ABA TIPS Animal Law Committee News

David Cassuto

Not a lot of blogging from our hero for the next week or so as I am hosting my Pace Law School comparative environmental law class and we are travelling a lot (including to the Amazon).  However, good work is being done and you can read about some of it in the ABA TIPS Animal Law Committee Newsletter here.  Kudos to Chair Joan Schaffner and all the other hard-working folk on the committee.

CITES Folderol Continued

David Cassuto

The banner times at the CITES Meeting continue.  No protection for sharks either.  Earlier in the week, delegates declined to protect several key species of coral.  And, of course, let’s not forget last week´s debacle with the bluefin tuna and the polar bear.  

Nonfiction Animal Writing Opportunity

David Cassuto

 

For all you writers and writers-soon to be:

 

Call for Submissions: Animals 

For an upcoming issue, Creative Nonfiction is seeking new essays about the bonds—emotional, ethical, biological, physical, or otherwise—between humans and animals. We’re looking for stories that illustrate ways animals (wild and/or domestic) affect, enrich, or otherwise have an impact on our daily lives.   

Pondering Michael Vick & Grandma´s Turkey

David Cassuto

From the Recommended Readings Desk:  This from Sherry Colb over at Dorf on Law — a very thoughtful essay furthering a discussion begun when Gary Francione lectured at Cornell Law School.  Among other queries, the piece explores the relative morality of dog-fighting vs. cooking a Thanksgiving turkey.  The name of the essay is ´Animal Rights, Violent Interventions and Affirmative Obligations´ and is well worth the peruse.

Injustice, Texas Style

Bridget Crawford 

 NPR reports here on the shooting of 51 buffaloes who wandered from one Texas ranch onto another.  NPR reporter Wade Goodwyn missed the irony in a statement by the owner of the ranch whence the buffaloes roamed: “Slaughtering animals, to me, and I think the state feels the same way — in fact I know the governor’s office does — is a terrible injustice,” according to the ranch owner Wayne Kirk.  But in NPR’s own words, Kirk’s ranch “is primarily a hunting property, and even when they’re on the right side of their fence, buffaloes are there to be killed.” 

 Ummmm…so slaughtering animals is okay as long as someone pays Mr. Kirk for the privilege of doing so?

Dangerous Dog Ordinances Can Be Vicious and Dangerous – Like People

Bruce Wagman

Over the years I have been practicing I have probably handled a dozen cases in which I was hired by the owner-guardians of a dog who had bitten someone, whether that someone was a person or another dog or cat.  These cases seem to be getting more common these days, but that is just an anecdotal observation and it may simply be that I am seeing more of them because I have done some and people look for someone who has experience with them. 

For whatever reason I am seeing them, I can say that I like working for the dangerous dogs.  There are a number of aspects of these matters that make this so.  First, the cases always start off with my putative client (the dog) being designated as either “dangerous” or “vicious” under the applicable local ordinance, and being sentenced to death.  The part I like is the immediate challenge of starting with an adverse and unjust ruling and having the strong motivation to try to overturn it; and as a lawyer fighting for animal protection, I am accustomed to being the underhuman and taking on those types of conflicts.  Second, and maybe most exciting, is the potential payoff for all involved.  That is, if we win, a life is truly saved – and one I can meet and pet.  The dog is always loved, or the humans would not be paying a lawyer to try to save her.  And in most cases, the dog is not guilty of anything but a single transgression; in other words, these cases do not usually involve multiple offenders, but dogs who have had one or two incidents that have led them to be determined fit to die by our society’s summary dismissal of animal life.  The cases involve innocents and (usually) errors or aberrations that certainly do not deserve death.  Third, the cases are “fun” from a litigator’s point of view because they are quick mini-trials without the restrictions of the rules of evidence or formalized procedure.  (This has its downside too, of course.)  So they are good practice for young lawyers, and a pleasant exercise for seasoned litigators.  Fourth, the cases are usually relatively self-contained and time-limited.  In most situations, the hearing resolves the issue to the extent that the human clients are satisfied.  The time between the designation of the dog and the hearing is usually less than a month, and the decision is usually delivered shortly thereafter.  It is true that these cases have the potential to last for years, if they leave the administrative process and go through the courts, but that is the rare one.   

