Ringling Bros. Retires Circus Elephants

Seth Victor

As many of you may have already heard, Ringling Bros. is retiring elephants from its act and focusing on caring for elephants in a conservation center. Wayne Pacelles of HSUS described this move as a “Berlin Wall moment for animal protection,” and attributed the change to the evolving public opinion surrounding animal welfare, including the outcry that came on the heels of Blackfish and the treatment of orcas at Sea World. The termination of elephant performances has been long-sought by PETA.

The media reaction, perhaps unsurprisingly, is a bit divided regarding Ringling Bros’s decision. An op-ed in the New York Post believes that the circus’s “craven capitulation to PETA will only embolden zealots to agitate for elimination of all circus animals — if not eventually to bestow upon all living creatures the same “inalienable rights” as humans,” and goes on to state that without exposure to animals via a circus, most people will not form a connection with the animals, and will thus not care to save them in the wild. The L.A. Times also notes that many people feel the elephants are an iconic part of the joy of the circus. Meanwhile op-eds in the New York Times range from echoing the Post to refuting the sentiments of the circus sympathizers.

Can California regulate egg production under the Commerce Clause?

New standard for chickens

Seth Victor

Missouri Attorney General Chris Koster has filed a lawsuit in the Eastern District Court of California, asking the federal court to overturn a 2010 California law requiring the same standards for in-state chickens be applied to out-of-state chickens. In 2008, California passed Proposition 2, a ballot measure that increased the standards for egg-layers, providing that such chickens must have enough space to spread their wings without touching another chicken, and be able to stand up and lay down. Animal producers in California, however, complained that because they couldn’t stuff as many birds into the same space, they are at an economic disadvantage when competing with out-of-state producers selling in California. In response the state legislature passed a law requiring that all eggs sold in California be held to the same standards required under Proposition 2. The law will take effect in 2015. While California maintains that the additional law was enacted for health safety given the atrocious conditions of battery cages, Missouri counters that the law is an unlawful attempt to regulate conduct outside of California’s boarders, and an impermissible protection against out-of-state competition, both of which are in violation of the Commerce Clause.

Merck Pledges to End Chimpanzee Testing

 

Seth Victor

 

Taking further steps in the right direction, Merck, one of the largest drug producers in the world, announced last month that it is ending research on chimpanzees. Kathleen Conlee, vice president of animal research issues for The HSUS said: “Merck’s new biomedical research policy will save chimpanzees from unnecessary and painful experiments. Merck’s decision, and that of several other pharmaceutical companies, sends a strong message that private industry is moving away from chimpanzee research as the government has.”

 

Merck has made this commitment while simultaneously stating, “The company’s mission is to discover, develop, manufacture and market innovative medicines and vaccines that treat and prevent illness. Animal research is indispensable to this mission.” While that quotation ominously suggests that other animals will continue to be a part of the company’s research, the more hopeful interpretation is that while Merck relies on animal testing under FDA regulations for its drugs and other products, it joins other pharmaceutical companies recognizing that even though chimps might be valuable to this research, their welfare is more important, and other ways to test the products should be utilized.

 

 

 

Why the King Amendment is Hypocritical

Seth Victor

Recently Angelique Rivard explained some of the dangers inherent in Rep. Steve King’s amendment to H.R. 6083, the Farm Bill. What makes this amendment maddening is that Mr. King has cited law to support this measure that he would decry as the product of an overreaching government in almost any other circumstance. There is no doubt that Mr. King’s proposal is intended to end state protection for farmed animals; his website proudly declares that he hopes to terminate the efforts of animal rights groups, ensuring “that radical organizations like the Humane Society of the United States (HSUS) and PETA are prohibited from establishing a patchwork of restrictive state laws aimed at slowly suffocating production agriculture out of existence.”

King has hardly been the darling of animal rights before this foray, as Stephen Colbert nicely summarizes. Perhaps unsurprisingly, the Humane Society Legislative Fund and the Defenders of Wildlife Action Fund both gave him a 0% rating in 2012. This came after a 2010 statement at a National 4-H Conference that “the HSUS is run by vegetarians with an agenda whose goal is to take meat off everyone’s table in America.” King has also previously voted against broadening the definitions of the Endangered Species Act in 2005 which would have enabled better listing criteria.

