Published on
NOTE
Nonhuman Rights Project, Inc. v. Cheyenne Mountain Zoological Society, 562 P.3d 63 (Colo. 2025)
Claire L. Carlson*
I. Introduction
There is not much that can beat a day spent at the zoo. Imagine this: You are seven years old. The sun is shining on a beautiful summer day in late morning, before the day has gotten too hot to be comfortable. You have cotton candy in hand, and your parent even bought some for your siblings, so you do not have to share. You are strolling up to the elephant enclosure, thinking it is the best day ever. What could possibly ruin this perfect summer day? The elephants are not in their enclosure, but instead, they are in court contesting their confinement in the zoo. Day ruined.
While there has been a recent increase in public concern regarding the treatment of animals in captivity,[1] zoos have historically been well received, acting as safe harbors for animals that would otherwise have to be killed or relocated after illness or injury and for those that were bred in captivity and could not survive in the wild.[2] Zoos offer educational opportunities to teach the public about animals and conservation efforts, as well as preserve species that are extinct in the wild.[3] However, not all zoos are equal. There are plenty of roadside zoos and private animal collectors who receive a massive amount of criticism for inadequate enclosures, cruel practices, and exploitative displays.[4] Yet, popular, large city zoos are not out of the limelight either.[5]
As scientists have been studying and recognizing the cognitive abilities and complexities of animal species in their research and studies, there has been a growing discourse on the ethics and practices of zoos, which are not responding to these new findings at the rates they are occurring.[6] Animals rights groups have long been desperate to secure more protections and rights for animals like elephants, which present higher levels of cognitive abilities.[7]
A group called Nonhuman Rights Project has been busy in courts across the United States over the past few years utilizing a new tactic: trying to use habeas corpus petitions as a means to force zoos to release animals.[8] And while there is growing scientific discourse on the cognitive abilities for some species of nonhuman animals, the legal field has been slow to respond to these developments. There have been petitions filed in at least four states pursuing writs of habeas corpus for highly cognitive nonhuman animals.[9] None of these challenges have proven fruitful.
The Colorado Supreme Court’s recent denial of elephants’ habeas corpus rights is not without legal support, yet the case serves as a prime illustration of the need for changes to ensure the rights of highly autonomous and intelligent nonhuman animals, while also displaying some of the pitfalls in the legal system’s approach to denying these animals rights.
Part II of this Note summarizes the facts and procedural posture of Nonhuman Rights Project’s petition for writ of habeas corpus regarding five elephants housed at Cheyenne Mountain Zoo. Part III provides an overview of the history and current status of habeas corpus rights, science, and regulatory standards for animal establishments. Part IV explains the Colorado Supreme Court’s unanimous ruling, which determines that elephants do not have standing to bring habeas corpus petitions. And finally, Part V discusses the shortcomings of the court’s opinion, while also providing alternative approaches to increase protections for elephants and potentially other highly cognitive nonhuman animals.
II. Facts and Holding
A. Facts
Petitioner Nonhuman Rights Project, Inc. (“NRP”) filed a petition for a writ of habeas corpus against the Cheyenne Mountain Zoological Society (“the Zoo”), which runs the Cheyenne Mountain Zoo in Colorado Springs, Colorado.[10] NRP is a nonprofit group working across the United States to secure legal rights for highly intelligent nonhuman animals.[11] This case concerned five African elephants living at the Zoo: Missy, Kimba, Lucky, LouLou, and Jambo (collectively “the Elephants”).[12] In 2023, NRP filed its petition on behalf of the Elephants in order to secure their transfer to a “suitable elephant sanctuary,” or in other words, a “GFAS-accredited” location.[13] The petition alleges the Zoo is unsuitable because “it lacks the extensive space and variety of environment that elephants need to flourish,” leading to both physical and psychological harm.[14] NRP based this request on the claim that “elephants are autonomous and extraordinarily cognitively and socially complex beings,” and as such, “they possess complex biological, psychological, and social needs that cannot be met at the zoo.”[15]
B. Procedural Posture
The Zoo filed a motion to dismiss the petition for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted.[16] The district court granted the Zoo’s motion, finding that nonhuman animals are not included in the group that can bring writs for habeas corpus, under either common law or Colorado statutory provisions.[17]
In response to NRP’s assertion that common law can be used to broaden the writ, “the court noted that no U.S. court has extended the right to nonhuman animals and, regardless, that the right to habeas corpus in Colorado is a creature of statute.”[18] Because the district court held the Elephants did not have standing, the court did not have subject matter jurisdiction to hear the case.[19] Additionally, NRP failed to show that it had proper “next friend status” to bring a habeas petition on the Elephants’ behalf because it failed to establish that it was in a better position than the Zoo to speak for the Elephants.[20]
The court found there were issues with the petition making a sufficient showing because even if NRP had proper next friend status and standing to bring the claim, there was still a merits problem of showing that the Elephants were “unlawfully confined and entitled to immediate release.”[21] NRP appealed the district court’s decision to the Colorado Supreme Court.[22] The court refused to extend habeas corpus rights to nonhuman animals, holding that “elephants do not have standing” in Colorado due to the use of the word “person” in the statute.[23]
