Article

*681 IN THE VALLEY OF THE DRY BONES: [FN1] REUNITING THE WORD “STANDING” WITH ITS MEANING IN ANIMAL CASES


Elizabeth L. DeCoux [FNa1]

Copyright © 2005 by William and Mary Environmental Law and Policy Review; Elizabeth L. DeCoux (reprinted with permission)

Both the Humane Methods of Slaughter Act of 1958 [FN2] (“HMSA”) and the Animal Welfare Act [FN3] (“AWA”), effective in 1966, govern the conditions of millions of animals in settings where the likelihood of suffering is great. Both were passed at the insistence of a populace angered by abuse in slaughterhouses and research laboratories, and both are routinely ignored by the industries they purport to regulate. Consequently, the cruelty which prompted passage of the laws persists decades after the statutes were enacted.

 

Although animals had no rights at early common law, U.S. courts began recognizing their rights in the nineteenth century. [FN4] HMSA and AWA, which purport to apply some of those rights in specific industrial settings, are hollow promises because courts have not consistently recognized the standing of animals supposedly enjoying these and other protections.

 

Review of the law of standing reveals that, while certain recognizable rules imbue that term with content, courts considering the standing of animals have separated the term from its meaning through inconsistent decisions. Courts simply declare some animals to have standing and others to lack standing, without so much as a passing nod to the established precedent governing standing determinations. Decisions regarding the standing of animals bear no resemblance to principled application of legal rules; they are nothing more than the raw exercise of power over helpless creatures.

The solution to the problem of animal standing requires each court making such a determination to explain the rationale for the decision with reference to existing precedent. Courts performing such analyses will often find that animals have standing. If courts begin, now, to decide animal standing issues in a reasoned, principled manner, courts will be prepared to address inevitable *683 cases in which scientific advances blur the line between human and animal. Such a principled approach will recognize the significance of sentience.

Twice in this nation's history, citizens outraged [FN5] at an industry's systematic torture [FN6] of animals [FN7] have demanded that the federal government take action. In both instances, the government passed laws that have since proven worse than useless; their very existence gives the public the impression that the institutionalized *684 torture of animals in this country has ended when, in fact, it continues unabated. The ineffectiveness of these and similar statutes stems from a systemic failure of our government. Officials with the power to enforce the law lack the will, the resources, or both, while citizens eager to fight vigorously for animals find their every effort thwarted by adverse, unexplained rulings on the issue of standing.

 

The popular names of HMSA [FN8] and AWA [FN9] paint a peaceful picture, far removed from the blood, stench, filth, and screams of the slaughterhouse and the research laboratory. Examination of these two failed statutes leads to a broader consideration of both the place of animals in our society and the legal devices by which we can best give effect to our compassionate intentions toward them.

Among the most crucial of these legal devices is standing, an element necessary to any attempt by a guardian or guardian ad litem to bring a suit on behalf of an animal. To date, however, case law regarding the standing of animals is little more than a jumble of inconsistent decisions wholly lacking in rationale. This lack of rationale results from courts' willingness to use the term “standing” without any connection to the legal meaning of the word. To achieve the consistency which is a hallmark of any legitimate system of justice, courts should evaluate the standing of animals under the established principles of law associated with the term.

 

The need for courts to reconnect standing with its meaning is particularly critical as the legal system progresses through the twenty-first century, a span of time in which the adequacy of the justice system and the validity of the standing doctrine will be sorely tested by certain scientific advances, both extant and imminent. Jurisprudence is being transformed through these advances as dramatically and unalterably as cosmology was transformed by the knowledge that the Earth orbits the sun. Among these advances is the proposed reorganization of taxonomy, such that humans would no longer lay exclusive claim to the genus homo and would be joined in that genus by the chimpanzee *685 and the bonobo. Another advance is the existence, today, of the technology needed to create a chimera, a being that is neither exclusively human nor exclusively animal, but a genetic combination of the two, possessing features of each. [FN10]

These scientific changes, in concert with our consciences, call upon our courts to persevere in the work some have haltingly begun: development of a principled, legal framework within which to enfold the differences, similarities, purposes, pains, pleasures, and yearnings of animals, these “other nations, caught with ourselves in the net of life and time, fellow prisoners of the splendour and travail of the Earth.” [FN11]

 

This Article addresses the failure of the legal system's efforts to protect animals and suggests an effective solution: an action brought in the animal's name by a guardian ad litem. The Article traces these failures to use this tool to a single cause: the courts' unacknowledged choice, in animal cases, to sever the word “standing” from its meaning and use the word, instead, to signify a judge's arbitrary decision as to who can and cannot enter a court.

Part II documents the failure of HMSA and AWA and describes the suffering animals endure in spite of and sometimes because of those laws. Part III places HMSA and AWA in the context of a brief history of the rights of animals in the United States. Part IV explores the connection between those failed statutes and the law of standing, describing the inconsistent, inexplicable decisions in which courts have addressed the standing of animals. Part V moves beyond the law regarding standing and identifies some of the larger philosophical, ethical, and scientific issues that arise when serious consideration is given to the standing of animals, concluding that there is error in viewing them as the “other” whose interests and rights need not be considered. Part VI looks to the future as an era when recognizing the standing of animals will allow people to be their best and most creative selves.

HMSA and AWA have failed. If animals could not feel pain, the failure might be of less consequence. It is well settled, however, that animals do feel pain, as established by the very scientists who experiment on animals. The primary membership organization for those who conduct research on animals is the American Association of Laboratory Animal Scientists (“AALAS”). An important publication available from AALAS is its Guide for the Care and Use of Laboratory Animals, [FN12] which includes this statement:

 

An integral component of veterinary medical care is prevention or alleviation of pain associated with procedural and surgical protocols. Pain is a complex experience that typically results from stimuli that damage tissue or have the potential to damage tissue. The ability to experience and respond to pain is widespread in the animal kingdom .... In general, unless the contrary is known or established it should be assumed that procedures that cause pain in humans also cause pain in animals. [FN13]

 

Not only do scientists recognize that animals experience pain, but articles in medical journals also regularly describe various methods of causing animals pain. At least one lengthy issue of a scholarly journal is devoted entirely to a description of methods for causing pain to animals. [FN14]

The intentional infliction of physical or mental suffering is torture. Therefore, the widespread infliction of such suffering on *687 animals in slaughterhouses and research laboratories, in violation of HMSA and AWA, is a crime that the citizens of a decent society have a duty to stop.

