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Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to Advance the Civil Justice System
SWORD AND SHIELD: LAWSUITS AND CIVIC ACTION FURTHERING COEXISTENCE WITH WILDLIFEBy: Don Lipmanson
IntroductionAs coyotes find habitable niches in Chicago and
mountain lion sightings proliferate1 in suburban Los Angeles, the public faces a stark choice: continuing centuries-old policies of exterminating “nuisance” animals or learning to co-exist with wildlife.
Historically, state and federal wildlife agencies have deployed hunters and trappers to solve wild animal “problems” by killing the purported offenders, individually or en masse. The U.S. Department of Agriculture’s Wildlife Services Division (WS) has spearheaded what wildlife advocates view as a century of brutal, unnecessary, and often counter-productive nationwide warfare on predators, primarily on behalf of the livestock industry.2 The death penalty is being imposed on wildlife for sporadic predation upon domestic livestock or pets, or even for causing modest property damage such as a fence being pushed over or an irrigation hose punctured when megafauna seek food or water in times of scarcity.
However, as our nation has urbanized and suburbanized over the past century, both the physical landscape and societal attitudes toward wildlife have changed considerably. Development—in the form of
roads, shopping malls, houses and high fences—has greatly fragmented formerly huge, food-and-water rich expanses of wild land. Outside the largest national parks and designated wilderness areas, megafauna and
Continued on page 19
IN THIS ISSUE:
Animal Law CommitteeCoexisting With Wildlife
Sword And Shield: Lawsuits And Civic Action Furthering Coexistence With Wildlife . . . . . . . . . . 1 Letter From The Chair . . . . . . . . . . . . . . . . . . . . . . . 3Animal Law Subcommittee Updates . . . . . . . . . . . . 4Headline Animal Law News . . . . . . . . . . . . . . . . . . . 5Legislative And Regulatory Developments Affecting Animals . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Fighting For Life In The Wild . . . . . . . . . . . . . . . . 12BLM’S Blinders: The Bureau Of Land Management’s Short-Sighted Shift Toward Sterilizing Wild Horses . . . . . . . . . . . . . . . . . . . . . 13Legal Status And Protections (Or, The Lack Thereof) For Canada Geese In The United States . . . . . . . . 14Understanding Deer in “Green” Policy-Making . 152017 TIPS Calendar . . . . . . . . . . . . . . . . . . . . . . . . 30
Spring 2017
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Animal Law Committee Newsletter Spring 2017
ChairStacey Evans9475 Sohap Ln
Columbia, MD 21045-3242(410) 440-6655
Chair-ElectDaina Bray
22 DuPont DriveMattapoisett, MA 02739
(508) 744-2147Fax: (508) 744-2009
Council RepresentativeJoan Schaffner
George Washington University Law School2000 H St NW
Washington, DC 20052-0026(202) 494-0354
Fax: (202) [email protected]
Diversity Vice-ChairAkisha Townsend
PO Box 50576Bowling Green, KY 42102-3776
(512) [email protected]
Law Student Vice-ChairLauren Tavar
5120 41st Street NWWashington, DC 20016
Membership Vice-ChairYolanda Eisenstein
Eisenstein Law Office1999 McKinney Ave, 2006
Dallas, TX 75201-1707(214) 354-0687
Past ChairBonnie LutzKlinedinst PC
5 Hutton Centre Dr, Ste 1000Santa Ana, CA 92707-8719
(714) 542-1800Fax: (714) 542-3592
Scope LiaisonDeborah Smith
Tucker Ellis LLPOne Market Plaza Steuart Tower, Ste 700
San Francisco, CA 94105(415) 617-2104
Fax: (415) [email protected]
Technology Vice-ChairLee Greenwood
Best Friends Animal Society40 River St #6
Boston, MA [email protected]
Vice-ChairsYolanda Alvarez
Alvarez Legal LLC638 Aldebaran St, Ste 102
San Juan, PR 00920(787) 946-3996
Fax: (787) [email protected]
Richard AngeloBest Friends Animal Society
10271 Irish RoadGoodrich, MI 48438Fax: (866) 237-1602
Jessica Cohen1933 Rodney Dr, Apt 202
Los Angeles, CA 90027-3123(562) 754-8277
David FavreMichigan State University College of Law
648 N Shaw LnEast Lansing, MI 48824-4496
(517) 449-4874Fax: (517) [email protected]
James GesualdiJames F Gesualdi PC
58 Wingam DrIslip, NY 11751-4112
(631) 224-4801Fax: (631) 224-1678
Barbara GislasonLaw Office of Barbara J Gislason7362 University Ave NE, Ste 120
Fridley, MN 55432-3152(763) 572-9297
Fax: (763) [email protected]
Christopher GreenHarvard Animal Law & Policy Program1585 Massachusetts Ave, Lewis 435
Cambridge, MA 02138(617) 496-5808
Fax: (212) [email protected]
Rebecca HussValparaiso University Law School
656 Greenwich St, Wesemann HallValparaiso, IN 46383-4945
(219) 465-7856Fax: (219) 465-7872
Jane McBrideIllinois Attorney General
500 S 2nd StSpringfield, IL 62701-1771
(217) 782-9033Fax: (217) 524-7740
Francesca OrtizSouth Texas College of Law Houston
1303 San Jacinto StHouston, TX 77002-7000
(713) 646-2946Fax: (713) 646-1766
Leslie RudloffPhysicians Committee
For Responsible Medicine5100 Wisconsin Ave NW, Ste 400
Washington, DC 20016-4131(202) 527-7338
Elise Van KavageBest Friends Animal Society
51 Odom DrCollinsville, IL 62234-5808
(618) 550-9469Fax: (618) 345-6542
Hypertext citation linking was created with Drafting Assistant from Thomson Reuters, a product that provides all the tools needed to draft and review – right within your word processor. Thomson Reuters Legal is a Premier Section Sponsor of the ABA Tort Trial & Insurance Practice Section, and this software usage is implemented in connection with the Section’s sponsorship and marketing agreements with Thom-son Reuters. Neither the ABA nor ABA Sections endorse non-ABA products or services. Check if you have access to Drafting Assistant by contacting your Thomson Reuters representative.
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Animal Law Committee Newsletter Spring 2017
Hello ABA TIPS Animal Law Committee (ALC) Vice-Chairs and Members,
This issue is dedicated to coexisting with wildlife. As humans continue to encroach on wildlife habitat our interaction with wildlife such as geese, coyotes, wild horses, and other wildlife will continue to increase. Many thanks to David Karopkin of NYC GooseWatch NYC, Don Lipmanson of Project Coyote, Nick Lawton of Meyers Glitzenstein & Eubanks, LLP, and Bruce Wagman of Schiff Hardin LLP, for their contributions on this topic. Special thanks to Joan Schaffner, Molly Armus, Jessica Cohen, David Dawsey, and Stefanie Wilson for their excellent work, commitment, and talent in producing ALC Newsletters.
The ABA Midyear Meeting was an especially exciting time for the ALC. Several ALC leaders met to discuss and create our three-year strategic plan. Chair-Elect Daina Bray was instrumental in organizing and helping the meeting run efficiently — thanks Daina! I also thank incoming Chair-Elect Jane McBride, Richard Angelo and Fran Ortiz, A.J. Albrecht, past ALC chairs Joan Schaffner and Yolanda Eisenstein, and TIPS Scope & Correlation Committee members Stacy Tees and Barbara Costello for their valuable input on ways ALC can advance its mission and goals. A copy of the new strategic plan will be available this spring.
Joan Schaffner and Richard Angelo did an excellent job presenting the proposed resolution/report on trap-neuter-vaccinate-return of community cats to TIPS Council at the ABA Midyear Meeting. Many thanks to Joan Schaffner, Richard Angelo, Robert Peck, Jim Carr, Kate Fitzpatrick, Kimberly Ockene, and to other ALC members who provided input, drafted, and/or reviewed the proposed resolution. Also thanks to everyone for supporting it.
There is a wonderful opportunity for you to attend ALC’s CLE, Transcending Challenges in Risk and Crisis Management: Protecting Animals, People and Clients/Organizations, at the TIPS Spring Conference in Chicago on April 28, 2017 from 8:30 a.m.-10:00 a.m. The CLE will focus on how to protect animals, people, and clients during wildlife rescue, in zoos, adventure parks, and at equestrian events. The deadline to register is April 11, 2017 . For more information see http://shop.americanbar.org/PersonifyImages/ProductFiles/269440834/267469_ABA_Tips%20Brochure_web.pdf. Special thanks to Robson Forensic for sponsoring this event.
Thanks to all for your continued support of the ALC and please contact me if you would like to get more involved with our work.
Best,Stacey Evans
LETTER FROM THE CHAIR
Newsletter Editorial Board
EditorJoan Schaffner
Associate EditorsMolly Armus Jessica Cohen David Dawsey Stefanie Wilson
A complete list of ALC subcommittees is available on the Committee homepage found here.
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Animal Law Committee Newsletter Spring 2017
ANIMAL LAW SUBCOMMITTEE UPDATESANIMALS IN AGRICULTURECo-ChairsStefanie Wilson ([email protected])Lisa Winebarger ([email protected])
By: Stefanie Wilson & Lisa Winebarger
The Animals in Agriculture Subcommittee is continuing their project to draft a prosecutors’ guide to enforcement of animal cruelty laws with respect to farmed animals. We are in the stage of compiling the necessary research and are immensely grateful to the help of the many volunteers in this effort. If you are interested in volunteering or learning more about this project, please feel free to contact Lisa and Stefanie.
ANIMALS IN SCIENCE AND TECHNOLOGYChairLeslie Rudloff ([email protected])
By: Leslie Rudloff
The Animals in Science and Technology Subcommittee is contemplating drafting an ABA resolution that pertains to animal use in science and/or technology. Please contact Leslie if you are interested in participating.
COMPANION ANIMALS ChairStacey Evans ([email protected])
By: Stacey Evans
The Companion Animal Subcommittee monitors legislation, laws, and events that pertain to companion animals, including bills to save money on veterinary prescriptions and a federal court decision that allows police to kill dogs that move or bark. The Subcommittee is dedicated to providing ongoing education for animal shelters and rescue groups across the nation such as the upcoming CLE, Who Let the Dogs In, with TIPS Staff Counsel on dog bite liability during the 2017 ABA Annual Meeting in New York City. Please contact Stacey Evans if you are interested in arranging a seminar in your area.
EQUINE LAWChair Margrit Lent Parker ([email protected])Student Chair Lauren Hunstad ([email protected])
By: Lauren Hunstad
The Equine Law Subcommittee holds monthly phone meets on the second Thursday of each month at 2pm EST. Our meetings cover a vast array of topics relating to the equine law practice area. For example, our most recent meeting discussed enforceability of liability waivers. The subcommittee frequently features our own members during these meetings who give talks on interesting cases they have worked on and give other members practical advice. We also invite outside speakers and recently featured the general counsel for the United States Equestrian Federation. Subcommittee members plan to meet in May for the National Equine Law Conference hosted by the University of Kentucky.
INTERNATIONAL ISSUESChair Daina Bray ([email protected])
By: Daina Bray
The International Issues Subcommittee is preparing to support an international theme for the Animal Law Committee during Daina Bray’s year as Chair of the Committee (August 2017–August 2018). In particular, the Subcommittee is exploring opportunities to collaborate with the International Animal Law Committee in the ABA International Law Section, and also with the Animal Law Section of the Canadian Bar Association British Columbia Branch in relation to the ABA midyear meeting to be held in Vancouver in February 2018. The International Issues Subcommittee also is working on developing ideas for ABA House of Delegates Resolutions relating to international animal law issues. Please let us know if you are interested in working with the Subcommittee on these or other issues!
WILDLIFEChair Marsha Baum ([email protected])
By: Marsha Baum
The Wildlife Subcommittee is seeking volunteers to collect information about proposed legislation and recent cases in their states. If you are willing to monitor actions in your state, please contact Marsha Baum.
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Animal Law Committee Newsletter Spring 2017
HEADLINE ANIMAL LAW NEWSANIMALS IN AGRICULTURE
Class Action Lawsuit by Growers Asserts Chicken Producers “Cartel” Violated Federal Antitrust LawsBy: Stefanie Wilson & Lisa Winebarger
In late January, chicken growers filed a lawsuit in the Eastern District of Oklahoma against the largest chicken producers in the country (who, collectively, process essentially all of the chicken consumed in the United States), asserting violations of federal antitrust laws. Haff Poultry et al. v. Tyson et al., No. 17-cv-033 (E.D. Ok. Jan. 27, 2017). “Growers” is the apt industry term for the people who contract with poultry meat corporations to grow baby chicks to market weight. In the contract system for growing poultry, the corporation retains ownership of the chickens, but contracts with growers to provide feed and housing until the chickens grow to market weight. Farmers are paid pursuant to a complicated (and secret) formula, purportedly based on market weight of the meat produced minus feed and other inputs. The class action complaint alleges that Tyson Foods, Sanderson Farms, Pilgrim’s Pride, and several other companies acted as a “cartel” and shared information to cut the growers’ pay to increase company profits. Id. at 1-3.
