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."

Prop 2 roundup

Proposition 2 in California would require certain farm animals, including battery hens, to be given more space to move around. From a strict policy perspective, I think this is a no-brainer: yes, animals should be able to fully extend their limbs, even while they are otherwise being mistreated. For most animal welfare advocates, this is a good enough reason to vote yes. This is the position of Amy at Animal Law Blog--she suggest it will reduce suffering now and create awareness that could foment future change. (She interestingly ties Prop 2 in with the more visible anti-marriage proposition also on California ballots. See also Queering Animal Liberation.)

For folks seeking the abolition of animal use, and not just its reform, there are reasons to be less excited, both in terms of the policy itself and the predicted effect of the proposition becoming law. As Gary Francione points out, the law would not take effect until 2015. This would mean a sizable delay in any reduction of suffering and time for the animal industry to try to undercut the law or get taxpayers to subsidize any improvements. Still, a delayed reduction in suffering is better than none at all. One plus policy-wise for abolitionists is that, arguably, the regulation of animal industries (a "one-two punch to the gullet of those Animal Ag-holes") would make it less profitable for them to continue to exploit animals. This is certainly something that animal industries wants their consumers to believe--they're practically promising to increase prices. They also claim, in somewhat hysterical tones, that Prop 2 would be bad for animals and would increase dependence on foreign oil, out-of-state eggs. At least one credible voice for animals, An Animal-Friendly Life, however, has also suggested a boon for out-of-state producers. For in-state egg producers (and veal producers and pig breeders), this might eventually require renovations, the cost of which would be passed on to the consumer. Prop 2 supporters admit it might add a few cents to the cost of a dozen eggs, which would not exactly regulate egg producers to death.

Francione lays out two strategic arguments for abolitionists to either vote "no" on Prop 2 or skip this item on the ballot. First, he says the passage of the proposition will make consumers feel better about animal use, and thus increase exploitation. I agree that Prop 2 would leave the exploitation of animals intact, and not challenge the basic assumption that animals are for our use. I don't see how this would increase exploitation in the long run though. It's not as if animal consumers' appetites for eggs will increase if they think the hens are treated better. I wouldn't think this would be the argument, but I'm not sure how else to interpret the claim that welfare legislation not only maintains the status quo, but opens up avenues for greater exploitation. Both this claim and the claim that welfare laws are a step towards greater liberation seem to me to be too speculative.

The other animal-rights argument against Prop 2 is that a "yes" vote would "send a message" to welfare organizations to keep up their efforts. Given that the mass of opposition to Prop 2 is from the animal industry, I doubt that message would be heard. Organizations like HSUS and Farm Sanctuary can't push more radical measures because animal industries are too powerful and the electorate frankly doesn't care about animals, with the exception of companion and some wild species. I agree that vegan education is the way to go, but I'm skeptical that a "no" vote on Prop 2 will bring that about.

P.S. After finishing the above, I came across a discussion of the pros and cons re: Prop 2 at Vegan Bits. That fine post, which is followed by some very insightful comments, deserves a visit.

Catchup: Court rebukes USDA on horse slaughter, NM bans cockfighting

Apologies for the old news.

The recall of cat and dog food produced by Menu Foods has generated a lot of media interest in valuation of animals. An article in the Chicago Tribune by Mary Ann Fergus does a good job of summarizing the legal landscape, namely that, because animals are legally property, individuals who keep animals as companions can generally only recover the market value of a deceased animal. Although the coverage has included some quotes from veterinarians who support the status quo (who likes to pay?), most articles appear slanted towards the view that companion animals should be valued as the family members they often are. Or, as is commonly asserted by experts, the loss of a loved animal should not be treated like the destruction of a chair or sofa. Whether the outrage over the death of these animals will lead to legislation to allow for the recovery of loss of companionship or emotional damages remains to be seen.

Other recall-related posts: a rundown of causes of action (and another) against Menu Foods by the excellent, relatively new AnimalBlawg, a 50 state guide to companion animal valuation, and one prof expressing skepticism about class actions in this case and another not forecasting weak prospects for regulatory reform.

