A Washington federal appeals court will decide whether an animal rights group has standing to challenge the alleged mistreatment of Asian elephants by handlers at Ringling Bros. and Barnum & Bailey Circus.
After a six-week bench trial in 2009, Judge Emmet Sullivan of U.S. District Court for the District of Columbia said the non-profit advocacy group Animal Protection Institute and a former circus elephant handler do not have standing to pursue the abuse claims.
Sullivan in December 2009 ruled in favor of Feld Entertainment, Inc., which produces the Ringling Bros. circus. The judge did not rule on the substance of the abuse allegations.
The API, represented by Sidley Austin partner Carter Phillips, today asked the U.S. Court of Appeals for the D.C. Circuit to reverse Sullivan’s decision.
In the appeals court, Phillips, who manages the firm’s Washington office, argued the animal rights group has spent significant resources in its effort to “uncover and combat” alleged mistreatment of Asian elephants in the Ringling Bros. circus.
But for the alleged mistreatment of the elephants, Phillips argued, the Animal Protection Institute would dedicate funds to other causes.
Arguing before D.C. Circuit judges Merrick Garland, David Tatel and Janice Rogers Brown, Phillips tried to convince the panel that Feld Entertainment’s action has harmed the Animal Protection Institute and that the group therefore has standing to challenge the circus’ practices.
Brown expressed some concern about opening the door in providing standing to everybody who advocates against a particular cause or issue. Phillips said API spends money specifically to fight the alleged abuse of Asian elephants in the Ringling Bros. circus.
The suit, originally filed in 2000 in U.S. District Court for the District of Columbia, seeks to stop chaining and “bullhooking” of Asian elephants.
In court papers, animal rights groups said Feld Entertainment’s Asian elephants are chained for more than 12 hours a day and for longer periods in transport in railcars to performance venues.
The plaintiffs also said the elephants are “hit and hooked repeatedly with the bullhook, which resembles a fireplace poker.”
Phillips said in a brief that Feld Entertainment’s alleged mistreatment of the Asian elephants harms API’s educational outreach because the circus is “contributing to the public misimpression, particularly in young children, that bullhooks and chains are lawful and humane practices that do not harm, wound, harass, or injure the elephants.”
Elephants cannot be handled by a leash or bridle because of their size and strength, the circus’ attorneys at Fulbright & Jaworski said in court papers in the D.C. Circuit. Fulbright partner John Simpson argued for Feld Entertainment in the D.C. Circuit.
A properly used bullhook—a point and hook on a fiberglass or wood shaft—does not harm an elephant, the circus’ lawyers said. “Without a guide, a traveling circus could not safely present elephants,” the attorneys said.
The defendant’s lawyers said 95% of U.S. elephant-keeping institutions use “tethering” to manage captive elephants. The circus’ lawyers said tethering during rail transportation is for the safety of the elephants.
The circus’ attorneys said trial examples of alleged mistreatment were “contested and apocryphal.”
“Any marks on animals were superficial and no different than what elephants inflict upon themselves while playing or scratching with branches or on bushes,” the defendant’s lawyers said in a brief in the appeals court.
A public interest agency cannot “manufacture standing to challenge any practice it opposes merely by expending resources to oppose that practice,” the circus’ lawyers said.
In court, Simpson said today any person can spend money on a bumper sticker and then turn around and sue the target of the sticker. “That’s essentially where this would lead,” Simpson told the panel judges.
The appeals court did not immediately rule.