Unfortunately for growers, the Trump Administration has frozen rules promulgated by the USDA’s Grain Inspection, Packers and Stockyards Administration, which would have provided them greater protection against anticompetitive conduct. Lorraine Woellert, Trump’s regulation freeze makes losers out of some U.S. businesses, POLITICO (Jan. 27, 2017).
North Carolina’s Swine Waste Permit Program Subject of “Letter of Concern”By: Stefanie Wilson & Lisa Winebarger
In January 2017, EarthJustice achieved a significant step forward for victims of environmental racism (the disproportionate exposure of people of color to environmental pollution caused by industrial systems of production). Based on years of legal efforts by EarthJustice, the U.S. Environmental Protection Agency’s External Civil Rights Compliance Office issued a “letter of concern” stating that “African Americans, Latinos, and Native Americans were being
subjected to discrimination from the North Carolina Department of Environmental Quality’s swine waste permit program.” EPA Civil Rights Office Takes Steps to Enforce Civil Rights Laws, EARTHJUSTICE (Jan. 24, 2017).
ANIMALS IN SCIENCE AND TECHNOLOGY
USDA Under Fire for Scrubbing of Animal Welfare RecordsBy: Leslie Rudloff
On February 13, 2017, PETA, Physicians Committee for Responsible Medicine (PCRM), Born Free USA, Massachusetts Society for the Prevention of Cruelty to Animals, and Beagle Freedom Project sued the United States Department of Agriculture demanding that it publicly disclose thousands of records that the agency for years posted on the website of its Animal and Plant Health Inspection Service (APHIS) pursuant to FOIA’s 1996 electronic records requirements, 5 U.S.C. § 552(a)(2). See Meredith Wadman, Lawsuit Aims to Force USDA to Repost Scrubbed Animal Welfare Records, Science (Feb. 13, 2017). On February 3, 2017, the USDA removed inspection reports, research facility annual reports, regulatory correspondence, enforcement records, and lists of entities licensed under the Animal Welfare Act (AWA), 7 U.S.C. §§ 2131–2159. These have been routinely posted for many years by the USDA pursuant to FOIA’s affirmative disclosure requirements, 5 U.S.C. § 552(a)(2), and cover puppy mills, laboratories, roadside zoos, traveling animal shows, and other enterprises that use animals. Id., see also, Lydia Wheeler, PETA Sues Feds Over Animal Welfare Records, The Hill (Feb. 13, 2017); People for the Ethical Treatment of Animals, 119 Members of Congress Join PETA’s Fight for Freedom of Information, PETA Blog (Feb. 17, 2017).
COMPANION ANIMALS
Federal Court Okays Police Killing Dogs that Move or BarkBy: Stacey Evans
A police officer can kill a dog if it barks or moves when the officer enters a home, according to the United States Court of Appeal for the Sixth Circuit. Brown, et. al. v. Battle Creek Police Dep’t, et. al., No.
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Animal Law Committee Newsletter Spring 2017
16-1575 1, 22. (6th Cir. Dec. 19, 2016). The decision issued on December 19, 2016, found that the police in Battle Creek, Michigan acted reasonably when they shot and killed two pit bulls during a search for drugs inside a home in 2013. Id. at 10-17. The court held that the officers’ seizure of the two dogs was reasonable because the dogs barked “aggressively” and moved a few inches towards the officers, when they entered the home. Id. at 14.
An officer shot the first dog, when it moved only a few inches in the direction of the officer, because he considered such movement to be a “lunge.” Id. at 4-5. After being shot, the injured dog went to the basement in the home and the second dog followed it there. Id. at 5. When the officers went in the basement, the first dog which was at the foot of the stairs, barked at the officers. Id. The officers said that because the dog obstructed their entry and they did not feel that they could safely continue their search in the basement, they fired more shots in the dog, killing it. Id.
Shortly after that the second dog, who was in the middle of the basement away from the officers, barked in the direction of the officers. Id. The officers then shot the second dog, which went to the corner of the basement where it bled heavily. Id. Officers decided to kill the dog because it was suffering. Id. at 6.
The dogs’ owners, Mark and Cheryl Brown (The Browns), filed a lawsuit in district court against the Battle Creek Police Department, alleging that the police officers committed an unlawful seizure of their property in violation of the Fourth Amendment by killing their dogs. Id. at 2,6. The district court disagreed and the Browns appealed the decision in the United States Court of Appeals for the Sixth Circuit which upheld the district court’s decision. Id.
EQUINE LAW
New Jersey Court Holds that Minor Child was a “Participant” Under Equine Liability StatuteBy: Lauren Hunstad
This appeal concerns whether the personal injury liability immunity the Legislature created under the Equestrian Activities Liability Act (Equine Act), N.J.S.A. 5:15-1 to 12, applies to a minor who accompanied family members to a horse farm but who did not personally take part in any horse-related activity there. Kirkpatrick v. Hidden View Farm, No.
A-1585-15T3, 2017 WL 85562 (N.J. Super. Ct. App. Div. Jan. 9, 2017). In this case, a minor child was visiting a horse farm with his mother and sister. The mother was cleaning stalls and the sister was feeding and riding the horses. As the minor child was walking down the barn aisle, a horse bit him. The issue in this case was whether New Jersey’s equine liability statute, establishing personal injury immunity in some situations, applies to a minor who visited a horse farm, but was not directly interacting with or riding a horse. The equine liability statute in New Jersey “defines the ‘operators’ who it generally shields from tort liability and the ‘participants’ and ‘spectators’ who instead bear the risk.” Id. at *5.
The owners of the horse farm conceded they should be considered “operators” under the statute but also asserted that the minor child was a “participant,” thus shielding them from liability for his injury. Participant is defined by the statute as “any person . . . engaging in an equine animal activity . . . and shall include anyone accompanying the participant, or any person coming onto the property of the provider of equine animal activities or equestrian area . . . .” Id. (quoting N.J.S.A. 5:15-2). Plaintiff asserted instead that he was not at the farm for “equine-related purposes.” The Court rejected this argument because, in New Jersey, participant includes those accompanying a participant. Because Plaintiff was accompanying his mother and sister as they participated in equine activities, Plaintiff was a “participant” under the statute and the Court held that the lawsuit was properly dismissed by the lower court. Id. at *7, *8.
INTERNATIONAL ISSUES
Trump’s Border Wall Would Harm Endangered SpeciesBy: Amy Meselson
On January 25, 2017, President Donald J. Trump signed an executive order requiring “the immediate construction of a physical wall on the southern border” of the United States. Executive Order: Border Security and Immigration Enforcement (Jan. 25, 2017), https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements. Wildlife advocates have expressed concern that a border wall would harm more than 100 endangered animal species. Wes Siler, Trump’s Wall Threatens 111 Endangered Species, Outside (May
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Animal Law Committee Newsletter Spring 2017
3, 2016). The affected species include jaguars, gray wolves, West Indian manatees, sea turtles, and bald eagles. Id. The construction of a wall would interfere with such species not only by creating a barrier to movement, but by destroying habitats in areas where construction takes place, and creating “noise, pollution, seabed disturbance, and light pollution.” Id.
Wildlife protection laws may impede the administration’s ability to carry out the executive order. Section 7 of the Endangered Species Act requires federal construction projects to be reviewed by the U.S. Fish and Wildlife Service to assess their impact on endangered species. In addition, the Department of the Interior has designated parts of Arizona and New Mexico as critical habitat for jaguars. “Under the Endangered Species Act, that designation requires any federal agency to ‘conduct their activities in such a way as to conserve species,’ and also to ‘ensure that any activity they fund, authorize, or carry out will not jeopardize the survival of a threatened or endangered species.’” Id. A 2006 border wall project, however, avoided such scrutiny because the authorizing legislation, the Secure Fence Act, “gave the Homeland Security secretary sweeping power to build quickly, without the need for environmental impact studies or other analysis that would show how the land would be disturbed and how flora and fauna could potentially be harmed.” Darryl Fears, Endangered animals are already cut off by a border wall. Trump wants it to be much bigger, the Wash. POst (Jan. 27, 2017).
WILDLIFE
Tenth Circuit Reverses Wyoming District Court Ruling on BLM Removal of Wild HorsesBy: Marsha Baum
On October 24, 2016, the 10th Circuit Court of Appeals issued its decision regarding the removal of 1,260 horses from the Wyoming Checkerboard. American Wild Horse Preservation Campaign et al. v. Jewell, Slip Op. No. 15-8033 (10th Cir. 10/24/2106). The American Wild Horse Preservation Campaign (AWPHC) and others had appealed the decision of the District Court which had held against them in their challenge to the 2014 Bureau of Land Management’s Checkerboard roundup. At issue in the case is the BLM’s use of private homeowners’ requests to remove wild horses from private lands as reason to remove the horses from public lands as well. Although the 10th Circuit acknowledged in its decision that the “practical realities” of the Checkerboard make it difficult for the BLM to control wild horse numbers as horses move between private and public lands, the Court stated that those realities “do not provide BLM with the authority to construe the Act [the Wild Free-Roaming Horses and Burros Act] in a manner contrary to its plain and unambiguous terms.” Id. at 28. The Court held that the BLM has the authority under § 4 of the Act to remove wild horses from public lands adjacent to private lands as part of a private landowner’s request but the agency must act under the terms of § 3 of the Act regarding the removal from public lands. Id. at 30.
VISIT OUR WEBSITE AT:
www.ambar.org/tipsanimal
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Animal Law Committee Newsletter Spring 2017
LEGISLATIVE AND REGULATORY DEVELOPMENTS AFFECTING ANIMALSANIMALS IN AGRICULTURE
Proposed Bill Could Implicate Regulatory Oversight of Animal AgricultureBy: Stefanie Wilson & Lisa Winebarger
Members of the House of Representatives have reintroduced a bill that would exempt “animal or crop waste, manure or fertilizer” from coverage under the Solid Waste Disposal Act. Lawmakers Move to Exempt Farms from Solid Waste Law, POliticO PrO (Feb. 3, 2017). The bill’s sponsors claim that the bill is necessary to clarify the scope of the law with respect to such types of waste (commonly occurring as farm nutrient runoff), but an obvious impact of the bill if passed would be to further remove regulatory oversight from animal agriculture. Id. A common practice of manure waste disposal by factory farms is to spray the liquefied waste over crop fields, a practice which can result in over-application and, thus, runoff.
Animal advocates are wary following the nomination of Sonny Perdue to head the U.S. Department of Agriculture. Perdue is a former Governor of Georgia, the top poultry-producing state, previously ran a fertilizer business, and has deep ties to animal agribusiness. In recent weeks, the USDA has removed public Animal Welfare Act and the Horse Protection Act enforcement records, which going forward, will only be accessible through Freedom of Information Act requests. Enforcement reports for violations of the Humane Methods of Slaughter Act currently remain available. U.S. Dept. of Agric., Food Safety and Inspection Service, Humane Handling Enforcement Actions (last updated Feb. 2, 2017).
Additionally, advocates are concerned about the future of the new organics standards, which are slated to go into effect March 20, 2017. The new standards, which would strengthen animal-welfare standards for animal products designated as “organic,” are expected to cost the industry $28-31 million in compliance upgrades. Michael Pellman Rowland, Organic’s New Animal Welfare Standards Are In Jeopardy, FOrbes (Feb. 2, 2017). The new administration has delayed the effective date of these changes by 60 days by executive order, and may block the new rule entirely. Id.
ANIMALS IN SCIENCE AND TECHNOLOGY
Bill Seeks to Improve Agency Reporting on Efforts to Replace Animal TestingBy: Leslie Rudloff
On February 1, 2017, Representative Ken Calvert (CA-42) introduced the Federal Accountability in Chemical Testing (“FACT”) Act, which amends the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) Authorization Act of 2000, Pub. L 106-545, December 19, 2000, 114 STAT. 2721. H.R. 816, 115th Cong. (2017). The FACT Act, a bi-partisan bill now with thirteen co-sponsors, seeks to improve reporting by the EPA, FDA, NIH, USDA, and other government agencies about their efforts to replace inefficient and expensive animal tests with less costly and more effective alternative methods for assessing the safety of chemicals, drugs, foods, cosmetics, and other substances. Id.
The FACT Act specifies that biennial progress reports, already required under the ICCVAM Authorization Act, include details about the number of animals used, and the types of tests performed. This bill seeks to ensure that Congress is able to determine if federal agencies are meeting their mandates to replace expensive and unnecessary animal testing whenever possible. Id. The FACT Act would provide essential information at a time when the USDA has purged animal welfare enforcement and inspection reports from its website.
COMPANION ANIMALS
Federal Legislation to Help Save Pet Owners Money on Veterinary Prescriptions By: Stacey Evans
Representative Chaffetz (R-UT) introduced the “Fairness to Pet Owners Act of 2017” on January 24, 2017. H.R. 623, 2017/2018, 115th Session (2017). The legislation would expand options for owners of companion animals to purchase medicine for their pets by prohibiting: veterinarians from requiring that pet owners buy the medicine from the prescriber or certain person; pay, in addition to or as part of the prescription, the fee for an exam; and sign a waiver or disclaimer of liability of the prescriber for accuracy of the prescription. Id.
