“Throughout their time at the L.A. Zoo, our elephants engage in regular daily exercise and stimulation, both in their previous habitat and at Elephants of Asia,” the LA zoo says on its website.

“All of our elephants take part in individualized enrichment plans that keep each animal physically and mentally fit.”

The Elephant Guardians of Los Angeles say, however, that any contact Billy may have with the other elephants is through fencing and bars.

“Most, if not all, of the vegetation around the exhibit is fenced off from the elephants, or wrapped with electric wires, so they are tempted but cannot engage in natural browsing behavior.

“We would love to see Billy in a sanctuary where he will have more space and be free from the noise and pollution of the city and from the stress of being on constant public display.”

PAWS, the guardians say, is planning a 15-acre habitat for Billy.

Vigil participants urged to think about Australia fire victims  

Those taking part in Saturday’s vigil were also asked to take a moment of silence to remember the millions of animals lost in fires in Australia (currently estimated at half a billion) and for the animals killed in a fire on New Year’s Eve at the Krefeld Zoo in Germany.

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