III. Legal Background
A. Overview of Habeas Corpus Rights
Habeas corpus rights can be traced back to English tradition, where the Magna Carta in 1215 granted “no man shall be seized or imprisoned . . . except by the lawful judgment of his equals or by the law of the land.”[24] In the United States, this writ “became ‘an integral part of our common-law heritage’ by the time the Colonies achieved independence . . . and received explicit recognition in the Constitution . . . .”[25] This right ensured protection against “unlawful and indefinite imprisonment.”[26] The writ is mostly used in the modern day as “a post-conviction remedy for state or federal prisoners” who assert that federal laws were applied incorrectly in their proceedings.[27] Habeas corpus rights can now be found within the Constitution, statutes, and the common law.[28]
Although the typical writ petition is brought against the government, the Colorado statute permits it “[f]or any person who is being unlawfully detained by anyone, whether a state actor or not,” as do other states within their statutes.[29] This allows for writs to be brought against private actors, but this route has not been used very often, since there are other remedies against private entities. When a habeas writ has been used against a non-government actor, it has typically been in child custody cases to challenge the detention of minor children with a parent.[30] That infrequent occasion aside, there are still strict limits baked within the writ; “the intervention by the judiciary . . . is reserved for [the] most serious violations of fundamental rights[,] . . . ” meaning that, generally, petitions tend to be granted only in the most egregious cases of illegal detainment by the state or federal government.[31]
B. Historical Shifts in Rights for Nonhuman Animals
Animals within the United States have historically been thought of in terms of property and property rights.[32] This is unsurprising since humans have always relied on animals for food, clothing, and transportation, and it is argued that this reliance on animals utilizes a moral justification of viewing animals as property.[33] This line of reasoning is based on the idea that human beings are deserving of rights and animals are not, which justifies the “property” label.[34]
However, there is growing discourse on whether animals’ classification as property is a necessary one.[35] Scholars are calling into question where the line is drawn between animals and property, and more specifically, whether this grant of rights needs to be an all-or-nothing paradigm.[36] While cognition and sentience are not factors exclusively cited in granting rights,[37] they have been guiding forces of this process over time.[38] For example, young children cannot uphold all of their duties and responsibilities, but they do have capacity for cognition and sentience; thus they are given legal rights and protections.[39] While there are many philosophical and ethical debates on how rights should be granted, the reality is a dichotomy between humans and nonhumans with further delineation within the human category.[40]
Unlike the human-nonhuman binary, however, property declarations seem to be viewed on a spectrum, where companion animals, like dogs and cats, tend to be thought of as a distinct category of animals—one that is integral to the family, as opposed to other types of personal property, like furniture.[41] Pet owners often feel bonded with their animals, and they see a strict personal property distinction as something uncomfortable, if not inappropriate, based on their perceptions of the animal’s capacity to love and connect with them.[42] While a pet’s interests may be considered in a divorce, the legal quest to redefine their category has been unsuccessful because courts often stick to their broad property declaration when they decide damages in a lawsuit.[43]
C. Recent Scientific Discoveries of Complex Cognition in Elephants
Elephants have long been regarded as intelligent animals, most well known for their memory.[44] But scientists have spent decades trying to quantify and articulate just how intelligent they are. While it is not an easily quantifiable measurement, and there are flaws in trying to study this with a merely human understanding of intellect, studies show that elephants have incredibly high levels of cognitive functioning, communication, socialization, and adaptability.[45]
Elephants are autonomous beings who have capacity for “empathy, self-awareness, self-determination, theory of mind, insight, working memory . . . [and] the ability to act intentionally . . . .”[46] They display “some non-observable, internal cognitive process, rather than simply responding reflexively.”[47] Their brains hold almost the same number of cortical neurons as humans, which are used to control executive functioning.[48] This is believed to include “[a]ll the higher-level psychophysical functions[:] sensory perception, object- and event-representation, planning, and decision making.”[49]
Elephants can communicate with one another through low-frequency vocalizations over multiple kilometers.[50] The vocalizations can be detected through hearing and feeling the sounds and movements, but also through chemicals in bodily secretions, like urine.[51] Elephants have also been known to “dig wells to find hidden water sources, and then plug the holes with chewed bark to prevent loss of the water to other animals,” which shows their problem-solving, critical thinking, and self-preservation skills.[52]
As research on elephants has increased, scientists have found elephants’ complex society and interactions to show their ability to build on one another’s knowledge; their “elaborate fission-fusion society is one of the most extensive of any mammal.”[53] They experience and display signs of empathy and grief.[54] Simply put: they have “truly exceptional cognitive, social, and psychological capabilities.”[55] All of these unique and complex elements of elephants lead to increased requirements for housing and stimulating them.[56]
