Hounded, Cowed, & Badgered

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).

On the docket of animal advocates

Some of this is old news, but we'd be remiss if we didn't note some recent suits filed by animal advocates. (We'd also be remiss if we didn't thank PETA for background on all these issues.)

The ALDF is suing Mendes Calf Ranch and the California Department of Agriculture, alleging that calves at the ranch are held in crates which violate Penal Code 597t, which requires an "animal confined in an enclosed area [to be provided] with an adequate exercise area." (Hat tip: An Animal-Friendly Life.) An earlier suit alleging that gestation crates violated the same provision was dismissed on jurisdictional/standing grounds. The court in that case interpreted 2004's Proposition 64, which limits who may sue businesses, to apply to cases pending; the issue of retroactivity is on appeal. As the ALDF blurb notes, the named plaintiffs are alleging personal harm, a key requirement in the post-Prop. 64 landscape, because they, as consumers of dairy products "have suffered by paying for illegally-produced goods that they now know to have come from cows who have been cruelly raised in the process." For more on the dairy industry in California, check out Unhappy Cows.

The Humane Society of the United States is advancing a novel theory in an attempt to ban the production of foie gras in New York State. They argue that, because the production of foie gras causes disease in the birds who are force-fed and killed, the liver is "adulterated," per New York law.  Best Friends points out the difference between the statute and the interpretation given it in regulations, which might be a crucial difference. Governor Pataki recently agreed to subsidize a foie gras facility in the Hudson Valley.

The Animal Protection Institute is suing "exotic animal farms" in Ohio for violating the Animal Welfare Act in their treatment of primates and other animals. One proprietor is quoted as saying the animals, some of whom come from entertainment industries, "live 100 times better than they did before they came here." Given the abuse of animals face in the movies and TV and in circuses , that may be true, but it doesn't take much.

Federal farm law: CAFOs, "stewardship" purchasing

Andrew Martin of the Chicago Tribune has a piece on the push against CAFOs/factory farms and the industry's push back. Martin, coauthor of a recent article on "Hog Wars", focuses on political doings over pollution from poultry farming. Specifically, factory farmers are making the issue federal. After a similar attempt in Oklahoma failed, a bill to exclude manure from the definition of "hazardous substance" for the federal Superfund statute is gaining cosponsors in the House, ninety in the last three months. (Legal background here; two fine, if slightly dated, explanations of poultry pollution are this United Poultry Concerns factsheet and this Peter Goodman article.) According to Martin, H.R. 4341 is designed to head off not lawsuits by local citizens, but suits by municipal and state governments, most notably a lawsuit by Oklahoma AG Drew Edmonson. The folksy anecdotes in Martin's piece and in the Tulsa World's report on discovery in the Oklahoma lawsuit make clear that this is indeed an institutional struggle, with everyone claiming to represent the "little guy." Needless to say, though we still say it a lot, any potentially benefits accruing to nonhuman "little guys/gals," namely less crowded conditions in non-factory farms, are on no one's mind. Alright, it's on a few folks' minds...

The Farm Animal Stewardship Purchasing Act has been introduced in the House. It would require government-purchased animal food and fiber to be from animals who were given adequate shelter, food, water, and veterinary care. There is no exercise requirement (something that would sink a factory farm), but it does require an animal be given "sufficient space . . . [to] walk, move his or her head freely, rest, and turn around completely and fully extend all limbs or wings without touching any part of an enclosure." As the HSUS notes, these requirements are "quite modest." They are also revolutionary, from a welfarist perspective, insofar as they state some minimum care requirements for animals at a point other than when they're being killed or when they're being transported. (They're not really protected there either, see here and here.) Tucked into the law is also what would amount to a ban on government purchases of foie gras (a cause everyone can get behind) and some language suggesting that "downers," animals so sick they cannot walk, must be killed "promptly," rather than shipped for slaughter. H.R. 3931, which would mandate prompt killing of downers, is still in committee.