A federal court deemed hippos in Colombia to be “interested persons” under 28 USC 1728, allowing some federal officials to be deposed for a proceedings seeking personhood rights for descendants of Pablo Escobar’s cocaine hippos. This article and the implications of the legal success in this litigation brought by the Animal Legal Defense Fund piqued my interest.
Ordinarily, this would be just a legal oddity, though pretty unusual, since the U.S. courts have generally resisted lawsuits seeking legal personhood status for animals in the past. (For example, there is Tilikum v. Seaworld case (842 F.Supp. 2d 1259 (S.D.Cal. 2012)), where a federal court denied a 13th Amendment slavery claim by PETA on behalf the orca (killer whale) Tilikum for being kept in captivity. And also various unsuccessful habeas corpus cases brought by the leading animal rights lawyer Steven Wise of the Nonhuman Human Rights Project on behalf of chimpanzees kept in captivity.) But this is an interesting development in the context of more recent broader efforts, especially abroad, to accord legal personality and rights to animals and even rivers and landscapes. The best-known and probably most robust of these developments (discussed in the Rights of Nature chapter of our Comparative and Global Environmental Law Casebook) is a New Zealand statute that accords the Whanganui River (Te Awa Tupua) with legal personhood, the Te Awa Tupua (Whanganui River Claims Settlement) Act (2017).
While U.S. Magistrate Judge’s Litkovitz’s very short order in this litigation is interesting, it’s unfortunate that the media has jumped on the precarious implications of legal personhood for the hippos. The order itself addresses none of that. Ultimately, 28 U.S.C. 1728 is a procedural code provision designed to facilitate cross-border litigation, sort of like a professional courtesy for judges and lawyers from other countries because the US system has to rely reciprocally on such courtesies when cases here require evidence or testimony from abroad. An Above the Law blog post noted that Colombia does allow animals to bring lawsuits (or for cases to be brought on behalf of them), and so recognizing the state of Colombian law would not necessarily imply a change in US law. Furthermore, while I don’t focus on these procedural issues of law, this code provision has allowed agents of parties in foreign litigation to seek the federal courts’ assistance with witness testimony/depositions, just as the lawyers for the hippos (the animals’ supposed agents) have done here. So, unfortunately, the screaming headlines are overreaching by a lot. But what’s new about that . . .
Anyway, really interesting legal development; but likely of limited legal significance. (But significant enough that we’ll probably include a reference to it in the next edition of our casebook.)