RIP: Stewart Udall

David Cassuto

Stewart Udall has died.  Secretary of the Interior under Presidents Kennedy & Johnson, congressman from Arizona, and architect of many the nation’s most powerful environmental laws, including the Endangered Species Act, Clean Air Act, Wilderness Act, and others, Udall was a visionary and a politician — a combination rarely seen then or since. 

Udall’s 1963 book, The Quiet Crisis, helped launch and continues to inspire the environmental movement.  In his later years, he sued the government on behalf of those exposed to radiation from nuclear testing and uranium mining.  Udall’s efforts led to the passage of the Radiation Exposure Safety Act.  Many of his family, including his son Tom and brother Mo, serve or have served the nation in Congress. 

Read a full obit of this extraordinary man here.

Money Talks When Animals and (Some) People Cannot

Bridget Crawford

 The New York Times reported earlier this week  (here) on state legislation under consideration in three jurisdictions.  The proposed laws would allow courts to prohibit animal abusers from having pets in the future.  According to the NYT, 27 states now have similar laws. 

 Animal lawyers and law scholars long have acknowledged the connection between animal abuse and violence against women.  For recent scholarship, see, e.g., Caroline Anne Forell, Using a Jury of Her Peers to Teach About the Connection between Domestic Violence and Animal Abuse, 15 Animal L. Rev. 53 (2008).  The NYT article leads with a statement claiming that proposed legislation is “[r]esponding to growing evidence that people who abuse animals often go on to attack humans.”  But the article makes more of the cost to state and local governments of caring for abused animals that are rescued.  The article cites $1.2 million in expenses by Franklin County, Ohio officials caring for 170 rescued dogs.  A Michigan county paid $37,000 in clean-up costs when dead animals were found in a hoarders home.

 This leaves one with the impression that the least vulnerable among us get legal protection only when its absence becomes too expensive for the state. A society or government that listens only when money talks does not adequately respond to those with the greatest needs.

(Another) Bad Week for Polar Bears and Tuna

David Cassuto

It’s been quite a week over at the meeting of the Convention on International Trade in Endangered Species (CITES).  Up for discussion was a ban on hunting polar bears and bluefin tuna.  The discussions yielded some predictably (and yet still astonishingly) shortsighted conclusions.

The delegates rejected a ban on polar bear hunting because “hunting is not the most serious threat the polar bear faces” (recall that the bear was listed as endangered last year because of the pressures created by climate change and the consequent loss of icepack).  Here’s a simple logical sequence: Hunting kills bears.  If people stopped hunting them that would be one less thing killing bears.  Unfortunately, this reasoning did not carry the day.  Rather, opponents successfully argued that there is no point to killing fewer bears until we know for certain that we won’t kill them some other way. Follow this reasoning with me if you will.  It is like refusing to treat your compound fracture until you’re certain that there exists a cure for your brain tumor.   

Survey Says: 100% Mercury Contaminated Fish

David Cassuto

In case you were thinking of celebrating the efficacy of the Clean Air Act and/or the Clean Water Act, consider this: a recent study by the U.S. Geological Service revealed mercury contamination in 100% of the fish tested from 291 freshwater streams in the United States. 

That is not a typo. 

Every single one of the fish sampled was contaminated by mercury, a potent neurotoxin.  Over a quarter contained levels exceeding what the EPA considers to be safe.  Some of the highest concentrations of mercury appeared in fish taken from coastal “blackwater” streams of North and South Carolina, Georgia, Florida and Louisiana — undeveloped, wooded areas  — areas where people looking for clean air and water might look to go.  Apparently, such characteristics facilitate the conversion of mercury from its inorganic form in the atmosphere to a more toxic organic form, methylmercury, which accounts for at least 95 percent of the mercury found in fish.

All this might make you wonder where all that mercury comes from.  Answer: coal-fired power plants (and mining).    

Big Macs are Cheap and McNuggets are…

diet food?  Maybe it’s all the Portuguese I’m hearing but it feels like English has stopped making sense. 

David Cassuto

Upcoming Critical Animal Studies Conference

 The 9th Annual Conference on Critical Animal Studies will take place on April 10th, 2010 at SUNY Cortland in Cortland, NY.  Get the lowdown here.

