Hounded, Cowed, & Badgered

Cert grant in slaughter preemption case

The U.S. Supreme Court has granted cert in National Meat Association v. Harris, a preemption case with an animal-law angle. Slaughterhouses challenged a California law that, per HSUS, "prevents the slaughter or abuse of animals too sick, diseased, or injured to stand and walk on their own." This extremely moderate measure was too much for Big Abbattoir (Big Meat? Big Death?) to deal with, so it sued. As noted, the Ninth Circuit overturned a preliminary injunction in a decision rife with bad puns. Preemption gurus will no doubt weigh in with more considered opinions but I wouldn't be surprised if the Supreme Court swallows the industry's ridiculous claim that regulation (instead of slaughterhouse practices) raises a "risk of dangerous consequences for animal and public health."

Great Seventh Circuit standing decision

I think I've commented before on how the standing analysis for activists---a barrier to litigation---can sometimes act as a proxy for nonhuman interests. Animals and other living parts of the ecosystem don't have standing to sue. To have their interests recognized in federal courts, humans need to sue on their behalf, alleging harm to human interests. For environmental and animal activists, this typically means establishing an emotional or aesthetic interest, that the defendant's actions caused the injury, and that the sought remedy will redress the injury.

For example: the Seventh Circuit appeals court's recent decision in American Bottom Conservancy v. U.S. Army Corps of Engineers, No. 10-3488 (slip op.,  law.com). The decision has a skeptical account of logic behind the standing doctrine. I want, however, to highlight a nice section, part of the redressability analysis, on the real interests of wetlands animals:

Animals migrate to areas rich in food and water, crowding the area until the supply of nutrients is stretched to the point where it cannot support any more animals. If a habitat is reduced in size by more than two thirds, the supply of nutrients will be reduced by roughly that fraction and many of the animals will leave, starve to death, or fail to reproduce. Butterflies rarely live more than six weeks; given their short lifespans and limited range, destroying a small area of wetland could destroy a butterfly population very quickly.

Most animals whose habitat in the 18.4 acres of wetland was destroyed would not be able to relocate to the proposed mitigation area because about 80 to 85 percent of the area is treeless—and birds and other wildlife need shelter as well as food. They can’t wait for newly planted trees in the mitigation area to mature. As one affiant explains, “Some bird species nest in all trees, other birds nest in understory trees and shrubs, and some nest on the ground . . . . Yellow-throated Warbler, Northern Parula, and Cerulean Warbler nest in tall sycamores. Other species that nest in tall, mature trees include Baltimore Orioles, Orchard Orioles, Summer Tanager, Scarlet Tanager, Yellow-billed Cuckoo, Red-eyed Vireo, Whiteeyed Vireo, Warbling Vireo, Yellow Warbler, Blue-gray Gnatcatcher, Tufted Titmouse, and Eastern Kingbird. These species could nest at various levels within a tall tree but the maturity of the tree means that there are many branches which offer protection; the leaves and fullness of the tree keep the nests from being seen.”

Such a careful consideration of interests, and echoing of the valid concerns of animal advocates, should be applauded.

Imagining reform beyond the animal law ghetto

Not to grouse, but the latest crush video ban can safely be characterized as addressing only niche cruelty. There are dozens if not hundreds of other forms of abuse that would rate higher on my agenda. But two recent pieces have made me think more broadmindedly (yes, I know how it's spelled) about the prospects for real change to our laws on animals. A vegan animal-law agenda like mine shares almost nothing with the animal-law agendas, to the extent they exist, of most Americans and of almost all legislators. One could be excused for giving up on the idea of animal law reform entirely.

The question is if there is any common ground for improving the lot of animals being abused, ideally by banning that abuse. The Journal of Legal Education has a provocative piece on this subject, "The Future of Animal Law: Moving Beyond Preaching to the Choir," by Megan A. Senatori and Pamela Frasch. The authors study the environmental movement and identify four "levers" for social justice: (1) emphasizing human interests, (2) finding credible witnesses to highlight abuses, (3) building "outsider buy-in", and (4) political pressure. I'm sure scholars of social justice could find other impetuses/foci for change but the piece is convincing on the ones it identifies.

I had these ideas in mind when I read a recent post by the always knowledgeable Michael Markarian. He has a few proposals that would appeal to the human interest in cutting the federal deficit, and which have the potential for big public buy-in. With the caveat that I'm a political outsider myself, I wouldn't give favorable odds on the most cost-saving of the proposals. Animal industries have a far reach, and would likely fight any pro-animal change in farm-subsidy or predator-control policy.

With the above caveat reiterated, the best shot seems to be limiting the use of animals in research. This guess is somewhat counterinutive, given Senatori's and Frasch's comments on the credibility of scientists as witnesses to abuse. But there is enough hostility to science among conservative religious legislators that there might be votes there. Defunding primate research has the potential for tremendous public buy-in. And if reformers need credible witnesses, Matthew Broderick and Helen Hunt spring to mind, given their past work ;)

Thank you, Markarian, Senatori, and Frasch, for making animal law reform seem possible, if not imminent.

