Attorney intervened after Colombian government announced plan to kill 100 hippos
By Kris Olson
BridgeTower Media Newswires
BOSTON, MA — In terms of scope, this legal victory may be more minnow than whale, more ant than elephant.
Nonetheless, now that a federal judge in Ohio has recognized animals as legal persons for the first time in the United States, the Animal Legal Defense Fund believes a new day is dawning for creatures large and small to have their rights vindicated.
The recent case involves roughly 100 hippopotamuses that are descendants of animals imported into Colombia in the 1980s by drug kingpin Pablo Escobar for his private zoo.
Unable to transport them to a suitable environment after Escobar’s death, the Colombian government left the hippos on his property. But the hippos eventually breached the property’s perimeter, relocated to the Magdalena River, and began reproducing at a rate that some ecologists consider to be unsustainable.
After the Colombian government announced a plan to kill off the gargantuan invasive species, a local attorney, Luis Domingo Gómez Maldonado, rushed to intervene. The plaintiffs in the Colombian lawsuit filed in July 2020 are the hippos themselves, as the country’s legal system grants standing to animals, unlike in the U.S.
The case came to American shores because the legal team working on the hippos’ behalf wants to depose two U.S. wildlife experts, Dr. Elizabeth Berkeley and Dr. Richard Berlinski, of the international organization Animal Balance.
Maldonado and co-counsel hope to bolster their case that the hippo population should be managed using a particular contraceptive, porcine zona pellucida, or PZP, which has been proven to be safe and effective in zoos.
While the hippos’ case has been pending, a regional environmental agency started to provide a fraction of the animals with a different contraceptive drug, GonaCon, which the hippos’ advocates fear will be less safe and effective, and the threat that at least some of the animals may be killed still looms.
The hippos’ petition in the Southern District of Ohio was grounded in 28 U.S.C. §1782, which allows any “interested person” in foreign litigation to request permission from a federal court to take depositions in the U.S. in support of their case.
The Animal Legal Defense Fund reasoned that since the hippos are plaintiffs in the Colombian litigation, they qualify as “interested persons” under the statute, and on Oct. 15, Magistrate Judge Karen L. Litkovitz agreed.
As legal decisions go, this one came with little drama, notes the Animal Defense Fund’s managing attorney, Christopher Berry. Not only was the hippopotamuses’ ex parte application to conduct discovery unopposed, but the U.S. Supreme Court had said in the 2004 case Intel Corp. v. Advanced Micro Devices, Inc. that someone who is a party to a foreign case “no doubt” qualifies as an “interested person” under §1782.
Nonetheless, in a press release, the Animal Legal Defense Fund calls the court’s order “a critical milestone in the broader animal status fight to recognize that animals have enforceable rights.”
It’s not that animals don’t have legal rights, Berry says, noting that every state prohibits cruelty to animals, for example.
“The problem has been convincing courts that animals can be recognized as being able to enforce those rights on their own behalf,” Berry explains.
Instead, to find standing, courts have required a “surrogate” of sorts — a human who sustained an injury independent from the animal — “when, in reality, the thing that’s being complained about is the injury to the animal,” Berry says.
Back in 2017, the Animal Legal Defense Fund and other organizations began to try to convince an Oregon state court to allow a severely neglected horse to pursue a court order that the person responsible for the neglect should pay for the lifelong veterinary and behavioral care the horse now needs.
The case was initially dismissed, but a petition on the horse’s behalf was argued to the Oregon Court of Appeals, and a decision could come any time.
“The ultimate goal is that animals have the standing to enforce their legal rights in court, including the right not to be cruelly abused or tortured or needlessly killed,” Berry says.
Most would consider it a “bedrock principle” of the American legal system that rights and remedies go hand in hand; you can’t have one without the other, Berry adds. Yet while laws grant animals a right to be free from cruelty, their representatives cannot rush into court to seek an injunction to prevent that cruelty or sue for damages after it occurs.
“To me, it seems obvious that if we have a legal system that protects animals from cruelty, it should actually protect animals from cruelty,” Berry says.
Swampscott attorney Jeremy M. Cohen cheers the Ohio judge’s decision and the efforts of animal rights advocates more generally.
Cohen notes that his Boston Dog Lawyers office, founded in 2016, has also been trying to enhance the courts’ recognition of animal rights but from a different angle: that of the pet owner.
“The progress is slow, and as with many changes in the law, we are building from the ground up,” he says.
While some lower court judges have begun to recognize the unique bond shared between pets and their owners, the Appeals Court recently poured some cold water on those efforts, reversing a custody arrangement for a dog approved in the court below.
“The trial court, in essence, bestowed a status on the dog not found in Massachusetts law: a shared custody arrangement regarding personal property,” the court said.
The court agreed with the defendant that one could liken the custody arrangement “to a visitation schedule for a table and chairs that were included in the cohabitating parties’ shared household, but which had been purchased by the defendant.”
“No matter how many times the table and chairs may have been refinished by the plaintiff herself, or she paid to have them refinished, would change the defendant’s status as owner of that property,” the court wrote.
Cohen believes the court got it wrong and hopes and expects to have the chance to demonstrate how in a future case. The court can apply property law to pets and still find that a pet has a separate and distinct value to each of its owners under recognized principles of implied contract, he says.
Massachusetts criminal courts have expanded to consider the state of mind of residents’ pets, and he suspects the civil side may soon follow, given that pets are a “special type” of property due to their biological needs and finite lifespan.
“We are seeing judges who want to and are finding ways to consider the importance of pets in our lives and of us in our pets’ lives,” Cohen says.