D. Current (Inadequacy of) Regulations Within Zoos
The primary federal legislation that regulates animal care in the United States is the Animal Welfare Act (“AWA”).[57] The AWA establishes the baseline standards of care for licensing exhibitors, like zoos, but it is widely considered to be sub-par in adequately protecting animals.[58] “For animals in zoos, the AWA sets low requirements as to housing, food and sanitation,” and it does not require “mental stimulation of animals other than primates.”[59] Skeptics have viewed the AWA as a way of appeasing animal rights activists and the general public in the growing discourse surrounding animal cruelty and captivity.[60]
The main source of standards and regulations for zoos within the United States comes from the Association of Zoos and Aquariums (“AZA”). This non-profit private accreditor publishes standards for animal management and care, and it then evaluates zoos and their compliance with the standards.[61] These standards are in the form of Animal Care Manuals (“ACMs”), but not every animal is included within these manuals, as there are only thirty-nine total completed.[62] There are 240 facilities, including the Cheyenne Mountain Zoo, accredited by this organization.[63] The AZA website claims that the Occupational Safety and Health Administration (“OSHA”) and United States Department of Agriculture (“USDA”) both look to the association for the “national standards” in the field.[64] Similarly to the AWA, there are critics for the AZA who argue that it does not create a high enough standard and is merely a scheme to appease the public.[65] While the AZA claims to create “the highest standards for animal care and welfare,”[66] it is not always clear that it sets the bar much higher than the AWA, which has a notoriously low bar.[67]
IV. Instant Decision
In Colorado, habeas corpus rights are granted through statute, but the state constitution also makes it lawful for district courts to grant these writs.[68] Under Colorado law, there are two requirements to have standing to bring a writ of habeas corpus: “(1) the party must have suffered injury-in-fact; and (2) this injury must be to a legally protected interest.”[69] The Colorado Supreme Court in Cheyenne Mountain focused on the second requirement and noted that the state’s habeas statute does not grant elephants a legally protected interest.[70] Colorado’s statutory grant provides:
When any person not being committed or detained for any criminal or supposed criminal matter is confined or restrained of his liberty under any color or pretense whatever, he may proceed by appropriate action as prescribed by the Colorado rules of civil procedure in the nature of habeas corpus which petition shall be in writing, signed by the party of some person on his behalf, setting forth the facts concerning his imprisonment and wherein the illegality of such imprisonment consists, and in whose custody he is detained. The petition shall be verified by the oath or affirmation of the party applying or some other person on his behalf.[71]
This provision does not include a definition for “person,” but the court used the definition provided in another Colorado statute.[72] It found that for the purposes of determining legislative intent, “‘[p]erson’ means any individual, corporation, government or governmental agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity.”[73] The court swiftly rejected the proposition that elephants can qualify, concluding that elephants were not within the legislative intent in using “person.”[74]
However, NRP argued that the court could still find there were habeas corpus rights for the Elephants based on the common law grant of writs.[75] Noting that it was not obligated to discuss the common law because of the statute’s “explicit[] limit[] . . . to ‘person[s],’” the court concluded that even if it were obligated to do so, there is no support in the common law either for NRP’s argument.[76] The court also took issue with the concept of release for these animals, noting that all parties conceded the elephants could not be released into the street, but rather they would be released into the custody of another.[77] But ultimately, the gist of the court’s discussion relied on the fact that no court in the United States has recognized the legal status of nonhuman animals, regardless of the species.[78]
V. Comment
A. Weaknesses in the Court’s Failure to Recognize Habeas Rights for Elephants
While this Note ultimately supports the court’s determination that elephants are outside of Colorado’s statutory grant for habeas rights, the argument that NRP made was colorable, contrary to the tone the opinion takes. Where the court held the legislature “made clear to whom the statute applies,” there is reason to doubt it was “clear.”[79] While “person,” when looking at the dictionary definitions and common use of the word, cannot be interpreted to include elephants, there could have been an argument that elephants are “legal entities.”[80] The definition the court looks to in the Colorado constitution for the definition of “person” included that catchall phrase at the end, although “legal entity” has been taken to refer to corporations.[81] The burden would have been on the petitioner to present this argument to the court. Logistical concerns from the court that it would be “risking the disruption of property rights, the agricultural industry, . . . and medical research efforts” by accepting the “legal entity” argument would fail to outweigh the court’s responsibility to uphold its constitutional duty.[82]
The other problem with the court’s opinion was the issue it took with releasing the elephants to another place, instead of just into the general population. Children are released from the care of one person into the care of another regularly.[83] Disabled or elderly adults could conceivably challenge an unlawful detention successfully, and the remedy could be release into the care of another. Simply because the individual is not going to be taken to the middle of the street and have their handcuffs taken off does not mean they cannot challenge an unlawful detention.