After a false start or two, Congress, in 1958, undertook earnest consideration of a bill requiring that the slaughter of animals used for food be humane. [FN15] The impetus for the legislation was the public's growing awareness of atrocities that were routinely committed in slaughterhouses and the public's resulting demand that the government take action. [FN16] The Chair of the Senate Agriculture Committee, during hearings on the humane-slaughter bill, stated that “he never had ‘so much pressure in all [his] twenty-two years' in Congress.” [FN17] While the bill was pending, Congress received more letters about the suffering of animals in slaughterhouses than about any other matter then under consideration. [FN18]

 

Also in 1958, the testimony during four days of hearings before the Senate Committee on Agriculture amply demonstrated why the public was so concerned about conditions in slaughterhouses. For example, a letter from a former meat inspector, W. P. Holcombe, was read to the Committee and entered into the record. Holcombe wrote that “[n]o member of the committee ... is qualified to act on this legislation without first making a casual inspection of actual [slaughter] operations. Unless the inspection is made incognito, I assure you a group of legislators would be presented with a staged performance comparable to a conducted tour of Russia.” [FN19] Holcombe proceeded to describe what the *688 committee would see if they did pay such a clandestine visit to a slaughterhouse:

a long line of helpless, healthy, fully conscious hogs, sheep, cruelly shackled and dangling from one leg, twisting, squirming and screaming in agony as they approach the executioner .... Perhaps a close observer might have noted a hideously gruesome elongation of that poor shackled leg as a bone snapped, or the joint pulled from its socket .... They reached the end of the line too soon, their agonized screams smothered as they dropped mercilessly, still conscious into a vat of scalding water. [FN20]

 

Describing the method for preparing cattle to be shackled and hoisted, Holcombe wrote:

[a] powerful human being expertly swings a heavy sledge as the condemned creatures move past him. If they are lucky they crumple in partial consciousness .... Many of them [do] not, and many revive to linger in agony as they are suspended to bleed out. Quite frequently the helpless animal receives a preliminary broken snout, an ear sheared off, or an eye gouged out from a misdirected blow of the sledge. [FN21]

 

Another witness, Christine Stevens, testified that she had watched the man wielding the sledgehammer at one slaughterhouse and had seen him land as many as thirteen blows with the sledge on a single animal. [FN22] She also described animals struggling after being shackled by a back leg and hung by a chain on a conveyer belt. [FN23] *689 She saw some twist so violently that they tore off a foot or broke a leg or the pelvis. [FN24]

The retired inspector, Holcombe, concluded his written statement by asking, “[w]hat happiness can be derived from the profits of such sadistic cruelty. I am thinking of the advice Jesus gave his disciples: ‘For even as ye do it to the least of these, so do ye it unto Me.”’ [FN25]

 

Congress passed HMSA, and President Eisenhower signed it into law. The essence of the statute is a requirement that “animals [be] rendered insensible to pain” [FN26] before workers shackle a back leg, attach a chain to that shackle, and attach the other end of the chain to the overhead conveyer that hoists the animal and moves her inexorably to each station of the slaughter assembly to be eviscerated and skinned. The humane societies that had worked hard for HMSA's passage, along with the legislators who had voted for it in the face of stiff opposition from the slaughter industry, likely felt a sense of accomplishment and relief that the agony of animals in slaughterhouses had ended. That sense of relief was ill-founded, however, because, by 2001--and likely decades earlier--violations of HMSA were routine.

The depth of the slaughter industry's disregard for HMSA is apparent from a reading of the 2001 Washington Post series of two articles. [FN27] The articles document that Congress need not have bothered to pass HMSA. For example, HMSA requires that animals be rendered “insensible to pain” before they are hung by one leg from the conveyor mechanism. [FN28] The method used for rendering the animals insensible to pain, in most slaughterhouses, *690 is a blow to the front of the head with a captive bolt gun. [FN29] A captive bolt gun, if functioning as designed and used as intended, delivers a powerful blow to the animal between the eyes. [FN30] The Washington Post series demonstrates, however, that the underpaid, poorly trained, rushed [FN31] slaughterhouse employees operating the captive bolt gun often do not succeed in rendering the animals “insensible to pain.” In this article, slaughterhouse employees also confirm that, contrary to the requirements of the statute, many animals survive, not only alive but also conscious, at those stations of the slaughter line known as “the tail cutter, the belly ripper, and the hide puller.” [FN32]

 

The incidents described by these workers are not isolated. Lester Friedlander, a veterinarian and former government inspector at a Pennsylvania hamburger plant, told the Washington Post that such violations happen in “plants all over the United States ... on a daily basis .... I've seen it happen. And I've talked to other veterinarians. They feel it's out of control.” [FN33] Conscious “cattle, dangling [upside down] by a leg from the plant's overhead chain [assembly], twist and arch their backs as though trying to right themselves.” [FN34] As further confirmation that these incidents are not isolated, a veteran slaughterhouse employee stated that he had “seen thousands and thousands of cows go through the slaughter process alive .... I've been in the side-puller where they're still alive. All the hide is stripped out down the neck there.” [FN35] Another slaughterhouse worker described living cows dangling by a leg from the assembly line chain: “They move the head and the eyes and the leg like the cow wants to walk.” [FN36]

*691 Pigs fare no better. Because their skin is tougher than cows' skin, pigs are lowered into scalding water, supposedly after they are rendered “insensible to pain.” [FN37] The hot water is intended to soften the pig's skin so it can be removed more easily. [FN38] Pigs, which according to HMSA should have already been rendered “insensible to pain,” have been seen “squealing and kicking as they are being lowered” to drown in scalding water. [FN39]

 

These horrors have a familiar ring. Although the articles were published in 2001, their descriptions could have been taken directly from the testimony before the Senate Committee on Agriculture and Forestry more than forty years earlier, testimony that led to enactment of a law that has been ignored as a matter of course. [FN40] It is not known whether W. P. Holcombe, or other citizens who worked for passage of or testified in support of the HMSA bill, were alive when the Washington Post published its series in 2001. Anyone who worked or voted for HMSA in 1958 must have been saddened and dismayed to read that their efforts had gone for naught.

