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| Kodiak bear at Olympic Game Farm, a private zoo in Washington. Analise Zocher via Flickr CC BY 2.0 |
The nonprofit Animal Legal Defense Fund (ALDF) sued a private zoo in Washington, alleging animal cruelty under state public nuisance law. In mid-August, the Washington Supreme Court rejected the theory as beyond the scope of the statute.
It is a clever theory. Like environmentalists, animal protection organizations face high hurdles using tort law to advance their work. Animal cruelty laws often are not vigorously enforced by public authorities and provide scant mechanisms for private enforcement. Nonprofits usually have no standing to sue without a statutory authorization.
State and local governments lately have been pushing nuisance law as a potential accountability mechanism for all kinds of social ills. Nuisance is a leading theory in lawsuits against Big Oil for the impact of climate change. And some governments found success with nuisance to leverage settlements with opioid sellers.
But this "super tort," as termed by the defense bar and tort reformers, is problematic for policy reasons. Overusing the tort system to regulate business exceeds the bounds of corrective justice, threatening the free market and the organic social contract. The courts are not equipped to make policy, and it's not their function in the constitutional design of separated powers. Converting, or perverting, social problems into civil litigation thus bypasses the political branches of government, enervating democratic accountability and threatening unintended consequences.
In 2020, I wrote about this issue in the context of the Rhode Island suit (my home state) against Big Oil. I spoke about the problem to a Jagiellonian University audience via Zoom earlier that same year.
Some states, such as Washington, allow the enforcement of public nuisance law with "private attorney general," or "citizen-suit," provisions. The potential for public authorities to expand the scope of public nuisance is thus multiplied by willing and creative advocacy organizations.
ALDF theorized that animal cruelty, which the nonprofit alleged in suing the private zoo in Washington, constituted a public nuisance. That's a reach, but not irrational.
Pollution, or environmental damage, is the classic example of a public nuisance. A die-off of fish in a public waterway might adversely affect the interests of waterside property owners, but there is no incursion on any one property such as creates a privately enforceable nuisance. Public authorities are obliged to respond to the problem as a matter of policymaking—thus, environmental protection law and regulation. Add citizen suits to the public nuisance mix, and environmentalists acquire enforcement power.
ALDF's wish to enforce animal cruelty law is a short leap through analogy in natural resource protection. Moreover, nuisance law in some states has a "per se" concept, like negligence law, by which the standard of right and wrong can be informed by statute. So ALDF bolstered its public nuisance claim by pointing to anti-cruelty statutes and wildlife conservation laws as public policy properly pronounced by the legislature.
ALDF further analogized to a peculiar but exigent strain of public nuisance law tied to morality. In my 2020 talk, I made scant reference to this theory, in the interest of succinctness, but probably I should have given it a more respectful nod.
Historically, public nuisance law was used to shut down the likes of brothels and saloons. Sometimes red-light businesses externalize costs to surrounding property owners that are real but difficult to quantify—consider the long-running feud between a Chicago-area strip club and next-door nuns, by which the convent alleged injury by "secondary effects" (as known in First Amendment law), such as crime and litter. But many times, too, public nuisance laws have been invoked on the mere basis of moral objection.
In that sense, runaway public nuisance is a problem of the law's own creation. Common law courts opened the door to nuisance in the moral abstract, untethering the concept from physical property. ALDF just stepped through the door. Society's intolerance of animal cruelty is a moral statement no less than condemnation of human trafficking. As an animal advocate myself—full disclosure, I'm a founding faculty adviser of the student ALDF chapter and a past ALDF supporter—I find this theory appealing.
To be objective, though, the difficulty arises in that not everyone, least of all the legal system, embraces ALDF and my view of unequivocal morality in the area of animal cruelty. The law permits even purely recreational hunts to kill exotic animals. For all her worthy work, even Temple Grandin has not succeeded in making humane methods universal in food production. Despite advancements in the recognition of human grief as a compensable loss in tort claims for injury to pets, the law continues to regard animals, for the most part, as mere chattel.
Such was the tone of the Washington Supreme Court's response to the ALDF claim. ALDF could not articulate a conventional nuisance theory, in the way of interference with peace and enjoyment of land, and the court refused to engage with ALDF's theory as a matter of policy indicated by the animal cruelty or wildlife conservation laws.
"While ALDF cites to some cases that identify wildlife as a public resource," the court opined, "it cites no cases or statutes indicating that the public has a right to use that resource as it sees fit or has any individual, personal property rights in wildlife."
ALDF pointed to a seeming precedent to no avail. ALDF prevailed in a claim against a Wisconsin private zoo in federal court last year, winning a permanent injunction on a citizen-suit nuisance theory. However, the defendant had given up the fight partway through and allowed a default judgment to be entered. The Washington Supreme Court observed that the federal trial court in the case made no ultimate finding of fact that the private zoo was a nuisance.
In concurrence, Chief Justice Steven C. González left the door open, just a crack, and made a shout out, remarkably, to the theory of the rights of nature (RoN), if not by name. Though agreeing with the holding, the chief opined (selective citations omitted; links added):
[T]he world has changed much since the days when King Henry II, Kukulkan, and the Great Khan were young. Now, the private use of land has profound potential to harm our ecosystem and the various species we share it with. It may well be time to heed Justice Douglas's call to consider whether those places and things threatened with environmental catastrophe should have standing in court to sue for their own injuries. See Sierra Club v. Morton ... (U.S. 1972) (Douglas, J., dissenting) (citing Christopher D. Stone, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972)). Thus, I am wary of fully endorsing the majority’s sweeping conclusion that "[w]here the statutory framework and case law do not support a claim, none exists."I'm all for ALDF's objectives, just like I'm gravely concerned about the impact of the opioid crisis. And I value the chief's assessment of common law evolution, an important capacity of American tort law that often is marginalized or forgotten in contemporary practice. I have hastened to recognize the potential of common law evolution to reflect, not make, social policy in areas such as privacy and data protection.
But I worry, too, about misuse of the courts to make social policy; what the public will to do so tells us about possibly catastrophic dysfunction in the political branches; and what that means for the fabric of our democracy.
The case is Animal Legal Defense Fund v. Olympic Game Farm, Inc., No. 101264-1 (Wash. Aug. 17, 2023) (ALDF commentary). Associate Chief Justice Charles W. Johnson wrote the opinion of the court.
