Fall 2015
Animal Law Committee
LEDY VANKAVAGE HONORED FOR EXCELLENCE IN THE
ADVANCEMENT OF ANIMAL LAW
By: Chris Green
Because the recipient of the 2014 ABA-TIPS Animal
Law Committee’s Excellence in Animal Law Award
was unable to attend the annual meeting in Boston last
year, as the outgoing Chair, I have the distinct pleasure
of recognizing not one, but TWO, winners at this year’s
reception. I personally have known both of today’s
award recipients for well over a decade. They each are
tireless, passionate advocates for the voiceless, and
trailblazers in the field of Animal Law.
First, our 2014 Excellence in Animal Law Award
goes to Ledy VanKavage. Ledy is one of my closest
colleagues in the field and knows more about animal
protection legislation than anyone I have ever met.
Continued on page 20
IN THIS ISSUE:
Ledy VanKavage Honored For Excellence In The
Advancement Of Animal Law . . . . . . . . . . . . . . . 1
Letter From The Chair . . . . . . . . . . . . . . . . . . . . . . 3
Bruce Wagman Honored For Excellence In The
Advancement Of Animal Law . . . . . . . . . . . . . . . . 5
Animal Law Subcommittee Updates . . . . . . . . . . . 7
Headline Animal Law News . . . . . . . . . . . . . . . . . . 8
Legislative And Regulatory Developments
Affecting Animals . . . . . . . . . . . . . . . . . . . . . . . . . 10
Animal Docket: Constitutional Animal Law . . . 15
Coming Together To Make A Difference For Animals
And People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Animal Protection, Law, And Technology . . . . . . . . 17
The Bookshelf–Whales And Nations: Environmental
Diplomacy On The High Seas, By Kurkpatrick
Dorsey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Crossword Puzzle . . . . . . . . . . . . . . . . . . . . . . . . . 19
2016 TIPS Calendar . . . . . . . . . . . . . . . . . . . . . . . 31
Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to
Advance the Civil Justice System
Animal Law Committee Newsletter
Chair
Scope Liaison
Klinedinst PC
5 Hutton Centre Dr, Ste 1000
Santa Ana, CA 92707-8719
(714) 542-1800
Fax: (714) 542-3592
[email protected]
Kightlinger & Gray LLP
211 N Pennsylvania St, Ste 300
Indianapolis, IN 46204-1965
(317) 968-8182
Fax: (317) 636-5917
[email protected]
Chair-Elect
Technology Vice-Chair
Humane Strategies Benefit LLC
9475 Sohap Ln
Columbia, MD 21045-3242
(410) 440-6655
[email protected]
Best Friends Animal Society
40 River St #6
Boston, MA 02126
[email protected]
Council Representative
Yolanda Alvarez
Bonnie Lutz
Stacey Evans
Joan Schaffner
George Washington University Law School
2000 H St NW
Washington, DC 20052-0026
(202) 994-7040
Fax: (202) 994-9817
[email protected]
Diversity Vice-Chair
Akisha Townsend
Humane Society of the US
15505 Cattail Oaks
Glenwood, MD 21738-9617
(512) 789-0110
[email protected]
Immediate Past Chair
Christopher Green
Animal Legal Defense Fund
170 East Cotati Ave
Cotati, CA 94931
(707) 795-2533
Fax: (212) 428-6773
[email protected]
Law Student Vice-Chair
Lauren Casparie
44 Mobile Ave
Staten Island, NY 10306
(917) 509-9713
[email protected]
Membership Vice-Chair
Yolanda Eisenstein
Eisenstein Law Office
1999 McKinney Avenue, 2006
Dallas, TX 75201-1707
(214) 354-0687
[email protected]
2
Ginny Peterson
Lee Greenwood
Vice-Chairs
Alvarez Legal LLC
638 Aldebaran St, Suite 201
San Juan, PR 00920
(787) 783-5260
Fax: (787) 783-9011
[email protected]
Daina Bray
International Fund for Animal Welfare
290 Summer Street
Yarmouth Port, MA 02675
(508) 744-2147
Fax: (508) 744-2009
[email protected]
David Favre
Michigan State University College of Law
648 N Shaw Ln
East Lansing, MI 48824-4496
(517) 432-6890
Fax: (517) 432-6801
[email protected]
James Gesualdi
James F Gesualdi PC
58 Wingam Dr
Islip, NY 11751-4112
(631) 224-4801
Fax: (631) 224-1678
[email protected]
Barbara Gislason
Law Office of Barbara J Gislason
7362 University Ave NE, Ste 120
Fridley, MN 55432-3152
(763) 572-9297
Fax: (763) 571-1576
[email protected]
Fall 2015
Rebecca Huss
Valparaiso University Law School
656 Greenwich St, Wesemann Hall
Valparaiso, IN 46383-4945
(219) 465-7856
Fax: (219) 465-7872
[email protected]
Marianne McDermott
3308 Brandy Ct
Falls Church, VA 22042-3757
(703) 560-7083
Fax: (703) 560-5301
[email protected]
Laura Nirenberg
19115 Westbrook Drive
Boca Raton, FL 33434
(219) 379-4401
[email protected]
Francesca Ortiz
South Texas College of Law
1303 San Jacinto St
Houston, TX 77002-7000
(713) 646-2946
Fax: (713) 646-1766
[email protected]
Joan Schaffner
George Washington University Law School
2000 H St NW
Washington, DC 20052-0026
(202) 994-7040
Fax: (202) 994-9817
[email protected]
Elise Van Kavage
Best Friends Animal Society
51 Odom Dr
Collinsville, IL 62234-5808
(618) 550-9469
Fax: (618) 345-6542
[email protected]
Rose Wilkinson
352 Doral Ct
Westminster, MD 21158-4188
[email protected]
James Young
Young Scanlan LLC
3010 W De Leon St, Ste 200
Tampa, FL 33609-4002
(813) 870-3010
Fax: (813) 870-3010
[email protected]
Aimee Gong
Schultz & Pogue, LLC
520 Indiana Avenue
Indianapolis, IN 46202
(765) 532-6405
[email protected]
2
Animal Law Committee Newsletter
Fall 2015
LETTER FROM THE CHAIR
Welcome members of the Animal Law Committee of the TIPS section of the
American Bar Association! I wish to thank you all for your membership and to share
some of what we have accomplished and what we hope to accomplish in the future.
Who we are
The Animal Law Committee is unique in that it provides a forum for attorneys
involved in all aspects of the very broad subject of animal law. We are actively involved
in legal, policy and legislative issues related to animals both domesticated and wild.
Since its inception in 2004, the Animal Law Committee has published books,
passed resolutions, and presented CLE seminars on a variety of subjects including
careers in animal law, dangerous dog legislation, animal shelter and rescue law, possession of exotic animals
and more. Please visit our website at ambar.org/tipsanimal for more information.
Our newsletter is a wealth of information on all subjects within animal law, containing articles written
by the leaders in this area. Finally, the annual summary of animal law in the TIPS Law Journal provides an
analysis of the important cases in animal law for the previous year. You receive the newsletter and Journal
free as a benefit of your membership.
Subcommittees
The Animal Law Committee has seven substantive subcommittees. Those subcommittees are Animals
in Agriculture (chair: Nick Arrivo [email protected]), Animals in Science and Technology (cochairs: Leslie Rudloff [email protected], Yolanda Eisenstein [email protected]), Companion Animals
(chair: Stacey Evans [email protected]), Equine Law (chair: Margrit Parker mparker@childsmccune.
com), Insurance Issues (no current chair), International Issues (co-chairs: Daina Bray [email protected],
Yolanda Alvarez [email protected]) and Wildlife (chair: Marsha Baum [email protected]).
We are currently planning three lunch and learn seminars, a webinar and a CLE seminar for the August 2015
through August 2016 year. At this point we have tentatively schedulead the following:
• January 27, 2016 Lunch and Learn: Animals in Science and Technology
• April 6, 2016 Webinar Equine Law
• May 25, 2016 Lunch and Learn: International Issues
• July 13, 20 or 27, 2016 Lunch and Learn: Animals in Agriculture
You will receive more information on these events.
The incoming chair of the Animal Law Committee Stacey Evans and I have some exciting plans for the
2015 through 2017 years and welcome your input and involvement.