With the atrocities exposed once more in 2001 by the Washington Post, Congress took some action, but again to little effect. For example, on July 9, 2001, three months after the Washington Post series was published, an outraged Senator Robert Byrd [FN41] delivered a speech on the floor of the U.S. Senate in which he described the violations uncovered by the Washington Post and added these words: “[o]h, these are animals, yes. But they, too, feel pain.” [FN42] The Senator's words are reminiscent of those written by William Shakespeare for his character Shylock, who felt the sting of bigotry:

*692 Hath not a Jew eyes? hath not a Jew hands, organs, dimensions, senses, affections, passions[,] fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer ...? if you prick us do we not bleed? ... if you poison us do we not die? [FN43]

 

The only feature enumerated by Shylock that animals do not have in common with us--a lack of reciprocity for which humans should be grateful--is, “And if you wrong us, shall we not revenge?” [FN44]

Just as Senator Byrd's speech brings to mind the words of Shakespeare, Shylock's questions in turn evoke the words of Nobel Laureate Isaac Bashevis Singer, a Polish Jew who fled during Adolf Hitler's rise to power, arriving in the United States in 1935. Writing of institutionalized cruelty to animals, he issues this indictment: “In relation to [animals], all people are Nazis; for the animals it is an eternal Treblinka.” [FN45]

 

With magnanimity similar to that of Singer, Pulitzer Prize winner Alice Walker does not begrudge the animals a place on the hard-fought ground she has won as an African-American woman. Rather, she writes that the “animals of the world exist for their own reasons. They were not made for humans any more than black people were made for whites or women for men.” [FN46]

Through the efforts of Senator Byrd and others, Congress passed, as part of a 2002 farm bill, what has proven to be an *693 ineffective sense-of-the-Congress resolution urging full enforcement of HMSA. [FN47] Given Senator Byrd's outrage and the appropriation of funds for better enforcement, the industry and agency that were caught in such flagrant disregard of the law might have been expected to see the error of their ways.

 

To the contrary, thousands of animals continue to suffer in slaughterhouses every day. For instance, during a Senate Agriculture Appropriations Subcommittee Meeting hearing on May 8, 2003--more than two years after the Washington Post series--Senator Byrd criticized the Secretary of the U.S. Department of Agriculture (“USDA”), Ann Veneman, for failing to enforce HMSA at slaughterhouses. [FN48] “Despite the laws on the books, chronically weak enforcement and intense pressure to speed up slaughterhouse assembly lines reportedly have resulted in animals being skinned, dismembered and boiled while they are still alive and conscious,” Senator Byrd told Secretary Veneman, in a sad echo of the testimony that prompted HMSA. [FN49] Byrd also questioned Veneman about the failure to hire additional inspectors. [FN50] Veneman responded that USDA “[was] still writing job descriptions for the” additional inspectors. [FN51] Byrd noted that Congress had already appropriated “funds to hire inspectors for two years in a row and said he was ‘really surprised’ he had to talk to her a second time while ‘the suffering of these animals is going on.”’ [FN52]

Confirming that atrocities continue, the U.S. General Accounting Office (“GAO”) issued a report on January 30, 2004, revealing that in a twenty-eight month period surrounding the Washington Post's publication of the series on slaughterhouses, [FN53] there were at least 553 instances of noncompliance with federal law at U.S. *694 slaughterhouses. [FN54] The report also revealed that the most prevalent type of noncompliance was allowing animals that had not been properly stunned to proceed, conscious, through the slaughter line. [FN55] A similarly disturbing fact documented in this report is the lack of reaction from USDA inspectors when they see multiple animals proceeding through the slaughter line alive and conscious; more than half the time, the inspectors, although they make a record of the violation, nevertheless allow the slaughter line to continue propelling live, conscious animals through its stations. [FN56] Not only do the inspectors fail to stop the line and remedy the violations, as they have the power and are in fact required to do, but they also fail to document the number of improperly stunned animals covered by a single report of a violation, making knowledge about the number of animals tortured in this manner impossible to ascertain. [FN57] Therefore, it is possible, though not documented, that a single report of a violation affecting multiple animals will actually reflect many hundreds of animals being skinned and boiled alive while still conscious. [FN58]

 

There is additional evidence that Senator Byrd's concerns are well-founded and that, just as he told Secretary Veneman, the suffering continues. In 2003, several weeks after Senator Byrd questioned Secretary Veneman about USDA's failure, for two years in a row, to hire enough additional inspectors to enforce HMSA, a gate became blocked at a Beardstown, Illinois slaughterhouse. [FN59] This incident occurred during the hot summer days, and trucks transporting pigs remained lined up outside the slaughterhouse, *695 unable to enter because of the blocked gate. [FN60] USDA inspectors were on-site at the slaughterhouse, but they stood by, taking no action at all. After a period of several days, during which the temperatures reached the high 90s each day, over eleven hundred pigs trapped in the transport trucks had died slow deaths from the heat. [FN61] The USDA official responsible for managing the agency's inspectors, including those at the slaughterhouse with the blocked gate, addressed the inspectors at a USDA convention in October 2003, a few months after the heat deaths. He asked, “Is it such a stretch of the imagination ... [w]hen animals are dying in large numbers in transporters awaiting slaughter--day after day--that there may be something inhumane about these losses and it is our responsibility to intervene?” [FN62]

Even if USDA enforced HMSA fully and without exception, deliberate cruelty would still be a regular practice or, in some cases, an “industry standard.” [FN63] For example, in 2003, the owner of a factory egg farm decided to dispose of 30,000 hens who no longer laid enough eggs. [FN64] To kill them, he had workers dump all 30,000 of them, alive and conscious, into a wood chipper. [FN65] A neighbor reported this conduct to the authorities, but no government agency took any action to stop the factory farmer or to prevent him from taking the same action in the future. [FN66] Laying hens are not within the coverage of HMSA. State anti-cruelty laws did apply to the hens, but the prosecutor refused to bring any charges, stating, through a spokesperson, that feeding live hens into a wood chipper is “industry standard.” [FN67]

 

*696 The government that promised to stop inhumane slaughter by passage of HMSA has failed to do so in any remotely adequate way. Instead, employees of the slaughter industry skin, eviscerate, dehoove, and boil thousands of living, fully conscious animals every day as federal inspectors watch. Meanwhile, because chickens, fish, and other small animals are not even protected by HMSA, there is no documentation of the numbers of these animals that are fed into wood chippers or boiled alive simply because they no longer serve a useful purpose for humans.