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Animal Law Committee Newsletter Spring 2017
Abandoned But Not Forgotten: States Consider Protections for Animals on Vacant PropertiesBy: Ledy VanKavage, Esq. & A.J. Albrecht, Esq.
Fans of the Animal Planet TV show “Pit bulls and Parolees” have likely seen numerous episodes where Tia Maria Torres and her fellow fearless animal rescuers venture into dilapidated, abandoned New Orleans houses to bring neglected animals to safety. One recent episode featured an emaciated mother dog, struggling to care for young puppies amidst their own feces and filth—owners, food and water nowhere to be found.
Using abandoned properties to discard incriminating evidence or abandon unwanted belongings is nothing new. HBO’s “The Wire” depicted scenes of gangs using abandoned buildings in Baltimore to hide dead bodies; scenes that were undoubtedly based in reality, and taking place all across the country. In 2012, the city of Chicago demolished a number of abandoned, vacant buildings in neighborhoods on the South and West sides, as part of then-Mayor Rahm Emanuel’s attempt to limit gang activity and violence. Chicago tears down crime ridden abandoned buildings to build safer communities, chicagO rePOrter (July 13, 2012).
But what of animals who are left behind to fend for themselves in the crossfires (metaphorically or literally)? Absent a rescue savior like Tia Maria Torres, communities have offered little protection for these vulnerable animals. That is, until recently. Now, long after the foreclosure crisis, we are finally seeing bills filed in multiple states which attempt to discover, rescue, and protect forgotten animals on vacant, abandoned properties. It’s long past time.
Massachusetts Senate Docket 405 would require property lessors or owners, within 3 days after the lessor or owner knew or should have known that the property has been vacated through foreclosure, termination of tenancy, abandonment or other removal of a tenant, to inspect the property for the presence of abandoned animals. S.D. 405, 2017/2018 Leg., 190th Gen. Ct. (Mass. 2017). If an abandoned animal is encountered, the finder must immediately notify animal control or a police officer of the animal. Id.
New York Assembly Bill 4168 would require any person or entity who is authorized to be on a property that has been vacated due to eviction, foreclosure, forfeiture, mortgage default, sales contract or abandonment and who encounters an animal which appears to be abandoned to, within 6 hours, notify the dog control officer, police,
or SPCA of the animal for the purpose of promptly retrieving the animal and providing it necessary care. A. 4168, 2016/2017 Leg., 240th Reg. Sess. (N.Y. 2017). This New York bill differs from the Massachusetts bill in that there is no affirmative duty placed on a person to enter the vacant property. Rather, the duty to report the animal would not arise until an animal is discovered on the vacant property.
Virginia Senate Bill 959 would penalize tenants for abandoning a companion animal either during the tenancy or after the tenant vacates the property. S.B. 959, 2016/2018 Leg., Reg. Sess. (Va. 2017). Such abandonment would constitute a class 3 misdemeanor in Virginia. This bill differs from both the Massachusetts and the New York bill in that a duty is placed on tenants, rather than landlords, property owners, or lessors.
New Hampshire House Bill 623 would have made it a crime to abandon animals at a foreclosed property. H.B. 623, 2016/2018 Leg., 160th Reg. Sess. (N.H. 2017). Unfortunately, this bill failed shortly before this publication went to print.
It is our hope that the Massachusetts, New York, and Virginia bills will soon be passed into law, and that soon other states will follow suit.
EQUINE LAW
Update to the Horse Protection Act Put on HoldBy: Lauren G. Hunstad
At the end of 2016, the USDA finalized a proposed update to the Horse Protection Act with sweeping bipartisan support. The update aimed to ban “soring,” the controversial practice of applying chemical agents and chains to gaited horses’ legs to enhance their high stepping gate in the show ring. Am. Horse Council, USDA Announces Final Horse Protection Act Rule (last visited Feb. 26, 2017). The proposed rule also would require inspectors to be trained and licensed, widely considered an improvement over the current system where the gaited horse industry self-polices. Id.
The update was scheduled to be published in the Federal Register at the end of January. However, President Donald Trump has issued a memorandum withdrawing all proposed regulations for the time being and now the update has been put on hold. Michael Collins, Horse soring restrictions among those halted by Trump ban on new rules, usa tOday (Jan. 24,
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Animal Law Committee Newsletter Spring 2017
2017). It is common for new administrations to review proposed regulations so it is possible that the soring ban could still become law in the future.
INTERNATIONAL ISSUES
China Bans Domestic Ivory TradeBy: Amy Meselson
On December 30, 2016, China announced that it would stop the domestic commercial processing and sale of ivory by the end of 2017. Wildlife advocates expect the new law to substantially decrease elephant poaching, given China’s status as the world’s largest ivory market. Edward Wong and Jeffrey Gettleman, China Bans Its Ivory Trade, Moving Against Elephant Poaching, n.y. times (Dec. 30, 2016). But some are less optimistic about the impact of the ban, stating: “As it turns out, banning the legal sale of ivory would barely register, as more than 90% of the ivory sold in China is processed through the black market. . . .What’s more, the ban is only aimed at mainland China—Hong Kong has until 2021 to end its share of the very lucrative ivory trade.” Rachael Willis, China’s Ban On The Ivory Trade Is Simply Not Enough, the huFFingtOn POst (Jan. 18, 2017).
The law does, however, include a provision to strengthen law enforcement efforts to crack down on illegal sales and transport of ivory, and to increase public education to discourage the consumption of ivory products. Wildlife advocates have long argued that the legal ivory market in China has provided cover for the illegal market. E.g., Wong and Gettlemen, supra. The law also contains provisions to redirect the ivory carving industry toward activities that do not promote
the killing of elephants, such as repairing museum relics and carving alternative materials. The new law allows those who already own ivory products to “sell them at supervised auctions after getting official approval.” Wong and Gettleman, supra.
WILDLIFE
Congressional Action Would Eliminate U.S. Fish and Wildlife Service Rule on Taking of Wildlife in Alaska’s National Wildlife RefugesBy: Marsha Baum
In September 2016, the U.S. Fish and Wildlife Service promulgated a rule placing limits on the ways in which predators can be controlled in national wildlife refuges in Alaska. 81 Fed. Reg. 52,248. The rule specifically barred certain practices such as killing pups in dens and using aircraft to kill bears. Id.
In February 2017, Representative Don Young (R-AK) and Senator Dan Sullivan (R-AK) sponsored H.J. Res. 69 and S.J. Res. 18 respectively, using the Congressional Review Act (5 U.S.C. § 801 et seq.) to take action to eliminate the rule that had been promulgated under the Obama administration. The joint resolutions provide for “congressional disapproval of the final rule of the Department of the Interior relating to ‘Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska.’” H.J. Res. 69, 115th Cong. (2017); S.J. Res. 18, 115th Cong. (2017). The Senate Resolution has been referred to the Senate Committee on Energy and Natural Resources; however, H.J. Res. 69 passed the House on February 16, 2017 by a vote of 225-193.
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Animal Law Committee Newsletter Spring 2017
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Animal Law Committee Newsletter Spring 2017
ANIMAL DOCKET: Practice tips for animal law cases
FIGHTING FOR LIFE IN THE WILDBy: Bruce Wagman
OverviewMany significant cases establishing the
underpinnings of select modern animal law—and federal procedural law, where it is a significant hurdle for animal welfare advocates—principles have involved the protection of wildlife.1 And indeed many animal law practitioners who focus on wildlife issues stay on that side of the forest for most if not all of the time. Of course “wildlife law” may mean different things to different people, and usually would also include issues regarding captive wildlife (also known as “exotic animals”) who are kept and used in privately-owned facilities around the country. So while not all wildlife law is focused directly on the protection and conservation of wild populations, or on the direct intersection of our modern world and wildlife, it is all related. Cases and legislation seeking to increase protections for captive wildlife, or to limit their use in society, certainly have an underlying theme of the importance of keeping wildlife wild, and the myriad problems that arise when we capture and try to use them in various ways. Wildlife law may include the use of captive animals for entertainment, in zoos, circuses, canned hunting ranches, private exhibitions, television and films, and as companion animals. And as many as millions of individual captive exotic animals are used in research of various kinds as well.
While wildlife law may be broadly defined to include captive and free-ranging wildlife living in a natural habitat, this article focuses on the exciting and complex world of wildlife law where the animals at issue are truly wild, and where the issues that arise are a function of their native habits and habitats, or of protecting them from certain human-designed practices that may be perceived to be unacceptable.
Wildlife Lawyer and Armchair EcotouristWhenever I get a wildlife case, I am hit with
two separate planes of thought, two large buckets of work. First, the law: I am thinking about the detailed and usually complicated legal issues that will be arising, whether it involves state or local wildlife control or management issues, or federal statutes that protect either particular species,2 or large groups of animals.3 And second, the really interesting part, the factual basis of the case that turns me into both a lawyer figuring out the best data, and an armchair ecotourist sucking up knowledge about the species at the heart of my new case. Because many wildlife cases require the lawyer to learn just as much about the lives of the animals at issue as about the law supporting the arguments.
In this kind of case, the interaction of individual animals of the species with their environment is an important component, because the legal argument depends on the basics of the daily lives of the animals. You will need to prove the reasons why the result for which you are arguing is supported by the activities of daily living of the species at issue. And because there are no witnesses you are going to bring to court to testify about what they do, and because they are wild animals whose behaviors are a matter of science and the results of years of study, the behavior of the individuals is going to be presented to the court through the principles of conservation biology, animal behavior, and land use data. That is exciting for just about anyone interested in animals, because in the context of a serious legal battle, it becomes imperative to learn about the lives of the subject animals in the wild. But this is not just the physiology and behavior (though that is a foundational starting point), but also their place in the natural landscape.
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BLM’S BLINDERS: THE BUREAU OF LAND MANAGEMENT’S SHORT-SIGHTED SHIFT TOWARD STERILIZING WILD HORSES By: William Nicholson Lawton
IntroductionWild horses currently face a severe threat from
the very federal agency tasked with protecting and managing these “living symbols of the historic and pioneer spirit of the West.”1 Despite a forty-six-year history of managing wild horses as reproductively viable populations, the U.S. Bureau of Land Management (BLM) in recent years has begun attempting a dramatic shift toward using sterilization as a routine population management tool, threatening to eliminate the normal suite of reproductively motivated behaviors that are the hallmark of these wild animals. Adding procedural insult to this substantive injury, BLM has attempted to undertake this shift without meaningful consideration of scientific evidence about sterilization’s negative impacts on wild horse physiology and behavior, and without meaningful public oversight.
BLM’s History of Protecting Reproductively Viable Wild Populations
Congress enacted the Wild Free-Roaming Horses and Burros Act of 1971 (WHA) by unanimous action in both the House and Senate, finding that wild horses “enrich the lives of the American people” and form “an integral part of the natural system of the public lands.”2 For over forty years, BLM has been responsible for “protect[ing]” wild horses in accordance with the WHA and for keeping their populations within what the agency deems to be “appropriate management levels” (AML), which are formulated, in part, by determining the carrying capacity of wild horses in a geographic area that would ensure a “thriving natural ecological balance.”3 However, even in the limited areas where BLM has chosen to protect wild horses under the WHA,4 BLM has never been particularly equitable in allocating forage, water, and other resources between
wild horses and the livestock industry, often allocating to domestic livestock vastly more forage and water than the agency allocates to federally protected wild horses.5 Nevertheless, for forty-six years, BLM has managed wild horses as reproductively viable populations.
Challenging BLM’s Recent Attempts to Shift to Sterilization
In recent years, however, BLM has begun a dramatic shift toward managing wild horse populations
through sterilization—and has attempted to do so without a hard look at the consequences of this dramatic shift in management and without meaningful public input. On behalf of the American Wild Horse Preservation Campaign (AWHPC), the Cloud Foundation, Return to Freedom, and other wild horse conservation organizations and advocates, the firm of
Meyer Glitzenstein & Eubanks LLP has successfully sued the BLM to stop these sterilization efforts in several instances.