“All I Want for Christmas is a Puppy”: When Dog Shopping, the Devil is in the Details

Coral Strother

As the Holiday Season sets into full swing, and people begin to shop for the perfect gift for their loved ones, no doubt “puppy” will be on the top of many lists.  But before rushing out to the nearest pet store to find that perfect pooch, it is best to be aware of who you are really buying from.  An investigation launched by the Humane Society of the United States (HSUS) published on November 10, 2011 reported that more than 100 New York pet stores they investigated, including several upscale ones, bought their puppies from puppy mills, despite claims that they only sell dogs that come from private and reputable breeders.

The investigation by the HSUS consisted of two parts.  First, a HSUS investigator along with animal rights activist/ABC’s “The Bachelor” Lorenzo Borghese went undercover with hidden cameras to 11 New York pet stores posing as customers and asked the store staff questions about the stores’ breeder sources.  All 11 stores made either explicit or implicit and misleading statements that they did not get their puppies from puppy mills, but instead got their dogs from small private breeders.  The second stage of the HSUS investigation involved reviewing the shipping documents of over 100 New York pet stores (including the 11 visited undercover).  The results of the review concluded more than 100 New York pet stores (including the 11 interviewed) did in fact obtain their puppies from puppy mills.  All 11 of the interviewed stores as well as many of the 100 investigated stores used puppy mills that had numerous Animal Welfare Act violations, including citations for filthy conditions, lack of adequate space, exposure to extreme weather conditions, malnourished animals, and a neglect of proper veterinary care.  Most notably, several pet stores used facilities owned by Brandi Cheney (who has over 500 pages in of USDA inspection and enforcement reports linked to her) and facilities owned by Kathy Jo Bauck/Kathy Cole (convicted animal abuser who had her USDA license revoked).  Additionally, HSUS checked out and filmed several of the “small private breeding facilities” that some of the 11 pet stores investigated cited to use, only to find these facilities housed hundred of dogs in small cages.

The Agribusiness Lobby Wins Again

Jacqueline McMahon

Well, there go the rights of farmed animals and whistleblowers in Iowa.  On March 17, 2011, the Republican-dominated Iowa House of Representative voted 65-27 to approve a bill criminalizing secretly recording factory farm practices.  Under the bill, House File 589 § 9, drolly named “Animal Facility Interference,” any person who produces, possesses or distributes an audio or visual recording of an animal facility without the consent of the owner is guilty of either a class D felony or aggravated misdemeanor.  The bill still has to pass through the Democrat-controlled Senate before officially becoming Iowa law, but with similar proposals popping up in other states including Florida, the idea of prohibiting these exposé recordings is picking up steam.

North Dakota Measure 2 — Canned Hunting Contextualized

David Cassuto

There’s an odd debate going on within the North Dakota agriculture industry over Measure 2, which would ban canned hunting in the state.  On the one hand are those who support the measure because they believe canned hunts  reflect badly on the animal industry and also bring the threat of disease to livestock.  On the other side are those who say canned hunting is no different than other types of animal agriculture in that both businesses raise the animals for meat.   According to one measure opponent, “It would seem to me that the animal there is private property.  This (ban) is one step away from banning the slaughter of cattle, hogs and sheep, what have you.”     

Help Wanted: HSUS Animal Law Litigator

David Cassuto

Hey you litigators, here’s a good looking  job:

JOB OPPORTUNITY
The Humane Society of the United States (HSUS) seeks an attorney with at least one year of relevant legal experience for a Staff Attorney position within the Animal Protection Litigation Section in our Washington, DC office.
The Animal Protection Litigation Section at The HSUS conducts precedent-setting legal campaigns on behalf of animals in state and federal courts around the country, and also serves as the primary line of defense against legal attacks on legislative measures designed to protect animals from cruelty and abuse. With a team of over a dozen in-house litigators, numerous outside attorneys, and a docket of more than forty active cases, the Animal Protection Litigation Section oversees the largest litigation program dedicated to ensuring the humane treatment of animals in the country. More information is available at www.humanesociety.org/about/departments/litigation/.

General Description: The Staff Attorney will work with some of the nation’s leading animal protection lawyers on all aspects of the organization’s animal protection litigation efforts. The Staff Attorney will serve as lead and co-counsel in a variety of state and federal court actions, primarily including actions to protect threatened and endangered species, marine mammals, migratory birds, and other wildlife, and also actions to improve the treatment of captive animals such as those used in traveling shows and other exhibitions, animal fighting ventures, medical research and other experimentation, puppy mills, and factory farms.  

