Hounded, Cowed, & Badgered

Pardons and turkeys

David Cassuto at the excellent new Animal Blawg has a short piece on the rationale behind pardons and the November ritual of the President, and apparently some governors, pardoning turkeys. He says, "This ritual amounts to transferring the guilt of the perpetrators on to the victims and then forgiving a token few of them in a bizarre act of self-absolution by proxy." Well said.

President Bush has granted very few pardons and commutations of the real kind, i.e. ones issued to people convicted of crimes. In the latest batch of pardons and commutations, however, he saw fit to pardon Leslie Collier, a Missouri farmer who laced hamburger meat with pesticides. (Hat tip on the source: Talking Points Memo.) Unsurprisingly, this killed many animals: a hawk, an owl, an opossum, a raccoon, seven coyotes, and three eagles. These last deaths triggered a charge under the The Bald and Golden Eagle Protection Act; Collier pled guilty and was sentenced to probation. (He also pled guilty to a pesticide charge.) Jonathan Turley calls this pardon "an almost gratuitous slap at even the most basic environmental protections."

Recent cases distinguish among "pests," acts of violence

This is no way to increase this blog's readership, but I wanted to note two recent cases on animal-related classifications. Compared to some other topics (dogfighting! whales!), definitions are a pretty boring topic, but they are the starting point for a lot of animal law discussions. I won't attempt to synthesize the cases, except to point out that poisoning of rodents is mentioned in both. One gets the sense that if, in several thousand years, animal law develops such that legislatures or courts are doing away with animal use, lethal "pest control" will be the last practice to go.

Last month, the Ninth Circuit In Merrifield v. Lockyer invalidated a statute that required a pest control license for people who deal with mice, rats, or pigeons, but not those who deal with other animals. The case involves an exemption to an exception, which makes the equal protection analysis a bit hard to follow. Although all pest control practitioners who used pesticides must obtain a license, the licensing for those who forgo the use of poison depends on which animal is being targeted. (It is not clear to what extent the practitioners who forgo pesticides otherwise use nonlethal means, though they appear to be have a wider range of tools than spray-to-kill.) The plaintiff alleged that the licensing for more common "pests" was irrational and designed only to stifle fair competition, and the court agreed:

[T]he licensing scheme in this case specifically singles out pest controllers like Merrifield in the exemption legislation. Needless to say, this type of singling out, in connection with a rationale so weak that it undercuts the principle of non-contradiction, fails to meet the relatively easy standard of rational basis review. Indeed, the record highlights that the irrational singling out of three types of vertebrate pests from all other vertebrate animals was designed to favor economically certain constituents at the expense of others similarly situated, such as Merrifield.

The court did not consider in its analysis (and the plaintiff apparently did not raise) the additional exclusion from licensing of practicioners who use nonpesticide means to control bees and wasps. Libertarian coverage is at Volokh Conspiracy, Positive Liberty, and plaintiff counsel's Freespace blog.

The other definitions/rodent case is the New Hampshire Supreme Court decision in State v. Pratte. The question was whether the defendant's bow and arrow qualified as a "deadly weapon" under a law banning felons from possessing a deadly weapon. A weapon is considered "deadly" if it is  "capable of producing death or serious bodily injury." The prosecution claimed this was proved because the defendant had previously used the bow and arrow to kill a porcupine. The court rejected this claim as rendering that language unconstitutionally vague:

Taking the State’s interpretation to its logical conclusion, any “substance or thing” used to produce the death of any living thing is a deadly weapon under RSA 625:11, V.For example, a person using poison to rid his residence of rodents or some other pest has clearly used a substance to produce a death. Under the State’s interpretation, he or she would be in possession of a deadly weapon and, with the requisite underlying conviction, may be convicted of being a felon in possession of a deadly weapon.... Reading RSA 625:11, V with an ordinary level of common sense, we cannot conclude that an ordinary person would understand this statute to mean that the use of such an item would constitute possession of a deadly weapon.

The dissent draws a connection between physical violence against humans and violence against nonhumans: "Had a human being been in the porcupine’s place, the human being would at least have suffered a serious bodily injury." Its measuring stick though is still harm to humans (as the legislature no doubt intended). Like the majority, it can't resist a reference to pest control--it finds a mouse trap would not qualify as a deadly weapon.

