Big Island residents Kelden and Kalehua Lee were strolling by the Honolulu Zoo’s elephant exhibit with their young daughter on Monday when they learned about the elephants’ upcoming Hawai?i Supreme Court case.

The legal battle will determine whether elephants Mari and Vaigai, who have called their approximately 1.5-acre enclosure home for more than 30 years, stay put or move to a large sanctuary.

Their immediate reaction was simple: The elephants, like many zoo animals, should be free.

“They’re suffering,” Kalehua Lee said. “They’re beautiful, but they look sad.”

“It’s just too small of a place,” Kelden Lee said.

The Indian-born elephants’ living conditions are central to a lawsuit the Hawai?i Supreme Court has agreed to consider, one that seeks to liberate the animals and relocate them to an elephant sanctuary. The case aims to confer to the elephants the same constitutional rights that protect people. It argues Honolulu is violating the longtime zoo residents’ rights by exhibiting them in enclosures, violating their rights to self-determination as autonomous sentient beings.

The question of legal personhood for animals has been litigated — unsuccessfully — in other states, but a national animal rights legal team thinks they might have better luck in Hawai?i’s legal landscape and in particular at the Honolulu Zoo, whose elephant enclosure has faced longstanding criticism.

A Supreme Court decision would likely only be legally binding on Mari and Vaigai. But if successful, animal rights lawyers believe there could also be implications for the islands’ many other captive animals – from tigers to lions, penguins to dolphins – that live in seaparks, hotels, resorts and sanctuaries statewide. Legal battles can shape public opinion.

“The persuasive aspect of this case could be monumental,” Jake Davis, an attorney with the Nonhuman Rights Project, said.

Oral arguments have not yet been scheduled, but could happen as early as this fall.

A spokesperson for the city, which owns the zoo, declined Civil Beat’s request for an interview.

In an emailed statement, Honolulu Zoo Director John Berry said the zoo and its staff are committed to caring for the animals while “providing meaningful enrichment that encourages natural behaviors, stimulates curiosity, and supports their overall well-being.”

“We are fully committed to ensuring they continue to receive exceptional care and support,” Berry said in the statement, “which includes our most recent project aimed at refreshing and expanding their exhibit.”

In a follow-up email, the county retracted Berry’s mention of improving the exhibit.

Elephas Maximus, Habeas Corpus

The Nonhuman Rights Project’s petition to the Hawai?i Supreme Court calls the elephants’ treatment a “profound injustice.”

The organization’s argument for the elephants is based on habeas corpus. That constitutional right can be used to force the government to justify its imprisonment of a person.

Mari, 51, and Vaigai, 41, were both captured in the wild. Mari, the elder elephant, was imported to the U.S. in 1982 and Vaigai in 1992. They have lived together at the Honolulu Zoo for 34 years.

The two elephants live in a 1.5-acre exhibit, with two 55,000-gallon water pools.

In the wild, they would roam up to 10 miles daily, with a total home range of almost 500 miles, according to Smithsonian National Zoo research.

Their zoo enclosure is too small, Davis said. The ground is too hard for their foot pads, the enclosure lacks shade and it is too close to the loud and busy streets, making Honolulu Zoo “especially insidious,” he said.

The elephant enclosure contributed to the 42.5-acre zoo being named among the 10 worst in the country four times by In Defense of Animals, a national advocacy organization. That’s despite millions of dollars worth of upgrades to the large mammals’ enclosure.

The Honolulu Zoo was so financially strained a decade ago that it lost its accreditation with the Association of Zoos and Aquariums in 2016, limiting its ability to acquire new animals. It only regained its good standing this year.

The Nonhuman Rights Project, which has been advocating for animals’ rights for more than two decades, chose to make a case in Hawai?i both because of the elephants’ living conditions and the legal landscape, which they see as more amenable to considering such a case.

Its success, Nonhuman Rights Project attorney Stein Posner said, is largely reliant on the court’s view that a person can be non-human. The group has made this argument in New York, California and Colorado courts but has been unable to convince courts of the animals’ rights to personhood and, in turn, a right to freedom.