Some Further Thoughts on Ohio

David Cassuto

I’m back in the northern hemisphere, missing the tropical juices and proximity to the beach but enjoying my family (human and non), my friends, and my deck with its accompanying martinis.  I’ve also been pondering the Ohio deal I blogged about before getting on the plane last week.  As you may recall, the ballot initiative in Ohio containing important agricultural reforms has been indefinitely postponed in exchange for a number of concessions.   

A Deal in Ohio — But at What Price?

David Cassuto

In Ohio, HSUS, the ag industry and the state government have made a deal.  In exchange for HSUS not supporting a fall ballot initiative on animal welfare issues, the Ohio government and animal industry will take action on exotic animal importation, veal calf housing (they will “transition to group housing”), other livestock issues, and the puppy mill industry.      

New Study on Animal Protection Laws in Canada

David Cassuto

A while back, I blogged about HSUS´s useful state-by-state breakdown of animal protection laws in the U.S.   Now, I´m pleased to relay that ALDF has done a province-by-province study of the laws in Canada.  Apparently, Ontario tops the list while the Northwest Territory trails the pack.  Get the full skinny here.

Wrath

Seth Victor

            I did not intend to include wrath as the second sin, though according to Dante I am already out of order by putting pride first. In light of Tuesday’s Supreme Court ruling in U.S. v. Stevens, I feel that this post is timely.

            Wrath is a terrible vice in the context of animal-human relationships. Wrath isn’t simply rage or force, a knee-jerk reaction at a perceived slight. This isn’t the classic “heat of the moment” response to seeing your spouse in bed with another lover. Wrath has a cool down period, a time to contemplate feelings, but instead of cooling down, those feelings grow into hatred, revenge, and a desire to punish. Wrath is a very conscious and intended vice, and for that reason it is a very human one.

            I am not claiming that other species are exempt from wrath, especially those species that share the same capacity for higher thinking as humans do. Why wrath is so dangerous in the animal-human context is that while other species may possibly carry out premeditated violence, only humans find it necessary to subjugate a number of other species and vent their wrath on countless animals who have no inclination to return the punishment. The ASPCA and HSUS have documented hundreds of cases against a variety of animal victims of varied species. Dogs may be the most commonly abused of them all.

            There is something about dog abuse that strikes a chord with the general population. Average citizens who are normally indifferent about animal issues will rally around the plight of abused dogs. Casual animal rights advocates will lament the condition of a kennel in disrepair, while in the same breath order a double-patty cheeseburger with bacon. Why is this? I think it is because dogs are able to abide by the maxims we are taught as children better than any of us are able to do. They treat you as they would want to be treated. Mark Twain, an animal rights advocate, says it best, writing, “If you pick up a starving dog and make him prosperous, he will not bite you. This is the principal difference between a dog and a man.” Can anyone reading this honestly say they have met an Irish Setter who didn’t have a smile on his face? Ignore a dog for hours, and he is still ecstatic to nuzzle you if you have a bad day. It is not surprising that people are so appalled by abuse against an animal that embodies so many of the sympathetic qualities we admire.     

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.      

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.

State by State Breakdown of Animal Protection Laws

David Cassuto

To read about it, go here; for the breakdown, here, here, and here.

A Small Victory for Live Skinned Raccoon Dogs

Michelle Land

On January 29th, the Humane Society of the United States announced a settlement had been reached with clothing retailer Saks Fifth Avenue on the matter of false advertising and mislabeling of fur garments.  As a result, Saks has agreed to impose new garment labeling practices and change advertising policies.  Lord & Taylor and Andrew Marc retailers have similarly settled, with Macy’s and Neiman Marcus refusing to budge in the HSUS lawsuit.

At issue is a regulatory loophole that currently allows many fur-trimmed items to be sold without informing consumers whether and what kind of fur those products contain.  As reported on the HSUS website, dozens of falsely advertised or falsely labeled fur garments were identified across the industry with Raccoon Dogs as the most commonly misrepresented type of fur.  A previous post here explained that Raccoon Dog fur is often labeled as a different animal, as “faux” fur, or possibly not even labeled at all.

Ohio’s Issue 2: Good for Animals?