How you can be involved
Speaking of involvement, there are many ways for you as members to become involved in the Animal
Law Committee. Please consider writing an article for the newsletter, becoming a Vice Chair, forming a
new subcommittee, assisting with or planning a CLE event, writing a resolution or a book, and attending our
meetings. We encourage and welcome all new ideas.
The subcommittees are listed on our website along with the emails for subcommittee chairs. If you
would like to write an article for the newsletter please contact Joan Schaffner at [email protected]. Our
meetings are listed on the ABA TIPS website. In addition you can follow us on LinkedIn (a subgroup of the
ABA TIPS page), Twitter (@abatipsalc) and Facebook.
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Animal Law Committee Newsletter
Fall 2015
I look forward to meeting all of you over the next year. Please feel free to contact me directly at blutz@
klinedinstlaw.com with any suggestions or thoughts.
Bonnie Lutz Esq.
Chair, ABA TIPS Animal Law Committee
Newsletter Editorial Board
Editor
Joan Schaffner
Associate Editors
Molly Armus
Jessica Cohen
David Dawsey
Stefanie Wilson
A complete list of ALC subcommittees is available
on the Committee homepage found here.
©2015 American Bar Association, Tort Trial & Insurance Practice Section, 321 North Clark Street, Chicago, Illinois 60654; (312)
988-5607. All rights reserved.
The opinions herein are the authors’ and do not necessarily represent the views or policies of the ABA, TIPS or the Animal Law
Committee nor do they constitute legal advise or the establishment of a lawyer/client relationship. Articles should not be reproduced
without written permission from the Copyrights & Contracts office ([email protected]).
Editorial Policy: This Newsletter publishes information of interest to members of the Animal Law Committee of the Tort Trial & Insurance Practice Section of the American Bar Association—including reports, personal opinions, practice news, developing law and
practice tips by the membership, as well as contributions of interest by nonmembers. Neither the ABA, the Section, the Committee,
nor the Editors endorse the content or accuracy of any specific legal, personal, or other opinion, proposal or authority.
Copies may be requested by contacting the ABA at the address and telephone number listed above.
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 Thomson 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
Fall 2015
BRUCE WAGMAN HONORED FOR EXCELLENCE IN THE
ADVANCEMENT OF ANIMAL LAW
By: Chris Green
Our recipient of this year’s
2015 Excellence in Animal Law
Award is Bruce Wagman. In every
sense of the word, Bruce continues
to be a true pioneer in the field of
Animal Law. Over the last quartercentury, if you can name it, Bruce
has done it: he has litigated some
of the most groundbreaking and
high profile animal law cases;
authored the first Animal Law
casebook (now in its 5th Edition);
taught multiple generations of
students at some of the country’s
top law schools; and substantially
advanced the field with his own
academic scholarship.
Yet Bruce still has made the time to be an active
member of the ABA TIPS Animal Law Committee
since its inception over a decade ago, and repeatedly
contributes to our mission by: authoring a recurring
series of articles for the ALC newsletter; speaking at
our CLE events; and sharing his many insights from the
front lines of animal litigation with wide audiences.
Indeed, Bruce is the only person I know who has
found a way to practice Animal Law as a full-time career
from within a major U.S. law firm—work that ranges
from representing the largest animal
protection organizations in the
world, to seeking specific justice for
individual animals themselves.
I first met Bruce after watching
him argue one such case in federal
court back in 2005. It involved
several chimpanzees who had
suffered unspeakable abuse at
the hands of a Hollywood trainer.
Bruce ultimately won the release of
those chimpanzees to a sanctuary
to live out the rest of their lives in
peace. He also secured a binding
concession prohibiting the trainer
from ever working with any other
great apes.
The emotion of that particular case is never far below
the surface with Bruce—a testament to how much he
cares about his clients and evidence of the depth of his
heart, passion, and commitment for bettering the lives of
those who are unable to defend themselves.
One could not ask for a better role model, and I am
deeply honored to be the one standing here helping
recognize Bruce’s amazing, inspiring (and continuing)
life’s work.
ACCEPTANCE: EXCELLENCE IN THE ADVANCEMENT OF
ANIMAL LAW
By: Bruce Wagman
I feel like the guy at the awards ceremony getting the award on behalf of a whole bunch of others, and
I’m just up here to collect the plaque for them. First, really, this award is for the ABA, which is where this
all started. Twenty-three years ago, at the ABA Annual Meeting in San Francisco, I started on this path. At first it was really just an excuse to get out of chambers, clerking for a federal judge during a summer
in San Francisco. There was this session in the annual meeting on Animal Law, whatever that was. But a
legal hero, William Kunstler, was part of the panel, and it sounded interesting. What I heard there literally
changed the course of my life, so that I would not be here today if it were not for the ABA, which shares
this award. At that session, I found out about lawyers who were using their law degrees to help animals
and, well, that sounded like a very good way to spend your time. So I thought I would try it.
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Animal Law Committee Newsletter
Fall 2015
And that’s where the next group of individuals for whom I am picking up this award comes in. I
soon started my career at Morgenstein & Jubelirer, a small litigation firm in San Francisco, with the
idea that I would do some animal law work on the side, but mostly products, appellate and employment
litigation. But as time went on, I was doing more and more animal law work. I started teaching an
Animal Law course in 1996 at Hastings College of the Law. By about 2004, I realized that I could
do animal law just about exclusively and that that was what I wanted to do. So I went around to my
former bosses, then partners, at Morgenstein and told each of them that I expected they did not want me
sticking around if all I was going to do was animal law. Every one of them—well, except one—told
me that they did not want me to leave, that they thought it was great that I was pursuing this course,
and insisted that I stay. That support was vital to keep me going. They displayed such brave and loyal
adherence to a code of professionalism in those moments and since that day. Then in 2007, Morgenstein & Jubelirer merged with one of the crown jewels in the Chicago legal
community, Schiff Hardin. I expected my tenure there would last a couple of years at most, and
that this Chicago-based firm would not want this animal law weirdo as a partner. Well I could not
have been more wrong. From the very first day until today, Schiff Hardin has supported, encouraged,
lauded and applauded the animal law work in every way. At every level—from firm management to
first years and even summer associates, and everyone in between—the welcome and the enthusiasm
has been astounding and a real testament to the firm’s place as a community participant and leader
and representative of those in need. The firm’s validation of the work has been overwhelming and
consistent, and so, I also accept this award on behalf of the people of Schiff Hardin.
And then, really, it’s all about the clients, right? So I stand here picking up this award on behalf of all
of the clients who have trusted me, put their faith in me and let me take on the challenge of doing what I
can to help animals through my legal work in a field that is rapidly growing. On the organizational side
of things, I have represented an alphabet soup of clients—think of most acronyms out there of the big
animal welfare groups, and a whole lot of the small ones. I have had the honor of working with many of
them on a number of exciting cases on big issues. And just as important are the individuals who come
in trying to save or recover or protect a single dog, cat, or other companion. Each of the clients who
has come to me and given me the opportunity to serve them stand up here to accept this award as well.
And maybe most of all, I stand here for the animals. It will come as no surprise that in every one of
my cases, I am thinking about the animals driving it all, and that I went into this work because I believed
that with my law degree, I could change the world for some animals. I have had cases with chimps and
horses and chickens and cows and pigs. All of those cases were equally important—whether it’s the
victory this week in the Ninth Circuit upholding the shark fin ban in California, or the liberation the next
day of a pit bull named Bubba from impoundment and possible euthanasia. In each of these cases, lives
are changed, whether it is potentially tens of millions of farm animals, or a beloved dog back home in
her bed. And that’s why I remain in what I call the best and worst job in the world—the best because
of those kind of victories; the worst because of the daily exposure to the pain and suffering that is the
constant motivation to keep doing this work—the routine review of pictures and stories that would turn
the hardest heart. In fact, it got so bad about eight years ago that I decided I needed to stop, it was just
that painful. But some of my clients and colleagues told me I could not—that I knew too much, and
that if I did quit I would be turning my back on the animals. And that I just could not, and cannot do,
so I will keep this up for as long as I am breathing, and then some.
So for the hundreds of people who have supported me, the millions of animals whose eyes and
hearts and minds I have kept in my vision over these past two decades plus, and just as much for my
family—especially my wife Deborah—and the animals who share my house and my bed and my head,
on behalf of all of them, I am so grateful to accept this award, and graced and privileged to bring it home
for all of them. I will carry on.
