By Dan Herbeck  |  The Buffalo News  |  Monday, May 10, 2021 6:00:00 AM

Elephant in the courtroom: Animal rights case in New York’s top court has Buffalo link

Bronx Zoo elephant, strolls inside the zoo's Asia Habitat

In this Oct. 2, 2018, file photo, Happy, a Bronx Zoo elephant, strolls inside the zoo’s Asia Habitat. An appellate court on Dec. 17, 2020, upheld a lower court’s ruling dismissing a petition from an animal right’s group for Happy to get human-like rights and be moved to a sanctuary. The state’s top court has agreed to hear an appeal of that decision. (Bebeto Matthews/Associated Press file photo)

Does a 4-ton elephant named Happy have a legal right to be happy?

If elephants like Happy are kept in zoos, is that an illegal form of imprisonment under the United States Constitution? Should Happy and other elephants be released from zoos, and be given more room to roam in animal sanctuaries?

Those are three of the main issues in a lawsuit that is headed for New York state’s highest court.

And a prominent Buffalo lawyer represents the defendant in the case, the Wildlife Conservation Society, which runs New York City’s Bronx Zoo, where Happy lives.

The zoo’s attorney is Kenneth A. Manning, 69, a longtime partner at the Phillips Lytle law firm. He declined to discuss the legal dispute with The Buffalo News on Friday, telling a reporter that officials of the zoo are handling all public comments on the case.

Does he like elephants? Manning said he was not authorized to comment.

But in court papers, Manning argues that Happy is happy, content and treated well in the Bronx Zoo. He denies claims by an animal rights group, the Nonhuman Rights Project, that the 49-year-old female elephant has been illegally “imprisoned” at the zoo. He said the zoo provides a safe haven for Happy and thousands of other “endangered” animals.

“Federal courts have repeatedly held that animals do not qualify as ‘persons’ under state and federal law,” Manning said in court papers filed on Feb. 1.

State judges have repeatedly ruled in Manning’s favor, but on Tuesday, New York’s highest court – the Court of Appeals – agreed to hear an appeal of the case.

“This marks the first time in history that the highest court of any English-speaking jurisdiction will hear a habeas corpus case brought on behalf of someone other than a human being,” the Nonhuman Rights Project, the organization that is pressing the lawsuit, said in a news release.

Bronx Zoo elephant Happy

Bronx Zoo elephant Happy feeds inside the zoo’s Asia habitat in this Oct. 2, 2018, file photo. (Bebeto Matthews/Associated Press file photo)

Is Happy happy?

The animal rights group claims Happy spends much of her time alone in cramped quarters, an allegation denied by Bronx Zoo officials.

“Forcing an elephant like Happy to live alone in a small unnatural environment, where she is prevented from exercising free will and engaging in her innate behaviors, causes physical and emotional suffering,” the group has argued. “It’s time for the Bronx Zoo to send Happy to an elephant sanctuary where she can live freely with other elephants in an environment that is similar to her natural habitat.”

“Humans are not the only animals entitled to recognition and protection of their fundamental rights,” the nonprofit organization maintains.

The Bronx Zoo provides safe and humane treatment of Happy, and is proud of its close adherence to federal and state animal welfare laws that protect animals in captivity, Manning said in court papers.

Moving Happy from the zoo to an animal sanctuary “would not amount to ‘release,’ but would simply change the conditions of Happy’s ‘confinement’ from one enclosed setting to another,” Manning further argued.

“The Bronx Zoo takes excellent care of Happy and will continue to do so, along with all animals here at the zoo,” said Bronx Zoo director James Breheny. “Her well-being is assured by our dedicated staff and all the expertise they bring in providing excellent care for her for more than 40 years.”

So far, no court date has been set for the State Appeals Court argument over the case.

While Manning declined to comment, one of his longtime courtroom opponents – Buffalo attorney William F. Savino – said he is not surprised that the Bronx Zoo hired Manning. He said Manning is a skilled lawyer who has handled many complex cases, including numerous class-action lawsuits.

“I’ve been battling him in the courts for more than 40 years, and I can tell you he is one of the most effective litigators I’ve ever seen,” Savino said.

According to court papers, Manning is assisted on the case by two other Phillips Lytle attorneys, Joanna J. Chen and William V. Rossi.

Asian elephants Jothi, left, and Surapa

Asian elephants Jothi, left, and Surapa nuzzle each other at the Buffalo Zoo on Aug. 14, 2018. (Derek Gee)

No elephants in Buffalo Zoo

Officials of the Nonhuman Rights Project said they hope the Happy case will have an impact on zoos all over the nation.

The issue of keeping elephants in captivity in zoos, circuses and other facilities has been a controversy for decades. Animal rights groups claim the huge animals suffer in captivity, not only because of cramped conditions but because of the limited opportunity for socialization with other elephants.

“Elephants in captivity are denied everything that gives their life meaning,” the People for the Ethical Treatment of Animals group states on its website. “Many become neurotic, unhealthy, depressed and aggressive as a result of the inhumane conditions in which they’re kept.”

Advocates of zoos argue that elephants in the wild are often killed by poachers, who harvest their tusks for ivory, and they say zoo exhibits often include educational information on what needs to be done to save the animals from extinction.

Many American zoos, including the Buffalo Zoo, no longer have elephants. The Buffalo Zoo announced in 2018 that it was moving its last two elephants – Jothi, 36, and Surapa, 35 – to a zoo in New Orleans that had built a state-of-the-art facilities for elephants, particularly aging elephants.

Buffalo Zoo officials said their decision was “based on the recommendations of a task force that examined all options and assessed the present and future needs of the elephants.”

The Buffalo Zoo featured elephants for more than 100 years, but its elephant facility – built in 1912 – had been called cramped and antiquated by critics of the zoo.

The Buffalo elephant exhibit had been repeatedly listed on the annual “Ten Worst Zoos for Elephants in North America” list compiled by the animal rights group In Defense of Animals.

Niagara Falls chimp case

The Nonhuman Rights Project has tried unsuccessfully for years to prove that federal laws that protect the rights of human beings should also protect animals.

In a 2018 case involving Kiko, a chimpanzee owned by a man in Niagara Falls, the organization’s lawyers argued that Kiko should be granted the same rights as a human being. The case was rejected by the lower courts and the Court of Appeals refused to hear it.

But in writing about Kiko’s case, Associate Appeals Court Judge Eugene M. Fahey of Buffalo predicted that the state’s highest court would eventually have to address the issue.

“The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us,” Fahey wrote. “Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.”