BLM’s first efforts to shift toward sterilization of wild horses occurred in 2011 when the agency decided to geld and release wild stallions onto the range in Wyoming without ever considering the scientific consensus view that gelding causes significant negative effects on the behavior of the stallions themselves and the herds to which they belong. After AWHPC filed expert declarations illustrating empirical evidence and scientific consensus that gelding causes fundamental adverse changes to horses’ physiology and behavior—and litigated over BLM’s failure to consider this information in its NEPA process—BLM withdrew the plan to geld the horses.6 Similarly, after BLM refused to consider the same scientific information when it made another plan to geld wild stallions in 2012 in Nevada, AWHPC obtained a ruling requiring the agency to
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Animal Law Committee Newsletter Spring 2017
LEGAL STATUS AND PROTECTIONS (OR, THE LACK THEREOF) FOR CANADA GEESE IN THE UNITED STATESBy: David Karopkin
IntroductionA Google search for news stories about Canada
geese quickly reveals widely varied views and attitudes towards these well-known birds. Intrepid journalists frequently report on the state of Canada geese with subjects ranging from discussion of migration patterns, geese loafing at parks or on ball fields, peculiar nesting choices, the joy of spring goslings, the threat the large birds pose to aviation safety, and seasonal hunting outlooks. Some stories highlight connections made between kind families who share snacks with a hungry flock at a community lake or brave rescuers who save an imperiled or injured goose. Others account callous teenagers who torment or harm geese, arrogant and aggressive drivers who plow over a family trying to cross the road, or community members who complain of “nuisance” geese and call for their “removal.” The erratic tones of these articles reflect our confused relationship with Canada geese and raise questions and disputes regarding their standing—whether they are “good” or “bad,” whether there are “too many” and need to be dealt with in some respect or whether they should be left alone and protected. Today’s legal landscape is similarly inconsistent: while most people are prohibited from harming Canada geese, the law freely allows licensed hunters and wildlife exterminators to kill tens of thousands each year.
Conservation and the Rebound from the Brink of Extinction
Historically, the American conservation movement has been the dominant influence shaping U.S. wildlife law, establishing the legal status of wild animals, including Canada geese, as state-managed public resources. The Public Trust Doctrine is derived from the 1842 U.S. Supreme Court case Martin v. Waddell which established the legal tenet that “certain natural and cultural resources are preserved for public use,
and that the government owns and must protect and maintain these resources.”1 Conservation principles developed during the nineteenth and twentieth centuries in response to over-hunting and other commercial exploitation that decimated wildlife populations and
led to vast species extinction.2 New ethics favored shared and robust opportunity to hunt (for sustenance or recreation) over private ownership and private access to wildlife for market use.3 Buttressed by the environmental movement of the 1960s and 1970s, today, a patchwork of powerful federal statutes seek to guide government administration of wildlife management by balancing consumption of
wildlife with the health of species and their sustainability as resources.
Nearly hunted to extinction a century ago, Canada geese have experienced a resurgence across the United States, even internationally, and are now ubiquitous. When the widespread practice of using live captive flocks of Canada geese and other birds as hunting decoys was outlawed in 1935, the birds were released from captivity.4 However, because migration is a learned behavior, these birds and their descendants were unable to learn how to migrate and became year-round residents.5 Migratory geese are considered those that breed in northern North America and winter in central and southern North America, whereas non-migratory or resident geese live in and around the same area year-round.6 Therefore, while populations of migratory Canada geese surge and fall depending on the season, resident Canada geese are found in the same location year-round, and by definition, any Canada goose nesting in the mainland United States is considered a resident goose.7 According to United States Department of Agriculture (USDA) data, the once non-existent resident Canada goose population in the United States increased from about 0.5 million to 3.6 million between 1980 and 2014.8 This significant
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Animal Law Committee Newsletter Spring 2017
UNDERSTANDING DEER IN “GREEN” POLICY-MAKINGBy: Lee Hall
Introduction“Green” policies—policies meant to mitigate
possible adverse impacts of human activity on the natural world, and to establish norms for more sustainable, environmentally aware living— are taking hold in the cities and suburbs. In the eastern United States, we who advocate for “green” policy, are pressed to accept forcible reductions of populations of white-tailed deer. Must we? Or is a hands-off approach—one that allows nature to manage wildlife populations—the ethic of the future?
What might such a policy look like? Bobcats are indigenous to eastern North America and kill weakened or even healthy deer, especially in winter.1 Even more significant predators of deer are the coyotes and coyote-wolf hybrids now living throughout the east.2 What if we stopped killing them and allowed them to prey on the deer? A study run by a U.S. Forest Service Southern Research Station research biologist showed South Carolina deer populations dropping after a rise in coyote populations.3
Meanwhile in Pennsylvania, home to an estimated 100,000 coyotes, hunters and trappers, encouraged by government policy, annually kill these predators by the tens of thousands.4 Then, the National Park Service (NPS) determines there is an overpopulation of deer and must implement a culling program to kill the deer. Instead of killing the predators and prey, why not allow them all to live and properly manage their populations?
An authentic green policy, when it addresses the situation of aware beings in an ecosystem, needs the element of respect for the natural world. Current laws, rules, and policies unscientifically value only human attitudes and preferences (even, as we’ll note, suburbanites’ penchant for ornamental garden plants) while the non-human experience is beneath notice. Decision-makers’ neglect of ethical consideration for living, aware members of the bio-community, enables urban sprawl and the erasure of ecosystems.
National Park Service Policy at Valley ForgeValley Forge National Historical Park implemented
forcible deer reduction in recent years, drawing public activism and litigation.5 Valley Forge is a five-square-mile piece of land just northwest of Philadelphia. In August 2009, the NPS issued its White-tailed Deer Management Plan and Environmental Impact Statement for Valley Forge.” 6 The managers of Valley Forge resolved to reduce the deer population from an estimated 1,277 to fewer than 185, thus reducing the population by almost 1,100 deer. The Park Service asserted, as the plan’s primary purpose, a need to support long-term protection, preservation, and
restoration of native vegetation and other natural and cultural resources.7
NPS justifications for deer control also include factors unrelated to conservation of the parkland itself—such as financial risks to nearby homeowners whose gardens might be visited by deer, and the inconvenience caused to gardeners with garden plants that attract deer. The Valley Forge plan, citing the National
Environmental Policy Act’s requirement that economic and social impacts be analyzed among environmental impacts, states: “Based on the research findings on [W]hite-tailed deer home range at Valley Forge NHP, it is clear that deer living in the park affect neighboring properties. The presence of deer on neighboring properties has been linked to loss and damage of ornamental vegetation.”8
The NPS at Valley Forge considered taking (1) no action, (2) non-lethal actions including rotational fencing of vegetation, (3) combined lethal actions (“sharpshooting, and capture and euthanasia”), or (4) combined lethal and nonlethal actions (i.e., shooting several hundred deer annually and using contraceptives “when an acceptable chemical reproductive agent becomes available”). It implemented the last alternative—a combination of lethal and nonlethal actions—claiming that after several years of killing deer it may use contraceptives.
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Animal Law Committee Newsletter Spring 2017
Visibly lacking was an option relying on predator activity. The section on “Reintroduction of Predators” was a brief, dismissive synopsis of animals already present:
Coyotes (Canis latrans) are present in the park and bobcats (Lynx rufus) potentially could be supported by habitats within the park. However, these predators have been shown not to exert effective control on white-tailed deer populations (Coffey and Johnston 1997). Based on these reasons, the reintroduction of predators was dismissed as a management option. 9
Yet collaboration between the NPS and state game commissions to discontinue coyote suppression arguably would allow these predators to “exert effective control on white-tailed deer populations.” Nevertheless, the Third Circuit, in its review of the agency’s action, found that the NPS “clearly researched, and rejected, the idea of reducing the deer population through the use of predators” although “it may have relied on only one study.”10
The NPS reported killing 600 deer in 2011, 377 in 2012, 340 in 2013, and 116 in 2014.11 These numbers indicate managers killed 1,433 deer over the plan’s original four years—substantially more than the original plan to kill about 1,100 deer. Either more deer are moving in, or the targeted deer are rebounding at a high pace, or both. Yet in June 2014, the NPS announced its plans to extend the Valley Forge shooting plan into its fifth successive winter; and so it continues.
Valley Forge is not an anomaly. The NPS has resorted to mass culls of deer in several other parks in the eastern United States. For example, in 2013, more than 2,800 white-tailed deer were targeted for removal over a four-year period at the Antietam and Monocacy Civil War Battlefields in Maryland and the Manassas Battlefield in Virginia.12 As at Valley Forge in Pennsylvania the NPS announced it would use chemical contraceptives on the Maryland and Virginia deer after several years of shooting—assuming an appropriate reproductive control agent becomes approved.13 And here again, although coyotes are hunted and trapped in both Maryland and Virginia, the Battlefields Plan/EIS ignored those practices—notwithstanding their impact on the biological balance of the parks at issue.14 In 2014, the NPS put a similar plan into action in Rock Creek Park in the heart of our nation’s capital—killing animals, the deer, for the first time in the history of the park.15
Negative Consequences of Forcible Deer and Predator Management
The NPS repeatedly claims that deer killing is a boon to woods and vegetation. Yet research carried out under the aegis of Ohio State University and the NPS itself found robust deer populations enriching soil and fostering diverse populations—among them, earthworms, spiders, ants, slugs, snails, insects, snakes, and salamanders.16 So the level of deer predation needed for healthy ecosystems may be far lower than what resource managers expect. And while forcible deer management goes on, it sidelines predator conservation. Predators die under laws and policies that promote shooting, trapping, and poisoning. Under the federal Animal Damage Control Act,17 Wildlife Services (part of the U.S. Department of Agriculture Animal and Plant Health Inspection Service) kills tens of thousands of animals annually, in conjunction with states, cities, individuals, organizations, and businesses.18 This has led to vast harm to non-target animals and to biodiversity.19
In plain terms, when humans substitute themselves for natural predation, natural predators are put out of work. But ultimately, we “typically cannot replicate the effects of carnivores on ecosystems,” write William Ripple et al. in Science Magazine.20
Additionally, predator loss may induce the release of greenhouse gases associated with climate change. A study at the Yale School of Forestry & Environmental Studies examines the connection between biodiversity and carbon sequestration, and finds the connection powerful.21
The Catch-22 to Establish Standing to Challenge the Park Service’s Valley Forge Plan
Citizens and members of non-profit organizations who believe the forcible killing of deer in Valley Forge is unnecessary and inappropriate, challenged the NPS’s Valley Forge plan as a violation of NEPA. As NEPA has no citizen-suit provision, plaintiffs sought standing under the Administrative Procedure Act22 to seek judicial review of federal action.23
For APA standing, the plaintiff must be “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”24 The Supreme Court has interpreted this as requiring a personalized relationship between an environmental plaintiff and the natural community that plaintiff sets out to defend:
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“By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.”25 Accordingly, plaintiffs here described their visits to the park and how they would personally feel if the deer were killed. In some cases, declarants described individual deer. The judge, deciding on the side of the NPS and denying plaintiffs’ request for a preliminary injunction, conflated natural predation with unnatural culling and suggested the plaintiffs could not respect predation yet oppose a cull:
Petitioners have never advocated that this is a case about whether or not to cull the deer. Rather, Petitioners have challenged the method by which the deer population will be reduced and are the primary proponents for another lethal method of reduction—introducing coyotes to eat the deer. The two arguments simply are not reconcilable in that Petitioners cannot suggest that it would be reasonable for the National Park Service to introduce coyotes to “naturally reduce” the deer population, while also arguing that the current cull (albeit by a different lethal means) is causing irreparable harm by “removing” particular deer with which they have developed “special relationships.”26
As such, the court found plaintiffs could not establish irreparable harm. This statement demonstrates a clear misunderstanding of “green” policy that relies on natural predation as the proper method for wildlife management. The plaintiffs face a legal Catch-22 if they are expected to declare a personalized sense of appreciation for the deer specific to a place, yet not be permitted to respect natural processes. An appreciation for the consciousness and individuality of free-living animals, as well as predation and collective evolution, can be understood and valued.
The “Natural” SolutionInstead of forcibly killing prey and predators alike,
the NPS should use natural predation as the preferred method of wildlife management in national parks like Valley Forge. In fact, predator co-existence initiatives have emerged in various suburban areas throughout the country.27 Granted, people need time to adjust to the
understanding that predators have a natural place in our environment and often fear conflict with predators such as coyotes. Indeed, not only are people wary of coyotes; coyotes are wary of people as well. This wariness actually serves to decrease concerns over conflict with humans as coyotes as it often reduces coyote activity during the day when in close proximity to people.
Moreover, the rare conflict can be avoided by straightforward and sensible precautions. New York’s Department of Environmental Conservation (DEC) offers a webpage titled “Coyote Conflicts.” It states that Eastern coyotes “live in New York as an integral part of our ecosystems. People and coyotes can usually coexist if the natural fear of people that coyotes have is maintained.”28 Having established coyotes’ presence as an acceptable ecological fact, the page suggests ways to prevent acclimation of coyotes to humans—preventing the feeding of coyotes, eliminating the availability of bird seed (coyotes are attracted to the concentration of birds and rodents that come to feeders), and aggressively shooing coyotes away if they are near. Although the potential for coyote attacks exists in New York, where some would say no risk at all is acceptable, the DEC states, “a little perspective may be in order. On average 650 people are hospitalized and one person killed by dogs each year in New York State. Nationwide, only a handful of coyote attacks occur yearly.”