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Animal Law Committee Newsletter
Fall 2015
ANIMAL LAW SUBCOMMITTEE UPDATES
ANIMALS IN AGRICULTURE
EQUINE LAW SUBCOMMITTEE
Chair
Nicholas Arrivo ([email protected])
Chair
Margrit Lent Parker ([email protected])
Student Chair
Lauren Hunstad ([email protected])
By: Nicholas Arrivo
After several years of dedicated and enthusiastic
service, Aimee Gong has stepped down as the CoChair of the Animals in Agriculture Subcommittee.
The Subcommittee is seeking individuals to fill her
considerable shoes. If you are interested, please contact
Nick Arrivo at [email protected].
ANIMALS IN SCIENCE AND TECHNOLOGY
Co-Chairs
Leslie Rudloff ([email protected])
Yolanda Eisenstein ([email protected])
By: Leslie Rudloff
Special announcement—the Animal Law Committee
has a new Subcommittee. Please welcome the Animals
in Science and Technology Subcommittee, which will
focus on the applicability of current animal protection
laws, consumer protection laws, the Animal Welfare Act,
current standards of practice, ethical concerns, and the
benefits and reliability of using alternatives to animals in
science and technology. Leslie Rudloff, Senior Counsel
at Physicians Committee for Responsible Medicine, and
Yolanda Eisenstein, will serve as the Co-Chairs. Please
consider joining this important new Subcommittee.
Contact the Leslie at [email protected], or 202527.7370 to join and become active! COMPANION ANIMALS SUBCOMMITTEE
Chair
Stacey Evans ([email protected])
By: Stacey Evans
The Animal Law Committee held another successful
Animal Shelter & Rescue Law Symposium at the Best
Friends National Conference. The event, held in Atlanta,
GA on July 19, 2015, included discussions about breed
specific legislation, laws and regulations applicable
to animal shelters, and legal issues regarding shelter
services for cats. The Subcommittee would like to find
out how to better serve and involve our membership.
Please contact us with any questions and comments
about topics and/or projects of interest.
7
By: Margrit Lent Parker
The Equine Law Subcommittee is hard at work. The
Subcommittee is hosting monthly hour-long conference
calls with presentations on a range of subjects. The
first meeting featured a presentation by Melissa Perry
of Albany Law School on the pending Thoroughbred
Horseracing Integrity Act of 2015, with discussion about
legal and practical aspects of the bill. Future presentations
include equine contracts, handling cases before the U.S.
Equestrian Federation, and marketing one’s equine legal
practice. Planning has begun for the April 6, 2016 ALC
webinar on Bureau of Land Management of wild horses.
Great things are under way! Please contact the Chair to
get involved.
INTERNATIONAL ISSUES SUBCOMMITTEE
Co-Chairs
Daina Bray ([email protected])
Yolanda Alvarez ([email protected])
By: Daina Bray
The International Issues Subcommittee is looking for
new members to help the Subcommittee develop new
projects, including collaborating with bar associations
around the world. If you are interested, please contact
Daina Bray at [email protected] and Yolanda Alvarez at
[email protected].
PUBLIC SERVICE SUBCOMMITTEE
Co-Chairs
Meena Alagappan ([email protected])
Ledy Vankavage ([email protected])
By: Meena Alagappan
On March 22, 2015, we brought our humane
education public service project with HEART to
Michigan State University (MSU) Law School. We
trained attorney and law student volunteers to teach
a four-lesson animal protection program to local 4th
and 5th grade students, covering topics such as animal
cruelty laws, dogfighting, spaying/neutering, puppy
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Animal Law Committee Newsletter
mills, factory farming and endangered species. The
State Bar of Michigan, MSU Student Animal Legal
Defense Fund (SALDF), and Attorneys for Animals
co-sponsored and hosted this workshop.
On October 7, 2015, we co-sponsored training conducted
by HEART for local SALDF chapters at Chicago-Kent
College of Law. The workshop provided an overview of
humane education laws, discussed the roles of attorneys in
promoting humane education implementation, and trained
participants to teach lessons on the humane treatment of
animals to elementary students.
WILDLIFE SUBCOMMITTEE
Fall 2015
Subcommittee) is seeking interested ALC members
to explore issues related to wildlife and captive wild
animals. The subcommittee will be developing goals
for the year related to both state and federal wildlife
law. Some of the issues being considered are trapping
and hunting regulation by the states, including efforts
to ban or to allow killing contests, reactions to wolf
reintroduction in the Southwest, and proposed
legislative and court action related to captive animals
such as bans on live animals in circuses and efforts
to prosecute poachers in or near game refuges. If you
are interested in working on this subcommittee, please
contact Marsha Baum at the University of New Mexico
([email protected]).
Chair
Marsha Baum ([email protected])
By: Marsha Baum
The Wildlife Subcommittee (formerly Wild Animals
HEADLINE ANIMAL LAW NEWS
ANIMALS IN AGRICULTURE
Challenging Payments for the Slogan: “Pork: The
Other White Meat”
By: Nicholas Arrivo
On August 14, 2015, the D.C. Circuit Court of Appeals,
in Humane Society of the United States, et al. v. Vilsack, 797
F.3d 4 (D.C. Cir. 2015), reversed and remanded a federal
court dismissal for lack of standing. The case, brought by
the Humane Society of the United States, Iowa Citizens
for Community Improvement, and pork producer Harvey
Dillenburg, challenges the annual license payment of $3
million from the USDA-sponsored National Pork Board to
the pork industry lobbying group, National Pork Producers
Council for rights to the now-retired “Pork: The Other
White Meat” slogan, alleging that the slogan is not worth
the price paid, and that the payments constitute an illegal
transfer of government funds for partisan political purposes.
ANIMALS IN SCIENCE AND TECHNOLOGY
Update on the USDA Petition for Rulemaking re:
Considering Alternatives to Procedures Likely to
Produce Pain or Distress in Animals
By: Leslie Rudloff
8
On Oct. 30, 2013, Physicians Committee for
Responsible Medicine (Physicians Committee) filed a
USDA Petition for Rulemaking with the United States
Department of Agriculture (USDA) on Considering
Alternatives to Procedures Likely to Produce Pain or
Distress in Animals. In April 2015, the USDA began
taking comments on Physicians Committee’s petition.
Fortunately, several animal groups including the
National Anti-Vivisection Society (NAVS), People
for the Ethical Treatment of Animals (PETA), and
the Animal Legal Defense Fund (ALDF) submitted
comments in support of Physicians Committee’s petition
to make the consideration of alternatives more stringent
in procedures that produce pain or distress in animals.
COMPANION ANIMALS
Constitutional Challenge of County Ordinance
Dismissed
By: Stacey Evans
United States District Court for the Northern District of
Illinois dismissed an amended complaint by the Missouri
Pet Breeders Association and several pet stores alleging
that an ordinance prohibiting pet stores in Cook County,
Illinois from acquiring dogs and other pets from puppy
mills is unconstitutional. The Missouri Pet Breeders
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Animal Law Committee Newsletter
Association, et al, v. County of Cook, et. al., Civil Action
No. 14-6930, 2015 WL 4720055 (N.D. Ill. Aug. 7, 2015).
The amended complaint reiterated contentions made in the
original complaint including that the ordinance violates
the U.S. Constitution because it impermissibly burdens
interstate and foreign commerce, violates plaintiffs’equal
protection rights, and is impermissibly vague. The
Missouri Pet Breeders Association, et al, v. County of
Cook, et. al., Civil Action No. 14-6930, 2015 WL 2448332
at *1-2 (N.D. Ill. May 21, 2015). The Court dismissed all
of the plaintiff’s claims in the amended complaint for the
same reasons it dismissed the original claims. The Court
concluded with the statement, “Plaintiffs have already had
two opportunities to amend their complaint, and there is no
basis for a third.” The Missouri Pet Breeders Association,
et al, v. County of Cook, et. al., Civil Action No. 14-6930,
2015 WL 4720055 at *10 (N.D. Ill. Aug. 7, 2015).
Vick Dogs Documentary - The Champions by
Director Darcy Dennett
By: Ledy VanKavage
A new documentary, The Champions, about the
Bad Newz Kennel case and the
seized Vick dogs
is playing at numerous film festivals across the
country
including the Hamptons
Film Festival, the
Heartland
Film
Festival in Indianapolis, the St.