And so far, the Nonhuman Rights Project has been unable to persuade Hawai?i’s lower courts.

Circuit Court Judge Gary Chang said in a ruling that elephants, despite being “magnificent, highly intelligent beings,” didn’t meet the statutory definition of “persons” under state law because the legislature limits the classification to human individuals. Appeals court judges agreed with Chang, suggesting the elephants’ attorneys lobby the legislature to change the law.

Two New York judges were swayed by the Nonhuman Rights Project’s case for Bronx Zoo elephant Happy, but they were in the minority. Happy’s captivity was “inherently unjust and inhumane,” Judge Rowan Wilson wrote in a dissent.

“It is an affront to a civilized society, and every day she remains a captive—a spectacle for humans—we, too, are diminished,” he wrote.

That 55-year-old elephant was euthanized this year.

Honolulu Zoo Director Berry says the elephants have thrived in Honolulu, whose conditions are akin to their native habitat in Asia.

But Stein Posner says the science is clear: Elephants are more autonomous, emotional and complex than many have been led to believe. And the scientific basis to make similar arguments for other animal species is still being established.

For now, the legal focus is on “great apes, elephants and hopefully at some point, cetaceans,” like dolphins, Stein Posner said.

“They are the species,” he said, “where we have the science to back what we’re saying.”

Penned Up

Hawai?i is home to many exotic, non-native animals, with two zoos, a sealife park, aquariums, hotel-based penguin and dolphin enclosures and several animal sanctuaries. In the eyes of many animal rights groups, none of these facilities should exist. Advocates say they fall short of creating living conditions appropriate for wild and exotic species.

But the animals have also become beloved community pets. The zoo hosts throngs of schoolchildren regularly, holds its own mayoral elections — Makami, a native pueo, is currently the “mayor” of the zoo — and animals are enlisted to predict big sports match results. That includes elephants Mari and Vaigai, who currently have a four-year streak of correctly predicting the Super Bowl champions.

To the untrained eyes of many of the more-than 500,000 annual zoo patrons, the elephants may appear perfectly content, Nonhuman Rights Project attorney Liddy Stein Posner said. But the behavior they exhibit is a telltale sign that’s not true, she said.

“The swaying and rocking, they think it’s almost amusing, like a dog waving its tail,” she said of the perception of zoo visitors, but studies suggest this behavior reflects psychological and neurological distress.

The debate about whether animals should be held in captivity is long-running. The Nonhuman Rights Project has represented animals since at least 2015, when it attempted to free Hercules and Leo, two chimpanzees held in a laboratory at Stony Brook University in New York. Nonhuman Rights attorneys were unsuccessful in court, but public pressure prompted the university to later release the great apes to a sanctuary in Georgia.

Animal rights activists have secured notable wins nationally and in Hawai?i in the last decade.

After the 2013 documentary Blackfish criticized the treatment of killer whales forced to perform for crowds, SeaWorld halted its orca performances and its orca breeding program. The Barnum & Bailey Circus by Ringling Bros. in 2016 halted its elephant performances after animal rights campaigns against them. Meanwhile, according to In Defense of Animals, more than 40 zoos nationwide have closed their elephant enclosures due to welfare concerns since 2004.

In Hawai?i, former Gov. David Ige in 2018 outlawed the importation of certain exotic species of animals for circuses or carnivals. The regulations were passed predominantly on human safety grounds, Ige said, so they did not apply to zoos or film productions.

However, many people across the country and in the islands see visiting the animals as an educational opportunity and cherished family tradition.

Zoos often say that by exhibiting animals they are able to fund wildlife conservation, rehabilitation and education. Indeed, some endangered species only exist in zoos and animal sanctuaries, including ?alala, the Hawaiian crows that have been extinct in the wild since 2002.

Civil Beat interviewed more than a dozen visitors at zoos in Honolulu and Hilo and at the Kahala Hotel & Resort, where guests can pay from $195 to $1,800 to touch, feed and swim with its in-house Atlantic bottlenose dolphins. Many of those who agreed to share their thoughts felt fine about captivity as long as the animals seemed to be content and well-treated.