Animal Person laments that a bill to ban dog racing in New Hampshire has failed and ably takes apart the excuses given by legislators (one of whom she corresponds with) for allowing this practice to continue.

Two out of three plants that slaughtered horses for human consumption were put out of business by a Texas court's decision in January. (See item #4 in the January roundup) The future of the remaining plant, in DeKalb, Illinois, looks grim after a federal court vacated a USDA rule allowing inspectors to be funded by the slaughterhouses themselves. Humane Soc'y of the U.S. v. Johanns, No. 06-625 (D.D.C. 3/28/07). (Hat tip: An Animal-Friendly Life; more background.) The court's holding, that the USDA violated NEPA when it issued the rule, leaves open the possibility that it could issue another rule.

With SB 10, New Mexico has amended its dog fighting statute to ban cockfighting. (Hat tip: AAFL ... Happy Birthday!) Only Louisiana allows cockfighting now, but that may change.

The Animal Fighting Prohibition Enforcement Act, which would heighten penalties for animal fighting and ban blades and hooks used in cockfighting, passed the House. The N.R.A. convinced lawmakers to puts this ban in the animal welfare part of the U.S. Code, rather than the criminal one, though the penalties section still would appear alongside the law targeting animal advocates. Meanwhile, the legislation is being blocked in the Senate; the reason given: opposition to "redundant laws". (Update 4/12/07: Add another to the books, it passed the Senate.)

Cts in January: PETA workers littered; horse slaughter ban valid

Two PETA workers were prosecuted in North Carolina for cruelty, obtaining property by false pretenses, and littering. They admittedly killed dogs and cats and disposed of the bodies as part of the organization's animal control project. Animal users and their mouthpieces, like the misleadingly named Center for Consumer Freedom (which offered the most complete coverage at PETA Kills Animals) thumbed through thesauruses for different ways to say "hypocrites!" The cruelty case had no legs--the workers injected the animals with sodium pentobarbital, which is frequently used by vets--and the workers eventually were only found guilty of littering for disposing of the bodies in a dumpster. The fact that this was a selective, political prosecution should not deter PETA members (present company included) from questioning why the organization is in the euthanizing business in the first place.

Animal rescue Farm Sanctuary lacks standing to sue a pork producer for its use of confining crates, a California appellate court held. The unpublished opinion is titled Farm Sanctuary, Inc. v. Corcpork, Inc. (pdf, html cache). The decision hinges on a relatively straightforward reading of a law that limits the pool of consumer fraud plaintiffs to anyone "who has suffered injury in fact and has lost money or property as a result of such unfair competition." As we've noted before, after the passage of Proposition 64, which imposed this requirement, animal advocates have been recruiting those hyped "conscious" animal product consumers as plaintiffs. More evidence that, for the purposes of standing, vegans make bad plaintiffs.

An Indiana appellate court upheld the state's hunter harassment law. Shuger v. Indiana (pdf, html cache). The law, Indiana Code 14-22-37, prohibits a variety of nonviolent but possibly annoying activities intended "to prevent or hinder the legal taking" of a game animal.  The defendants, who noisily drove by some hunters, argued the law hindered their First Amendment rights. The court found that the law was tailored (sometimes "narrowly," sometimes "sufficiently") to the State's interests in hunter and protester safety and game population management. The court relied heavily on Hill v. Colorado, a U.S. Supreme Court case which okayed a Colorado law aimed at anti-abortion activists.

Texas's (unenforced) ban on selling horsemeat for human consumption is valid,the Fifth Circuit U.S. Court of Appeals held. Empacadora de Carnes de Fresnillo v. Curry (pdf, html cache) (hat tip: An Animal-Friendly Life). The court found that the law was not implicitly repealed, preempted by the Federal Meat Inspection Act, or in conflict with dormant commerce clause cases. If this law is enforced, it would leave Illinois's Cavel International as the only slaughterhouse that kills horses for food in the U.S. If the Illinois legislature can distract its attention from such nonissues as Internet hunting, maybe the states can end this practice. The U.S. Congress has been singularly inept at doing so; put "horse slaughter" in the search box to the right and follow the trail of failure....