Shifting to policies that value, spare, and respect herbivores and predators alike (rather than regarding them all as pests) could enable administrators to shift resources so as to increase ecological literacy at the community level. It could guide us to coexist with the natural world around us, and increase our society’s cultural carrying capacity for the indigenous animals in our local biosphere. Over time, with the allowance of predator animals to carry out their roles, the population growth rate of deer could be expected to decrease, and we’d come much closer to carrying out “green” policy that lives up to the term.
Lee Hall, J.D., LL.M., author of On Their Own Terms: Animal Liberation for the 21st Century (2016), developed a public outreach campaign and worked on the litigation strategy challenging deer management at Valley Forge National Historical Park. E-mail the author at [email protected].
1 See Wildlife Directory, university OF illinOis extensiOn, http://web.extension.illinois.edu/wildlife/directory_show.cfm?species=bobcat (last visited Feb. 13, 2017).2 Christine Dell’Amore, Coyote-wolf Hybrids Have Spread Across U.S. East, nat’l geOgraPhic neWs (Nov. 8, 2011). 3 Statewide Deer Harvest Decreases in 2010, S.c. deP’t OF nat’l res. (May 31, 2011), http://www.dnr.sc.gov/news/yr2011/june2/june2_deer.html. Likewise, coyotes were found to be driving a 67% mortality rate among fawns in Auburn, Alabama, according to an Auburn University study. See Jeff Gammage, In Suburban Forest of Valley Forge, Balancing Coyotes vs. Deer, Wash. POst (Nov. 7, 2010). 4 Marcus Schneck, Organized Coyote Hunts Will Remove Several Hundred Coyotes From Pennsylvania, Leaving About 100,000 Still Out There, the PatriOt-neWs (Feb.
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17, 2013), http://blog.pennlive.com/pa-sportsman/2013/02/organized_coyote_hunts_will_remove_several_hundred_coyotes_from_pennsylvania_leaving_about_100000_st.html. In January 2014, annual coyote killings were estimated at 40,000. Rita Giordano, Coyote Conspiracy: Myth, or State-Business Collusion?, PhiladelPhia inquirer (Jan. 19, 2014).5 For the Valley Forge litigation, see Friends of Animals v. Caldwell, No. 2:09-cv-5349, 2010 WL 4259753 (E.D. Pa. 2010).6 nat’l Park serv., recOrd OF decisiOn FOr the White-tailed deer management Plan and envirOnmental imPact statement, [valley FOrge eis], https://parkplanning.nps.gov/document.cfm?parkID=284&projectID=16911&documentID=29898.7 Id.8 See Friends of Animals v. Caldwell, No. 2:09-cv-5349, 2010 WL 4259753, at *1 (E.D. Pa. 2010); valley FOrge eis, supra note 6, at 1-34.9 nat’l Park serv., valley FOrge natiOnal histOrical Park White-tailed deer management Plan and envirOnmental imPact statement 2-54 (Aug. 2009).10 Friends of Animals v. Caldwell, 434 F. App’x 72, 76-77 (3d. Cir. 2011). 11 See Erin McCarthy, Controversial Deer Kill Thins Valley Forge Herd, Phil. inquirer (Jun. 9, 2014), also stating that the 116 deer killed in the 2012-14 winter were killed in eight nights between November and March, by “Department of Agriculture sharpshooters.” Id. The original plan set forth in November 2009 stated that 500 deer would be shot in the first winter, 500 the next, and between 250 and 300 in each of the third and fourth years. Gammage, supra note 3.12 Plan Targets 2,800 Deer at MD, VA Battlefields, assOc. Press (Sep. 3, 2013).13 See nat’l Park serv., antietam natiOnal battlegrOund, mOnOcacy natiOnal battlegrOund, manassas natiOnal battlegrOund: draFt White-tailed deer management Plan and envirOnmental imPact statement, sPring 2013, at 126–27, https://parkplanning.nps.gov/document.cfm?documentID=25018 (last visited Mar. 2, 2017).14 Maryland regulations have enabled unlimited, year-round hunting of coyotes; see Maryland Guide to Hunting and Trapping, Furbearers, http://www.eregulations.com/maryland/hunting/furbearers/ (visited Mar. 2, 2017). Counties in Virginia are legally permitted to establish their own coyote bounty systems; see Virginia Dept. of Game and Inland Fisheries, Furbearer Hunting Seasons, http://www.dgif.virginia.gov/hunting/regulations/furbearerhunting.asp#coyote (visited Mar. 2, 2017).15 For Rock Creek, find the Record of Decision at: http://parkplanning.nps.gov/documentsList.cfm?parkID=198&projectID=14330 (last visited Mar. 1, 2017).16 Katherine Greenwald et al., Indirect Effects of a Keystone Herbivore Elevate Local Animal Diversity, 72 J. WildliFe mgmt. 1318 (2008).17 Animal Damage Control Act of March 2, 1931 (46 Stat. 1468) provided broad authority for investigation, demonstrations and control of mammalian predators, rodents and birds, now vested in the Secretary of Agriculture. 7 U.S.C. § 426 (2012).18 See, e.g., U.S. Dep’t of Agric. Animal & Plant Health Inspection Serv., Wildlife Services Directive 3.101: Interfacing with Business and Establishing Cooperative Programs (2015): https://www.aphis.usda.gov/wildlife_damage/directives/3.101_interfacing_with_business_establishing_prog.pdfSee also WildEarth Guardians, Feds Spent Millions of Public Dollars to Kill Over 1.6 Million Native Animals in 2015 (Jun. 21, 2016), http://www.wildearthguardians.org/site/News2?page=NewsArticle&id=12535 (stating that and coyotes suffered the highest death toll with 69,905 animals killed.).19 Federal and state initiatives under the Animal Damage Control Act have “succeeded in exterminating wolves, grizzly bears, and other predators from many states that might otherwise still have populations of such animals.” Randal O’Toole, Audit of the U.S.D.A. Animal Damage Control Program (Thoreau Institute), http://www.ti.org/adcreport.html (last visited March 5, 2017). 20 William J. Ripple et al., Status and Ecological Effects of the World’s Largest Carnivores, 343 sci. 1241484-9 (Jan. 10, 2014), http://ow.ly/CQEL309wrk.21 See Michael S. Strickland et al., Trophic cascade alters ecosystem carbon exchange (2013), 110(27) PrOc. nat. acad. sci. 11035 (2013). In some studies, CO2 emissions are shown to have risen as much as tenfold. Trisha B. Atwood et. al, Predator-induced reduction of freshwater carbon dioxide emissions, 6 nature geOscience 191 (2013), http://www.nature.com/ngeo/journal/v6/n3/full/ngeo1734.html, research summarized for the public by Fred Pearce, Wiping Out Top Predators Messes up the Climate (Feb. 17, 2013), https://www.newscientist.com/article/dn23182-wiping-out-top-predators-messes-up-the-climate/ (both sites last visited Mar. 2, 2017). The ramifications of these studies for park policy under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370 (2012), are not negligible. Two principal sponsors of NEPA, explaining to their colleagues the Conference Report that was ultimately enacted, stated: “What is involved [in NEPA] is a declaration that we do not intend as a government or as a people to initiate actions which endanger the continued existence or the health of mankind: That we will not intentionally initiate actions which do irreparable damage to the air, land and water which support life on earth.” Metropolitan Edison Co. v. PANE, 460 U.S. 766, 772-73 (1983) (quoting Senator Jackson, as recorded in 115 cOng. rec. 40416 (1969)).22 Administrative Procedure Act, 5 U.S.C. §§ 500, 551–559, 701–706 (2012).23 See Lujan v. National Wildlife Federation, 497 U.S. 871, 882 (1990).24 “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.25 Lujan v. Defenders of Wildlife, 504 U.S. 555, 579 (1992).26 Friends of Animals v. Caldwell, No. 2:09 cv5349, 2010 WL at 4723393 at *2.27 See, e.g., the cOyOte cOexistence PrOJect, http://coyotecoexistence.com, founded “to promote education about coexistence in order to stop coyote trapping and killing” and working “to spread the word about coexistence, an alternative coyote management approach, which works in other urban areas: Denver, Seattle, Vancouver, Chicago, New York, San Francisco.” 28 Coyote Conflicts, n.y. state deP’t OF envt’l cOnservatiOn, http://www.dec.ny.gov/animals/6971.html. Nevertheless, the DEC lists hunting and trapping among the “great deal of benefits” coyotes provide for New Yorkers—along with observation and photography opportunities. Id.
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Animal Law Committee Newsletter Spring 2017
their prey lost the vast expanses of land, where they once thrived in habitat rich in food and shelter but with minimal human presence. Wildlife has responded to this ecological pressure either by retreating into ever-smaller enclaves, where intensified competition for resources usually leads to population declines, or by learning to survive and even prosper in the presence of humans. Unintentionally, “civilization” has pushed coyotes, mountain lions, and bears into our neighborhoods, raising ethical and practical problems about how to “manage” this new ecological relationship.
Science-Based Knowledge Promotes Coexistence
Humanity has a long history of inadvertently or intentionally eradicating entire species of wildlife. What appears new is a science-based understanding of how people drive other species into extinction,3 giving us the opportunity to make deliberate, conscious decisions whether to extirpate or to coexist with the many species of undomesticated animals now showing up in neighborhoods.
For the broad sector of the public that favors coexistence, legal institutions and civic activism provide complimentary means to further that goal. Environmental groups have relied on decades-old federal laws—inter alia NEPA, ESA, the Clean Water Act—and their implementing regulations as grounds for lawsuits aimed at stopping logging, mining, dam construction and road-building plans that threaten the continued existence of wolves, wolverines, lynx, grizzly bears, desert tortoises, and a host of other rare or at-risk species of fauna and flora.4 The myriad of environmental protection groups and their legal staffs that sue for enforcement of wildlife protection laws and regulations are helping preserve the ecological insights and political solutions devised by earlier generations of wildlife advocates. As long as current federal environmental protection statutes remain relatively intact, lawsuits to compel their enforcement likely will remain a foremost tool for fostering human coexistence with wildlife.
Political Agendas to KillYet in the current political climate, where resource
extraction tops the new federal executive’s political agenda, these key environmental protection laws and rules appear destined for non-enforcement, if not outright repudiation, by federal agencies. The current Congressional majority seems intent on eliminating all protections for wolves, grizzly bears, and other
predators perceived as threats to ranching and farming.5 In non-coastal western states, where wolves either have maintained small populations in remote national forests or have migrated out of Yellowstone National Park following their reintroduction in 1996, near-total suppression of predators appears the dominant management approach. Opposition to federal and state ESA protections there is fierce, fueled by hunting and agricultural interests.
Legislatures in Idaho6 and Wyoming7 fund aerial gunning of gray wolves, while New Mexico’s Game and Fish Department adamantly opposes 20 years of federal and private efforts aimed at expanding a very small, genetically bottlenecked population of Mexican gray wolves via release of captive-bred individuals in remote areas of the state.8
Given this reality, civic discussion plus sustained, decentralized political action will likely become the most effective means for persuading state and local government agencies and property owners to abandon their historic readiness to kill wildlife engaging in instinctive behaviors. These approaches have yielded results on the West Coast, where states and counties are becoming laboratories for developing and testing wildlife coexistence strategies.
West Coast States Test Wildlife Coexistence Strategies
Washington state9 and Oregon10 have developed elaborate wolf management plans that declare a preference for non-lethal methods where control seems necessary. In 2014, California’s Fish and Game Commission, encouraged by massive public lobbying and despite objections from agency staff and ranchers,
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granted state ESA protection to a fledgling population of gray wolves, who re-entered the state from Oregon and re-established a first pack 80+ years after their complete eradication from California. A stakeholder working group recently completed California’s wolf management plan11; however, that ESA listing is now the subject of a legal challenge, brought on grounds of arbitrariness by the Pacific Legal Foundation on behalf of the California Farm Bureau Federation and the California Cattlemen’s Association.12
While the presence of wolves or mountain lions in a particular landscape seems to galvanize the stronger passions, the omnipresence of coyotes puts them at the center of the debate around human coexistence with wildlife. Unlike wolves, coyotes can tolerate and thrive living close to humans, in suburbs and even urban neighborhoods, as well as on open range. Affection for this rather fearless, dog-like species, coupled with appreciation for the rodent control services they provide, has created sufficient political pressure to persuade homeowners associations, golf courses, and city and county governments to forego trapping, shooting, or poisoning coyotes. It also has spurred efforts to ban coyote killing contests, where prizes typically are awarded to those who kill the most, or the largest, coyotes over the course of a weekend.13
Recently, a state court lawsuit14 brought by a coalition of wildlife advocacy groups15 in a large rural California county produced at least a temporary victory for advocates of coexistence, one which may represent a turning point in decades of conservationist efforts to push back against WS’s affinity for using guns, traps, and poisons as the primary means of solving conflicts between wildlife and humans. Filed in 2015, that suit challenges a unanimous decision by Mendocino
County’s Board of Supervisors to renew their “cooperative services agreement” with WS—aimed at “protect[ing] residents, property, livestock, crops, and natural resources from damage caused by predators and other nuisance wildlife”16—without first requiring an Environmental Impact Report (EIR) required under California’s Environmental Quality Act (CEQA).17
Public attendance at the county supervisors meeting was large, animated, and polarized, pitting wildlife advocates against ranchers who view coyotes as a threat to their sheep and vineyard owners who believe coyotes are a menace to irrigation systems.18 Under pressure from the lawsuit and from a considerable segment of the public, supervisors agreed to a settlement that requires the county to 1) suspend its participation in and funding of any wildlife management agreement with WS, unless the county first prepares and certifies a CEQA-compliant EIR and bases any new agreement on the EIR’s findings; 2) hire an independent consultant to prepare the EIR, with plaintiffs having a say in choosing the consulting firm; and 3) pay plaintiffs $25,000 in attorney fees and costs.19
ConclusionAt a time when Congress and the executive branch
attempt to diminish the scope and application of federal wildlife protection laws and regulations, civic actions and legal entities at the state and local level are poised to become the best (and perhaps the only) locus for policies and practices that promote coexistence with wildlife. They, at least, tend to be geographically accessible and relatively open to hearing the demands of people who want to end the war on wildlife.
