II. Article III Standing
The Cetacean court held that all of the world’s whales, dolphins, and porpoises (the “Cetaceans”), through their self-appointed lawyer, alleged facts sufficient to establish standing under Article III. 386 F.3d at 1175. The Cetaceans alleged concrete physical injuries caused by the Navy’s sonar systems in a suit brought by the “self-appointed attorney for all of the world’s whales, porpoises, and dolphins.” Id. at 1171. The Ninth Circuit made clear that the “sole plaintiff in this case” is the Cetaceans and did not discuss “next friend” or third-party standing. Id. Although the Ninth Circuit affirmed the district court’s dismissal because the Cetaceans lacked statutory standing under the environmental statutes at issue in that ease, the court stated that “Article III does not compel the conclusion that a statutorily authorized suit in the name of an animal is not a ‘case or controversy.’ ”[1] Id. at 1175.
Here, the complaint alleges that Naruto is the author and owner of the Monkey Selfies. The complaint further alleges that Naruto has suffered concrete and particularized economic harms as a result of the infringing conduct by the Appellees, harms that can be redressed by a judgment declaring Naruto as the author and owner of the Monkey Selfies. Under Cetacean, the complaint includes facts sufficient to establish Article III standing.
- ↑ The use of the double negative here is problematic in that it creates unnecessary ambiguity in the court’s holding. Better, we think, to say a petition is “timely” than that it is “not untimely,” for example. Better here to have said the animal has Article III standing. “This type of litotes (the negation of an opposite) often makes language convoluted. George Orwell ridiculed it with this example: ‘A not unblack dog was chasing a not unsmall rabbit across a not ungreen field.’ ” Bryan Garner, Garner’s Modern American Usage 545 (2003) (citing “Politics and the English Language” (1946), in 4 Collected Essays, Journalism and Letters of George Orwell 127, 138 n.1 (1968) ). But this language does not change our ultimate conclusion. If nothing about Article III compels the conclusion that animals lack standing, then it cannot also be true that animals lack standing simply by virtue of their being animals. In other words, Cetacean at the very least holds that it is possible for animals, like humans, to demonstrate the kind of case or controversy required to establish Article III standing. Although the claims in Cetacean sounded in physical harm to plaintiffs, and the claims in Naruto sound in economic harm to Naruto, that difference is not a point of distinction for Article III purposes. “Cases or Controversies” have described claims involving property interests, as well as claims involving personal injuries, since the Founding, and before, at common law. Thus, the sort of blanket exclusion of animals from Article III jurisdiction which Judge N.R. Smith advocates is, alas, fundamentally inconsistent with Cetacean’s holding.
we explain later, we believe Cetacean was wrongly decided, we are bound by it. Short of an intervening decision from the Supreme Court or from an en banc panel of this court, see Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003), we cannot escape the proposition that animals have Article III standing to sue. With this as a starting premise, how could it be that PETA’s deficiency as Naruto’s representative could destroy Naruto’s otherwise valid Article III standing? Again, the concurrence fails to explain.
Judge N.R. Smith insightfully identifies a series of issues raised by the prospect of allowing animals to sue. For example, if animals may sue, who may represent their interests? If animals have property rights, do they also have corresponding duties? How do we prevent people (or organizations, like PETA) from using animals to advance their human agendas? In reflecting on these questions, Judge Smith reaches the reasonable conclusion that animals should not be permitted to sue in human courts. As a pure policy matter, we agree. But we are not a legislature, and this court’s decision in Cetacean limits our options. What we can do is urge this court to reexamine Cetacean. See infra note 6. What we cannot do is pretend Cetacean does not exist, or that it states something other, or milder, or more ambiguous on whether cetaceans have Article ITI standing.
