The Hindu Business Line : Not whales, but Bush, had a whale of a time

HALF the voters in the US are apparently not in favour of Bush. Nor do whales see him kindly, going by a recent case that they fought against the US President before the Court of Appeals for the Ninth Circuit.

The decision in the Cetacean Community vs George W. Bush, and Donald H. Rumsfeld, came on October 20, and Judge William A. Fletcher summarises the problem: "We are asked to decide whether the world's cetaceans have standing to bring suit in their own name under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act."

For starters, `cetacean' is from Latin cetus, Greek ketos, meaning whale, and it includes dolphin and porpoise too. They stayed in the waters even as Lanny Sinkin, a self-appointed attorney, argued their case. What made the world's whales and their kin unhappy was the US Navy's use of Surveillance Towed Array Sensor System Low Frequency Active Sonar (SURTASS LFAS) "during wartime or heightened threat conditions." This SL, to shorten the abbreviation, assisted "in detecting quiet submarines at long range" and had "both active and passive components."

Actively, low-frequency underwater transmitters emitted loud sonar pulses, or `pings' that can "travel hundreds of miles through the water" disturbing the sleeping whales. "The passive listening component consists of hydrophones that detect pings returning as echoes," and I guess they should have heard also the cetaceans crying foul. Sinkin argued that SL harmed his clients "by causing tissue damage and other serious injuries, and by disrupting biologically important behaviours, including feeding and mating." Oh, oh!

But wait, the court wanted to know if there was `sufficient injury.' To satisfy law, plaintiff "must show that (1) it has suffered an `injury in fact' that is (a) concrete and particularised and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favourable decision."

Even if you were able to bring an affected whale to court and get its nod that its injury is due to Navy exercises, there is one more test: The court would ask if any law has conferred "standing" on the plaintiff. It is true that animals have many legal rights, such as in: African Elephant Conservation Act, Animal Welfare Act, Horse Protection Act, and Wild Free-Roaming Horses and Burros Act. Also, there are criminal penalties on anyone "who transports an animal in a cruel or inhumane manner." Pity, that was not enough.

Take the Endangered Species Act, for instance. It authorises "persons" to sue to protect animals whenever those animals are "endangered" or "threatened." However, "Animals are not authorised to sue in their own names to protect themselves," observed Judge Fletcher. They're not included in the definition of `person.' Similarly, there was no remedy for whales from the Marine Mammal Protection Act too, because "no court has ever held that an animal — even a marine mammal whose protection is at stake — has standing to sue in its own name."

Even if individual cetaceans had no standing, can't an association of them bring a suit, asked Sinkin? "We disagree," ruled the judge. "A generic requirement for associational standing is that an association's members would otherwise have standing to sue in their own right."

Even as Bush had a whale of a time, it is rumoured that among the echoed pings picked up by the Navy's passive hydrophones were the wails of whales mourning the verdict.

ExParte@TheHindu.co.in

More Stories on : Courts/Legal Issues | Ex Parte | Aquaculture

Article E-Mail :: Comment :: Syndication :: Printer Friendly Page

Stories in this Section
Not whales, but Bush, had a whale of a time

There is sizeable market for Kerala delicacies abroad

Cultural association inaugurated in Mangalore

A proud day

Soccer talent hunt