Louis International Film Festival,
and the Denver
Film Festival. ALC members, Professor Rebecca Huss
(the court-appointed special master/guardian) and Ledy
VanKavage, Sr. Legislative Attorney for Best Friends,
are featured in the film, along with many of the surviving dogs. Some of the former fighting dogs went on to
become service dogs and therapy dogs. You can learn
more about the film by visiting http://www.championsdocumentary.com/.
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Fall 2015
INTERNATIONAL ISSUES
India Acts to Save Its Remaining Vultures
By: Kathy Hunt
Responding to the near-total decimation of its vulture
population, India has banned multi-dose vials of the drug
diclofenac, a cheap painkiller given to livestock to treat
minor ailments, but which kills the vultures who feed
on the carcasses of treated animals. The drug, which
causes renal failure in the vultures, has been blamed
for the death of over 49 million vultures in the past 20
years. In the years following the drug’s introduction in
India in the 1990s, one species in particular—the Indian
white-rumped vulture—declined by a shocking 99.9
percent. India’s two other vulture species suffered similar
devastation. Diclofenac was banned for veterinary use in
India and several neighboring countries back in 2006, but
the human formulation of the drug has remained widely
available in the larger-dose vials needed for cows and
water buffalo. Vultures have shown modest population
growth since the 2006 ban, but farmers’ continued illegal
use of the drug necessitated this extra measure.
The loss of these scavengers has had ramifications
for India’s ecosystem. Animal carcasses that would
have been picked clean in the field are left rotting,
posing a health hazard and allowing roaming dog
populations to double. The new law, which went into
effect at the end of August, bans any vial of diclofenac
larger than three milliliters—enough to treat a person,
but insufficient for use on livestock. It will be difficult
and costly to procure several doses at a time. See e.g.
John R. Platt, Indian Vultures Are Dying for Some Good
News, Scientific American (Oct. 23, 2014), http://blogs.
scientificamerican.com/extinction-countdown/indianvultures-are-dying-for-some-good-news/.
WILDLIFE
National Marine Fisheries Service Denial of Permit
was Not Arbitrary and Capricious
By: Marsha Baum
Eighteen beluga whales, who were captured in the
Sea of Okhotsk in Russia in the years 2006, 2010 and
2011, will not be coming to the United States as Georgia
Aquarium had requested. Following the 2013 denial of
the Aquarium’s application for a permit to import under
the Marine Mammal Protection Act, Georgia Aquarium
sued National Marine Fisheries Service (NMFS) in U.S.
District Court in the N.D. of Georgia. In late September
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Animal Law Committee Newsletter
2015, Judge Totenberg granted summary judgment
for the Defendants NOAA and NMFS, finding that
NMFS’ action in denying the permit was not arbitrary
and capricious. Georgia Aquarium, Inc. v. Pritzker, No.
1:13-CV-3241-AT, 2015 WL 5730661 (N.D. Georgia
Sept. 28, 2015), available at http://www.nmfs.noaa.gov/
pr/permits/ga_court_decision_092815.pdf.
In 2012, Georgia Aquarium applied for a permit from
the NMFS to import eighteen beluga whales from the
Utrish Marine Mammal Research Station (UMMRS) in
Russia. According to the permit application, the whales,
which were captured from the wild, were to be used
for public display and to enhance the North American
Fall 2015
beluga breeding program through distribution to six
different aquaria facilities including three Sea World
locations. NMFS denied the permit based upon its
findings that the Aquarium failed to demonstrate both
that the permit would “not likely have an adverse impact
on the Sakhalin-Amur stock of whales” and that “the
granting of the import permit would not likely result in
additional captures” from that stock of whales.
The Aquarium could take action to appeal the
decision or to file another permit request. Meanwhile,
the eighteen whales are living at the research station on
the Russian coast of the Black Sea.
LEGISLATIVE AND REGULATORY DEVELOPMENTS AFFECTING
ANIMALS
10
ANIMALS IN AGRICULTURE
ANIMALS IN SCIENCE AND TECHNOLOGY
Ballot Initiative to End Intensive Confinement
Practices Launched in Massachusetts
Possible Revisions to the Toxic Substances
Control Act Could Benefit Animals
By: Nicholas Arrivo
By: Leslie Rudloff
Citizens for Farm Animal Protection has launched
a ballot initiative in Massachusetts seeking to end
certain practices of intensive confinement of veal
calves, egg-laying hens, and pigs. Joshua Miller, Mass.
Ballot Push Would Mandate Cage-Free Eggs, Bos.
Globe (Aug. 19, 2015), https://www.bostonglobe.com/
metro/2015/08/19/ballot-push-would-mandate-cage-freeeggs/IW2C2aPBiYH6xZi1jqePtL/story.html. The group,
which is supported by a coalition of state and national
animal organizations including The Humane Society
of the United States, ASPCA, Center for Food Safety,
United Farm Workers, and Farm Sanctuary, is currently
gathering signatures to place the proposed law on the
2016 ballot. The law would bar, with some exceptions,
the sale of products sourced from producers that use, e.g.,
veal crates, battery cages, and gestation crates. Id. More
information, including resources for citizens who wish
to volunteer during the signature gathering process, is
available at www.citizensforfarmanimals.com.
The Toxic Substances Control Act (TSCA) is
federal legislation passed in 1976 that regulates
industrial chemicals. For over 10 years, Congress has
been reviewing TSCA to see if it should be modernized
to meet current standards in science and regulation.
It is being revisited in light of legislative changes to
the regulation of industrial chemicals in other regions
of the world and plummeting consumer confidence
in chemicals. Earlier this year Senators Tom Udall
(D-N.M.) and David Vitter (R-La.) introduced the Frank
R. Lautenberg Chemical Safety for the 21st Century
Act, which would revise the decades-old TSCA. S.
697, 114th Cong. (2015). Fortunately, the Senate bill
contains many provisions that will reduce and replace
animals in chemical tests, and will bring about the
vision of 21st century toxicity testing—using quick and
human-relevant in vitro tests—recommended by the
National Academy of Sciences to protect public health
and prevent animal testing. Id. Senate leadership has
not yet scheduled a vote although it is expected later
this year. The House of Representatives passed the
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Animal Law Committee Newsletter
TSCA Modernization Act of 2015 on June 23, 2015
by a vote of 398 to 1. H.R. 2576, 114th Cong. (2015)
(enacted). The House bill is a significantly pared down
version of the Senate bill and only takes up specific
issues within the larger context of TSCA reform.
COMPANION ANIMALS
Congress Launches Caucus for the Humane Bond
By: Stacey Evans
In June 2015, Congress launched the Caucus for the
Humane Bond. The Caucus was created to celebrate and
strengthen the bond between people and pets, wildlife,
working animals, and animals in agriculture. American
Humane Association Applauds New Congressional
Caucus to Make a More Humane World for People
and Animals, Am. Humane Ass’n (June 4, 2015),
http://www.americanhumane.org/about-us/newsroom/
news-releases/american-humane-association-applaudsnew-congressional-caucus-to-make-a-more-humaneworld-for-people-and-animals.html?referrer=https://
www.google.com/. Congressmen Gus Bilirakis (R-FL)
and Henry Cuellar (D-TX), co-chair the Caucus.
Bill to Stop Breed Discrimination by Municipalities in
Michigan Advances
By: Ledy VanKavage
Fall is usually a quiet time in most state legislatures;
spring session is where the action is. However, a bill
that would prohibit municipalities from enacting or
enforcing breed discriminatory or breed specific laws
unanimously passed the Michigan Senate. Richard
Angelo, an attorney for Best Friends Animal Society,
testified in favor of the bill. Senate Bill 0239 (2015)
still has a lot of hurdles to clear but if passed Michigan
would become the 20th state to have a provision
against deeming a dog dangerous solely because of the
dog’s breed. You can view other states’ preemption
provisions here: States With Provisions Against Breed
Discriminatory Legislation, Best Friends Animal Soc’y,
http://bestfriends.org/resources/pit-bull-terriers/statesprovisions-against-breed-discriminatory-legislation
(last visited Oct. 12, 2015). Advocates are hoping to
introduce similar measures next year in Kentucky,
Delaware, Idaho, and Missouri.