Life magazine, in its February 1966 issue, published an article entitled Concentration Camp for Dogs, [FN68] which described dealers' trafficking in dogs and cats to be used in medical experiments. [FN69] A photograph of a skeletal, cowering dog accompanied the article. [FN70] “Life received more mail on [that article] than any story in the history of the magazine--more letters than Life got on Vietnam.” [FN71]

 

The public outcry following the publication of Concentration Camp for Dogs resulted in congressional hearings on proposed laws to regulate animal traffickers and research laboratories. [FN72] During those hearings, lawmakers learned that dogs used in research laboratories were kept in cages, without reprieve, for three or four years, that waste was hosed out of cages with the dogs still inside, and that many dogs caught a claw or a toe in the mesh bottom of *697 a cage and suffered greatly until someone noticed. [FN73] The lawmakers also learned of a case in which dogs were taken outside after surgery and tied to stakes, without shelter, behind the research laboratory. [FN74] While these hearings continued, the Christian Science Monitor published an editorial in support of the proposed laws, entitled Must Mercy Wait? [FN75]

The promise of mercy, at least, came quickly. In 1966, Congress passed the Laboratory Animal Welfare Act (“LAWA”). [FN76] While continuing the regulation of animal traffickers, amendments in 1970, 1976, 1985, and 1990 broadened the scope of its protections to include not only animals in research laboratories, but also animals to be used in zoos and pet shops. [FN77] Accordingly, the revisions changed the popular name to the Animal Welfare Act.

 

Congress states that the purpose of AWA is “to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment,” [FN78] and “to [require] the humane handling, care, treatment, and transportation of animals by ... research facilities ....” [FN79] With this law on the books, animal advocates may have breathed a sigh of relief, just as they had in 1958 when HMSA was passed. This sense of relief was ill-founded, however, just as it had been in 1958.

A review of AWA and USDA regulations promulgated pursuant to AWA reveals that AWA's protections are largely illusory because almost all the “requirements” can be waived by the research laboratory's veterinarian or by the principal investigator. To waive the “requirements,” the veterinarian or investigator needs only to place a statement in a file and in an annual *698 report to USDA describing why AWA and its implementing regulations need not be followed. [FN80] It is difficult to view a law as regulatory when the researchers who are allegedly regulated can waive every provision of the law. Such an arrangement is particularly troubling when the individuals who can choose whether to follow the provisions of AWA are scientists, to whom the Secretary of Agriculture is likely to defer. Yet the public clearly wants the biomedical research industry regulated, or the public would not have insisted on AWA's passage. [FN81] Exploring individual provisions of AWA, emphasizing the waiver provisions and vague terms, reveals its weaknesses.

AWA requires the Secretary of USDA to promulgate regulations “to ensure that animal pain and distress are minimized.” [FN82] These regulations are to include provisions regarding adequate veterinary care and the appropriate use of anesthetics, analgesics, tranquilizers, and euthanasia. [FN83]

 

With regard to any procedure likely to cause the animal pain, the standards promulgated by the Secretary shall include the following requirements:

(i) that a doctor of veterinary medicine is consulted in the planning of the procedure; [FN84] (ii) for the use of tranquilizers, analgesics, and anesthetics; [FN85] (iii) for pre-surgical and post-surgical care by laboratory workers, in accordance with [appropriate] veterinary medical and nursing standards; [FN86] (iv) against the use of paralytics without anesthesia; [FN87] and (v) that the *699 withholding of tranquilizers, anesthesia, analgesia, or euthanasia when scientifically necessary shall continue for only the necessary period of time .... [FN88]

 

With similarly significant room for interpretation, AWA mandates that the Secretary of Agriculture promulgate regulations requiring that an animal that has been used in one major procedure not be used in another, “except in cases of (i) scientific necessity; or (ii) other special circumstances as determined by the Secretary.” [FN89] Then, the scant protections that AWA has given with one hand, it takes away with the other. For instance, AWA immediately removes many of the protections it purports to provide by specifying that nothing can “be construed as authorizing the Secretary to promulgate rules, regulations, or orders with regard to the performance of actual research or experimentation by a research facility” [FN90] or the “design, outlines, or guidelines of actual research or experimentation,” [FN91] except for certain enumerated sections of AWA.

The parts of the law that the Secretary may not enforce via regulation, rule, or order with regard to research include the requirement that a scientist weigh other options in any procedures that will probably cause pain or distress, and the requirements discussed earlier. [FN92] As if the exceptions did not water down the rule enough, AWA requires the Secretary to include in the regulations “that exceptions to [the] standards may be made only when specified by research protocol and that any such exception shall be detailed and explained in a report outlined under paragraph (7) and filed with the Institutional Animal Committee.” [FN93] The use of the word “only” causes an ordinary reader to believe that what comes after that word will be very restrictive. Of course, what comes after the word “only” is essentially nothing--put it in the protocol and put it in the annual report.

 

*700 It is quite possible that scientists, or those who prepare documents for them, have boilerplate language to be inserted in the protocol and the annual report in satisfaction of the ominous-sounding “only.” The “rule” that exceptions can be made only when specified by research protocol is not an actual rule; it is illusory. When could an explanation for violating a standard not be included in a protocol? There is nothing to prevent a researcher from including such an explanation in every single protocol he or she writes. The researcher is not even required to obtain approval from the Institutional Animal Care and Use Committee (“IACUC”) appointed by the research laboratory's chief executive. More straightforward drafting would have resulted in a provision stating: “Scientists and research facilities are not required to abide by the Animal Welfare Act or the regulations promulgated pursuant to that Act unless they want to; if they do not wish to comply, all they need to do is to say so in the file and in their annual report.”

The referenced paragraph 7 in AWA specifies what must appear in the protocol and/or the annual report to USDA: (1) a statement that the provisions of AWA are being followed; [FN94] (2) a statement that the research facility is following “professionally acceptable standards governing the care, treatment, and use of animals ... during actual research or experimentation”; [FN95] (3) “information on procedures likely to produce pain or distress in any animal and assurances demonstrating that the principal investigator considered alternatives to those procedures”; [FN96] (4) “assurances satisfactory to the Secretary that [the] facility is adhering to the standards described in this section”; [FN97] and (5) “an explanation for any deviation from the standards” set by the Secretary. [FN98] The explanation for such deviations from the rules does not even have to be approved by the Institutional Animal Committee; it need only be filed with that committee. [FN99]

 

*701 Further, as if this exception in this Section of AWA had not effectively excised the Act from the United States Code, AWA and the regulations promulgated pursuant to AWA are rife with further equivocations. These equivocations appear in the following descriptions, taken from AWA, of how an animal comes to find himself inside a research laboratory, and what scientists are permitted to do to him there.

