Lyon – Fall 2023

Whales, Monkeys, and a River – the Future of Environmental Standing?

Nate Lyon

A Palila is a small, finch-billed Hawaiian honeycreeper that successfully obtained injunctive relief against the state of Hawaii when it “wing[ed] its way into the federal court as a plaintiff in its own right” in 1988.[i] The Palila IV decision, which seemingly rested on the standing of the Palila,represented a glimpse of how natural beings could have standing in federal court and have lawsuits brought on their behalf to hold the government to its legal obligations to the environment. Sixteen years later, in Cetacean Community v. Bush, the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) instead determined that this language declaring the Palila had standing was dicta and that their previous decision in Palila IV was based on the standing of human plaintiffs.[ii] In Cetacean Community, the Ninth Circuit was faced with the question of whether the order Cetacea had standing to challenge the United States Navy’s use of Surveillance Towed Array Sensor System Low Frequency Active Sonar (“SURTASS LFAS”).[iii] Ultimately, the Court rejected the Cetacean Community’s standing to sue because, while nothing in Article III of the Constitution explicitly limits the ability to bring a claim to humans, no statute authorized a suit in the name of an animal.[iv] While this obstacle has remained a bar for non-humans to gain standing to sue in U.S. federal courts,[v] developments in other countries offer instructive examples of alternative approaches for offering greater protections for the rights of nature that get past Palila IV and Cetacean Community’s restrictions on standing.

Cetacean Community remains one of the more recent pieces of jurisprudence on the rights of nature, but the concept has developed in the United States through municipal ordinances against dumping[vi] and an indigenous nation’s assertion of sovereignty against uranium mining.[vii] In 2008, however, the people of Ecuador substantially expanded the rights of nature through a vote for a constitutional referendum to give nature—including Ecuador’s mountains, rivers, forests, air, and islands—legally enforceable rights to “exist, flourish, and evolve.”[viii] This constitutional amendment opened the door for nature to have a greater foothold in the country’s legal landscape, which was further conveyed by the Ecuadorian Constitutional Court in Mona Estrellita.[ix] In that case, Ecuador’s highest court held that the government’s conduct in granting mining concessions to a state-owned mining company in a forest ecosystem ran against the rights of nature enshrined in the constitution.[x] Specifically, the Court noted that rights of nature are legally binding, and those rights are “inextricably tied to wild animals.”[xi] However, a critical tool in the standing requirements for animals has still yet to be fully solidified in Ecuador, as Ecuador lacks the clear standing rules that exist within American constitutional jurisprudence. Furthermore, constitutional amendments regarding the rights of nature provide little additional guidance, failing to identify which Ecuadorian tribunal will handle environmental claims.[xii]

The indigenous Māori peoples of New Zealand say “Ko au te awa, ko te awa ko au,” which means “I am the river, and the river is me.”[xiii] The cultural and societal significance of this connection to the land created a movement that culminated with the New Zealand government and representatives of the Whanganui Iwi tribe signing a Deed of Settlement that was later passed into law, resulting in the granting of legal personhood to the Whanganui river.[xiv] The passage of this statute marked the legal recognition of an indigenous cultural perspective through the statute’s purpose of reversing generations of degradation of the river that “suffocate[d] fish and plant life.”[xv] Importantly, the granting of the Whanganui River legal person status allows the river to now speak for itself and promote, advocate, and defend its health and well-being.[xvi] More precisely, the Act establishes the Te Pou Tupua office, to be comprised of indigenous peoples, which speaks and acts on behalf of the River.[xvii] The river’s status as a legal person manifests in various situations, such as the building of bridges over the river or improvement of wharves in the river, where the Whanganui people sit as representatives that legislators are legally obliged to include in their decision-making regarding the river.[xviii]

