Jaclyn Leeds

Attorney and Executive Director Animal Defense Partnership

Courtney Scott

Elephant Consultant In Defense of Animals

Scott is also the founder of Free the Oregon Zoo Elephants

The Oakland Zoo's recent decision to close its elephant exhibit and relocate its lone African elephant, Osh, to The Elephant Sanctuary in Tennessee marks a significant step for animal rights. It is the latest zoo to acknowledge elephants' complex needs can't be met in captivity. This move has intensified pressure on the Los Angeles Zoo to do the same for its long-suffering elephants, Billy and Tina, and highlighted the urgent need for legal protections that truly protect the autonomy and rights of nonhuman animals. 

Billy the elephant at the Los Angeles Zoo has lived in almost complete solitude since 1994. He was denied veterinary foot care for months in 2023 leading to serious damage to his feet -- a leading cause of death in captive elephants. The recent deaths of Shaunzi and Jewel at the zoo further underscore the inadequate care, with Shaunzi's necropsy revealing horribly painful foot ulcers.  

Tina, the zoo's last female elephant, was torn from the wild and endured terrible abuse and neglect as a circus performer before she was finally confiscated by the U.S. Department of Agriculture. Now alone after Shaunzi's death, Tina's plight highlights the emotional toll of solitary captivity. She is now often seen obsessively rocking and swaying, a sign of zoochosis, a form of brain damage caused by captivity. 

Lack of space is a key driver of zoochosis, and was a major concern Oakland Zoo cited for Osh's welfare. Zoo exhibits provide less than 1% of elephants' natural space requirements. The systematic denial of animals' needs, enshrined by traditional zoo practices, causes immense suffering.

On Aug. 13, the New York City Bar Association's Animal Law Committee issued a report in support of a local law that would establish strict requirements for keeping elephants in New York City.

According to the New York City Bar Association, the proposed legislation - Int. No. 0213-2024, sponsored by Council Member Shahana Hanif - follows the groundbreaking city ordinance passed in 2023 in Ojai, California, which added protections and established rights to bodily liberty for elephants held in captivity, stemming "from the findings of animal researchers who have found elephants to be similarly situated to humans, as they have long-term memories, learning abilities, empathy and self-awareness."

Unfortunately, despite the growing body of research demonstrating the intelligence and complexity of nonhuman animals such as elephants, bias against them remains. One gaping systemic flaw is the legal system's classification of animals as property, which creates a framework that tolerates mistreatment, and lacks meaningful, or timely pathways for advocates to secure their freedom -- even when evidence of suffering is clear.

"Animal Law"

The treatment of animals in the U.S. is governed by a patchwork of federal, state, and local regulations. Animals are treated as property, as opposed to as sentient beings, and thus different species of animals receive different (or no) protections; in some instances, animals of the same species receive different (or no) protections depending on the animals' intended purpose/function (as determined by humans). 

The laws and regulations that supposedly protect zoo elephants are, at best, painfully deficient and challenging to enforce; at worst, harmful in how they assuage public concern about elephant welfare while elephants continue to languish and die in zoos. 

I. Legal Framework for Elephants in California Zoos

Both federal and state law govern the treatment of elephants in California zoos, but statutory language and case law demonstrate the low standard of care required to comply. 

Animal Welfare Act

Compliance with the Animal Welfare Act, administered by the U.S. Department of Agriculture's Animal and Plant Health Inspection Service, is often touted by zoos as proof of animal well-being at their facilities.

The AWA sets minimum standards for the care and treatment of animals in research, exhibition, transport, and by dealers, including elephants in zoos. (Note that the AWA excludes the most numerous animals -- rats, mice, and birds bred for experimentation, as well as farmed animals used for food or fiber.) 

The annual 10 Worst Zoos report published by In Defense of Animals demonstrates the inadequacy of AWA standards, particularly for highly intelligent and social animals like elephants. 

Furthermore, APHIS' enforcement of even these minimum standards is also lacking, including inconsistent inspections and penalties for violations [available at the APHIS Public Search Tool]. Per the APHIS 2023 Impact Report, APHIS "[o]versaw 16,000 licensees and registrants, including nearly 3,000 new registrants"; however, APHIS conducted only approximately 10,000 site inspections, and of those, only a limited number were unannounced. These metrics reveal that in 2023, APHIS neglected to inspect almost 40% of the facilities under its purview. Impact reports from earlier years share similarly disappointing metrics. 

Endangered Species Act

Asian and African elephants are currently listed respectively as "endangered" and "threatened" under Section 4 of the federal Endangered Species Act, and both are entitled to ESA protections. The ESA sheds slightly more hope for captive elephants; but to date, challenges under the ESA have mostly fallen short.

The ESA prohibits any action that causes a "taking" of any listed species of endangered fish or wildlife. 16 U.S.C. § 1538(a)(1)(B). The term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). 

Challenges to zoos under the ESA have mostly focused on the "harass" and "harm" aspects of takings. Responsible for implementing the ESA for terrestrial species, the U.S. Fish & Wildlife Service defines "harass" with an explicit exemption for animal husbandry practices that meet or exceed AWA standards. 