Dealers who sell animals to research facilities must, with certain exceptions, be licensed. [FN100] There is an exception to the license requirement for any person who does not derive a substantial portion of his income, the meaning of substantial to be determined by the Secretary, from breeding dogs or cats on his own premises. [FN101] A dealer must hold an animal for at least five business days before selling it to a research facility, unless the Secretary provides otherwise. [FN102] A research facility may not obtain an animal for use in an experiment other than by purchasing the animal from a dealer licensed by or exempted from license by USDA or at an animal auction. [FN103] Research facilities, dealers and auction facilities must allow law enforcement officers onto their premises to look for lost animals. [FN104]

 

AWA further requires the Secretary of Agriculture to establish regulations that will ensure the minimization of pain and distress to laboratory animals. [FN105] The regulations promulgated by the Secretary charge each research facility's IACUC with the responsibility for ensuring that any research “[b]e performed with appropriate sedatives, analgesics or anesthetics, unless withholding such agents is justified for scientific reasons, in writing, by the principal investigator and will continue for only the necessary period of time.” [FN106]

*702 IACUC is appointed by the chief executive of each research facility; [FN107] it must consist of at least three members, at least one of whom is a veterinarian, and at least one of whom represents the community's concerns about animal welfare. [FN108] The community member should have no ties to the research facility other than his service on the committee. [FN109] All members must have an adequate ability to evaluate the proposals the committee considers, with particular attention to the treatment and care of animals. [FN110]

 

Twice a year IACUC must inspect facilities where animals are kept, along with the areas in which studies are conducted, to review the condition of the animals and the manner in which animals' pain is addressed. [FN111] After each inspection, IACUC files a report with the research facility, identifying any violations found during the inspection. [FN112] If the research facility fails to correct the deficiencies after receiving the report and being given an opportunity to remedy the deficiencies, IACUC shall report the violations to USDA. [FN113]

A federal agency that funds research and becomes aware of violations at a research facility of AWA or its regulations shall suspend the facility's funding for the research, although the research facility has the option to appeal. [FN114] The Secretary of Agriculture is authorized to seek an injunction to prohibit violations of AWA. [FN115] The Secretary lacks not only the authority to intervene in the design of a project, [FN116] but also the ability to stop *703 research as it progresses; [FN117] the Secretary can, however, temporarily suspend a facility's license for violations, with routes of appeal and review open to both the Secretary and the research facility. [FN118] The research facility must train all individuals who work with animals, including scientists, on such topics as humane practices in research, eliminating or reducing pain, and methods for reporting any deficiencies in the facility's compliance with AWA and its regulations. [FN119]

 

The regulations promulgated by the Secretary that purport to relate to the humane handling, care, and treatment of animals are voluminous. Regardless of their quantity, the focus of these regulations on specific types of food and certain means of ventilation makes them so much sound and fury. The regulations signify nothing, given their failure to establish specific, enforceable requirements to stop the suffering of animals in laboratories. For instance, the pressing issues that have concerned animal welfare organizations for a number of years include exercise for dogs and psychological stimulation for non-human primates. The current standards in the Code of Federal Regulations provide, for example, that an enclosure for dogs must be at least six inches taller than the height of the tallest dog in the enclosure. [FN120] A dog should have at least the amount of floor space provided for in this calculation: the length in inches from the base of the dog's tail to the tip of the nose, plus six inches, squared. [FN121] That figure is the minimum square inches for that dog's enclosure. [FN122]

Thus, a small dog that would measure ten inches from the base of the tail to the tip of the nose would be allowed roughly 1.8 square feet of floor space. Furthermore, a dog is viewed as having sufficient exercise if he is allowed in a pen that is twice the minimum for his floor space. [FN123] For instance, a greyhound measuring twenty-five inches from the base of the tail to the tip of the *704 nose has adequate space for his exercise needs if he is in a cage twice the allowable minimum living space for a dog his size. A greyhound would therefore have “adequate” space for exercise if he were kept his entire life in a space smaller than a three by five foot bathroom. [FN124]

 

The regulations relating to social grouping for non-human primates require only that the social needs of the primates be addressed according to “current standards,” as directed by the attending veterinarian. [FN125] Where the public has called for a solution, Congress has largely delegated responsibility to USDA, and USDA has called for a veterinarian's application of an unspecified standard. [FN126] Such a veterinarian is dependent, for his or her salary, on the research facility that is supposedly subject to these “rules.” [FN127]

The regulations further state that the environment of non-human primates must be enriched by making available to the primates the means of expressing activities that are typical to their species. [FN128] Examples of these means are perches, swings, mirrors, and even “interaction” with humans who feed them and clean their cages. [FN129] Federal regulations allow workers to clean the cages by hosing them out while the primates are still in them, so long as the enclosure is not so tiny that the primate would be *705 wetted, harmed, or distressed. [FN130] A research facility could consider a non-human primate to be receiving adequate psychological stimulation because a human “interacted” with the primate by making her move to one side of her cage to avoid the blast of a hose.

 

The regulations do not include specifications as to the quantity of articles for psychological enrichment, nor do they specify whether each cage must have such articles, or merely the primate area as a whole. [FN131] This lack of specificity makes the regulation largely ineffective. For example, in an area where thirty primates live in individual cages, personnel at the laboratory might place a single, small mirror at a point visible from each of the thirty cages and consider the facility in compliance with the “must” [FN132] of this regulation.

Several provisions throughout AWA impose significant documentation and record-keeping requirements on each research facility. [FN133] Despite detailed record-keeping and AWA, animals suffer. Moreover, Congress has made even the minimal protections of AWA inapplicable to rats, birds, and mice by excluding them from the definition of “animal.” [FN134] Rats, birds, and mice constitute more than ninety percent of the animals used in research. [FN135]

 

Catherine Dell'Orto, a veterinarian and post-doctoral fellow at Columbia University, complained to university officials in 2001 that animals used in surgical experiments at Columbia were not given relief from pain after they awoke from anesthetic. [FN139] Specifically, she reported that baboons were anesthetized and then *706 subjected to surgeries in which an eyeball was removed. [FN140] A clamp was then placed inside each animal's eye socket to cut the flow of an artery, and subsequently the animals were returned to their cages without painkillers. [FN141] Awaking from anesthesia without any analgesics, the baboons suffered prolonged deaths with no relief from pain when they should have been euthanized given their condition. [FN142] Dell'Orto reported that she was shunned by her Columbia colleagues after registering her complaints, and she now has a private veterinary practice. [FN143]

At Louisiana State University, neurosurgeon Michael Carey conducted experiments over a period of years in which hundreds of anesthetized cats were shot in the head. [FN144] Carey did not provide painkillers to the cats who survived, claiming that after being shot in the head “none appeared to be in any pain.” [FN145] At Congress's urging, the U.S. General Accounting Office (“GAO”) investigated the $2 million experiment and Louisiana State University suspended the experiment. [FN146] At the conclusion of its review, GAO asked the U.S. Army to decide whether the experiments should continue. [FN147] The Army decided that the experiments should end, a decision about which “Carey was furious.” [FN148]