In Case You Were Wondering…

via

h/t Prabhat Gautam

Endangered Sei Whale Sushi — You Just Have to Know Who to Ask

The Hump, a chic Japanese restaurant in Santa Monica, served sushi made from the flesh of the endangered sei whale to customers willing to fork over the appropriate dough.  Two patrons went to the restaurant with an undercover film crew and, after racking up a $600 tab, requested whale meat.  The chef served it up —  it was even identified as such on their tab.  The patrons (and their film crew, who were acting at the behest of Louie Psihoyos, Oscar-winning director of The Cove) smuggled some flesh out of the restaurant, where they had it genetically tested.   

What We Talk About When We Talk About Industrial Agriculture & Climate Change

David Cassuto

Santos was interesting.  First, who knew there was a significant mountain range between Rio & Sao Paulo?  Even having flown this route many times, I was surprised by the size and extent of the range which we drove over.

My talk on biofuels, industrial agriculture and climate change was well-received in an odd but increasingly common way.   Though I mentioned animal treatment only tangentially and concentrated on the massive pollution and climate change culpability of factory farming, 90% of the questions and comments I received dwelt on animal treatment and even animal rights.        

Biofuels, Climate Change & Agriculture

David Cassuto

Our hero is off to Santos, south of Sao Paulo, to participate in a congress on biofuels.  I will speak about the tangled relationship between biofuels, climate change and factory-farming.  I’m interested to see the reactions.

Giving Words Meaning (or Taking It Away)

David Cassuto

So here’s a new linguistic turn: putting words in quotes to indicate uncertainty as to accuracy (as opposed to putting words in quotes to indicate irony or sarcasm).  Contrast, for example, It was a ‘good’ idea for California State Senator Roy Ashburn, a closeted gay man with a ferociously anti-gay agenda to drive drunk (and get arrested) after leaving a gay bar with a companion with:  “Bali Bombing Mastermind ‘Killed’ in Shootout.” The former conveys a sarcastic assessment of Senator Ashburn’s behavior.  The latter indicates that the man killed in Bali may or may not be the suspected terrorist sought.  

Thinking About Animal Law

Bruce Wagman

Lately, I have been thinking about animal law almost constantly.  That has been the case for some time actually.  I’ve had the honor of being involved in the field for about eighteen years at some level, and pretty much had a full time animal law practice for the last five years.  I’ve been talking about animal law, reading about it, going to conferences and meeting the leaders in the field, and I have been privileged to participate in the national moot court competitions and work on a wide variety of cases.  Since I work it, live it and breathe it, I am also always talking about it.  I spend significant time explaining what animal law is – to other lawyers, to clients and to friends.  Being forced to describe and define it in ways that others understand, and so that they can get an idea of the scope of the field, requires some distillation.  Because at this point the field is expansive and has a variety of sub-specialties.  There are many lawyers who incorporate animal law into their practice and focus almost exclusively on one specific area within the field — companion animals, farmed animals, wills and trusts.      

Still Thinking About Dogs (and Cats Too)

Bruce Wagman

There’s so many issues that come up with dogs that I am still thinking about them.  And much of this applies to cats as well.  Let me be clear to start that I live with three dogs, five cats and one wife, and it’s the rare event that I get to sleep on my pillow (because Nzuri beats me there every night) or stretch out my legs (Rafiki) or get near the middle of the bed (Paka, Sybil).  And the ones that are not there are sleeping not just on the couches, but actually on special beds that sit atop the couches, because those big-pillowed couches are just too hard for the cats and dogs to sleep on without some other cushion.  So I am certainly a canine and feline worshipper.  The smell and feel of dog or cat fur are nectar and succor; and if one of them decides to perch on me, their presence freezes time.

Circus Blowback

David Cassuto

The good folks at Ringling Bros. (aka Feld Entertainment Inc.) have taken some time out from bullhooking elephants to file a RICO suit against HSUS and the other plaintiffs in the recent lawsuit about elephant mistreatment and the Endangered Species Act.  The gravamen of the suit lies in the claim that the plaintiffs conspired to to pay Tom Rider, the chief complaining witness, to give false testimony.  Feld alleges bribery, obstruction of justice, fraud and money laundering.

Let us hope for a swift and attorney’s fees-filled end to this frivolous nonsense.