Crush videos banned (again)

President Obama has signed a bill banning crush videos. As noted a few posts down, a prior ban was struck as unconstitutional in United States v. Stevens. The enacted version follows the original Senate version of the bill (see comparison), in that it covers a broader definition of abuse, one partially rooted in federal criminal statutes involving human victims. In addition, the ban does not repeat the mistake of the pre-Stevens statute, which required an additional state or federal statutory violation. The Stevens court didn't like the possibility that state law violations, especially those for noncruel acts, could be "exported" to other states.

The only difference I can find between the original Senate version and the one what is now law has to do with inchoate offenses, i.e., acts falling short of commission of an act. The law does not expressly prohibit conspiracies or attempts to create, distribute, etc., the videos. There was some fear that the stripping of inchoate offenses might doom the bill, at least in the short term, but the bill passed in that form.

Animal initiatives become law

I'm sure animal law is on few folks' minds this morning, given the changed legal landscape in our federal government and in many states. It seems safe to say the gains made by Republicans will have little effect on animal welfare, much less animal rights. Only animals in the wild are seriously protected by law, in the form of environmental statutes, and few politicans seem focused on environmental issues.

The election did mean some changes in animal law though, much of it anti-animal. As noted below, voters in six states were asked to vote on animal-related ballot initiatives. The results are in and voters in Arkansas, South Carolina, and Tennessee approved constitutional rights to hunt and fish. North Dakotans rejected Measure 2, which banned the canned hunting of some animals. Measure proponents say "We were out-spent."

On the plus side, Prop 109, a proposed right-to-hunt amendment in Arizona was rejected by voters. Prop 109 was distinct from other right-to-hunt initiatives, since it also shifted the power over hunting and fishing from an administrative agency to the legislature. This political aspect, and the possibility that the law would limit future initiatives, allowed the opposition to paint it as a power grab. And successfully! A second bright spot is the passage, per USA Today, of Prop B, which regulates puppy mills.

Animal law on the ballot

Animal-related initiatives are on the ballots in several states in this upcoming election. All but one involve hunting and fishing; one concerns the breeding of dogs. Unfortunately, no initiative this year addresses the most commonly abused animals in the U.S., farm animals.

Voters in four states will be asked to vote on a constitutional right to hunt. It's difficult to know what motivates these efforts, except the need for pro-gun groups to energize their hunter members. The NRA says the amendments are needed to head off attempts to limit hunting and fishing by "well-funded anti-hunting activists." This is not a serious statement, given that gun groups have exponentially more power and resources than those few animal rights groups that target hunting.

When these initiatives do pass, as others have, it's not doomsday for hunting opponents. The provisions typically recognize the state's power to regulate---they cover the right to hunt or fish "lawfully" or say these activities are subject to regulation. Courts have treated similar provisions in other states as basically inspirational. The Wisconsin Supreme Court, for instance, has held an amendment establishing the right to hunt "does not affect our analysis of the DNR's authority."

The reasons for animal rights advocates to oppose a constitutional right to hunt are fairly miminal, though they  outweigh the nonexistent benefit to animals. If any of these initiatives were voted down, it would mean that pro-hunting groups had wasted their time and money (though who knows, maybe a successful "NO" campaign would make proponents feel ever more paranoid about the alleged threat of animal rights groups). And, if there ever was an attempt to ban hunting---maybe around 2060?---these initiatives would be an impediment. On these symbolic initiatives, a symbolic NO is the way to go.

I've listed each of the ballot items below, with a recommended vote. For more election coverage, check out Animals & Politics, where Michael Markarian has been doing an excellent job, especially on the Arizona and Missouri ballot items.

Arkansas. Issue 1, if passed, would recognize a constitutional right to hunt, fish, and "harvest wildlife." It would also set these activities as the preferred method of wildlife control. The language would benefit from a comma, as a hasty reader might be shocked that "[p]ublic hunting, fishing, and trapping shall be a preferred means of managing and controlling nonthreatened species and citizens...." (The rest of the sentence makes clear humans are not in fact in danger.) Vote NO.

Arizona: Prop 109 would also enshrine a constitutional right to hunt and fish, and make hunting and fishing the preferred method of wildlife population control. In addition, the measure would shift the power to regulate those activities to the legislature, which may in turn delegate it back to a commission, which presumably would keep doing what its doing. Feeling dizzy? This move contrasts with Arkansas's Issue 1, which expressly retains power for its game and fish commission, which is itself constitutionally based (see amend. 35). In a fine analysis, Kristin Borns and CJ Eisenbarth Hager point out potential problems with some vague language in the measure. Vote NO.