11
Fall 2015
HORSES
Thoroughbred Horseracing Integrity Act of 2015
By: Melissa Perry
On July 16, Congressmen Andy Barr (R-Ky) and
Paul Tonko (D-NY), introduced H.R. 3084 “The
Thoroughbred Horse Racing Integrity Act of 2015.” The
purpose of the bill is to “improve the integrity and safety
of Thoroughbred Horse Racing by requiring a uniform
anti-doping program to be developed and enforced by
an independent Thoroughbred Horseracing Anti-Doping
Authority (The Authority).” H.R. 3084, 114th Cong.
(2015).
The Authority
H.R. 3084 aims to wrest control of the regulation,
detection and punishment of “doping” of race horses
from state racing commissions and give that role to an
independent, non-governmental anti-doping authority.
Id. Exclusive jurisdiction of anti-doping matters for
thoroughbred racing are slated to be turned over to the
Authority, run by the United States Anti-Doping Agency
(USADA), as of January 1, 2017. The bill affects only
Thoroughbred racehorses in races that fall under the
Interstate Horseracing Act of 1978. Id.
The initial Authority is to be comprised of six members
of USADA and five individuals from constituencies of
the Thoroughbred industry. The Authority is not to be an
agent of, or an actor on behalf of, either the United States
government or any state. Id. The federal government
is not required to provide funding for or guarantee the
debts of the Authority. Initial funding for the Authority
will come from loans obtained by and donations made
to the Authority. Id. Thereafter, the Authority will
provide each state racing commission with a bill for the
estimated amount required, per racing starter, to fund the
program for the coming year and to liquidate any loans
or funding shortfall from the current or prior years. Id.
How to assess and collect the requisite amount is left to
each state racing commission, but states are not allowed
to increase “takeout” to obtain the necessary funding.
Powers Vested in the Authority
The Authority is granted the right to create: 1)
the lists of permitted and prohibited substances and
methods; 2) a schedule of sanctions for violations; and 3)
programs related to anti-doping research and education.
The Authority also is granted the power to develop:
1) testing procedures, standards and protocols for
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Animal Law Committee Newsletter
both in-competition and out-of-competition testing; 2)
procedures for investigating, charging, and adjudicating
violations and enforcing sanctions; and 3) laboratory
standards for accreditation and testing requirements,
procedures, and protocols. Id.
In terms of the disciplinary process the Authority
will establish rules for anti-doping results management
including, provisions for notification of anti-doping
rule violations, hearing procedures, burden of proof,
presumptions, evidentiary rules, appeals and guidelines
for confidentiality, and public reporting of decisions.
Id. Rules must provide adequate due process, including
impartial hearing officers or tribunals. The Authority
will establish sanctions designed to ensure fair and
transparent racing and to deter the commission of antidoping violations. Sanctions can be as extreme as
imposing a lifetime ban from horseracing. Id.
INTERNATIONAL
EU Bolsters Its Ban on Seal Products
By: Kathy Hunt
In a move expected to help protect seals from slaughter,
the European Union (EU) Parliament on September
8, 2015, reinforced the trade ban on commercial seal
products by eliminating the exemption for products
derived from hunts carried out to protect fishing stocks,
and by imposing animal-welfare and other conditions
on the exemption relating to hunts by Inuit and other
indigenous communities. MEPs Toughen EU Ban on the
Sale of Seal Products, European Parliament News (Sept.
8, 2015, 12:11 AM), http://www.europarl.europa.eu/
news/en/news-room/content/20150907STO91833/html/
MEPs-toughen-EU-ban-on-the-sale-of-seal-products.
These changes aim to bring the boycott into compliance
with World Trade Organization (WTO) rules, and thus
strengthen the ban against further challenge by sealculling countries.
The regulation at issue went into effect in 2010.
Commission Regulation 1007/09, 2009 O.J. (L 286), 36.
Canada and Norway challenged the boycott in the WTO,
claiming that the two exemptions unfairly discriminated
against their countries’ products. Dispute on EC
Measures Prohibiting the Importation and Marketing
in Seal Products (DS400 and DS401), https://www.
wto.org/english/tratop_e/dispu_e/cases_e/ds400_e.htm.
The WTO’s 2014 decision upholding the general ban
was hailed as historic, for recognizing “animal welfare
12
Fall 2015
considerations” as a basis for trade regulation. The trade
body found fault with the two exemptions, however,
prompting the recent revision.
The original EU trade ban “had closed the door” on
commercial seal products, said AJ Cady, Senior Program
Adviser at the International Fund for Animal Welfare,
“it’s now locked tight.”
WILDLIFE
Death of Cecil the Lion Prompts Introduction of
Amendments to the Endangered Species Act
By: Marsha Baum
The killing of Cecil the Lion by an American dentist
in Zimbabwe in July 2015 has generated a lot of media
and public attention. In response, bills to amend the
Endangered Species Act (ESA) have been introduced
in Congress. One bill, titled Conserving Ecosystems
by Ceasing the Importation of Large (CECIL) Animal
Trophies Act, was introduced on August 3, 2015. S.
1918, 114th Cong. (2015). On September 16, the same
language was introduced in the House as the CECIL
Act. H.R. 3526, 114th Cong. (2015). Both CECIL
bills propose amendment to section 9(a)(1) of the ESA
and seek to prevent import or export of any species
listed, or proposed to be listed, under the ESA. Id. On
September 8, 2015, another bill, this one titled Cecil the
Lion Endangered and Threatened Species Act of 2015,
was introduced in the house with a lengthier and more
specific change to the ESA. H.R. 3448, 114th Cong.
(2015). H.R. 3448 seeks to add section 9(h) to the ESA
to prohibit the taking or importing of any endangered
or threatened species, defining trophy in section 3
of the ESA as “any fish or wildlife taken for sport or
procurement of a souvenir.” Id.
California Coastal Commission Approval of
SeaWorld Tank Expansion is a Two-Fold Win for
Whales
By: Carney Anne Nasser and Stefanie Wilson
On October 8, 2015, the California Coastal
Commission, invoking its broad authority to regulate
marine resources, unanimously approved a permit for
SeaWorld to expand the orca tank at its San Diego
marine park, but imposed key restrictions: SeaWorld
may only use the expanded tanks for the eleven orcas—
listed by name—who it is currently keeping at that
facility. Cal. Coastal Commission, Staff Report: Regular
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Animal Law Committee Newsletter
Calendar; SeaWorld San Diego (2015), available
at
http://documents.coastal.ca.gov/reports/2015/10/
Th14a-10-2015.pdf. In other words, if SeaWorld moves
forward with the expansion, it must phase out the captive
orca program at the San Diego park due to the permit’s
prohibition on breeding, or acquisition/replacement
of orcas. The conditions were proposed by Sara Wan,
former Chair of the California Coastal Commission, in
her capacity as consultant to the Animal Legal Defense
Fund, and supported by a coalition of animal protection,
environmental, and marine mammal conservation
groups and scientists.
SeaWorld, which has seen its stock price and ticket
sales plummet after the release of the documentary,
Blackfish, had touted the San Diego expansion as
providing more space and “naturalistic” habitats for
its orcas. In response to the Commission’s decision,
SeaWorld has made clear its intent to use the space to
breed or acquire more of these animals. “Depriving these
social animals of the natural and fundamental right to
reproduce is inhumane,” Joel Manby, CEO of SeaWorld,
claimed in a released statement. Abby Phillip, California
Commission Deals Blow to SeaWorld’s Ability to Breed
Killer Whales, Wash. Post (Oct. 9, 2015), available at
https://www.washingtonpost.com/news/speaking-ofscience/wp/2015/10/09/california-commission-dealsblow-to-seaworlds-ability-to-breed-killer-whales/.
Fall 2015
On October 15, SeaWorld announced its intention to
challenge the Commission’s authority to impose the
breeding and importation restrictions. Hugo Martin,
SeaWorld will Sue Coastal Commission Over Orca
Restrictions, L.A. Times (Oct. 15, 2015, 4:54PM), http://
www.latimes.com/business/la-fi-seaworld-challengecoastal-commission-conditions-20151015-story.html.
Commission Vice Chair Dayna Bochco reaffirmed
the Commission’s position, stating, “in our view,
[California Coastal Act] protections are best provided
to the whales at SeaWorld by allowing tank expansion,
but slowly phasing out captivity over time. We heard
abundant evidence demonstrating that captive breeding
perpetuates wild capture, and this harms marine
resources.” Dayna Bochco, Commission: Banning
Whale Sex Legal, Ethical, San Diego Union-Trib (Oct.