Hawaiian birds, whales, dolphins, monkeys, and rivers all of have a variety of modern statutory protections.[xix] However, as seen in Naruto v. Slater, a 2018 case in which the Ninth Circuit held that a monkey lacked statutory standing under the Copyright Act to bring a copyright infringement claim against a man who published its selfie, natural beings in the United States still struggle to find standing based in existing statutes to sue on behalf of themselves.[xx] Comparisons to Ecuador and New Zealand reveal a critical lack of U.S. constitutional or statutory language that would provide an explicit basis for the legal standing of natural beings. However, the frameworks under which natural beings and objects are granted standing in Ecuador and New Zealand may provide insight into potential approaches for expanding available options. Specifically, protections for the flora or fauna in the United States could match an Ecuadorian approach of enforcing rights of natural beings, like monkeys, that would be violated with the destruction or alteration of a unique and critical ecosystem.[xxi] Another approach, modeled by the Whanganui Iwi and Whanganui tribe, would be the emphasis on native peoples’ right to having a role in land management[xxii] and their establishment of substantive protections for any ecosystems or creatures under their stewardship. This method is gaining steam in the United States, such as in Minnesota where the Chippewa Nation established the “Right of Manoomin,” a wild rice, under the authority of its 1855 Treaty with the United States.[xxiii] The lack of legal standing for natural beings continues to bar them from functioning as judicially recognizable parties to bring suit for harms done to them and the environment. Yet the international developments in Ecuador and New Zealand offer glimpses of hope and various options for a future that includes recognition of and expanded legal rights for nature.

Nate Lyon is an Associate Editor with MJEAL. Nate can be reached at

[i] Palila v. Haw. Dep’t of Land & Nat. Res., 852 F.2d 1106, 1107 (9th Cir. 1988).

[ii] Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004).

[iii] Id.

[iv] Id.

[v] See Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

[vi] Tamaqua Borough, Pa., Ordinance 612 (Sep. 19, 2006).

[vii] Navajo Nation Code Ann. tit. 18, § 1303 (2005)

[viii] Karen Charman, Ecuador First to Grant Nature Constitutional Rights, Capitalism Nature Socialism, Nov. 2008, at 131.

[ix] Nicholas Fromherz & Eve Goldman, Rights of Nature on the Line in Ecuador, Lewis & Clark Law School (Feb. 14, 2023),

[x] Ecuador Court Case On The Rights Of Estrellita The Primate, Eco Jurisprudence Monitor, (last visited Jan. 7, 2024) (citing Derechos de la Naturaleza y animales como sujetos de derechos, Caso “Mona Estrellita” [Rights of Nature and Animals as Subjects of Rights, “Monkey Estrellita Case”], Corte Constitucional del Ecuador (2022)).

[xi] Nicholas Fromherz & Erica Lyman, In Ecuador, a Major Win for Wild Spaces and Wild Animals, Lewis & Clark Law School (Dec. 15, 2021),

[xii] Mary Elizabeth Whittenmore, The Problem of Enforcing Nature’s Rights under Ecuador’s Constitution: Why the 2008 Environmental Amendments Have No Bite, 20 Wash. Int’l L.J. 659, 669 (2011).

[xiii] Brendan Kennedy, I Am the River and the River is Me: The Implications of a River Receiving Personhood Status,; Nick Perry, New Zealand river’s personhood status offers hope to Māori, AP News (Aug. 15, 2022)

[xiv] Abigail Hutchinson, The Whanganui River as a Legal Person, Alternative L.J., Sep. 1, 2014, at 179; Perry, supra note 13.

[xv] Id.

[xvi] Profile of Gerrard Albert, 25th International River Symposium, (last visited Nov. 5, 2023).

[xvii] Matthias Kramm, When a River Becomes a Person, J. Hum. Dev. and Capabilities, Aug. 3, 2020, at 307, 308.

[xviii] Nick Perry, supra note 13.

[xix] See generally Endangered Species Act, 16 U.S.C. §1531; Clean Water Act, 33 U.S.C. §1251; Marine Mammal Protection Act, 16 U.S.C. § 1361 (providing various protections against the harming, taking, or polluting of various species or other natural objects).

[xx] See, e.g., Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

[xxi] See Fromherz & Lyman, supra note 11 (discussing the legal dispute over Los Cedros, a unique ecosystem in Ecuador that supports a variety of plant and animal species).

[xxii] See Robert T. Anderson, Indigenous Rights to Water & Envtl Protection, 53 Harv. C.R.-C.L. L. Rev. 337, 351 (2018) (discussing Indian water rights and developments of United States law recognizing the inherent ownership of those water rights).

[xxiii] White Earth Nation, Resolution Establishing the Right of Manoomin (Dec. 5, 2018). 

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