Laura Schierhoff

On November 2nd, Ohio voters passed Issue 2, a constitutional amendment, which creates a ‘Livestock Care Standards Board’ to set standards for livestock and poultry care, food safety, disease prevention, farm management, and animal well-being.  The Board will comprise of 13 Ohioans appointed by the governor and the legislature with minimal oversight.  The Board will have the authority to establish the standards governing the care and well-being of livestock and poultry in Ohio.  As stated in my previous post on Issue 2, this ballot initiative was in response to the Humane Society of the United States’ (HSUS) having picked Ohio for the next State to target for agriculture legislation banning confinement treatment of farm animals.

The battle may have been won for Ohio, but the war is still on as far as HSUS is concerned.  With little money invested into defeating Issue 2 (Ohio farmers and agribusiness lobbies spent over $4 million), HSUS is gearing up for future legislation in Ohio and other states.  While Ohio lawmakers refused to work with HSUS on humane farming legislation, Michigan recently agreed on legislation on improved livestock-standards, requiring that egg-laying hens, breeding pigs and veal calves must be able to stand up, lied down, turn around and extend their limbs.  The lawmakers, agribusiness interests, and HSUS came together to jointly agree on livestock-care legislation.  Wayne Pacelle, the president and CEO of HSUS said that “the solution forged in Michigan shows that open-minded and fair discussions among stakeholders can lead to good outcomes for farmers and for animal welfare.”  Jim Byrum, president of the Michigan Agri-Business Association, said his group and others decided to work with the animal-rights groups rather than against them.  He said the decision was based on “a healthy dose of pragmatism.  In terms of public policy, it made sense to sit down with them.”  Michigan is the seventh state to act on livestock standards, including Arizona, California, Florida, Maine, Colorado, and Oregon.

Ohio farmers claim that the health and well-being of animals is at the forefront of this amendment and argue that unhealthy animals do not produce the healthy products.  This of course is false, and there is much evidence supporting the fact that very very unhealthy animals are indeed the types of animals that we find in our food.  The animals raised for human consumption are genetically designed for productivity, fed unnatural diets, and pumped full growth hormones and antibiotics, which can hardly be argued as a “healthy” way of raising them.  One of the biggest problems I have with letting farming interests decide on animal cruelty is that they certainly do not have the physical and mental well-being of animals at heart – ultimately they are a business and want to maximize profits.

While reading blogs and articles about Issue 2, I came across a farmer who phrased my opinion of this whole situation perfectly:  “We are stewards and caretakers of these animals and we have a moral obligation to treat them humanely.”  With the passage of Issue 2, I sincerely hope that conditions for farm animals improve in Ohio, as promised, but I really doubt that will be the outcome.

Ohio Humane Societies Come Out Against Issue 2

David Cassuto

This just in: Ohio’s largest Humane Societies have come out against Issue 2.  You can (and should) read the full skinny at Cleveland.com but here are some choice excerpts:

As Nov. 3 approaches and the debate over Issue 2 escalates, Ohio’s two largest humane societies and smaller ones, including Geauga Humane in rural Geauga County, today announced their opposition to the proposed constitutional amendment.

They join the state farmers’ union, organic food proponents and environmental groups opposing the plan to create a livestock board that would determine how billions of cows, chickens, pigs, sheep and goats are treated here.

The Cleveland Animal Protective League, Geauga Humane and Capital Area Humane serving Greater Columbus say Issue 2 would not be good for farm animals, as the 13-member appointed board would include just one humane officer.

Michigan Farm Animal Welfare Bill Awaits Governor’s Signature

David Cassuto

The Michigan legislature has passed a bill that would give animals used in agriculture some breathing and living space.  Among other requirements, the bill requires that:

A FARM OWNER OR OPERATOR SHALL NOT TETHER OR CONFINE ANY COVERED ANIMAL ON A FARM FOR ALL OR THE MAJORITY OF ANY DAY, IN A MANNER THAT PREVENTS  SUCH ANIMAL  FROM DOING ANY OF THE FOLLOWING:
(A) LYING DOWN, STANDING UP, OR FULLY EXTENDING ITS LIMBS.
(B) TURNING AROUND FREELY.