Despite its shortcomings in dicta, the Colorado Supreme Court ultimately decided this case correctly. While animal rights groups would have celebrated a grant of habeas rights, it ultimately would not have been the best, most effective security for nonhuman animals in the United States. Establishing habeas rights would have guaranteed a high level of protection for elephants, but it would ultimately take these animals outside of the zoos, leaving a lack of connection between the public and the elephants, in addition to a sudden demand for entire new facilities devoted to being what the zoo could not be for the elephants, since the animals could not just be released into the streets.
B. Methods for Establishing More Robust Rights and Protections for Elephants
Part of the issue in securing more rights for these animals is determining who holds the responsibility, power, and desire to make the changes that would allow for better care. This issue is not new, and part of the reason a perfect solution has not emerged is that it is difficult to find a route that includes all three of those elements. What follows is an analysis of two potential routes and their pitfalls, with this Note ultimately proposing a realistic solution.
1. Altering Statutory Habeas Grants
One possibility would be legislatures choosing to amend their statutes that grant habeas corpus rights to include nonhuman animals. Science in animal cognition and sentience has suggested that animals like elephants have high levels of cognitive abilities, and thus, they are comparable in some ways to human beings. Now that this revelation is known and understood within the scientific community, the legislative body could choose to respond with a statutory grant of rights based on the high cognition levels. This is unlikely, however, given the legislature has not yet granted nonhuman animals habeas corpus rights in any context. Furthermore, if the legislature was going to act on behalf of these animals, it would probably do so through additional acts, raising standards, and creating limits for holding the animals in captivity, rather than through allowing them habeas corpus rights.
Nonetheless, throughout United States history, legislatures and courts have continued to grant, amend, and interpret who gets rights in the nation. “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”[84] Thus, if state legislatures wanted to respond to this series of cases brought by NRP by creating this statutory grant, they could. However, for the reasons that follow, this would not be the proper protection against the conditions in zoos NRP is trying to fight.
First, bringing a writ of habeas corpus would still require a showing of an injury-in-fact, and captivity alone would not meet that burden.[85] This means that not every animal in every zoo would automatically fit the bill to bring these challenges. While a showing of injury-in-fact may prevent some potential floodgates problems, there would still be an increase in these cases being litigated, stretching resources across the zoos for legal defense and further draining those resources from the animals.
Second, there would still have to be someone to bring the claim on the animal’s behalf. The district court in this case was concerned that NRP did not establish they were the appropriate “next friend” to bring this suit, as opposed to someone like the Zoo.[86] Even if NRP did have proper “next friend” status, organizations like this have limited funding, and it would be incredibly costly to organize and bring these suits. Even if they had the funding, there would be a problem of attorneys; NRP has only five staff attorneys.[87]
Lastly, where are these animals going to go if they succeed on their claims and are granted immediate release? Being entitled to release clearly does not mean the animals can or should be let go into the streets.[88] There needs to be a suitable alternative. If animals can challenge their detentions and secure the right to be released into a more suitable alternative, that alternative needs to exist, which logistically creates potential problems. [89]
Not only do there need to be alternatives, but the alternatives need to be more suitable than the zoos. For elephants, there are only two qualifying sanctuaries in the United States, neither of which are in Colorado—one in California and one in Tennessee.[90] Neither is open to the public, ensuring an intrusion-free life for the elephants.[91] If these sanctuaries were utilized, not only would the elephants have to be transported across states to be re-homed, but the public also would not be able to experience and learn about the animals firsthand.
2. Heightening Third Party Standards
Since legislation has been a goal for a long time in the United States and has not yet been fully achieved,[92] an immediate solution is necessary—one that can hold zoos accountable now. This would force zoos to accommodate the needs of animals like elephants rather than counting on animals to just be transferred out if the animals were to win release through a writ of habeas. Since the groups of accreditors hold the power in setting the standards for zoos and other animal facilities, they could raise their own standards, which would not require any governmental decisions, oversight, or participation.
When animals like elephants are too old or show injuries from their current sanctuaries, AZA standards should require that elephants be transferred offsite to a wildlife sanctuary that would enable them to live out the end of their life in a more suitable fashion. This would accomplish what NRP wanted with their writ for habeas. But better yet, the AZA could require the facilities to be better suited to the elephants’ needs if they want to have such animals. By providing adequate facilities up front, where elephants can move around on appropriate terrain and not be forced to stand in one place on platforms that hurt their joints, the elephants could live a better life and not need to be transferred away to an alternative facility. If the particular zoo cannot create and maintain such a structure, then it cannot house elephants.