The owner and employees of an Ohio hog farm were charged with cruelty, and pled not guilty. This is news because prosecutors rarely charge people for abuse of animals used for food and courts and legislators have excepted agricultural practices from the scope of cruelty laws. (Ohio law, for instance, requires a confined animal be given shelter, but excludes animals "impounded or confined prior to slaughter." Ohio R.C. 959.13.) According to an article in the Columbus Dispatch (link above), the farm owner and employees are charged with cruelty for both negligent and intentional conduct. The Humane Farming Association drew attention to the abuses at the Wiles Farm, including a pig killed by hanging. The defendants face only misdemeanor charges, because Ohio's felony law applies only to people who repeatedly commit the worst acts of cruelty ("torture, torment," etc.) against companion animals.

A Washington court okayed charges for cops in Taser killing of a calf. As a quote from local hero Adam Karp notes, this is a rare prosecution because it involves a police officer killing an animal and because it was initiated by a citizen complaint and opposed by prosecutors. The prosecutor's office is challenging the citizen complaint law as invading executive prerogative.

New Ibrahim article on factory farms

Arizona professor Darian Ibrahim has posted a fantastic new article on corporate law, market pressures, and "humane" animal products, which will appear in a forthcoming issue of Law & Contemporary Problems. It's called A Return to Descartes: Property, Profit, and the Corporate Ownership of Animals.This piece, like his previous work on the law and animal experimentation and anti-cruelty statutes, shows the failure of the law to protect animals in any meaningful way. We wonder if it's too soon to make conclusions about the consumer demand for foods produced under less oppressive conditions, given how recently that demand has arisen and the growing media interest in animal welfare, but believe that Ibrahim is correct that there's no way for low prices and decent living conditions for animals to coexist. As with many hard-line animal law arguments, the conclusion reveals a malaise about not only the state of the current law, but the prospect of future legal reform. In that spirit, but probably preaching to the choir, why not become a vegan?

Animal victories at the polls

SuperVegan notes the winners and losers in animal-related propositions, including a resounding win for Proposition 204 in Arizona, which bans cruel crates for sows and calves (eventually), and a loss for Proposal 3 in Michigan, which would have legalized hunting mourning doves. (Links to the text of each law supra.) An Animal-Friendly Life applauds these victories as consistent with abolitionist ideals.

The blog of the Animal Rights Foundation of Florida welcomes Arizona as the second state (after Florida) to ban gestation crates for pigs, but notes dishearteningly that Amendment 3 passed there, requiring a 60% vote to amend the state constitution. The amendment "passed with 58% of the vote – ironically, supporters of the amendment did not meet their own standard." Coloradans also rejected Amendment 38, which would have encouraged further initiatives.

Finally, the voters have sent home two big obstacles to animal law reform. California Representative Richard Pombo, the "leading opponent of animal welfare in Congress," was voted out. (Hat tip: Animal Person.) Also, Senator Conrad Burns, who singlehandedly reversed a policy protecting wild horses from slaughter, is out. Good riddance!

Animal law at the polls

The Animal Protection Institute notes two animal-themed citizen initiatives to be voted on this week:

• Proposal 3 [pdf] in Michigan would establish a hunting season for mourning doves, for the first time since 1905. More info at the Committee to Keep Doves Protected.
• Proposition 24 204 in Arizona would ban veal and gestation crates, which confine animals into spaces where they cannot move. Earlier this year, animal users attempted to shift all lawmaking regarding agriculture to an administrative agency, robbing the legislature and voters of the power to regulate farms, but failed. More info at Arizonans for Humane Farms.

The API also notes Colorado Proposition 38 [pdf], which would amend the state constitution to encourage more propositions. Another citizen initiative that doesn't address animals directly, but which could have an effect on future animal law reform is Amendment 3 [pdf] to the Florida Constitution. This initiative would make it more difficult to pass future initiatives by requiring a 60% (rather than simple majority) vote to pass. The impetus for this effort, says the Orlando Sentinel, is a 2002 initiative which created article X, sec. 21 of the state constitution, banning the use of restrictive crates for pregnant sows. As with Arizona Prop. 24 204, the ban excludes the seven days preceding birth.