15, 2015, 5:15PM), http://www.sandiegouniontribune.
com/news/2015/oct/15/coastal-commission-banningwhale-sex/. The Commission’s decision, and the
ensuing lawsuit, will have major implications for
SeaWorld’s business model and for the ongoing public
debate about the use of wildlife for entertainment; stay
tuned as the case develops. VISIT US
ON THE WEB AT:
www.ambar.org/tipsanimal
13
13
Animal Law Committee Newsletter
Fall 2015
Save the Date!
The TIPS Section Conference
Join your TIPS colleagues for the premier CLE conference for
defense, corporate, and plaintiffs attorneys
May 11-15, 2016
The InterContinental Buckhead
Atlanta, GA
This Second Annual Event Will Feature:
14

More than 25 hours of top-notch CLE programming, including ethics credit, to meet all of
your educational needs

Practice area-specific CLE tracks featuring premier speakers, including judges and in-house
counsel covering hot topics and the latest developments

Numerous opportunities to network with insurance defense, corporate, and plaintiffs
attorneys, judges, and local lawyers

Exclusive networking events for young lawyers

Substantive business meetings for 31 practice-specific general committees

Entertaining social events in contemporary Buckhead
14
Animal Law Committee Newsletter
Fall 2015
ANIMAL DOCKET:
Practice tips for animal law cases
CONSTITUTIONAL ANIMAL LAW
By: Bruce Wagman
Introduction
While issues of a constitutional dimension
can surface in many areas, a new line of cases
has developed in which animal law-based issues
are combined with traditional constitutional
considerations. In these cases the courts must
incorporate the theories that underlie the development
of animal law into the centuries of constitutional law
doctrine, whether they are express or implied in the
decisions. These judges are pioneers in creating a
body of law that can be utilized by litigants facing
similar situations.
The majority of opinions addressing constitutional
issues in animal law have come up in two general
areas—(1) federal court standing under Article
III, Section 2, Clause 1 of the Constitution, and (2)
challenges to anti-cruelty statutes. In the non-animal
context, hundreds of cases are already on the books
focusing on standing and statutory challenges on
constitutional law grounds. But the first important
precedents where animal interests are concerned only
go back about forty years,1 and most of the important
cases have been issued in the last twenty-five.2
The standing doctrine has been extensively
addressed in judicial opinions, law reviews, and legal
treatises. The body of case law on that issue provides
most practitioners with all they need to cover the
standing issue.3 The more recent developments have
come in cases challenging animal protection statutes.
And while an extended law review article could be
written on the development of this new niche in
constitutional law, this piece will just provide an
overview of the type of claims that are being brought
in the statutory challenge/defense cases.
Proceed with Caution
Constitutional law doctrine, given its history
as old as the Nation, has been developing for
15
hundreds of years. Therefore, if you pick up a
case with constitutional law issues, expect either
to spend a significant amount of time reviewing
the expansive case law, or perhaps to contact
someone with expertise in the area. However,
if you obtain advice from someone with no
animal-related constitutional law experience,
you may miss an important part of the analysis
and argument that could be very valuable for
your approach to the case. While constitutional
principles remain well-founded in case law, the
case-specific facts supporting arguments in animal
law matters have not been largely considered, and
the pronouncements by the courts in those cases
may be compelling, even where they represent
non-binding precedent to the court in which your
case is venued.
A Summary of Statutory Challenge/Defense
Claims in Animal Law
The most recent development in the constitutional
law area involve defendants challenging animal
protection statutes. Generally the challengers fall into
two groups. The first group is criminal defendants,
charged under an anti-cruelty law, whose challenges
typically are based in due process. These defendants
allege the statutes at issue are unconstitutionally
vague because they do not provide adequate notice
to citizens as to the specific nature of the crime; a
somewhat traditional challenge to penal codes in
the non-animal arena as well. But the examination
for the parties and the courts in these cases falls on
the sufficiency of notice regarding what constitutes
animal cruelty, and so there is a definitely animalcentric filter placed on the construction and
interpretation of the statutes by the courts. In most
cases, the question is whether the statute at issue is
impermissibly vague in all its applications. In other
Continued on page 23
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Animal Law Committee Newsletter
Fall 2015
COMING TOGETHER TO MAKE A DIFFERENCE FOR ANIMALS AND
PEOPLE
By: James F. Gesualdi
It’s exciting when you truly hear out divergent views and
you start to see how to bring them together for a solution
nobody ever thought of before.
-Stephen R. Covey
Introduction
It is possible for people to constructively engage
others with differing perspectives to create new
regulations to protect and save animal lives. One
such example, which occurred nearly two decades
ago, was the United States Department of Agriculture
(USDA) Marine Mammal Negotiated Rulemaking (the
“Neg Reg”), which developed new marine mammal
regulations under the Animal Welfare Act (AWA) by
consensus. The Neg Reg brought together a broad array
of stakeholders with different positions, drew upon the
commonality of underlying interests in helping marine
mammals, and culminated in the successful revision and
implementation of a majority of the marine mammal
regulations—without the advent of litigation.
AWA, now known as Animal Care, commenced review
of the regulations to consider whether any revisions
were needed, noting that, “advances have been made,
new information has been developed, and new concepts
have been implemented with regard to the housing and
care of marine mammals.”4
Two years later, the agency announced that it had
decided to establish an advisory committee to develop
revised regulations and explained the use of negotiated
rulemaking:
The comments we received . . . suggest
that it would be highly desirable
to involve all interested parties in
developing appropriate regulatory
standards. We believe consensus among
interested parties is attainable and that
we should proceed with negotiated
rulemaking in developing such
standards.
...
The Context of the Marine Mammal Negotiated
Rulemaking
The AWA provides for the humane handling, care,
treatment and transportation of regulated animal species
involved in certain activities including research and
exhibition.1 AWA regulations governing the care and
maintenance of marine mammals were published in
19792 and 1984.3
In 1993, the USDA Animal and Plant Health
Inspection Service (APHIS) unit responsible for the
16
Negotiated rulemaking is a consensusbased approach to the promulgation of
agency rules. It is considered to be an
effective tool for developing regulatory
solutions to problems that affect diverse,
and often competing, interests among
the regulated public. By participating
in this effort, interested parties have
more direct input into the substance of a
proposed rule than they would through
the usual form of notice-and-comment
rulemaking, where a regulatory
agency works more independently to
develop a proposed rule. In negotiated
rulemaking, the participating parties
agree to work together until consensus
is reached on the content of the proposed
rule, which is then published for public
comment. In this manner, negotiated
rulemaking enables an agency to avoid
many of the obstacles that might be
raised in a usual notice-and-comment
proposed rulemaking, and expedites the
Continued on page 25
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Animal Law Committee Newsletter
Fall 2015
ANIMAL PROTECTION, LAW, AND TECHNOLOGY
By: Yolanda Eisenstein
The New Technology Frontier
Advances in technology are a hot topic today, even
in the legal profession where technology has not always
been embraced. The use of cloud computing, the role of
email and social media in litigation, and the Internet of
Things (IoT) are examples of technologies that are forever
changing the way we practice law and work with clients.
As animal lawyers, it is worth asking if technology
can assume a beneficial role in animal protection. Can
science and technology be used to impact the lives of
animals in a positive way? The answer is yes, with
progress already evident in several areas.
Animals and Science
Throughout history, scientific research has been
largely incompatible with the welfare of animals.
Humans have experimented on animals for centuries
without giving thought to their suffering or pain. One
of the most notable times in history was the 17th century
when René Descartes, a philosopher and scientist,
espoused the belief that animals were automatons—
no more than machines without consciousness or the
ability to feel pain. Since Descartes was a respected
philosopher and mathematician, many in the scientific
community, particularly those who experimented on
animals, adopted his position, which continued even
into the 20th century.
Today, animals continue to be used in scientific
research, although progress is being made in removing
animals from the laboratory, thanks in part to technology.
Technological advances, such as sophisticated computer
modeling techniques, have proved to be more accurate
and less expensive than using animals, resulting in a
decline of their use in research1 as well as in medical2
and veterinary schools.3
Science and Animals in Agriculture
In agriculture, research is being conducted in one
area that has the potential to save millions of animals and
forever change what we eat. Several start-up companies
are working to develop plant-based alternatives to beef
and chicken.4 While meat alternatives have been around
for years, today’s research is different. First, people
such as Microsoft founder, Bill Gates, and companies
such as Whole Foods Grocery are funding the research,
bringing it into the mainstream. Second, one of the
17
goals of the research is to make meat substitutes taste
even more like meat in order to attract consumers
who are not vegetarians or vegans, who comprised the
previous market for these products. The development
of soy chicken that tastes like real chicken, is even more
nutritious, and costs less, can bring about a sea change
in U.S. diets and increase the ability to feed people
across the globe. Gradually reducing large-scale animal
agriculture by offering alternatives such as these also has
environmental benefits, including reducing greenhouse
gases and the use of water.