As a temporary solution, this also provides more guidance on the issue of what would happen to the “freed detainees.”[93] A valid criticism and question about filing habeas petitions against zoos that are housing these creatures is where they are going when released. They are not being released into the general public, like people often are when released from detention. But by holding the zoos to higher standards to maintain accreditation, zoos would be forced to alter their facilities in order to comply, meaning that the elephants or whales do not have to be transferred, and also meaning that the zoos would not have wasted space in their facilities from said animals being transferred away. Additionally, the public would still be able to connect with and learn firsthand about these highly cognitive animals.
An obvious problem with heightening standards is that the third-party accreditors currently have the ability to do so, and they have not, despite the scientific changes.[94] Likewise, the accreditation is not actually critical for zoos to operate, even if there are incentives.[95] However, there is enough incentive that large, popular zoos are compelled to work to regain accreditation when they have lost it.[96] Because of the soft power accreditors hold, reform in accreditation standards could provide the necessary incentives for zoos to adopt higher standards of care.
VI. Conclusion
As unsatisfactory as the reality is, the question of rights for highly cognitive nonhuman animals is a problem without a perfect solution. This problem is only going to continue to grow as science continues to develop and better understand species. It is not something that is going to disappear quietly into the night. And though the proposals each have benefits and drawbacks, some action needs to be taken. While the legislature could decide to pass more laws to govern the facilities or there could be an explicit grant of habeas corpus rights for highly cognitive nonhuman animals, there is a more realistic middle ground that can be taken. This route would seek to appease both those who are concerned about implications of granting too many rights to animals along with those who are concerned with the unethical practices that are not responding adequately or quickly to the scientific findings. Heightened standards for third-party accreditors is that middle ground, at least for the current landscape of zoos.
Securing habeas rights in the Colorado Supreme Court would have been viewed as an animal rights victory, but it ultimately would have set the courts and zoos up for unsustainable futures litigating these cases, which would then leave a lot of animals free from detentions but without adequate or sustainable alternatives. For now, elephants are barred from their days in court, and your perfect zoo day is safe from ruin.
* B.A., Lee University, 2021; J.D. Candidate, University of Missouri School of Law, 2026; Associate Member, 2024–25, Managing Editor, 2025–26, Missouri Law Review. I am grateful to Professor Oliveri for her guidance while writing this Note. I also want to thank Rachel Carlson and Christy Hoffmann for their insights and editorial contributions.
[1] See Ana Villarroya et al., Social Perception of Zoos and Aquariums: What We Know and How We Know It, 14 Animals 3671 (2024).
[2] See James Borrell, Eight Reasons Why Zoos Are Good for Conservation, 63 The Biologist 9 (2013);Todd Wilkinson, Nat’l Geo. (Aug. 28, 2015), https://www.nationalgeographic.com/culture/article/150828-grizzly-bears-yellowstone-attack-animals-science-cubs (showing orphaned animals, like grizzly bear cubs, can end up in zoos as an alternative to euthanasia or re-release); How the Zoo Cares for Animals with Impairments, Smithsonian’s Nat’l Zoo & Conservation Biology Inst. (Jan. 9, 2024),https://nationalzoo.si.edu/animals/news/how-zoo-cares-animals-impairments.
[3] Id.
[4] Bobbi Brink, Captivity Cruelty: The Dark Side of Private Wildlife Ownership, Lions Tigers & Bears (Mar. 14, 2024), https://www.lionstigersandbears.org/captivity-cruelty-the-dark-side-of-private-wildlife-ownership/.
[5] Priya S., 9 Reasons Not to Visit Zoos, PETA UK (Aug. 31, 2018),https://www.peta.org.uk/blog/9-reasons-not-to-visit-zoos/; Charles Siebert, Zoos Called It a ‘Rescue.’ But Are the Elephants Really Better Off?, N.Y. Times Mag. (July 9, 2019), https://www.nytimes.com/2019/07/09/magazine/elephants-zoos-swazi-17.html.
[6] Jeremy Engle, Are Zoos Immoral?, N.Y. Times (Oct. 8, 2021), https://www.nytimes.com/2021/10/08/learning/are-zoos-immoral.html.
[7] Janet M. David, The History of Animal Protection in the United States, Org. of Am. Historians,https://www.oah.org/tah/november-2/the-history-of-animal-protection-in-the-united-states/ (last visited Nov. 8, 2025).
[8] About Us, Nonhuman Rts. Project, https://www.nonhumanrights.org/about-us/ (last visited Nov. 8, 2025).