Supreme Court invalidates limits on Navy sonar

In a feat of speedy legal writing, the U.S. Supreme Court struck down parts of an injunction limiting the Navy's use of sonar in training off the coast of California. The case is Winter v. NRDC. Oral argument was last month and, as Orin Kerr notes, this is the first argued decision of the term. The fear (shared by me) that the court would okay the Navy's attempt to circumvent the courts via an "appeal" to an executive agency appear to have been unfounded--Chief Justice Roberts's decision is based squarely on the review of the decisions of the district and appellate courts. The executive branch's Council on Environmental Quality makes an appearance in the procedural parts of the majority opinion, and is dissed in Justice Ginsburg's dissent, but does not play a role in the court's conclusions. That's one bullet dodged.

The dispute in the district court was between environmentalists who claimed the sonar training would significantly impact marine mammals, particularly beaked whales, and military officers who emphasized the importance of unfettered training to military preparedness. By the time the appeal reached the Supreme Court, the Navy had accepted several policies designed to mitigate the effect of their exercises and begun the full evaluation, called an EIS, it should have done in the first place. The majority  expressly declined to reach the merits of the claim and only ruled on the injunction. So on the bright side, the decision today does not end the NRDC's claim.

That said, the majority opinion is not good law for animals. From the author of the "hapless toad" dissent, C.J. Robert's opinion is downright respectful: "We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals." He goes on, however, to say that "[t]hose interests ... are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines." The majority opinion is bookended with quotes from two presidents (George Washington and Theodore Roosevelt) and the analysis in between favors military/executive concerns. Although the court says security interests will not always prevail, its emphasis on the testimony of Navy witnesses before the district court indicates such opinions enjoy special deference. As noted by this comment off the Kerr post, the court uses precedent to justify this attitude. Yes, military leaders should be given due for their expertise, but so should marine biologists as well. According super-deference to the military, especially against the interests of nonhumans, will always result in the Armed Forces winning.

As the quotes above make clear, however, the interests of animals themselves are, as usual, only considered secondhand. The harm--the reason NRDC presumably sued--is that the whales, dolphins, and sea lions in the area will (the court would say "could") have their lives disrupted or their bodily integrity violated by the training exercises. The majority however only weighs the human interest in observing them in determining whether the Navy action will cause irreparable harm. I'm not sure if this approach--which echoes the requirement of a concrete, personal injury in determining standing--is correct. Justice Ginsburg's dissent defines the harm not as harm to whale-watchers but to whales: "170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms, including 436 injuries to a beaked whale population numbering only 1,121."

Even assuming the question of harm only encompasses the interests of human litigants, the majority had another opportunity to consider the interests of animals in determining whether an injunction would be in the "public interest." By defining public interest exclusively in terms of defense, the majority betrays its version of what is important to the U.S. public and government policy. The result, of course, is a loss for the only "public interest" party before the court.

Election rundown

There are many reasons for Americans to have hope after Barack Obama's victory last night. Although  I've expressed my malaise about the lack of attention paid to animals by the campaigns (and still feel it), it's fair to say that an Obama administration will take more seriously the protection of wildlife than the Bush Administration did. Obama appointments to the courts will be more open to the claims of  environmentalist litigants and his agency appointments may actually choose to enforce the statutes and regulations they're charged with enforcing. There's little that can realistically be done at the federal level to protect animals, but there's no question it's good for animals protected by environmental statutes that the Dems are back in town.

Michael Markarian has been tracking (here, here, and here) state ballot issues. Proposition 2 in California, which would expand the cage size of battery hens and other animals, has cruised to victory. After a hard fought battle, Question 3, a Massachusetts initiative banning dog races, has passed. And in Arizona a measure intended to head off future reform, and which would have sickly rewarded voter suppression, has gone down in flames.

Another fight against the future was won by anti-animal forces in Oklahoma, where the right "to hunt, trap, fish and take game and fish" has been added to that state constitution's bill of rights. Whether or not they are justified, animal users and abusers see change coming. It's worth noting that the Oklahoma measure does not require higher judicial scrutiny for wildlife-related laws, but allows "reasonable regulations." All and all, it was a good night for animal advocates.