Don Lipmanson is a criminal defense attorney practicing in Northern California, former Mendocino County Planning Commissioner and Advisory Board Member for Project Coyote.
1 Dana Goodyear, Lions of Los Angeles, the neW yOrker, 44-51, Feb. 13 & 20, 2017, at http://www.newyorker.com/magazine/2017/02/13/lions-of-los-angeles. 2 Richard Conniff, America’s Wildlife Body Count, n.y. times, Sept. 17, 2016, https://www.nytimes.com/2016/09/18/opinion/sunday/americas-wildlife-body-count.html?_r=0. For a detailed history and assessment of Wildlife Services’ assault on predators, see Christopher Ketcham, The Rogue Agency, harPer’s mag., 38-44, Mar. 2016.3 See generally elizabeth kOlbert, the sixth extinctiOn: an unnatural histOry (2014).4 See e.g., Environmental Protection Information Center, Groups Sue to Save Rare, Mink-like Carnivore in California, Oregon (Dec. 6, 2015), http://www.wildcalifornia.org/blog/lawsuit-challenges-failure-to-protect-coastal-marten/. The article describes a 2015 lawsuit filed by Earthjustice challenging the U.S. Fish and Wildlife Service’s failure to protect the once-common coastal marten under the ESA. This weasel-like mammal is reportedly extinct in 83% of its historic range, with fewer than 100 surviving in California’s coastal forests plus an indeterminate “very small number” in Oregon.5 See Center for Biological Diversity, Politics of Extinction, http://www.biologicaldiversity.org/campaigns/esa_attacks/table.html (last visited Feb. 13, 2017) (periodically updated list of Congressional bills aimed at diminishing the scope and application of the federal Endangered Species Act).6 See Wolves in Idaho’s ‘Lolo Zone’ Being Gunned Down by Government, WildliFe neWs, Feb. 13, 2016, http://www.thewildlifenews.com/2016/02/08/wolves-in-idahos-lolo-zone-being-gunned-down-by-government/.7 See Stephanie Spear, Conservation Groups Challenge Kill-at-Will Policy for Wyoming Wolves, ecOWatch, Sept. 11, 2012, http://www.ecowatch.com/conservation-groups-challenge-kill-at-will-policy-for-wyoming-wolves-1881641148.html.8 Susan Montoya Bryan, New Mexico seeks to stop feds from releasing wolves, santa Fe neW mexican, A10, May 13, 2016, http://www.santafenewmexican.com/life/features/new-mexico-seeks-to-stop-feds-from-releasing-wolves/article_c645218e-5f7f-59b7-b4d0-bedbeef1d850.html.9 See Washington Department of Fish and Wildlife, Wolf Conservation and Management Plan, (Dec. 2011), http://wdfw.wa.gov/publications/00001/.
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10 See Oregon Department of Fish and Wildlife, Oregon Wolf Conservation and Management Plan, Or. Admin. Rules, Div. 110 (amended Jan. 2014), http://www.dfw.state.or.us/OARs/110.pdf.11 See California Department of Fish and Wildlife, Conservation Plan for Gray Wolves in California, Parts I & II (Dec. 2016), https://www.wildlife.ca.gov/conservation/mammals/gray-wolf.12 Superior Court of San Diego County, case no. 37-2017-3866-CU-MCV-CTL; see also Ryan Sabalow, Ranching groups challenge gray wolf’s endangered status in California, sacramentO bee, Jan. 31, 2017, http://www.sacbee.com/news/politics-government/article129837699.html.13 Jeremy Miller, Bounty Hunters, harPer’s mag., 69-75, Jan. 2017.14 Petition and Complaint for Writ of Mandate, No. SCUK-CVPT-15-66119 (Super. Ct. Mendocino Cnty, Cal., July 27, 2015.) 15 Plaintiffs include Animal Legal Defense Fund, Animal Welfare Institute, Mountain Lion Foundation, Natural Resources Defense Council, Project Coyote and Center for Biological Diversity. 16 Notice of Settlement and Joint Motion to Enter Judgment Pursuant to CCP 664.6, Exh. A, Animal Legal Defense Fund et al. v. Mendocino County, No. SCUK-CVPT-1566119 (Super. Ct. Mendocino Cnty, Cal., May 8, 2016) [hereinafter Notice of Settlement].17 Glenda Anderson, Mendocino County renews contract with wildlife trappers, Press demOcrat, B1, June 16, 2015, http://www.pressdemocrat.com/news/4079290-181/mendocino-county-renews-contract-with.18 Coyotes purportedly will bite into a plastic drip line when water is not otherwise available.19 Notice of Settlement, supra note 16. The Settlement Agreement can be found at https://www.biologicaldiversity.org/campaigns/wildlife_services/pdfs/2016-04-12_ALDF_et_al_v_County_of_Mendocino-Settlement_Agreement.pdf.
Questions a lawyer will need answered in order to appreciate all the ramifications of the legal issues may include:
1. How many members of the species are there in the target area and what is the population density there? These are two foundational questions, especially in cases involving the propriety of wildlife management practices—the hunting/culling by government agencies. They are related to the calculated “carrying capacity” of the land on which they live, i.e., how many animals of the species can the land support so that they are healthy and nourished. This is a consideration in cases where the number of animals that may/should be removed by government or private action is before the court.
2. What is the typical population growth rate of the species (if that has been studied)? This is another key statistic that may have some variability depending on habitat, population size and health, and other factors, and is directly related to the question of how many animals of a species are properly in a given area.
3. Are the species carnivores, or omnivores, or, in the same vein, are they predators or prey? And what do they eat? These basic attributes about the species will provide important considerations to their ability to survive, and
will lead to further exploration to determine whether their food source exists in sufficient quantity to support a healthy population. The answer to these questions will, in turn, lead to the often vital information about where the animals travel in the course of a day or a week, and even when during the day they travel, which defines both the habitat and protection they may need. In cases involving wildlife management and protection, the past, present, and future range of the species is often a substantive data point and these questions will develop the underlying facts for this evidence.
4. What is their reproductive behavior—are they mammals like us who breed year-round, or do they have a particular time of year when they are more likely to have dependent young? This information is especially helpful in determining issues surrounding possible harm to populations at risk. It is a generally accepted principle of conservation biology that the most important members of any species—in terms of promoting stability and growth—are the mothers with young, and the young themselves. Therefore, if a particular time frame can be identified in which the numbers of those animals are peaking, thoughtful wildlife managers will limit negative impacts on the species during that period.
5. If they are living in a landscape different from the one they historically lived in (often because
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of human incursion into their traditional habitat), how has that affected their conduct, and what kind of impact is that having on them today?
6. Have human intervention and interaction or natural evolutionary factors affected their population size in a way that is significant to their long-term survival?
7. What other species live in the area that might be affecting the target species; and has the introduction of nonnative wildlife (or even plants) changed the way the species at issue conducts itself in the world?
It takes a fair amount of investigatory and legal research in order to obtain the answers to these questions, and ultimately to turn those answers into admissible evidence in wildlife cases. I read several books on the species to gain a basic understanding of the species. This helps orient me to issues and ideas I may have never considered, and it also provides me with a modicum of intelligence about the species, in preparation for the next step in this part of the work—identifying experts in the field who can fill in details from their knowledge base, provide me with up-to-date information, and add professional credibility and experience to the factual side of the case. Although I can cite to articles and scientific research in establishing the
basis for the claims, there is nothing as persuasive as an expert in the field, who is familiar with the species at issue or even the general group of animals (e.g., large mammalian predators), and who can provide testimony particular to the situation at hand, based on the data already collected, or on independent research done by the expert.
ConclusionIt’s important to note that, even more than some
other areas of animal law, wildlife law is something you should not try at home, or alone, for the first time. The legal issues and landscape of wildlife law require a significant amount of knowledge and experience, without which the area cannot be navigated. The advocates on the other side are often savvy, well-schooled in the area, and very well financed. And even the “fun” factual side of the case requires a level of scientific appreciation about the biology of wild animals without which these cases cannot be properly litigated. But wildlife legal advocates who know the ropes usually have a very good time litigating these cases.
Bruce Wagman is a partner with Schiff Hardin LLP with an almost exclusive practice in animal law (litigation, legislative drafting, education, and counseling), representing both individuals and animal protection organizations. He teaches animal law at three Bay Area law schools, is coeditor of Animal Law: Cases and Materials, now in its fifth edition, and coauthor of A Global Worldview of Animal Law, published in 2011.
1 See, e.g., Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (involving sonar effects on marine mammals and establishing elements required for temporary restraining orders in federal court); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (decision on standing grounds involving protection of endangered species abroad); Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) (establishing importance of protections under Endangered Species Act).2 E.g., Wild Free-Roaming Horses and Burros Act of 1971, 16 U.S.C. §§ 1331-1340; Chimpanzee Health, Improvement, Maintenance, and Protection Act, 42 U.S.C. § 283m. 3 E.g., Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.; Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361 et seq.; Migratory Bird Treaty Act of 1918, 16 U.S.C. § 703 et seq.
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consider these pertinent scientific materials,7 leading BLM to withdraw that decision as well.
Nevertheless, in the face of its losses in court, BLM continues to plan to sterilize wild horses without undertaking the necessary environmental analysis. For example, in 2015, BLM issued a Resource Management Plan that includes an unprecedented plan to sterilize an entire herd of wild horses in Idaho—and again did so without considering critically important scientific information. BLM itself commissioned an extensive report from the National Academy of Sciences on how to improve its management of wild horses, which was completed before the agency made the final decision to sterilize an entire wild horse herd, and which specifically noted that the two likeliest sterilization techniques (i.e. gelding and spaying) have highly significant adverse effects and are not suitable for managing wild horse populations on the range.8 However, BLM’s environmental impact statement never even mentioned this report and failed to consider any of the issues the report recommended the agency take into account before making a decision about how to manage wild horse populations.9 Litigation over BLM’s plan to sterilize this herd is ongoing.
Challenging BLM’s Attempt to Avoid Public Oversight
The instances described above reveal BLM’s troubling penchant for disregarding critical scientific information in its poorly considered shift toward using sterilization as a routine population management tool. Equally troubling, however, is the fact that BLM has attempted to avoid public oversight of this fundamental change in wild horse management.
The most salient example of BLM’s attempt to implement sterilization as a management tool without meaningful public oversight occurred in Oregon in 2015, when BLM decided to undertake a series of controversial sterilization experiments on 225 wild mares.10 In particular, BLM planned to conduct experiments on three procedures: tubal ligation, which is similar to procedures in which human women get their “tubes tied”; hysteroscopically guided laser ablation, in which a powerful laser burns and scars the entry to a mare’s oviduct; and ovariectomy via colpotomy, a highly invasive procedure which involves reaching inside a mare’s abdominal cavity through an incision—
without any tool to visualize the mare’s organs—to identify her ovaries by touch and to remove them by severing them with a loop of chain.11 None of these procedures comport with best veterinary practices, and ovariectomy via colpotomy is especially risky due to the blind nature of the procedure, which can cause evisceration, hemorrhaging, and death.12
Unsurprisingly, numerous members of the public submitted comments opposing these experiments, including wild horse advocates, veterinarians, and even members of the livestock industry.13 Nevertheless, over these objections—and over express opposition from the National Academy of Sciences—BLM elected to move forward with these experiments, with one of the agency’s primary stated purposes being to assess whether the public would find these experimental procedures to be “socially acceptable.”14
To ensure that the public could hold BLM accountable for its treatment of these wild mares, and to further the agency’s own goal of assessing whether these procedures are “socially acceptable,” AWHPC and Ginger Kathrens (founder of the Cloud Foundation) requested an opportunity to send a licensed veterinarian to observe and document these experiments.15 Ms. Kathrens was recently named to serve on BLM’s National Wild Horse and Burro Advisory Board in the capacity of Humane Advocacy, a role for which the ability to gain unvarnished information about BLM’s treatment of wild horses is crucial. BLM refused to allow any public observation of any of these procedures, citing limited space in the corral for an observer and the need for uninterrupted focus during these experiments.16 To address these concerns, AWHPC and Ms. Kathrens offered to purchase and situate small, unobtrusive cameras to record the procedures and monitor the horses during recovery.17 Again, the BLM refused.18
Alleging that BLM’s refusal to allow any public observation of these experiments is unconstitutional, Ms. Kathrens and AWHPC sought a preliminary injunction to halt these experiments until a court could decide whether BLM had an obligation to allow observation.19 The First Amendment protects the public’s right to observe government activities where those activities historically have been open to the public and public observation has played a positive role in those activities.20 Under these circumstances, the government may only impose restrictions on observation that are narrowly tailored to serve an overriding government interest.21 The Ninth Circuit
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has squarely held that the First Amendment right to observe government activities applies to certain aspects of BLM’s management of wild horse populations.22
The preliminary injunction briefing explained that the corral at which BLM’s experiments were to take place had been open to the public, that public observation in past instances—including by the plaintiffs in that case—had played a significant role in rendering BLM’s treatment of wild horses more humane, and that BLM’s refusal to allow any public observation was not narrowly tailored to serve any compelling government interest. Accordingly, the plaintiffs argued that BLM’s wholesale denial of any public observation of these experiments violated the First Amendment.