Also: Amendment 2 [pdf] in Georgia would give constitutional recognition to the "tradition of fishing and hunting and the taking of fish and wildlife." If this is it, then vote no. HSUS is recommending a vote against California Proposition 90 [pdf], which may make it tougher to protect wildlife. 

Catchup on horse slaughter

An act banning the "moving, delivering, receiving," etc. of horses to be slaughtered for food has passed the House (the roll count) and is on to the Senate. (Background collected here.) The Hill reports on the maneuvering during the recess and the rhetoric on both sides, including a tie-in with the Iraq war and the usual canards against animal advocates--they're emotional! they want to ban all animal exploitation!-- as if the legislative process is rational and other advocacy groups don't see victories as stepping stones. Also: an open letter to the bill's sponsor, the problem with the "horse as icon" line, and the xenophobia angle.

In da courts, in brief

There is mostly bad news for the citizens of Prairie Grove, Arkansas who have sued corporations running poultry factory farms and feed producers, alleging that chicken litter from nearby farms is responsible for the high cancer rate in the area. The claims against the Big Poultry defendants in the case were dismissed at summary judgment. The plaintiffs did win two pretrial motions against the remaining defendants, which manufacture the feed that allegedly is responsible for the high level of arsenic in the area soil.

In Pennsylvania, a groundbreaking animal cruelty case against a 170,000-hen factory farm is ... up in the air. After testimony by a "poultry science" expert, the government and the defendant have been encouraged to settle. The defendants' mouthpiece, as quoted here, is correct that state cruelty law expressly excludes otherwise cruel acts "undertaken in normal agricultural operation." Although the government expert testified that the conditions--impaled, dirty chickens, packed so tightly they can't move--are way below the industry standard, one wonders how far this scientific ideal is from the reality of how the average (large) chicken farm is run. See, e.g., Wegmans Cruelty.

News off the farm: Dog breeders in Albuquerque, chafing from the regulation of the city's great new ordinance, are suing. A federal court has stopped the U.S. Fish & Wildlife Service's plans to kill "problem" gray wolves in Wisconsin, holding "the recovery of the gray wolf is not supported by killing 43 gray wolves."

A post-Waterkeeper CAFO rule

With all the talk on excluding manure from Superfund and Edmondson vs. Big Poultry (background here and there; the latest), it'd be easy for a critic of Concentrated Animal Feeding Operations to overlook the EPA's issuance of a new proposed rule on CAFOs and the Clean Water Act. (But not VeggieBoards, hat tip.) The regs have been drafted specifically to respond to the Second Circuit's decision in Waterkeeper Alliance v. EPA, 399 F.3d 486 [pdf](2005). We've only gotten around to reading that opinion recently, and profess more ignorance than usual on the topic of the Clean Water Act. That said, the EPA rule purports to answer the concerns raised in Waterkeeper regarding provisions which the court invalidated, including the issuance of permits to the largest of CAFOs without requiring any agency review of the CAFO's plans for handling manure and without meaningful public participation in the permit process.

Factory farm opponents are criticizing the new rule for not requiring all CAFOs to obtain permits. Before Waterkeeper, a CAFO either needed to obtain a permit or prove that it has no potential to discharge pollutants. This burden placement is a milder version of the burden-placing advocated in the scholarship of Taimie Bryant, much milder because it does not ask factory farms to justify their ultimate ends. Unfortunately, the Second Circuit read the CWA to limit the EPA's regulatory power to actual discharges, rather than potential ones. Grist focuses on how the new rule cedes the decision of whether a permit is necessary for a given operation to the CAFO itself. This might not be a problem if every discharge was caught by a regulator. But, as the article notes, enforcement is weak and penalties weaker.

This pro-industry change, along with a prior exclusion for discharges following storms, might lead producers to be fairly happy with the regulatory environment, and the quotes from the industry are mostly positive. But that's not enough! Senator Hagel has proposed a tax credit to subsidize factory farms' efforts to comply with the rules. It's a good thing Big Ag's opposition to Big Government does not extend from opposing environmental laws (and labor laws and animal welfare laws) to taking handouts (well, more handouts).