The Internet of Things (IoT)
The “Internet of Things” is a term used to describe
electronic connectivity—the act of connecting devices,
or “things,” to each other and to the Internet, without
human participation.5 Today, your smartphone or tablet
can talk to various devices in your home, for instance,
turning on lights, adjusting the thermostat, or turning on
the stereo. Now consider a smart phone that thaws your
dinner, opens the door to let the dog out, and books your
next business flight—all while you’re asleep. That is
the potential of the IoT, which will become possible as
manufacturers work together to address barriers such as
the use of different protocols and platforms in devices.
The IoT is being championed as a development that
will truly improve our lives. Can the IoT improve the lives
of animals? Many advocates believe the answer is yes.
For example, consider a device, similar to a microchip,
implanted in your dog that alerts you if she leaves your
property and provides a map tracking her movements.
Even better, what if that device also alerts your neighbor
who works out of his home and can easily find your dog
and put her back in the yard or house, or call the police if
she’s been stolen? What if Cecil the Lion, who was killed
by American hunter, Walter Palmer, had been equipped
with a sensor that alerted the authorities when Cecil was
lured off the sanctuary? Perhaps the story would have
had a happy ending. Further, what if that sensor had
alerted the hunter and guide that Cecil was protected? It
might not have saved Cecil’s life, but the sensor may have
provided a clearer picture of what actually happened. We
currently only have the hunter’s side of the story.
While technological advances such as those discussed
above will likely be able to save animals, barriers such
Continued on page 28
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Animal Law Committee Newsletter
Fall 2015
THE BOOKSHELF
WHALES AND NATIONS: ENVIRONMENTAL
DIPLOMACY ON THE HIGH SEAS, BY KURKPATRICK DORSEY
Seattle, WA: Univ. of Washington Press. 2014. Pp. 392. $34.95.
Reviewed by: Tom Krepitch
After almost four years of legal proceedings, the
International Court of Justice (ICJ) concluded in
2014 that Japan’s whaling program in the Southern
Ocean was contrary to international law. Australia,
the Applicant state before the ICJ, had alleged that
because Japan was a signatory to the International
Convention for the Regulation of Whaling (ICRW),
it was obligated to adhere to a moratorium on
commercial whaling agreed upon in the 1980s.
According to Australia, Japan’s claim that it was
killing whales solely for scientific purposes was
simply not true and Japan’s actual intent was to kill
solely for commercial purposes. Though Japan did
not deny that it was killing whales, it claimed that
because the ICRW allows each signatory nation
the right to issue licenses for scientific whaling at
its own discretion, Japan’s whaling program was
perfectly acceptable. Thus, essentially, the ICJ had
to decide whether Japan’s whaling program fit within
the ICRW’s exemption for scientific whaling and
was therefore legal, or if it was actually commercial
whaling in disguise and therefore illegal.
When Judge Peter Tomka announced the Court’s
decision, people around the world watched intently
and word of Australia’s victory spread rapidly
through social media. But what explains such interest
in the whaling controversy? Despite the fact that the
number of whales killed every year is only a fraction
of what it was decades ago, global opposition to the
whaling industry seems to be stronger than it ever
has been. Kurkpatrick Dorsey’s Whales and Nations:
Environmental Diplomacy on the High Seas provides
the background necessary to understand not only
how the whaling industry has changed from Herman
Melville’s time to ours, but why.
An overarching theme of Dorsey’s book is
sustainability. Though today that word would typically
18
be associated with the health of the whale population,
for most of the twentieth century it was the sustainability
of the whaling industry that was most important.
Sustainability first became significant in the 1920s
as the technology of whaling improved dramatically.
No longer did a whaling mission involve 30 men on a
small boat seeking to catch one whale and bring him
back to shore. The invention of the stern slipway and
the improvement of harpoons and other tools allowed
whalers to pursue multiple whales far from the coast
and process their catches directly on the ship. Industry
observers soon realized that this increase in efficiency
could eventually threaten the whale population and,
therefore, the whaling industry itself.
The pace of Whales and Nations accelerates with a
discussion of the state of the industry at the end of World
War II when the United States was developing into
its new role as a global power. Though the continuing
concern about sustainability did lead to the creation of
the ICRW in 1946, the impact of the war on national
food supplies led American forces in Japan to encourage
Japanese pelagic whaling as a source of protein. Dorsey’s
analysis of the geopolitics of the era is particularly
strong when discussing the efforts by Western whaling
nations to regulate the industry and the resistance to such
regulations by Japanese and Soviet whalers.
Though the Soviets effectively abandoned their
whaling program in the 1970s, the Japanese continued
to hunt, often taking advantage of the regulatory
program’s objection system. It is important for
readers to understand how this system functions. Put
simply, an individual country in a system such as the
one established to regulate whaling has the power to
prevent major change in that system. However, while
Japan was using the objection process as a tool to
defend whaling, its opponents significantly increased
Continued on page 30
18
Animal Law Committee Newsletter
Fall 2015
How Closely Do You Read The Animal Law Committee Newsletter?
1
brought
by the
federal
6. Since
neither
Bald
and Golden Eagle
government;
(2)Migratory
in
Protection
Act nororthe
Bird
instances
in which
a federal proviTreaty
Act contains
a _________
agency is involved in some
sion,
enforcement of these statues against
capacity, a claim may be
renewable energy companies that take
brought against the agency
birds in violation of them can take only
under the Administrative
twoProcedure
forms: (1) enforcement
Act ("APA"). actions
Hint:
brought
by the
federal
government;
2 words
(insert
without
space or (2)
in instances
which a federal agency is
betweenin
words).
involved
in some capacity,
a claim may
7 "The greatness
of a nation
be brought
againstprogress
the agency
under
and its moral
can
be the
judged by the
way its animals
Administrative
Procedure
Act (“APA”).
are2 treated."
Hint:
words (insert without space
11
Most words).
courts have held that
between
2
3
4
5
6
7
8
the Migratory Bird Treaty Act
9
10
11
is agreatness
_____ _________
7. “the
of a nationstatute
and its moral
that prohibits
not only
progress
can be judged
by the way its
purposeful
take directed at
animals
are treated.”
migratory birds (such as
12
13
but have
also held
incidental
11. hunting)
Most courts
that the Migraunintended
take
torytake,
Bird i.e.,
Treaty
Act is a ___________statute that
that results
prohibitsfrom
not otherwise
only purposeful take
legitimate
activities
(such
asas huntdirected
at migratory
birds
(such
wind turbine).
ing)an
butoperating
also incidental
take, i.e., unitended
words (insert without
takeHint:
that 2results
from otherwise legitimate
space between words).
activities (such as an operating wind tur12 On September 14, 2015, a
bine). Hint: 2 words (insert without space
final rule of the U.S. Fish and
between
words).
Wildlife
Service went into
14
15
16
17
18
effect, classifying all members
19
20
21
ACROSS
productivity of the population or the speuse and enjoy the dwelling. Hint: 2 words
marine
mammals from
words (insert without
environments, as well as to
1. _______ is demonstrated when
lawyers
cies, keeping in mindHint:
the 2
carrying
capacity
(insert without
space between words).
incidental take by commercial
space between words).
promote growth and weight
who do not typically practice animal law
of the habitat and the health of the eco1 _______ __________ is
19 Under the Federal Housing21. The concept
fisheries. Hint: 4 words (insert
gain that
withwe
less
feed
(significant
treat
different
think that animals can be treated like
system of which they form a constituent
demonstrated when lawyers
without spaces between
Amendments Act of 1988 species differently,
aids to not
increasing
based onprofits),
any valid
humans
without
evaluating
the
case
under
element.”
Hint:
3
words
(insert
without
who do not typically practice
words).
("FHAA"), however, residents
massive
amounts
of characdistinction, but
only on
immutable
doctrines
established in
animal law
space between words).
