A presentation by Northern Rivers Community Legal Centre (Australia) to the NSW CLC's state Conference, May 2012

1. Animal Law Litigation:
Choosing your allies
and adversaries wisely
(…or not)

2. You can’t buy love
American Society for the Prevention of Cruelty
to Animals, et al.
v.
Feld Entertainment, Inc.
US District Court Circuit
11 November 2011
The ASPCA argued that the use
of bull hooks and chains to
handle elephants violated the
Endangered Species Act

3. The Court ruled that the ASPCA lacked standing to sue the owners of the country's
largest collection of endangered Asian elephants, some of which perform in the
Ringling Brothers and Barnum & Bailey Circus, for alleged violations of the
Endangered Species Act
The ASPCA made two arguments for standing :
• ‘Informational harm’: The circus is depriving the public of
information contained in permit applications.
The Court ruled that nothing in section 9 of the Endangered Species Act
gives ASPCA a right to any information
• ‘Organisational injury’: ASPCA must spend resources on public
education to ‘counter the misimpression that the circus’ treatment of
animals is permissible.’
The Court ruled that there is nothing in the record to support the ASPCA’s
claim that the circus’ practices had created a public sense that the
treatment of elephants is harmless.

4. The other plaintiff, Tom Rider, a former Ringling Brothers barn
helper, sought standing on the basis that he had a ‘special emotional
attachment‘ to the elephants and suffered a ‘direct injury’ as a result of
their mistreatment.
The Court ruled that:
• Rider was not a credible witness, as he joined the lawsuit only after
receiving payment from the animal rights organisation:
‘Rider complained publicly about the elephants’ mistreatment only
after he was paid $190,000 from the organizational plaintiffs to do
so’.
• Rider failed to credibly prove an emotional attachment to any
particular elephant a finding based on factual findings, including
Rider's difficulty recalling the elephants' names, his lack of
forthrightness about payments he received from the organizational
plaintiffs, and various inconsistencies in his testimony.

5. ‘With friends like these…’
Tilikum, Katina, Corky, Kasatk, and Ulises, Five Orcas
by their next friends, People for the Ethical Treatment of Animals, Inc., Richard
O’Barry, Ingrid N. Visser, Howard Garrrett, Samantha Berg, and Carol Ray
vs.
Sea World Parks and Entertainment, Inc.
8 February 2012

6. In a legal action which has been described as ‘creative
lawyering’, PETA, three marine-mammal experts and two former orca
trainers sought a federal court declaration that five wild-caught orcas
forced to perform at SeaWorld were held as slaves in violation of the 13th
Amendment to the U.S. Constitution:
‘Neither slavery nor involuntary servitude. . . shall exist within the
United States or any place subject to their jurisdiction.’
The plaintiffs are members of the Orcinus orca or ‘killer whale’ species
The plaintiffs, their ‘friends’ allege, are being ‘held captive’ by Sea World
at their entertainment facilities in Orlando, Florida, and San
Diego, California.
PETA argued that ‘slavery doesn't depend upon the species of the
slave, any more than it depends upon the race, gender or ethnicity of the
slave. SeaWorld's attempts to deny [orcas] the protection solely based on
their species is the same kind of prejudice used to justify any
enslavement. ‘

7. On 8 February 2012 U.S. District Judge Jeffrey
Miller dismissed the case, writing in his ruling
that ‘the only reasonable interpretation of the
Thirteenth Amendment's plain language is that
it applies to persons, and not to non-persons
such as orcas.’

8. Standing
Sea World argued that the Plaintiffs lack standing to bring this action
and, alternatively, the ‘Next Friends’ lack capacity to bring the action.
A plaintiff must show that :
(1) it has suffered an ‘injury in fact’ that is
(a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by
a favorable decision.
HELD: The Constitution limits the federal judicial power to designated 'cases' and
'controversies.' A party invoking federal jurisdiction has the burden to show the
likelihood that the alleged injury will 'be redressed by a favorable decision.'
Here, there is no likelihood of redress under the Thirteenth Amendment because the
Amendment only applies to humans, and not orcas. Because Plaintiffs are without
standing to bring this action, no 'case' or 'controversy' exists and this court lacks
subject matter jurisdiction.