Thinking About Dogs

Bruce Wagman

I have had dogs on my mind lately.  They are the main players in many of my (and many animal lawyers’) cases, and they are the species I get the most calls about.  This week I had a call about a sheep owner shooting a roaming dog, with the caller wondering about the implication of the California statute that allows a livestock owner to shoot any dog on his land, even if the dog is nowhere near livestock, Cal. Food and Agric. Code section 31103, and the case that upheld the broad scope of that statute, Katsaris v. Cook, 180 Cal. App. 3d 256 (Cal. App. 1986).  I talked earlier in the year with a lawyer who convinced a court that her client’s dog breeding operation was a livestock facility, United States v. Park, 536 F.3d 1058 (9^th Cir. 2008), on remand, 2009 WL 2949333 (D. Idaho).  The irony of that case seemed to escape everyone involved.  The issue in the case was whether this breeding operation could operate on land with a federal easement.  “Livestock operations” were allowed to do so.  So the interesting point of the ruling for me is the conclusion that breeders are in fact just like factory (livestock) farmers and others who operate commercial operations, use animals for profit, and in the short and long run contribute directly to the death of thousands of animals in shelters around the country.  When someone buys a dog from a breeder, they automatically kill a dog in a shelter who could have been saved – “buy one, get one killed,” as one of my t-shirts says.  The math is simple and can’t be denied; if a new dog if brought into the world for profit, and given to someone who has room for a dog, then that breed dog replaces the life of a dog in a shelter, who will then be gassed, injected or otherwise summarily wiped off the planet, dying sad and alone and wondering why.   

Breeding Ignorance

David Cassuto

Wherever you go, there it is.  Or something like that.  Settling into Rio means (for me, anyway) drinking my bodyweight in tropical juices and running on the beach.  It also means working really hard on my Portuguese, which involves spending a lot of time with the dictionary and the newspaper.  Of course, some articles are easier to understand than others because the context is so familiar.

For example, when I see a picture of a muzzled dog and a headline that says `Projeto de lei quer punir dono de´pit bull que fizer vítimas,´ my dictionary becomes less necessary.  The proposed law labels 17 breeds of dog as dangerous, aiming particularly at pit bulls who are barred from reproducing (it may be my [lack of] language skills but the ban doesn´t seem to aim at breeders but rather at the dogs themselves).  And the law would require that

Thinking About Pigs

Bruce Wagman

Pigs have been on my mind a lot lately.  Years ago I met several of them at the Farm Sanctuary home in Orland, California, and while I already had appreciated their complex personalities and emotional lives, getting to spend time with them changed the knowledge to revelation.  We sat on a riverbank with Gene and scratched pig bellies in the sun and watched them playing, eating, lounging.  The grunts of joy and doglike behavior was notable from the guy I was petting.  He was halfway onto his 1000-plus pound back, grunting and snuffling while I rubbed and cooed to him.  That day, probably fifteen years ago, has never left me, and my love of his species was further informed by my visits and introductions to the great pig friends I have made at Animal Place.  They impressed me as a thoughtful, prescient, and extremely playful bunch; eminently curious, very thoughtful, and wise. 

That’s a great image but mainly, for the past ten years or so, when I think of pigs, I think of mother-torture.  From dealing with the issues and cases, I now have, seared in my mind, images of “gestation crates” or “sow stalls,” those confinement technique weapons of cruelty that the modern pig meat industry utilizes for commercial efficiency, while simultaneously robbing their pigs of every sense of being an individual, a pig, a mother.    A select group of female pigs are chosen, presumably for their genetic superiority, to be turned into living machines who are repeatedly impregnated until they are worn out and wasted by the industry and then thrown out like so many pounds of trash.  During their lives they go from gestation crate (while pregnant) to farrowing crate where, after giving birth, they are placed so that their young can suckle but cannot otherwise interact with their mom, who is again kept on a concrete slab inside bars, in an area that is usually slightly smaller than the mother, so that she not only has to lie in her waste, but she is also pushed into metal bars 24-7.  Pigs in these confinement situations suffer in pain from the lack of exercise and movement, and experience psychological damage from the lifetime of deprivation and denial.