Missouri. Prop B sets regulations for large-scale "puppy mills," including giving dogs space to move around and to exercise. In contrast to the position of some in the debate over Prop 2 in California, it seems unlikely that the proposed regulations could increase the number of animals bred. Rather, it would reduce the scale of breeding operations and (if enforced) improve the conditions of animals being bred. Vote YES.

North Dakota. The North Dakota Constitution already has two provisions recognizing the value of hunting. Measure 2 would criminalize canned hunts of big game and "exotic animals." The measure's proponents claim it reflects "Fair Chase" principles. For folks opposed to factory farming, some of their ideas might be appealing: no breeding programs, no feeders, no government culls. People opposed to animal exploitation for food and recreation, however supposedly benign, could be less easily persuaded. For me, the question is whether fewer animals will be killed or wounded.

Supporters claim canned hunting makes all hunting look bad. Would a NO vote then reduce hunting? I doubt it. This is rare case where criminalizing an act might actually stop abuse. The proprietors of canned hunting ranches are businesspeople and, if there is enforcement, would be forced to shut down. If less canned hunting meant less hunting, I'd say to vote YES. But this is the sort of dispute, between different types of hunters, that I find difficult to find a good ethical position on.

South Carolina. Amendment 1 would recognize a right "to hunt, fish, and harvest wildlife traditionally pursued." The invocation of tradition could be a loophole: it would be hard to argue hunting "traditionally" occurred with high-powered scopes, or fishing with sonar and GPS (not that any law coming down the pike would ban these tools). Vote NO.

Tennessee. An amendment to the constitution would create a "personal right to hunt and fish." Vote NO.

A Stevens-proof ban on crush videos?

In April, the Supreme Court decided United States v. Stevens, its biggest animal law case since the Lukumi decision in 1993. The case involved a First Amendment challenge to a federal law designed to stop crush videos, pornography showing small animals being crushed to death. The government in Stevens ran with the statute and prosecuted a seller of dog fighting videos. The Supreme Court, on an 8-1 vote, held the statute was constitutionally overbroad.

The majority opinion faulted the law for reaching animal-related acts that are not defined  as "cruel." The law, as written, required use of a depiction of "animal cruelty," but defined cruelty to include any wounding or killing of an animal that violated federal or state law. The court imagined various scenarios where a depiction of a purportedly uncruel act (e.g., hunting without a license) would nonetheless violate the law. It found particularly troubling that a person could be convicted of possessing a video showing violence against an animal that was not in fact illegal in the possessor's state.

The Stevens court held out the possibility that a more targeted law--one "limited to crush videos or other depictions of extreme animal cruelty"--could pass constitutional muster. Now comes news that the House and Senate have passed bills aimed at crush videos that ... actually target crush videos.

I've put together a table comparing the language in the statue now, in the Senate bill, and in the House bill. The full texts of both versions are at Govtrack.us. Both bills do a better job of defining the depictions being banned, though the Senate does a better job still by not requiring the depicted abuse to also be a state or federal crime. Both contain findings that draw parallels to caselaw on obscenity and child pornography. Both in fact require the depiction to be obscene; given the descriptions in the case, I'd hope all crush videos would qualify.

I personally find it difficult to get excited about these bills. They target a tiny segment of the pornography market and a miniscule portion of the animal abuse in this country. How little Congress cares about animals is evident in one change between the House and the Senate bills. The House bill recognizes a compelling interest in "preventing animal cruelty," a good policy goal, if one rarely acted on. The Senate bill, however, finds a compelling interest only in "intentional acts of extreme animal cruelty." What of "mere" animal cruelty? Well, some arguably cruel practices are expressly excluded from the statute's reach by an exception for depictions (even obscene ones!) involving hunting, fishing, and agriculture.

The one bright spot I see in the legislation is in the Senate's definition of the offense. It criminalizes the sale, distribution, etc., of depictions of animals being abused in several specific ways (e.g., drowning, suffocation), but also includes a catchall for depictions of severe bodily injury against animals. Severe bodily injury is defines not once but twice in reference to existing laws against humans. The law incorporates the definition in 18 U.S.C. § 1365(h)(3), which contemplates the injury of "another person" and "any individual." Most strikingly, the Senate bill defines severe bodily injury to include "conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242." As the links show, these statutes define the federal crimes of aggravated and simple sexual abuse. The Senate bill thus implicitly recognizes that harm to nonhumans is of a similar kind as harm to humans.

The Senate bill is also notable for its definition of the animal being depicted. While the current law and the House bill cover "living animals," the Senate covers "non-human mammals, birds, reptiles, or amphibians." On the one hand, this definition excludes insects and fish; on the other, it acknowledges frankly that humans are animals of a sort. This language parallels some state definitions of "animal" which expressly exclude human beings. See this Maine statute.