Two aspects of judicial analysis to date leave room for optimism: 1) Compliance with the AWA does not preclude the possibility of an ESA "harassment" violation. Furthermore, APHIS determinations are evidence of AWA compliance, but are not necessarily conclusive, and the court must make its own assessment. For example, see Graham v. San Antonio Zoological Society, 261 F.Supp.3d 711 (2017). 2) The lack of exemption in FWS' definition of "harm" implies that meeting AWA standards is not a de facto finding of no harm.

California State Law

California has arguably the strongest laws protecting elephants of any state - a sad statement for elephants given that these laws still permit elephants like Billy and Tina to suffer in the LA Zoo. 

California's legislation speaks to the physical aspects of housing and exhibiting elephants. California's Code of Regulations 14 CCR § 671.3 only establishes minimum facility and caging standards. California Penal Code § 596.5 prohibits elephant abuse, but lacks teeth in that violations are considered misdemeanors, and the California Supreme Court overturned the one partially successful suit on technical grounds, finding that there could be no taxpayer standing for criminal charges. Leider v. Lewis, 2 Cal.5th 1121 (2017).

The Elephants in Captivity Protection Act came into effect in 2018, prohibiting the use of bullhooks and other painful training devices. Violations can result in fines up to $25,000 per incident or revocation of an exhibitor's permit. This legislation should help prevent the most overt physical abuse, but does nothing to address social isolation or any psychological harm suffered by captive elephants. 

Association of Zoos and Aquariums Accreditation

Accreditation from the Association of Zoos and Aquariums is also often cited by zoos as evidence of high standards, but AZA requirements are industry-driven and grossly inadequate to address elephants' needs. Thus, the existence of AZA accreditation does arguably more harm than good, offering zoos a veil to hide behind while failing to provide elephants with the space and social structures they require to thrive.

II. Barriers to Enforcement

Not only are animal laws deficient, standing doctrine creates a significant barrier to challenging a zoo's compliance. Comparison to environmental laws highlights this barrier.

The citizen suit provisions of many environmental laws are powerful vehicles to fight against illegal pollution. Additionally, in a key case brought under the citizen suit provision of the Clean Water Act, SCOTUS recognized aesthetic and recreational injuries as sufficient for establishing injury-in-fact. Friends of the Earth v. Laidlaw Environmental Services, 120 S.Ct. 693 (2000). This holding at least partially opened the door for organizations to sue to protect the environment on behalf of their members who use and enjoy natural resources. 

In contrast, the Animal Welfare Act does not have a citizen suit provision, and while the Endangered Species Act does, courts in animal protection cases have often rejected claims of emotional injury or general concern for animal welfare as insufficient to meet injury-in-fact. The case of Animal Legal Defense Fund v. Glickman, 154 F.3d 426 (1998) represents a rare success, where the D.C. Circuit Court of Appeals granted standing based on an individual's aesthetic injury from observing primates in poor conditions that he alleged violated the AWA. However, this remains the exception rather than the rule.

III. An Alternative Legal Strategy and International Precedents

Given the challenges of establishing standing, some animal rights attorneys have turned to the writ of habeas corpus. The Nonhuman Rights Project has filed a series of habeas corpus petitions on behalf of chimpanzees and elephants, arguing that these cognitively complex animals should be recognized as legal persons with the fundamental right to bodily liberty. These efforts have not yet succeeded.

Although U.S. courts have thus far declined to extend habeas corpus to non-human animals, this approach has seen success in other countries. In 2016, an Argentine court granted a habeas corpus petition for Cecilia, a chimpanzee held in solitary confinement in a zoo, ordering her transfer to a sanctuary. Similarly, in 2020, the Islamabad High Court in Pakistan recognized the legal personhood of elephants and ordered the release of Kaavan, an elephant held in poor conditions at the Marghazar Zoo, to a sanctuary.  

IV. Animals as More Than Property in U.S. Law

Growing legal precedents recognize that animals deserve special consideration beyond their traditional property status:

Anti-Cruelty Laws: All 50 states have enacted anti-cruelty statutes that criminalize certain forms of animal abuse. 

Pet Custody in Divorce Cases: Some courts have begun to consider the best interests of animal companions in divorce proceedings, similar to child custody cases. 

Victim Status in Criminal Cases: In State v. Nix, 356 Or. 768 (2015), the Oregon Supreme Court affirmed the appellate court decision recognizing animals as "victims" for purposes of sentencing.

Trusts for Animals: Many states now allow the creation of enforceable trusts for the care of animals, recognizing that animals can be the beneficiaries of legal instruments typically reserved for humans.

U.S. law should evolve to extend this special consideration to elephants and other captive animals as being deserving of greater legal protection. 

V. Time for Zoos to Step Up

While we wait for U.S. law to hopefully one day provide fuller protection to elephants, it is time for the public to see through the façade of the meager animal laws and zoo accreditation and insist that zoos do better.

Oakland Zoo's decision to free Osh sets an ethical precedent for all zoos. Recognizing the inadequacy of its six-acre elephant habitat -- huge by zoo standards -- is a stunning admission that should resonate with and influence the Los Angeles Zoo and all zoos to make the same admission -- stop harmful and broken breeding programs and release elephants to reputable sanctuaries.