Similarly, because BLM failed to respond to Ms. Kathrens’ and AWHPC’s explanation that they were seeking public observation in order to further the agency’s own goal of assessing the “social acceptability” of the three experimental procedures, the preliminary injunction also argued that BLM’s refusal to allow any public observation was arbitrary and capricious. Ms. Kathrens and AWHPC have a long history of raising public awareness regarding wild horses and the BLM’s treatment (or mistreatment) of these federally protected animals. Ms. Kathrens is an Emmy-Award-winning documentarian whose works have appeared on PBS, National Geographic, the Discovery Channel Animal Planet, and the BBC. AWHPC’s videos of shocking abuse of wild horses during roundups have spurred significant, nationwide changes in BLM’s policies regarding the acceptable treatment of wild horses. AWHPC and Ms. Kathrens explained in declarations that in their experienced views, the most effective way to assess whether the public will find a procedure acceptable is “to show the public what actually happens to wild horses.”23 Nevertheless, when BLM refused to allow any public observation of these experiments,
it said literally nothing about how public observation could contribute to the agency’s goal of assessing the experiments’ “social acceptability.”24
Rather than litigate about whether its refusal of public observation was constitutional or comported with common sense, BLM elected to cancel the experiments altogether.25 Although BLM was simultaneously facing lawsuits from other advocacy groups challenging the experiments’ consistency with the WHA, BLM made clear that its decision to cancel the experiments was the result of litigation over public observation.26 In short, BLM was so loathe to allow the public to witness and evaluate the agency’s treatment of wild horses in these inhumane sterilization experiments that it elected to not conduct the experiments at all.
The cases described here illustrate the fact that wild horse advocates have, in several instances, proven successful at stopping BLM’s ill-conceived efforts to sterilize wild horses without providing for meaningful public oversight or thoroughly considering the consequences of sterilization. However, BLM’s effort to pivot toward using sterilization as a routine wild horse population management tool is still underway. BLM has decided to fund and implement several other research projects on sterilization methods,27 and will likely carry out its plan to sterilize an entire wild horse herd unless a court requires the agency to conduct further environmental review. Advocates for wild horses and animal welfare will remain vigilant in the face of this fundamental departure from historical wild horse management techniques and the growing lack of transparency.
William N. Lawton is an associate attorney at Meyer Glitzenstein & Eubanks LLP, in the Washington, D.C. office. He is a member of the Oregon Bar, and has submitted an application to the D.C. Bar. His practice focuses on federal environmental and federal administrative law matters.
1 The Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331. 2 Id. 3 Id. §§ 1331, 1333(b)(1).4 Because the WHA restricts its focus to where horses were “presently found” in 1971, BLM manages wild horse populations in “Herd Management Areas,” and generally does not manage even these limited areas principally for wild horse use. 5 E.g. Bureau of Land Management, Approved Resource Management Plan for the Jarbidge Field Office 41 (Sept. 2015), available at https://eplanning.blm.gov/epl-front-office/eplanning/planAndProjectSite.do?methodName=dispatchToPatternPage¤tPageId=48879 [hereinafter “Jarbidge RMP”].6 Am. Wild Horse Pres. Campaign v. Salazar, 800 F. Supp. 2d 270, 271 (D.D.C. 2011). 7 Am. Wild Horse Pres. Campaign v. Salazar, 859 F. Supp. 2d 33, 47 (D.D.C. 2012). 8 natiOnal research cOuncil, using science tO imPrOve the blm Wild hOrse and burrO PrOgram: a Way FOrWard 148 (The National Academies Press 2013) (noting that spaying by ovariectomy is “inadvisable for field application); id. at 124 (noting that “both surgical and chemical castration” can lead to “loss of testosterone and consequent reduction in or complete loss of male-type behaviors necessary for maintenance of social organization, band integrity, and expression of a natural behavior repertoire”). 9 See Bureau of Land Management, Jarbidge Proposed Resource Management Plan and Final Environmental Impact Statement WC-1–WC-43, available at https://eplanning.blm.gov/epl-front-office/eplanning/planAndProjectSite.do?methodName=dispatchToPatternPage¤tPageId=48879 (failing to cite the report).10 BLM, Mare Sterilization Research Environmental Assessment 1 (Jan. 5, 2016) (on file with author) [hereinafter BLM Research EA]11 Id. at 13–16.
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12 Declaration of Pamela Corey, Kathrens et al. v. Jewell et al., No. 2:16-cv-01650, ECF No. 2, Ex. H, ¶ 6 (on file with author). 13 See Plaintiffs’ Preliminary Injunction Brief, Kathrens et al. v. Jewell et al., No. 2:16-cv-01650, ECF No. 2, at 9 (discussing public opposition to these experiments) (on file with author). 14 BLM Research EA, supra note, 10, at 53. 15 Letter from Nick Lawton and Katherine Meyer, Meyer Glitzenstein & Eubanks LLP to Jeff Rose and Lisa Grant, Burns District Office, BLM (July 20, 2016) (on file with author). 16 Letter from Jeff Rose, Burns District Office, BLM, to Nick Lawton and Katherine Meyer, Meyer Glitzenstein & Eubanks LLP (received July 28, 2016) (on file with author). 17 Letter from Nick Lawton and Katherine Meyer, Meyer Glitzenstein & Eubanks LLP to Jeff Rose and Lisa Grant, Burns District Office, BLM (July 29, 2016) (on file with author). 18 Second Letter from Jeff Rose, Burns District Office, BLM, to Nick Lawton and Katherine Meyer, Meyer Glitzenstein & Eubanks LLP (received Aug. 4, 2016) (on file with author).19 Plaintiffs’ Preliminary Injunction Brief, Kathrens et al. v. Jewell et al., No. 2:16-cv-01650, ECF No. 2.20 Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9 (1986)21 Id. 22 Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012)23 Plaintiffs’ Preliminary Injunction Brief, Kathrens et al. v. Jewell et al., No. 2:16-cv-01650, ECF No. 2, at 11.24 See Letters from Jeff Rose, supra notes 16, 18.25 Stipulated Notice of Voluntary Dismissal, Kathrens et al. v. Jewell et al., No. 2:16-cv-01650, ECF No. 16.26 Stephen DuBois, BLM Drops Plan to Surgically Sterilize Horses, WTOP, Sept. 9, 2016, http://wtop.com/canada/2016/09/blm-drops-plan-to-surgically-sterilize-wild-horses/.27 See Bureau of Land Management, Developing New Methods and Tools for Managing Wild Horses and Burros, https://www.blm.gov/wo/st/en/prog/whbprogram/science_and_research/usgs_partnership.print.html (last visited Feb. 27, 2016).
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Animal Law Committee Newsletter Spring 2017
increase in population size has led to corresponding shifts in public perception about Canada geese as well as their legal standing.
Weakness of the Migratory Bird Treaty Act of 1918
State governments enjoy primary authority to establish management goals for Canada geese and other wildlife, including the discretion to execute wildlife control policies; however, the federal statutes discussed herein impose important constraining parameters. These laws are generally concerned with the health of wildlife species but provide limited protections for individual wild animals. Federal anti-cruelty statutes such as the Animal Welfare Act, as well as those of states, generally exempt or expressly do not apply to wildlife-killing practices, and require legislative updates.9 Because the law considers wildlife environmental resources, generally tort or property law cannot apply until the point of capture of a wild animal, after which point they are considered personal property. The animals themselves bear no legal rights or standing. Instead, the strongest legal protections from cruelty and harm for Canada geese come from international treaties, as well as environmental and administrative law.
The principal federal statute that protects Canada geese in the United States is the Migratory Bird Treaty Act of 1918 (MBTA), which ratified the need for international cooperation to protect bird species traversing domestic borders.10 The statute prohibits any unpermitted persons from killing, harming, possessing or otherwise interfering with migratory birds or their nests.11 The MBTA originally protected all Canada geese, however, regulations issued by U.S. Fish & Wildlife Service have essentially allowed state game management agencies to freely issue depredation permits to control resident Canada geese.12 Today, permits for resident Canada goose removal are generally made available to any party that claims that the birds are creating a nuisance, causing property damage, or pose a threat to human health or safety.13 Consequently, the MBTA no longer provides meaningful protections for Canada geese against management actions. However, the statute occasionally is used to pursue criminal charges against individuals for killing or harming Canada geese without a permit.14
The Conflict Associated with Funding of Wildlife Management Activities
Depredation permits issued for Canada geese under the MBTA work in conjunction with the Animal Damage Control Act, which granted authority to USDA Wildlife Services (WS) to assess the need for and conduct wildlife management activities.15 WS is routinely involved in assessments for Canada goose management as well as providing direct services for extermination, harassment, eggs treatment, and other control measures.16 Once state and federal permissions for lethal removal of wildlife has been secured by a complaining landowner (public or private), WS has discretion to conduct wildlife killing operations using a range of lethal management methods that are legal and condoned, including carbon dioxide asphyxiation and slaughter.17 WS has killed millions of wild animals across the United States in recent decades, including tens of thousands of Canada geese.18 The agency has become a focal point for criticism and investigation by conservation and animal protection groups arising from opposition to its routine engagement in excessive and even wanton animal cruelty.19 Proposed legislation has sought to restrain WS by requiring transparency and prioritization of non-lethal management efforts prior to allowing the issuance of depredation permits.20
Canada geese also suffer tremendously as a result of hunting and pro-hunting law and policy. Though state Bureaus of Wildlife are relied upon to manage game populations, they are predominantly funded not from general state operation budgets but rather from allocations provided by the Federal Aid in Wildlife Restoration Act, also known as the Pittman-Robertson Act.21 Under this statute, the amounts collected by each state for gun permits and ammunition taxes each year are aggregated and then distributed back to the states in amounts proportional to their assessed wildlife management needs. This system incentivizes pro-hunting policies and other wildlife management actions.22 Ironically, in some instances, states have deliberately contributed to an increase in game populations, including Canada geese, to increase hunting, while simultaneously justifying the need to mitigate against overpopulation and nuisance concerns.23
Advocacy is Necessary to Patch the Holes in Protections for “Abundant” Species
Ultimately, local governments and landowners retain control and discretion over wildlife management
LEGAL STATUS AND...Continued from page 14
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decisions within their borders and are responsible for funding any management operations.24 Any party, be they government entities or private property owners, must provide financial compensation for WS’s activities and permission for access.25 As such, local decision makers are often the focus of public engagement and in some cases can be swayed towards or away from policies destructive to Canada geese.
Consider for example, New York’s 1999 Canada goose management plan, which called for a long-term goal of reducing the statewide population from approximately 220,000 to 77,000.26 This plan has allowed the state’s Department of Environmental Conservation (DEC) discretion to increase issuance of depredation permits for management actions and set longer hunting seasons and higher bag limits.27 On January 15, 2009, an Airbus 320 collided with a flock of migrating Canada geese at 3,000 feet altitude over the Bronx, causing the plane to crash land in the Hudson River just west of Midtown Manhattan. Immediately after the incident, which became known as the ‘Miracle on the Hudson,” the City of New York (the state’s largest municipality) and the Port Authority of New York & New Jersey (the region’s airport manager) moved forward with a drastic reduction of the population of resident Canada geese nesting in city parks.28 The distinction between resident and migratory Canada geese is crucial here: eliminating every last resident Canada goose from New York City prior to the incident would not have prevented its occurrence. Nevertheless, the state’s preexisting management goals allowed the City to quickly gain permission for an ambitious management initiative, with the DEC reasoning that the regional Canada goose population estimate was “five times greater than the number of geese that most people would find socially acceptable.”29 Between 2009 and 2016, WS was authorized to kill several thousand resident Canada geese on airport property and parks in New York City.30 Advocates have questioned the efficacy of culls to reduce the threat of bird strikes and drawn officials’ attention to the availability of non-lethal alternatives such as avian radar technology, but thus far, these efforts have failed to significantly impede WS’s management actions. Though New York City’s issues dealing with Canada geese is noteworthy, similar conflicts have become typical across the country.