 

The scope and variety of institutional animal abuses that exist despite AWA are staggering. The ILAR Journal published an article which discussed different methods of producing pain in animals. [FN149] Scientists documented that some researchers place a *707 “noxious stimulus” [FN150] inside an animal's body and watch to see if the animal writhes in pain. [FN151] The “writhing test” [FN152] “consists of injection [into the abdominal cavity] of a chemical irritant followed by subsequent counting of ‘writhes'--characteristic contraction of abdominal muscles accompanied by a hind limb extensor motion.” [FN153] Experimenters have conducted “writhing tests” on rats, mice, guinea pigs, dogs, cats, and primates--all of them anaesthetized. [FN154] Once the painful or irritating substance has been placed inside the animal's body cavity, the scientists conducting the experiment count how often the animal writhes in pain over a five-minute period. [FN155] The experimenter records the number and continues the five-minute tally over the course of either thirty or sixty minutes. [FN156] A 0 to 3 scale measures the writhing, and the highest score is given when the animal contracts his abdominal muscles and then follows that contraction with stretching his body and extending his back legs. [FN157] One of the substances that may be injected into the animal's abdominal cavity during the writhing test is acetic acid, the pure form of the chemical which, in its much more dilute state, gives vinegar its sour taste and smell. [FN158] Acetic acid makes up less than 10 percent of vinegar. [FN159] Undiluted, acetic acid is corrosive and can burn the skin. [FN160] The ILAR Journal article mentions a “significant ethical concern” that this type of experiment leaves the unanesthetized cat, ape, dog, rat, or other animal *708 writhing in pain for thirty or sixty minutes without any type of analgesic. [FN161]

Other experimenters cause pain by distending the colons and rectums of unanesthetized, conscious rabbits and horses, using a catheter to inflate a balloon placed in the animal's colon or rectum. [FN162] Scientists surgically implant the balloon in the colon or rectum permanently, so the rabbits and horses cannot rid themselves of it. [FN163] When the experimenter stretches a horse's colon or rectum by inflating the balloon, the horse sweats, kicks, paws, and moves its head. [FN164] When the experimenter inflates the balloon in the unanesthetized dog's colon, the dog lifts its head and changes posture, stretches its back legs, and breathes faster or slower. [FN165]

 

Experimenters may also distend the gall bladders of primates, dogs, cats, and ferrets. [FN166] For other studies, scientists induce artificial kidney stones in rats. [FN167] The rats, like all animals described in Ness's ILAR Journal article, are given no anesthetic or painkiller as they live with an artificial kidney stone for several days. [FN168] Over the course of the several days necessary for the rat to pass the stone, it may have as many as sixty episodes in which it writhes in pain--a period of writhing may last for up to forty-five minutes. [FN169]

In another test, experimenters will surgically insert a tube into the urinary bladder of a rat. [FN170] The next day, without administering a painkiller, a preparation containing the solvent xylene (which is used in paint thinners and gasoline) is dripped through the tube into the rat's bladder. [FN171] The rat immediately reacts by *709 licking its abdomen and perineum, turning its head, stretching its legs back, crying out, salivating, and defecating. [FN172]

In a variation on the previous experiment, scientists introduce a chemotherapy agent into the bladders of conscious rats, with no analgesia, and rate their behavior. [FN173] “Beginning approximately 1 hour after systemic administration, and continuing for approximately 4 hours unanesthetized rats demonstrate alterations in normal behavior [on this scale]: 1 = normal behavior; 2 = lacrimation [shedding tears]; 3 = piloerection [goose bumps]; 4 = rounded-back posture with alertness; 5 = rounded-back posture with immobility; and 6 = transient ‘crises' [no description of ‘crises' given].” [FN174] Other irritants introduced into the bladders of conscious animals include mustard oil and turpentine oil. [FN175]

 

Other scientists cause animals to suffer by manipulating the animals' sex organs. An experiment on a female rat consists of scientists inserting a balloon into the rat's uterus and inflating it until the pressure starves the uterine tissue of oxygen, a painful phenomenon known as ischemia. [FN176] In an experiment on a male rat, experimenters compress the rat's testicles. [FN177] Scientists also squeeze the testicles of primates to cause pain. [FN178] Ness also notes that stimulating the cervix of a female rat can produce “reproductive behaviors” such as arching her back and moving her tail to permit penetration by the male, but that stimulating the cervix of an anestrous female rat at “high intensities” produces “escape behavior.” [FN179]

Scientists attempt to induce in animals the pain of pancreatitis, a “model that utilizes a prolonged, inescapable stimulus to mimic what is considered to be one of the most severe human pains.” [FN180] At the conclusion of this list of methods, Ness warns that *710 anesthesia has a negative effect on the usefulness of such tests because it stops the pain. [FN181] “The effect of anesthesia on responses to visceral stimuli has significant ethical ramifications since it suggests that all studies [of visceral pain] should perhaps be performed in unanesthetized animals.” [FN182]

 

Another article, describing many of these same methods of causing pain to animals, offers an additional approach: electrical shock applied to the dental pulp of conscious, unanesthetized cats and dogs. [FN183] Experimenters drill holes through a tooth and then run an electrical wire through the cavity into the pulp of the tooth delivering the electrical shock to the pulp of the unanesthetized cat or dog. [FN184]

Martin Seligman also experimented on dogs by shocking them. His lengthy career of experiments and publications on the topic *711 began in 1967 with Failure to Escape Traumatic Shock. [FN185] Seligman placed dogs in harnesses, rendering them completely immobile, and then subjected some to uncontrollable, inescapable electric shock at a level of six milliamperes. [FN186] The effect of this level of electricity delivered to a female human is described as causing “[p]ainful shock [and] loss of muscular control.” [FN187]

 

A recent experiment using Seligman's concept of inescapable, uncontrollable electric shock involved rendering rats immobile and then delivering electrical shock to their tails over a one-hour period. [FN188] The rats received one shock per minute, with each shock lasting five seconds. [FN189] In addition, the experiment utilized another method of inducing helplessness, anxiety, or despair. Rats were dropped into water too deep for them to stand and denied any method of escape or any ledge or corner on which to rest. [FN190] They were left to flail for fifteen minutes until they gave up, thus demonstrating behavioral despair, an “animal model of depression.” [FN191]

Among the many disturbing aspects of these painful experiments is the animal's inability to comprehend why he is experiencing the pain, why he cannot stop the pain, and why no one will help him. When a baboon, experimented on at Columbia University, wakes up in a cage, an eye missing and a metal clamp stuck in the socket, he lies in the cage without painkillers until he dies, never understanding what has happened or why, and perhaps never losing hope that one of the humans in the laboratory will realize he is suffering and come help him.