Amy and Michael Ghelardi of Havertown, Pennsylvania, said on Monday they chose the Kahala resort specifically for the dolphins. While Amy Ghelardi said she didn’t love the idea of animals being kept in captivity, the Kahala’s experience appeared to be the best option.

“It’s tough because where do you draw the line?” Michael Ghelardi said. “Pigs are intelligent. Dogs are intelligent. If you treat them right, should we free them? Can we own dogs? It’s tough.”

Federal law forbids people from getting within 50 feet of Hawaiian spinner dolphins, though there is no such protection for Kahala’s Atlantic bottlenose dolphins, who live in a lagoon no more than 200 feet from the ocean.

Dolphin Quest, the company that runs the program, did not respond to Civil Beat’s request for comment.

Escaping A Reputation

The Honolulu Zoo has been dragging itself out of years of criticism, most recently with the appointment of Berry, whose resume includes directorship of the Smithsonian National Zoo and Conservation Biology Institute.

Berry inherits an institution that only just managed to regain its accreditation with the American Zoo Association after it was deemed insufficiently resourced by the City and County of Honolulu in 2016.

Officials said the zoo’s animal welfare standards did not factor into the association’s considerations, though the failed reaccreditation followed years of incidents, including missing exotic birds, a drowned ring-tailed lemur, chimpanzees escaping and brawling, on top of concerns about the resident elephants.

Then there are the chronic funding and maintenance issues, which have been blamed for the zoo’s high directorial turnover, and a 2019 audit, which the zoo continues to address. As of last year, the zoo had addressed four out of six recommendations, with two in progress.

The zoo’s struggles are a sign of the times, according to PETA Foundation Captive Wildlife Director Debbie Metzler, as they do their best with few resources.

“Even the best-intentioned captive facilities often admit they are unable to provide what these vastly intelligent beings, who happen not to be human, would have if they’d been able to live in nature, as all beings deserve,” Metzler said in an email.

But for Tasha Yong, who was visiting the zoo on Monday with her husband and son, the zoo’s changes have helped.

“Seeing how it used to be and how it is now,” Yong said, “it’s a lot better.”

Drawing The Line

Hawai?i has just two traditional zoos, on O?ahu and the Big Island, though many other facilities offer residents and tourists a glimpse at captive wildlife.

There are flamingos and African black-footed penguins at Maui hotels, dolphins at O?ahu and Big Island resorts, and countless species at Sealife Park on O?ahu.

In Civil Beat’s interviews, members of the public expressed differing views about what is right and wrong when it comes to these animals’ residence in Hawai?i. Some argue these exhibitions help conservation efforts, help endangered species survive and fund conservation efforts; others argue that wildlife should remain wild.

For Big Island residents like Miki?ala Taylor, visiting Hilo’s 12-acre Pana?ewa Zoo and Gardens is an enjoyable family activity.

On Monday, as she pushed a stroller, her 4-year-old daughter Vylah ran around the enclosures and pointed out the animals she saw. Educating Vylah about the animal kingdom outweighed any cons for Taylor of keeping animals in captivity, but she said the zoo could do more for the animals.

Some enclosures are rusted and covered in moss, smaller than those at the Honolulu Zoo. There’s little shade from the sun or respite from crowds. Penny Ant-E, the resident anteater, slept on a makeshift cot in a small fenced shelter, lying next to a metal dog bowl and kennel.

“It’s sad. You know, they could have a lot better (living) environments,” Taylor said.

The Big Island zoo is not accredited by the Association of Zoos and Aquariums or the Zoological Association of America. Pana?ewa Zoo did not respond to requests for comment.

Taylor says the benefits of having a zoo are more than recreational. Three years ago, the zoo took in Lilinoe, an injured pueo. The native owl, unable to be released back into the wild, now has its own enclosure.

“They malama it here but I think (the exhibit) could be a little more bigger,” she said. “I’m sure they have a lot of ?aina back here, maybe they could expand a little bit, give them space.”

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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.

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