Also worth mention are the Administrative Procedure Act, the Freedom of Information Act, and the National Environmental Policy Act (NEPA), as well as their state counterparts, as they may offer routes to protect Canada geese using procedural mechanisms. In theory, these statutes can be used to help ensure that at a minimum, agency wildlife management actions are conducted in the public interest, i.e., environmentally sound, open to public comment, and transparent. NEPA requires federal agencies to consider the environmental impacts of proposed actions into their decision-making process, as well as reasonable alternatives to those actions, through environmental impact assessments.31 USDA’s findings of no significant impact for Canada goose management have not faced significant legal challenges, even though they have been based on statewide or large regional bases and may be outdated and otherwise inadequately comply with NEPA.32
Finally, the Endangered Species Act (ESA) seeks to frustrate development on the basis of prevention against loss of endangered and threatened species.33 Unfortunately, as an “abundant” species with little concern of extinction, Canada geese are not protected under the ESA. In any case, the continued existence of the ESA is now in serious doubt.34 That said, if endangered species are denied protection, there may be little hope to protect less threatened species like Canada geese.
In conclusion, as a species frequently cited as a nuisance with little concern of extinction, the law offers extremely limited protections for Canada geese. Advocates must fight to prevent any weakening of existing defenses and may furthermore pursue advances expanding laws and policies that promote coexistence with wild neighbors, create and protect wildlife habitat, limit the environmental impact of human activities, increase public involvement in the decision-making process, and encourage agency transparency.
David Karopkin, Esq. founded GooseWatch NYC in 2011 to advocate for humane wildlife management in New York City. David gained environmental law experience through a student legal fellowship with Eastern Environmental Law Center, a non-profit environmental protection law group in Newark, N.J. After graduation from Brooklyn Law School in 2015, David served as a Councilmanic Aide for New York City Council Member Daniel Dromm, Legislative Director for New York State Assemblymember Linda B. Rosenthal, and currently works as an Assistant Law Clerk to the Hon. Justice Katherine A. Levine in the New York State Supreme Court.
1 Martin v. Lessee of Waddell, 41 U.S. 367 (1842); see The Wildlife Society, The Public Trust Doctrine, Implications for Wildlife Management and Conservation in the United States and Canada, tech. rev. 10-01 (Sept. 2010), http://wildlife.org/wp-content/uploads/2014/05/ptd_10-1.pdf; see also John Organ and Shane Mahoney, The
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Future of Public Trust, The legal status of the Public Trust Doctrine, WildliFe PrOFessiOnal (Summer 2007), http://training.fws.gov/courses/csp/csp3112/resources/Related_References/Overview_of_Public_Trust_Doctrine.pdf.2 See stePhen r. FOx, the american cOnservatiOn mOvement, JOhn muir and his legacy (The University of Wisconsin Press, 1981). 3 The Wildlife Society and The Boone and Crocket Club, The North American Model of Wildlife Conservation, tech. rev. 12-04 (Dec. 2012), http://wildlife.org/wp-content/uploads/2014/05/North-American-model-of-Wildlife-Conservation.pdf.4 See US Department of Agriculture Office of Information Press Services, Baiting, now banned, led to killing of more than 660,000 ducks in ’34 (Aug. 9, 1935), https://www.fws.gov/news/Historic/NewsReleases/1935/19350809.pdf.5 See Jack Hope, The Geese That Came in From the Wild, 102 audubOn mag., 122 (April 2000). 6 Inter-governmental Agreement between City of New York and United States Department of Agriculture Animal and Plant Health Inspection Service Wildlife Services, Agreement No. 11-7236-4567-RA at 7-8 (2009) [hereinafter Inter-governmental Agreement], https://www.scribd.com/doc/44497842/Geese-Removal-Documents-R-10-572-Reviewed.7 According to the Coalition to Prevent the Destruction of Canada Geese, an advocacy group, “the concept of the ‘resident goose’ is the arbitrary creation of government wildlife managers.… By their terminology, a ‘resident’ goose is defined as any Canada goose not nesting north of Quebec, Canada. Thus, a goose spending the summer in Maine who winters in North Carolina, despite the impressive migration, is a ‘resident’ goose.… The term allows wildlife managers the flexibility of defining this imaginary goose in any way that suits their purpose.” Canada Gees as a Suburban Wildlife Issue (1996), Archived website, http://web.archive.org/web/20150724194142/http:/www.canadageese.org/doc3a.html.8 u.s. dePartment OF transPOrtatiOn, Federal aviatiOn administratiOn, and u.s. dePartment OF agriculture, animal and Plant health insPectiOn service, WildliFe services, Federal aviatiOn administratiOn natiOnal WildliFe strike database serial rePOrt number 22, WildliFe strikes tO civil aircraFt in the united states 1990-2015, rePOrt OF the assOciate administratOr OF airPOrts, OFFice OF airPOrt saFety and standards, 2 (Nov. 2016), https://www.faa.gov/airports/airport_safety/wildlife/media/Wildlife-Strike-Report-1990-2015.pdf.9 See e.g., NYS AB.5050/ SB.620 (2017) (legislation introduced in New York State to include wildlife within the protections of the aggravated animal cruelty law covering companion animals).10 16 U.S.C. §§ 703-712.11 Kristina Rozan, Detailed Discussion on the Migratory Bird Treaty Act, animal legal and histOrical center (2014), https://www.animallaw.info/article/detailed-discussion-migratory-bird-treaty-act. 12 50 C.F.R. §§ 21.49-52, 21.61.13 United States Fish & Wildlife Service, Resident Canada Goose Nest & Egg Depredation Order (Aug. 28, 2014), https://epermits.fws.gov/ercgr/doc/ercgrfaq.pdf.14 See e.g., John Hinton, Three men cited with illegally killing geese at golf course, WinstOn-salem J. (Jul 22, 2015) http://www.journalnow.com/news/crime/three-men-cited-with-illegally-killing-geese-at-golf-course/article_c6b7c3f4-30b1-11e5-8c03-93ddc23cfce2.html.15 Inter-governmental Agreement, supra note 6, at 1 (“USDA, APHIS-WS has statutory authority under the Act of March 2, 1931 (46 Stat. 1468; 7 U.S.C. 426-426b) as amended, and the Act of December 22, 1987 (101 Stat. 1329-331, 7 U.S.C. 426c), to cooperate with States, local jurisdictions, individuals, public and private agencies, organizations, and institutions while conducting a program of wildlife services involving mammal and bird species that are … injurious and/or a nuisance to, among other things, agriculture, horticulture, forestry, animal husbandry, wildlife, and health and human safety.”).16 USDA Wildlife Services, Management Of Canada Goose Nesting (2009), https://www.aphis.usda.gov/wildlife_damage/downloads/canada_goose.pdf.17 See e.g., american medical veterinary assOciatiOn, guidelines FOr the euthanasia OF animals: 2013 editiOn, 81-83, https://www.avma.org/KB/Policies/Documents/euthanasia.pdf. New guidelines for specific application towards “depopulation” efforts are currently in the drafting and approval process. See DRAFT AVMA Guidelines for the Depopulation of Animals, https://www.avma.org/KB/Policies/Pages/DRAFT-AVMA-Guidelines-for-the-Depopulation-of-Animals.aspx (last visited March 5, 2017).18 United States Department of Agriculture, Animal and Plant Health Inspection Service, Program Data Reports, https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/sa_reports/sa_pdrs; see also, Darryl Fears, USDA’s Wildlife Services killed 4 million animals in 2013, Wash. POst (June 7, 2014) http://www.washingtonpost.com/national/health-science/governments-kill-of-4-million-animals-seen-as-anoverstep/2014/06/06/1de0c550-ecc4-11e3-b98c-72cef4a00499_story.html.19 Tom Knudson, The killing agency: Wildlife Services’ brutal methods leave a trail of animal death, sacramentO bee (April 28, 2012) http://www.sacbee.com/news/investigations/wildlife-investigation/article2574599.html#storylink=cpy.20 See e.g., H.R. 2236 (2016) (federal legislation to require USDA to publish information on an annual basis of the animals killed under the Wildlife Services program or by a state or local entity acting in cooperation with or on behalf of the program, including: the number of animals killed, species names, methods used to kill the animals, and reasons for killing the animals); See also NYS AB.7067/SB.2600 (2015) (legislation introduced in New York State which would “require the DEC to limit the number of permits authorizing the removal of turkeys and geese and requires the department to provide information related to humane alternatives to execution of such birds.”). 21 16 U.S.C. §§ 669-669k, 50 Stat. 917; see also, Anne Muller, Hunting Needs to be Part of the Gun Debate, Taking a Hard Look at the Pittman-Robertson Act, c.a.s.h. cOurier (Winter 2013), http://www.all-creatures.org/cash/cc2013-wi.pdf.22 Jolene R. Marion, Whose Wildlife Is It Anyway? How New York’s Fish and Game Statutes, Regulations, and Policies Endanger the Environment and Have Disenfranchised the Majority of the Electorate, 4 Pace envtl. l. rev. 401, 410 (1987), http://digitalcommons.pace.edu/pelr/vol4/iss2/3/ (“State wildlife agencies are in competition with each other for federal funds, and the only way in which a state can raise the ceiling on its potential federal funding is to increase the number of people it licenses to hunt. The agencies have a dual financial incentive for increasing hunting: a chance for more Pittman-Robertson funds, and their statutory right to all state hunting license revenues as required by the Act. These incentives, in turn, provide further incentives to increase the number of animals available to hunt, and to increase their accessibility to hunters.”).23 Loriann Vita, Wildlife Management of Canada Geese in New York State: A Departure from the Express Policies of New York’s Environmental Conservation Law, 13 Pace envtl. l. rev. 399 (1995).24 See United States Department of Agriculture Animal and Plant Health Inspection Service, Wildlife Services Directive 2.215, Financial Control And Risk Management, (August 23, 2013), http://www.aphis.usda.gov/wildlife_damage/directives/2.215_Financial_Control_Risk%26Management.pdf; see also, C.B.S. News, Geese Behind “Miracle on Hudson” Still Around, (June 30, 2010) (“We can only go onto properties where we have permission,” said Carol Bannerman, spokeswoman for USDA Wildlife Services.”), http://www.cbsnews.com/news/geese-behind-miracle-on-hudson-still-around.25 See Tom Knudson, Federal Wildlife Services makes a killing in animal-control business, sacramentO bee (Nov. 18, 2012) (“Wildlife Services does business with more than 2,500 customers, from Fortune 500 companies to ranchers, prisons to zoos, country clubs to cemeteries, landfills to airports to other agencies.”), http://www.sacbee.com/news/investigations/wildlife-investigation/article2575975.html. 26 New York State Department of Environmental Conservation, Long-term Population Goals for Resident Canada Geese, http://www.dec.ny.gov/animals/67311.html; see also, Isolde Raftery, Agencies Plan to Reduce Canada Geese Population in New York State by Two-Thirds, n.y. times (July 23, 2010), http://www.nytimes.com/2010/07/24/nyregion/24geese.html.27 See e.g., New York State Department of Environmental Conservation, DEC Announces Changes to September Canada Goose Hunting Seasons, Special Measures Adopted to Address Overabundant Goose Populations Statewide (August 26, 2013), http://www.dec.ny.gov/press/93076.html.
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Animal Law Committee Newsletter Spring 2017
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28 New York City Wildlife Hazard Management Steering Committee, Minutes of Meeting (Mar. 5, 2009), https://www.scribd.com/doc/44497842/Geese-Removal-Documents-R-10-572-Reviewed.29 Inter-governmental Agreement, supra note 6, at 7.30 Jake Pearson, ‘Miracle on the Hudson’ legacy: 70,000 slain birds, assOciated Press (Jan. 14, 2017) http://bigstory.ap.org/article/6d5b755eaba6465b9f6ffeeda2af29db/miracle-hudson-legacy-70000-slain-birds. 31 42 U.S.C. § 4321. 32 See The Humane Society of the United States, Wildlife Disservice: The USDA Wildlife Services’ Inefficient and Inhumane Wildlife Damage Management Program 17 (2015), http://www.humanesociety.org/assets/pdfs/wildlife/wildlife-services-white-paper-2015.pdf. 33 16 U.S.C. §§ 1531-1544. 34 See Associated Press, GOP targets landmark Endangered Species Act for big changes (Jan. 17, 2017) http://bigstory.ap.org/article/c4809b5e9f4641ffa45e09b390030293.
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Animal Law Committee Newsletter Spring 2017
April 20176-8 Property Insurance Law Committee Spring Mtg JW Marriott Contact: Ninah F. Moore – 312/988-5498 Grande Lakes Orlando, FL6-7 Motor Vehicle Products Liability Program Arizona Biltmore Resort Contact: Donald Quarles – 312/988-5708 & Spa, Phoenix AZ
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