[9] Nonhuman Rts. Project, Inc. v. Cheyenne Mountain Zoological Soc’y, 562 P.3d 63 (Colo. 2025); Nonhuman Rts. Project, Inc. v. Breheny, 197 N.E.3d 921 (N.Y. 2022); Nonhuman Rts. Project, Inc. v. Fresno’s Chaffee Zoo Corp., No. 22CRWR686796 (Cal. Super. Ct. Nov. 15, 2022); Nonhuman Rts. Project, Inc. v. R.W. Commerford & Sons, Inc., 192 Conn. App. 36 (Conn. App. Ct. 2019); Nonhuman Rts. Project, Inc. v. Lavery, 100 N.E.3d 846 (N.Y. 2018).
[10] Cheyenne Mountain, 562 P.3d at 65; Cheyenne Mountain Zoo, Cheyenne Mountain Zoological Soc’y (2025), https://www.cmzoo.org/.
[11] Cheyenne Mountain, 562 P.3d at 65; About Us, supra note 8.
[12] Cheyenne Mountain, 562 P.3d at 65.
[13] Id. at 65; Verified Petition for Writ of Habeas Corpus, Nonhuman Rts. Project, Inc. v. Cheyenne Mountain Zoological Soc’y, 562 P.3d 63 (Colo. 2025) (No. 2023CV31326) (available at https://www.nonhumanrights.org/wp-content/uploads/2022/07/Colorado-Petition-FINAL-6.28.pdf). GFAS is the Global Federation of Animal Sanctuaries, which maintains twenty-six animal-specific standards for care. Standards for Elephant Sanctuaries, Glob. Fed’n of Animal Sanctuaries (Dec. 2019), https://sanctuaryfederation.org/wp-content/uploads/2020/02/ElephantStandard2019.pdf. There is an elephant-specific set of standards, which provides for everything from housing requirements to possible release into the wild (for qualifying situations). Id.
[14] Brief for Petitioner-Appellant at 4, Nonhuman Rts. Project, Inc. v. Cheyenne Mountain Zoological Soc’y, 562 P.3d 63 (Colo. 2025) (No. 2023CV31326), 2024 WL 4678358. The Elephants spend half of every day, if not more, in indoor, individual stalls standing on rubberized concrete. Id. at 8. When they are outside, the regularly available outdoor space leaves the Elephants with about 100 yards of walking space in each direction. Id.
[15] Id. at 5; Verified Petition for Writ of Habeas Corpus, supra note 13.
[16] Cheyenne Mountain, 562 P.3d at 65.
[17] Id. at 66.
[18] Id.
[19] Id.
[20] Id. Next friend status is a form of “agency standing” where “an uninjured third party pursuing legal claims for the benefit of an injured party who cannot appear in court on his own behalf.” U.S. Const. art. III, § 2, cl. 1; ArtIII.S2.C1.6.6.5 Agency and Standing, Congress.gov,https://constitution.congress.gov/browse/essay/artIII-S2-C1-6-6-5/ALDE_00013007/#:~:text=One%20form%20of%20agency%20standing,court%20on%20his%20own%20behalf (last visited Nov. 8, 2025). This is common with writs for habeas corpus, since someone is typically bringing suit on behalf of the individual detained. Id. To properly have “next friend status,” the Supreme Court requires:
(1) the real party in interest to be unable to “appear on his own behalf to prosecute the action” because of inaccessibility, mental incompetence, or other disability; and (2) the “next friend” to “be truly dedicated to the best interests of the person on whose behalf he seeks to litigate” and to have a significant relationship with the real party in interest so that the next friend’s claims are not generalized grievances.
Id.; see Whitmore v. Arkansas, 495 U.S. 149, 163–64 (1990).
[21] Cheyenne Mountain, 562 P.3d at 66.
[22] Id.
[23] Id.
[24] Magna Carta, 1215, The Nat’l Archives,https://www.nationalarchives.gov.uk/education/resources/magna-carta/british-library-magna-carta-1215-runnymede/ (last visited Nov. 8, 2025).
[25] Rasul v. Bush, 524 U.S. 466, 473–74 (2004) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); see also Habeas Corpus, Legal Info. Inst., https://www.law.cornell.edu/wex/habeas_corpus#:~:text=In%20the%20first%20Judiciary%20Act,in%20violation%20of%20federal%20law (last visited Nov. 8, 2025); U.S. Const. art. I, § 9, cl. 2 (“The Privileges of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).
[26] What You Should Know About Habeas Corpus, ACLU (Apr. 20, 2007),https://www.aclu.org/documents/what-you-should-know-about-habeas-corpus. “Habeas corpus” is Latin for “you should have the body.” Habeas Corpus, Merriam-Webster,https://www.merriam-webster.com/dictionary/habeas%20corpus (last visited Nov. 8, 2025).
[27] Habeas Corpus, supra note 26.
[28] Id.