Thinking About Elephants

Bruce Wagman

I have been thinking about elephants.  The recent disappointing judgment in the hard-fought Ringling Brothers case is really only one reason.  I’ve been involved in a few nonlitigation matters trying to help make life better for elephants in zoos in different states, have visited the elephants at PAWS in California, and have spent many hours watching the amazing interactions and overwhelming magic of hundreds of elephants in several Tanzanian parks.  There are many elephant experiences that stand out in my mind, including on the one hand one long heating-up morning when we spent about two hours watching about 220 elephants of all ages and sizes (as best as we could count) in one spot in Tarangire National Park, and on the other being shocked into outrage when I learned about the crushing pain they suffer by virtue of almost every confinement situation in America, the literal disintegration of their foot bones as they are forced to stand on them, in some of the worst pain one could imagine, without any relief.  When it comes to elephants in zoos and circuses, the news is grim. 

I had to learn the science of elephants for my job, and that requirement is one of the fantastic things about practicing animal law, especially for someone like me.  That is, in order to do a good job, I am compelled to learn not just the law, but often the biology, physiology, psychology and behaviors of whatever species is at the center of the case I am litigating.  For me that is turning work into fun or at least intellectual exploration, which is fun for a law geek like me.  Because there are “cat people” and “dog people” and “chimp people;” and when on safari in Africa some people mainly want to see the big cats; others the birds.  There is an inherent speciesism, just like when we pet a cat and eat a cow, or think it is bad to eat dog because we do not do it, but it is okay to eat a pig because we do.  But I’m a garbage-can animal lover, meaning I love them all.  So when I am in Africa, ask me what I want to see, and I don’t care, as long as it’s wild.  People say warthogs are ugly and I think they are beautiful, perfect.  And when I am home ask if I prefer my dogs or cats, and my response is: “anything nonhuman will do, I love them all.”  So the requirement that I learn about some species or other is just a joy, and something I have done literally dozens of times over the course of my career.  And you really cannot adequately litigate for animals if you don’t understand them – as well as the law. 

Thinking About Wild Horses

Bruce Wagman

Lately I have been thinking about wild horses.  I discovered the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340 (Wild Horses Act), when I was collecting materials for the first animal law class at Hastings College of the Law in 1996.  Like several laws written for animals, on its face it looked like it would actually protect the covered animals, and that the legislators were very concerned about the horses’ well-being.  Congress actually said that wild horses were “living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that [they] are fast disappearing from the American scene.”  It sounded like a set-up for protection to me.  What a letdown when I eventually discovered that while the law arguably provides some protection, it has also been used to herd these independent beauties with helicopters and worse, then to pen them in corrals where they are unable to run or engage in any semblance of their normal lifestyles, and then to either warehouse them for years (the federal government currently keeps over 30,000 in long-term holding) or, if they are old or infirm, sell them for slaughter.  During the “gathers,” horse are obviously frightened, they may die, and once captured, spontaneous abortions of foals is common.  And if they live, they often slowly die from starvation, lack of activity, and other causes.  

Thinking About Chimpanzees

Bruce Wagman

Lately I have been thinking about chimpanzees.  I have been fascinated by them since one spit on me as a child, and then overwhelmed by my first visit to Gombe National Park in the months before I began practicing law, when I saw their natural lives, as perfect as anything I could have imagined.  At about the same time I began to become painfully aware of their treatment by humans.  I’ve never fully returned from those first views of the Gombe chimpanzees and (on the same trip) the Rwanda gorillas, in the sense that I have always felt since that point that something had gone seriously wrong on the planet, and that my species was responsible.  What I mean is things like gorilla-hand ashtrays and chimpanzees in biomedical research where they are tortured daily, by virtue of their confinement in tiny cages with no enrichment, no stimulation for their minds, lying on metal floors alone in frightening situations.  The contrast between Gombe and that reality make heaven and hell seem like adjoining bedroom communities of the same large city.

The accepted facts are that chimpanzees have the intellectual capacity of a three- to five-year old human and their emotional lives are at least as rich and vibrant as ours.  So imagine taking any intelligent three-, four- or five-year old human that you know and locking her up, alone, in a metal cage without a toy or book or parent or sibling or friend.  Imagine then some horrible monster comes in every once in awhile and sprays her down or drags her out of her cage to be anesthetized and then dumped back in her cage.  That horror of horrors – which is legally repeated thousands of times a day for thousands of chimpanzees – is a reality that leaves me gasping for breath, fighting back tears, and feeling like I would give my life to change theirs.