 

*712 The criminal law is instructive in this context. When society judges a human's conduct to be so reprehensible that he or she should be punished by death, certain standards of civil society apply. For instance, society refuses to administer capital punishment if a prisoner's mental incapacity renders the prisoner incapable of understanding the punishment [FN192] and why he or she has been singled out to suffer the punishment. [FN193] Society will not drag a person from his or her cell, strap the person to a table, and start the lethal drip if the person is incapable of understanding the reason for the punishment. The Constitution and societal conscience place constraints upon playing out such a Kafkaesque scene with humans. Why allow the same to be done to animals?

At least two responses to this information are possible. One proposes that such prisoners, although so reprehensible that they have been sentenced to death, are nevertheless human and should therefore never be compared to animals. The other imagines the imagined questions that Isaac Bashevis Singer and Shylock might ask if they knew of these experiments on conscious animals: Hath not a dog senses, affections, passions, hurt with the same weapons, subject to the same diseases, warmed and cooled as humans by the same winter and summer? If you keep him alone in a cage for years, is he not lonely? If you torture him, does he not suffer? [FN194]

 

In the final analysis, laws must be measured by what they promise and provide. Current laws permit scientists to deliberately cause pain in dogs, cats, primates, rats, guinea pigs, horses, and other animals without providing painkillers. Scientists cause this pain by inflating surgically implanted balloons to distend the animals' colons and rectums, burning them, or squeezing their testicles, and then watch as the powerless animals writhe in pain. [FN195] If all this can be done under the auspices of a statute entitled the “Animal Welfare Act,” what might scientists do under the governance of a provision entitled the “Neutrality to Animals *713 Law?” If injecting corrosive acid into the body cavity of an unanesthetized dog and watching him writhe in pain for an hour is welfare, then for what wrongs does our law reserve the word “cruelty?”

At early common law, animals had no rights and were treated exclusively as property. [FN196] They had no inherent value, and the only harm to animals with which the law was concerned was the harm that could reduce the animal's value to its human owner. [FN197] As long as the prohibition against diminishing an animal's value was honored, an owner could torment the animal in any way he or she pleased. [FN198] This model of animals as chattel, to be dealt with as the owner saw fit, failed to recognize that animals can and do suffer pain. As the recognition of animals as sentient beings became more commonplace, recognition of their rights followed close behind.

In contrast to the state of affairs under early common law, courts and legal scholars in the United States began to recognize substantive rights for animals as early as the nineteenth century. [FN199] Thus, animals are no strangers to U.S. courts, nor is the vindication of their rights a novel concept. In 1897, the Louisiana *714 Supreme Court heard the appeal of two men convicted of cruelty to animals. [FN200] Rejecting the appellants' argument that a statute prohibiting cruelty to animals interfered with their property rights in the animals they owned, the court held that

 

[t]he statute relating to animals is based on “the theory, unknown to the common law, that animals have rights, which, like those of human beings, are to be protected. A horse, under its master's hands, stands in a relation to the master analogous to that of a child to a parent.” Reasoning from that basis, we feel certain that the ordinance and the statute do not interfere with the private right of property as claimed. [FN201]

 

That decision was no fluke of Louisiana civil law. The following year, although reversing a cruelty conviction for failure to show the requisite proof of intent, the Mississippi Supreme Court stated that the purpose of such statutes was to remedy the common law's failure to recognize the rights of animals. [FN202] The court further explained that

[t]o disregard the rights and feelings of equals is unjust and ungenerous, but to willfully or wantonly injure or oppress the weak and helpless is mean and cowardly. Human beings have at least some means of protecting themselves ... but dumb brutes have none. Cruelty to them manifests a vicious and degraded nature, and it tends inevitably to cruelty to men. Animals whose lives are devoted to our use and pleasure, and which are capable, perhaps, of feeling as great physical pain or pleasure as ourselves, deserve for these considerations alone, kindly treatment. [FN203]

 

*715 Similarly, a Texas appellate court, upholding a conviction for killing a dog, recognized without hesitation that animals have rights. [FN204] The court stated that “[b]esides, the dog has rights, which it seems to us should not be jeopardized on slight provocation.” [FN205]

More recently, Professor Sunstein has written that federal statutes, especially AWA, provide an “incipient bill of rights for animals.” [FN206] As discussed herein, however, such rights mean little, and could, in fact, conceal the abuse the laws were intended to stop, unless the animals have standing to enforce those rights. Until courts uniformly recognize animal standing, the industries that claim to be regulated by HMSA and AWA will ignore or waive the dictates of those laws, placating the public by pointing to the very laws the industries ignore and waive.

For at least two reasons, animals would fare better if HMSA and AWA had never been passed. First, one of the laws has been held to preempt state anti-cruelty statutes. [FN207] Second, the enactment of these two statutes quelled the public outcry that arose when the routine torture committed in slaughterhouses and research laboratories came to light. [FN208] The government, along with the biomedical research and slaughter industries, passed these laws to pacify a populace that refused to stand by while animals were tortured. Ironically, the public's dire concern about the treatment of animals has been quieted even as the torture continues, because the public believed the most basic promise of our government: that a law is something to be obeyed and enforced.

 

*716 At least one court has been willing to protect lawbreakers from prosecution under state anti-cruelty statutes by ruling that these illusory federal laws preempt state cruelty statutes. [FN209] Though neither the word “preemption” nor the concept of preemption appears in AWA, a Maryland appellate court used the doctrine to reverse and render a trial court's conviction of Edward Taub on charges of cruelty to animals. [FN210] Taub conducted medical experiments on monkeys and when Maryland authorities raided his laboratory, they found seventeen monkeys, “each in a small cage that hadn't been cleaned for days.” [FN211] Worse still, “[s]everal of the monkeys had bitten off fingers, and some had chewed into their limbs, leaving raw, open wounds the size of silver dollars, wounds that were covered with filthy bandages or not covered at all.” [FN212] Although Taub was convicted of multiple counts of cruelty, the Maryland Court of Appeals vacated his conviction because of the existence of AWA, [FN213] ignoring the fact that AWA contains no provisions for the criminal prosecution of a person who tortures animals in a research laboratory. [FN214] The Maryland court apparently believed that a person performing experiments on animals can do anything to animals with impunity.