9. A lack of jurisdiction or
of sense?
Gary Young vs Peter Wright
NSW Local Court, 19 December 2011
The complainant, Gary Young, accused the
head of the RSPCA, Dr Peter Wright, of acts
of cruelty and aggravated cruelty on a horse
while performing veterinary dental work at
Goulburn in New South Wales in July 2011.
The court heard that neither the RSPCA nor
police would bring charges against Dr Wright
over the complaint.

10. The case was struck out because the complainant
had no jurisdiction to bring the case privately
without the consent of the NSW Primary
Industries Minister.
The Minister, Katrina Hodgkinson denied
consent, and advised Mr Young to go to either the
RSPCA, the Animal Welfare League or the NSW
police.
Magistrate Dennis Burdett dismissed the matter
based on a lack of jurisdiction.

11. A strategic alliance
Australian Alliance for Native Animal Survival and
RSPCA Australia v National Parks and Wildlife Service
(Federal Court of Australia, pending)
The indigenous group Australian Alliance for
Native Animal Survival is seeking a Federal
Court injunction to challenge the new NSW
Kangaroo Harvest Management Plan,
approved on 21 December 2011 by the federal
government.
The ‘harvest management plan’ allow about
850 licensed kangaroo shooters to operate,
much of the kill destined for the European
Union . In January – October 2011 325,438
kangaroos were commercially harvested.

12. The AANAS and RSPCA alliance opposes the harvesting partly
because indigenous people, who have lived with and from kangaroos
for thousands of years, believe they should be consulted over plans for
mass killing of the animal.
They also object on the grounds of ‘humanity and hygiene’ and have
been joined by the RSPCA, which has questioned the justification for
harvesting kangaroos at all.
The RSPCA has stated that ''Kangaroo killing is now viewed primarily
as a means of sustaining a commercial industry, rather than one
premised upon the basis of long-term population control and
environmental damage mitigation.

13. A test case for standing?
Australian Alliance for Native Animal Survival
Established: 5 May 2010
The aims of AAFNAS are:
· To educate the Australian and international communities about our
unique native flora and fauna. This includes the Aboriginal concepts
of caring for country, natural resources and all life past, present and
future.
· To link Indigenous and non-Indigenous Australians and
international supporters to work together to help native species and
their carers both locally and nationally.
· To tap into the ancient and intimate knowledge held by the
Aboriginal people and build a grass roots national organisation.
· To re-establish land rights and allocate the resources necessary to
establish carers’ centres/safe tracts of land for native species along
the dreaming tracks.

14. Friends in high places
The Australian
Competition and
Consumer Commission
and the Federal Court
Free to roam and free to range?

15. December 2011
Free range farmers are urging the ACCC to investigate the RSPCA's
standards for pork products sold in supermarkets, warning the
RSPCA logo dupes consumers into thinking they are buying free-
range.
Humane Choice, which accredits free-range egg, beef and pork farms, has
lodged a complaint with the Australian Competition and Consumer
Commission, alleging the RSPCA's labelling is misleading.

16. 23 January 2012
The Australian Competition & Consumer Commission is taking
some of Australia's biggest chicken producers to court. It claims
that ads declaring chickens are free to roam are misleading.
The ACCC argues the term is misleading and deceptive for
shoppers, and wants it banned. Its case centres around the space
each chicken has in the shed, and if the chickens are therefore ‘free to
roam’.
The industry body has conceded it would be happy to abandon the
term but that won't be enough for animal activists.
In a month's time the chicken meat industry will find out whether it can
keep using the marketing catchphrase ‘free to roam’.

17. 7 February 2012
Court penalises wholesaler for 'cruel deception' on free range eggs
Following Australian Competition and Consumer Commission
action, the Federal Court has declared that Western Australian
wholesalers C.I. & Co Pty Ltd, and Antonio Pisano and Anna Pisano
misled the public by labelling and selling cartons of eggs labelled 'free
range' when a substantial proportion of the eggs were not free range.
ACCC chairman Graeme Samuel said the ACCC remained committed
to protecting both consumers and businesses operating within the law
against those who falsely label eggs in the Australian market.