The bill also creates an “Animal Care Advisory Council” that is similar in many respects to the one proposed in Ohio’s Issue 2 (see Laura’s post for more on Issue 2).  It bears noting, however, that Issue 2 is a proposed constitutional amendment whereas the Michigan legislation, if enacted, would be a simple statute.  You can read a legislative analysis of the Michigan bill here.

Ohio’s Issue 2

Laura Schierhoff

In February, the Humane Society of the United States (HSUS) met with members of Ohio’s livestock industry to discuss passing humane legislation in that state.  HSUS had its eye on Ohio to pass legislation to ban the use of poultry cages, veal crates and gestation stalls.  Agribusiness in Ohio knew this was not such a far fetched idea, given California’s Proposition 2 landslide ballot-initiative win last November.  Proposition 2 banned the confinement of farm animals in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.  (Arizona and Florida have also passed similar measures.)  The meeting was said to be “extremely cordial” according to a member of the Ohio Farm Bureau.  However, with the fear of something like Proposition 2 going on the ballot in November, big agriculture in Ohio was scared.

No Standing to Object to Foie Gras

New York is the foie gras capital of the United States.  Several years ago, the Humane Society, among several other complainants, asked the Commissioner of Agriculture to declare foie gras an adulterated food product.  The underlying rationale was that force-feeding ducks causes them to become diseased, as evidenced by their engorged livers.  Those engorged livers would therefore become an adulterated food product under New York Agriculture & Markets Law and thus should be removed from the market. The Commissioner declined to issue such a ruling and so the groups sued.

To my mind, the plaintiffs present a creative and compelling argument.  Unfortunately, it never got a hearing.  An appeals court recently upheld the lower court’s dismissal of In the Matter of the Humane Society of the United States v. Brennan for lack of standing.  According to the court, plaintiffs could not show that their alleged injury differed from any injury that might have been suffered by the public at large.  In legal parlance, they could not claim a “particularized injury” and thus lacked standing to sue.

I have written elsewhere about the inanity of the injury prong of the federal standing doctrine, which NY law mirrors.  This case reflects much of what I believe ails the doctrine.  Putting aside the specific issue of foie gras, it would seem that in order for a person to sue to remove a potentially dangerous food product from the market, she must first fall ill because of it.  Since the statute’s goal is to prevent sickness and protect public health, this seems counter-intutitive.

One may not agree that engorged duck livers indicate diseased ducks, but the merits of the case deserve a hearing.  The plaintiffs are considering appealing to the NY Court of Appeals.  Here’s hoping for a different result.

–David Cassuto

UPDATE: See here for a review of The Foie Gras Wars: How a 5,000-Year-Old Delicacy Inspired the World’s Fiercest Food Fight by Mark Caro, a reporter for the Chicago Tribune.  The book quotes Dr. Ian Duncan, consultant to the Canadian government and author of many of Canada’s poultry regulations, who states: “[f]orce feeding quickly results in birds that are obese and in a pathological state, called hepatic lipidosis or fatty liver disease. There is no doubt, that in this pathological state, the birds will feel very ill.”

Canned Hunting of Endangered Species is Illegal

From the Stuff You Probably Thought Was Too Obvious to Have to Sue About Desk:

A district court in Washington D.C. has struck down a Bush Era U.S. Fish & Wildlife Service rule that allowed canned hunting of endangered species.  Canned hunting is the shooting of semi-tame animals on fenced  “ranches” (see here for some previous posts).  During canned excursions, the animals have nowhere to run — even if they knew they were in danger — and thus can be slaughtered with ease.  Such “hunts” require no skill (indeed, many “ranches” offer a guaranteed kill).  Reviled by most hunters, they are primarily the province of folks like Dick Cheney and his fellow “sportsmen.”

The Endangered Species Act, Section 9 makes it illegal to “take” any animal on the endangered species list.  Yet, among the animals FWS allowed to be canned and killed were the scimitar-horned oryx, addax and dama gazelle, all endangered African species.  Thus the lawsuit.

To the chagrin of the Safari Club and their ilk, the court found that charging  “sportsmen” big bucks to shoot endangered animals violates the Endangered Species Act.  Kudos to the Humane Society, Defenders of Wildlife, Born Free USA, Kimya Institute and several others for forcing the courts to state the obvious and thus stop at least this part of the slaughter.  Read the HSUS press release here and the Safari Club’s Orwellian spin on how killing these animals actually protects them here.

–David Cassuto