[29] Colo. Rev. Stat. § 13-45-102 (2022); Peyton Lepp et al., State Habeas Corpus: Florida, New York, and Michigan, in A Jailhouse Lawyer’s Manual (13th ed. 2024)(available at https://jlm.law.columbia.edu/files/2025/01/Chapter-21-State-habeas.pdf).
[30] See Nguyen v. Kissinger, 528 F.2d 1194, 1202 (9th Cir. 1975).
[31] Nonhuman Rts. Project, Inc. v. Cheyenne Mountain Zoological Soc’y, 562 P.3d 63, 66 (Colo. 2025).
[32] Richard L. Cupp, Jr., Animals as More Than “Mere Things,” But Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm, 84 U. Cin. L. Rev. 1023, 1028 (2018).
[33] Id.
[34] Jessica Berg, Of Elephants and Embryos: A Proposed Framework for Legal Personhood, 59 Hastings L.J. 369, 404 n.134 (2007).
[35] See Gary L. Francione, Personhood, Property and Legal Competence, in The Great Ape Project 248 (Paola Cavalieri & Peter Singer eds., 1993).
[36] Berg, supra note 34; Francione, supra note 35.
[37] Berg, supra note 34; Francione, supra note 35.
[38] Berg, supra note 34, at 369.
[39] Id.; Francione, supra note 35.
[40] Id.
[41] Cupp, supra note 32; Patricia Fersch, Is Your Pet a Piece of Property or a Beloved Family Member, Forbes (Jan. 15, 2024),https://www.forbes.com/sites/patriciafersch/2024/01/15/is-your-pet-a-piece-of-property-or-a-beloved-family-member/.
[42] Fersch, supra note 41.
[43] Strickland v. Medlen, 397 S.W.3d 184 (Tex. 2013) (holding that pets are only worth market value and an owner cannot receive emotional damages for the loss of their pet).
[44] Elephant Sense & Sociality, ElephantVoices,https://www.elephantvoices.org/elephant-sense-a-sociality-4.html (last visited Nov. 8, 2025).
[45] Id.
[46] Brief for Petitioner-Appellant at 7, Nonhuman Rts. Project, Inc. v. Breheny, 197 N.E.3d 921 (N.Y. 2022), 2020 WL 7233939.
[47] Brief for Petitioner-Appellant, supra note 14, at 5.
[48] Id. at 6.
[49] Richard B. Wells, Cortical Neurons and Circuits: A Tutorial Introduction, U. Idaho (Apr. 2005) https://webpages.uidaho.edu/rwells/techdocs/Cortical%20Neurons%20and%20Circuits.pdf [https://perma.cc/4GY8-DS9G].
[50] Lucy A. Bates et al., Elephant Cognition, 18 Current Biology R544, R545 (2008).
[51] Id.
[52] Id.
[53] Anna F. Smet & Richard W. Byrne, African Elephants Can Use Human Pointing Cues to Find Hidden Food, 23 Current Biology 2033, 2033 (2013). There are multiple scales of organization, where the social groups can divide into smaller groups (fission), and they also join together to form larger groups (fusion). Iain D. Couzin, Behavioral Ecology: Social Organizations in Fission-Fusion Societies, 16 Current Biology R169, R169 (2006).This sophisticated fission-fusion system results in a complex and dynamic social structure. Id.
[54] Brief for Petitioner-Appellant, supra note 14, at 7.
[55] Id. (internal quotations omitted).
[56] Id. at 7–8.
[57] The Animal Welfare Act: Background and Selected Issues, Congress.gov,https://www.congress.gov/crs-product/R47179 (last visited Nov. 9, 2025); Captive Animals, Animal Legal Def. Fund,https://aldf.org/focus-area/captive-animals/ (last visited Nov. 9, 2025); Mackenzie Holden, Comment, Nonhuman Personhood: Recognizing Liberty Interests for Highly Sentient Animals, 55 Ariz. St. L.J. 1571, 1575 (2023).
[58] Captive Animals, supra note 57.
[59] Id.
[60] See Katherine M. Swanson, Carte Blanche for Cruelty: The Non-Enforcement of the Animal Welfare Act, 35 U. Mich. J.L. Reform 937 (2002).
[61] About Us, AZA,https://www.aza.org/about-us (last visited Nov. 9, 2025); Tala M. DiBenedetto, Detailed Discussion of Welfare Standards for Animals Used in Zoos and Exhibition, Animal Legal & Hist. Ctr. (2020),https://www.animallaw.info/article/detailed-discussion-welfare-standards-animals-used-zoos-and-exhibition#id-8. There is an Accreditation Commission that, based on inspectors’ reports, determines whether zoos and aquariums in the country are eligible for accreditation. Accreditation Commission, AZA, https://www.aza.org/accreditation-commission (last visited Nov. 9, 2025).
[62] Animal Care Manuals, AZA, https://www.aza.org/animal-care-manuals#published-animal-care-manuals (last visited Nov. 9, 2025).