No case has gone to the Maryland court to test how far this immunity goes. Can a researcher crucify unanesthetized chimpanzees and leave them on their crosses for days until they die of thirst to test endurance? Can a researcher flay a conscious, feeling dog alive, a square inch of skin a day, to determine how long he will live? Or can he leave a rat in a tiny walled cage for weeks to see how long it takes the animal to suffocate on his own accumulating feces? These examples are not to be scoffed at, with a respected state appellate court having implied that those who experiment on animals enjoy absolute immunity from laws prohibiting cruelty to animals.

 

*717 Not only do the statutes allegedly preempt, they also placate the public. One example of this effect is this question and following answer from the Foundation for Biomedical Research [FN215] (“FBR”) web site:

[Question:] Aren't the animals in laboratories suffering and in pain?

[Answer:] The use of animals in research and testing is strictly controlled, particularly regarding potential pain. Federal laws, the Animal Welfare Act and the Public Health Service Act, [FN216] regulate the alleviation and elimination of pain, as well as such aspects of animal care as caging, feeding, exercise of dogs and the psychological well-being of primates. Further, each institution must establish an animal care and use committee that includes an outside member of the public as well as a veterinarian. This committee oversees, inspects and monitors every potential experiment to help ensure optimal animal care. The scientific community advocates the highest quality of animal care and treatment for two key reasons. First, the use of animals in research is a privilege, and those animals that are helping us unlock the mysteries of disease deserve our respect and the best possible care. Second, a well-treated animal will provide more reliable scientific results, which is the goal of all researchers. [FN217]

 

*718 FBR's description of experiments on animals as “strictly controlled, particularly regarding potential pain” is breathtaking, given that AWA expressly and specifically prohibits the Secretary of Agriculture from promulgating research-related rules if those rules touch upon the “requiremen [t]” for consulting a veterinarian in designing painful procedures, or touch upon the “requiremen[t]” for using tranquilizers, analgesics and anesthetics in painful research. [FN218] It is stunning for FBR to claim that experiments on animals are “strictly controlled,” given the sieve-like law which allows the scientists allegedly being regulated to waive any and all regulations, including those about painful experiments, by placing a statement of explanation in the file and annual report to USDA. [FN219] Thus, AWA, which is largely illusory, is a useful tool for the public relations arm of the biomedical research industry, allowing the industry to claim there are “strict controls” on experiments when there are in fact no such controls in the statute.

Just as FBR points to AWA provisions to eliminate citizens' concerns that animals are suffering in medical research laboratories, meatpacking industry group American Meat Institute (“AMI”) uses HMSA to assure the public that animals are treated well. The AMI includes the following information regarding animal welfare in a press kit available on its web site:

 

The U.S. meat industry is one of the most heavily regulated industries in the nation .... The Humane Methods of Slaughter Act of 1978 dictates strict animal handling and slaughtering practices for packing plants .... Key requirements under the Act specify ... that livestock must be rendered insensible to pain prior to slaughter. The Act details the methods that must be used to stun animals. [FN220]

 

*719 What is worse, there are other, entirely unregulated areas of human conduct and commerce in which animals are subjected to systematic torture. One is the factory farm, where intensive confinement methods condemn animals to lives of unrelenting anguish. For example, U.S. poultry farmers continue to use battery cages, crowding so many chickens into one cage that birds cannot stretch their wings or move freely. [FN221] The lives of cage-raised chickens are miserable, and their deaths can be worse. Workers at one U.S. poultry slaughter plant were caught on videotape torturing living, conscious birds for sport by ripping off their beaks, spitting tobacco juice into their mouths and eyes, and squeezing the birds so hard that they expelled feces. [FN222] A long history of regulatory efforts regarding humane treatment has ended where it began -- in failure. It is clear that other, more powerful methods for ending the torture of animals must come to the forefront.

Efforts to protect animals have failed. The common law offered them no protection. State statutes promising to punish cruelty are rarely enforced and sometimes held to be preempted by federal law. [FN223] Federal laws offering minimal protections are riddled with exclusions, routinely ignored, and in the case of AWA, rendered almost useless because the power to regulate is in the hands of the regulated. [FN224] The last ray of hope for these tormented creatures is the principled application of the legal doctrine of standing. If the promise of this doctrine is to hold true, courts must follow their own standards. Judicial rules of standing apply whether the plaintiff is rich or poor, two-legged or four-legged. If “[t]he humblest citizen in all the land, when clad in the armor of a righteous *720 cause, is stronger than all the hosts of error,” [FN225] then surely courts clothed with the power and dignity of the Nation and her states can face down powerful industries and order them to stop torturing helpless animals for profit.

 

One appropriate means to stop the torture of animals, not only in slaughterhouses and research laboratories but in other settings as well, already exists. That method is a legal action brought by the animal's guardian or next friend to vindicate the animal's interests and rights. Despite courts' recognition of the standing of animals for more than thirty years, [FN226] court decisions holding that animals have or lack standing contain no hint of the rationale relied upon to reach such conclusions. The cases are hopelessly inconsistent; they rarely mention, much less apply, the established rules of standing. [FN227] Developing a sound, principled basis for deciding such cases must begin with an analysis of the rather amorphous concept of standing. When courts employ the rules of standing, rather than severing the word from its meaning, not only can the failures of HMSA and AWA largely be remedied, but animals falling outside the purview of federal legislation may have a chance to avoid the factory farm and the wood chipper.

Standing is a terrain in which a traveler can become lost, unless he begins his journey by looking out over the vista and locating several landmarks that will serve as reference points during the exploration. Certain distinctions serve as those landmarks. First, there is the distinction between standing and other rules of justiciability. Standing is one of several concepts used to determine whether a given case is justiciable, i.e., whether a court action is the proper vehicle for resolving the matter. Other *721 justiciability doctrines include mootness, [FN228] ripeness, [FN229] political question, [FN230] and advisory opinion. [FN231] Any claimant, in order to be heard, must leap all of the justiciability hurdles applicable to her case, including standing. The line between standing and the other justiciability doctrines is not always a bright one.

 

Second, there is the distinction between federal courts and state courts. Most decisions involving standing are federal court decisions because, like the federal courts themselves, constitutional standing is a creature of Article III of the Constitution. [FN232] Although state courts may have their own state constitutional, statutory, and common law limitations specifying who may bring suit, state courts are not bound by the rules of standing arising from the Constitution, because they owe neither their existence nor their jurisdiction to Article III.

Third is the distinction between constitutional standing and prudential standing. Article III standing, also known as constitutional standing, is not the only doctrine of standing applied by federal courts. A claimant who meets the requirements of constitutional standing may nevertheless find the path barred by judge-made law regarding prudential standing. Constitutional standing and prudential standing are two different standards against which a claimant's case is measured, and pru