[63] Currently Accredited Zoos and Aquariums, AZA,https://www.aza.org/find-a-zoo-or-aquarium (last visited Nov. 9, 2025).
[64] About AZA Accreditation, AZA,https://www.aza.org/what-is-accreditation (last visited Nov. 9, 2025).
[65] See Simon J. Williams, Unsafe Havens: Improving Third-Party Accreditation of Wildlife Sanctuaries, 93 N.Y.U. L. Rev. 1351 (2018).
[66] About Us, AZA, supra note 61.
[67] Williams, supra note 65, at 1352.
[68] Nonhuman Rts. Project, Inc., v. Cheyenne Mountain Zoological Soc’y, 562 P.3d 63, 68 (Colo. 2025).
[69] Id. (quoting Aurora Pub. Schs. v. A.S., 531 P.3d 1036, 1044 (Colo. 2023)).
[70] Id. at 68–69.
[71] Colo. Rev. Stat. § 13-45-102 (2022) (emphasis added).
[72] Cheyenne Mountain, 562 P.3d at 69.
[73] Id. (quoting Colo. Rev. Stat. § 2-4-401(8) (2024)).
[74] Id.
[75] Id.
[76] Id.
[77] Id. at 70.
[78] Id.
[79] Id. at 69.
[80] Entity, Legal Info. Inst., https://www.law.cornell.edu/wex/entity (last visited Nov. 9, 2025) (“An entity refers to a person or organization possessing separate and distinct legal rights, such as an individual, partnership, or corporation.”).
[81] Cheyenne Mountain, 562 P.3d at 69.
[82] Id. at 70.
[83] See, e.g., Nguyen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975).
[84] Nonhuman Rts. Project, Inc. ex rel. Hercules & Leo v. Stanley, 16 N.Y.S.3d 898, 912 (N.Y. Sup. Ct. 2015) (citing Obergefell v. Hodges, 576 U.S. 644, 671 (2015)).
[85] Cheyenne Mountain, 562 P.3d at 66.
[86] Id. The potential pitfalls of this approach are obvious, as there would rarely be a time, if ever, that the zoo would bring a challenge to the detention of their own animals.
[87] About Us, supra note 8.
[88] Since the discussion of whether any version of captivity is permissible is beyond the scope of this Note, it assumes some version of captivity is permissible but that there are strict limits determining that permissibility, as defined in part by scientific study on levels of cognition within the animals.
[89] This Note does not explore the standards NRP looked to when arguing for a “suitable alternative,” nor does this Note attempt to rank or categorize the existing “sanctuaries” in the United States. However, there are two elephant sanctuaries, as of the time of this Note, which claim to offer hundreds of acres of natural vegetation, roaming space, streams, and more for the elephants. See About Sanctuaries, Last Chance for Animals,https://www.lcanimal.org/index.php/campaigns/elephants/about-sanctuaries#:~:text=There%20are%20two%20sanctuaries%20in,Elephant%20Sanctuary%20in%20Hohenwald%2C%20Tennessee (last visited Nov. 9, 2025).
[90] Elephant Care & Facilities,The Elephant Sanctuary, https://www.elephants.com/facilities (last visited Nov. 9, 2025); The ARK 2000 Sanctuary, PAWS,https://pawsweb.org/our-sanctuary/ (last visited Nov. 9, 2025).
[91] Elephant Care & Facilities, supra note 90; The ARK 2000 Sanctuary, supra note 90.
[92] Holden, supra note 57, at 1575.
[93] See discussion supra Section V.B.1.
[94] Williams, supra note 65, at 1355–56. These standards have changed in response, but critics argue not at the levels they need to, given the continued discovery of autonomy and cognitive functioning in some animals, like elephants. Id. at 1381, 1384–86.
[95] Regardless, there are many zoos in the United States that are not accredited. About AZA Accreditation, supra note 64. Accreditation is not required for zoos to operate; however, the benefits of being accredited include increased eligibility for certain types of funding and increased public trust and confidence in the institution. Id. A long-term solution would be legislation requiring accreditation for zoos. However, there has been ample opportunity for such a law to be affected, and the fact that it has not makes it unlikely to happen in the future.
[96] Jennifer Smola Shaffer, Columbus Zoo and Aquarium Regains AZA Accreditation, The Columbus Dispatch (Mar. 27, 2023, at 13:25 ET), https://www.dispatch.com/story/news/local/2023/03/27/columbus-zoo-and-aquarium-regains-aza-accreditation/70052110007/; Patrick Damp, Pittsburgh Zoo and Aquarium Earns AZA Accreditation, CBS News (Sept. 19, 2024, at 18:58 ET), https://www.cbsnews.com/pittsburgh/news/pittsburgh-zoo-aza-accreditation/.