8 the
animal lawthe
think
that animals
According
to the Marine
with a disability may be
antibiotics are routinely
teristics that relate to our ability to control
field,like
andhumans
without incorporating
the special
can be treated
Mammal
Protection Act
entitled to waiver of a "no
administered to livestock in
9. In addition to rats and mice, _______
and kill other species, and the inability to
nature ofthe
animals
status
without evaluating
case and their special
(MMPA)
the "number of
pets" policy if an assistance
constant low-level doses exempt
the
resist our superior
strength.to as
in the law. Hint: 2 words (insert
without
under the doctrines
animals
which will are
result
in from coverage
animalunder
is a "__________
often referred
Animal of
Welfare Act._____________" necessary
5 The ______ ______ _______
establishedspace
in thebetween
animalwords).
law
the maximum productivity
DOWN
field, and without
the population or the species,
to afford them an equal
___ of 1931 (ADC Act), as
The smallest porpoise in the world
2. To prevent the diseases that would
3. Understanding
state in mind the10.
incorporating
the special federal andkeeping
carrying
opportunity to use and enjoy
amended, tasks the United
that
exists
only
in
the
Mexico’s
Gulf
of
otherwise
quickly
due to of
the
______________
nature of animals
and their laws, and knowing
capacity how
of the habitat and
the dwelling. Hint: 2 words
Statesspread
Department
California.
overcrowded
and unsanitary
environments,
to leverage
theirHint:
potential effectively,
special status
in the law.
the healthcan
of the ecosystem
(insert without space between
Agriculture
(USDA)
with
as well as toprotecting
promote growth
and weight
2 words (insert
space
of which they form a
words).
crops and
farm
provewithout
immensely
useful in advocating
14. Many animal advocates consider
feed (significant
aidsStates
to
21 The concept that we treat gain with less
between words).
constituent
animals
in the United
for animals, educating the public,
and element." Hint: 3
concentrated
feeding operations
massive
3 Understanding
federalaverting
and a needless
words
(insert without
spaces animaldifferent
species differently,increasing profits),
from wildlife
andamounts
other of
potentially
mass-killing
of the
state _______
__ ________
between
words). (CAFOs) - aka “_________”
not based- one
on any
valid
animals
thatadministered
harm crops to
or
antibiotics are
routinely
operation.
Hint: 3 words (insert
without
mostmice,
significant animal
protection
laws, and knowing
how to words). 9 In addition to rats and
distinction,
butissues
only on
animals.
Hint:doses4 words
livestock in farm
constant
low-level
often
spaces between
our time. Hint: 2 words
(insertcharacteristics
without
leverage their potential
______ are exemptoffrom
immutable
that
(insert without spaces
referred
to as
between words).
effectively, 4.
can
prove
coverage
Animal
relate to our ability to control
between words).
The
Agency required to “prevent
theunder thespace
6 Since neither Bald and
1931
immenselydepletion”
useful in of marine mammals
Welfare
and kill other species, and 5. The ___________________of
from Act.
inci19.
Under
the
Federal
Housing
10fisheries.
advocatingdental
for animals,
The smallest
their inability to resist our (ADC Act), Golden
Eagletasks
Protection
Act
as amended,
the United
take by commercial
Hint: porpoise in the
Amendments
Act ofsuperior
1988 (“FHAA”),
educating the public, and
world that exists only
in
strength.
nor theof
Migratory
Bird(USDA)
Treaty
States Department
Agriculture
4 words (insert without space between
however, residents with a disabilpotentially averting a
Mexico's Gulf of California.
Act crops
contains
_______
____
with protecting
andafarm
animals
in
words).
14 Many animal advocates
DOWN
ity may be entitled
to waiver of a “no
needless mass-killing
provision,
of
the United States
fromenforcement
wildlife and other
operation. Hint:
3
words
consider
concentrated
animal
these
statutes
against
pets”
policy
if
an
assistance
animal
is
a
8. According to the Marine Mammal
animals that harm crops or farm animals
2 To prevent the
(insert without spaces
feeding operations“_________________________”
(CAFOs) diseases that
renewable energy companies
necesProtection Act (MMPA) the “number of
Hint: 4 words (insert without space
between words).
aka "_______ _____"
one
of
would
otherwise
quickly
that take birds in violation of
sary to afford them an equal opportunity to
animals which will result in the maximum
between words).
ACROSS
4 The Agency required to
"prevent the depletion" of
19
the most significant animal
protection issues of our time.
spread due to the
overcrowded and unsanitary
them can take only two forms:
(1) enforcement actions
12. On September 14, 2015, a final rule of
of this highly intelligent nonthe U.S. Fish and Wildlife Service went
human primate species as
intoendangered
effect, classifying
allregard
members
without
to of
thiscaptive
highly intelligent
non-human
or wild status.
Hint: 2 primate
species
as (insert
endangered
without
regard to
words
without
space
captive
or wild
status.the
Hint:
2 words (insert
between
words);
answer
without
between
words).
is thespace
scientific
name
of the
species.
13. _______
_______________laws
consti13
__ _____ lawsare
are
tutional
amendments,
which have been
constitutional
amendments,
brought
inhave
certain
states
such as
which
been
brought
in Missouri
andcertain
Oklahoma,
thatsuch
purportedly
enshrine
states
as
and Oklahoma,
the Missouri
right to engage
in “farmingthat
practices”
purportedly
enshrine
the right
in animal
agriculture
without
risk of
to engage
"farming
prosecution
or in
other
burdens under the
in animal
law.practices"
Hint: 3 words
(insert without space
agriculture
between
words).without risk of
prosecution or other burdens
the public)
law. Hint:
3 words
15. under
An (often
event
where
(insert without
spaces
government
officials
destroy items made
between
words).
from the tusk of endangered species that
15 An (often public) event where
were confiscated from the illegal wildlife
government officials destroy
trade. Hint: 2 words (insert without space
items made from the tusk of
between
words).
endangered species that
were confiscated from the
16. Antibiotic-resistant bacteria are often
illegal wildlife trade. Hint: 2
called “__________”
words (insert without space
17. between
Commonwords).
name for laws that effectively
16 Antibiotic-resistant bacteria
criminalize undercover video investigaare often called "_________"
tions and whistleblowing at factory farms.
17 Common name for laws that
Hint:
hyphenated word (insert with “-”).
effectively criminalize
undercover video
18. This Latin American country passed
investigations and
a ban on the use of animals in circuses,
whistleblowing at factory
effective
July 8, 2015. __________
farms. Hint: hyphenated word
(insert with "-").
20. The United States consumes more
18 This Latin American country
than five billion pounds of seafood each
passed a ban on the use of
year,
about ______ percent of which is
animals in circuses, effective
imported.
July 8, 2015. _______
20 The United States consumes
more than five
billion pounds
Answer
on page 30
of seafood each year, about
______ percent of which is
imported.
19
Animal Law Committee Newsletter
Fall 2015
LEDY VANKAVAGE: ...
bringing an end to Breed Discriminatory Legislation and
truly helping to “Save Them All.”
Indeed, Ledy is the prime mover responsible for our
home state of Illinois consistently being #1 in the
Animal Legal Defense Fund’s Annual Ranking of U.S.
Animal Protection Laws. This is due to her (almost
singlehandedly) drafting, lobbying, and getting passed
into law no fewer than 24 pieces of humane legislation
in Illinois alone during her 9-year tenure as the ASPCA’s
Senior Director of Legislation.
ALC immediate past-Chair, Yolanda Eisenstein, had
this to say about Ledy:
Continued from page 1
As one of the ABA-TIPS Animal Law Committee’s
most active Chairs, Ledy authored and shepherded
to completion two Animal Law Resolutions, both of
which were adopted by the ABA House of Delegates:
one instituting “Guidelines for Service Animal Policies
to Comply with the ADA;” and the other setting out
“Legislative Recommendations to Ensure Due Process in
Canine Ownership.” We all very much appreciate Ledy’s
leadership and continued involvement in the Committee.
In her current role as the Senior Legislative Attorney
for the Best Friends Animal Society, Ledy has been
able to focus on her primary passion and life’s work—
“I very much regret that I can’t be
there to give Ledy the Excellence in
Animal Law Award, although it would
be difficult to add to what we all
know. Beyond her expertise, Ledy’s
humor and irreverence brings a unique
and welcome approach to animal law
and advocacy. Our committee has
benefited greatly through the years
and we have all benefited personally
through knowing and working with her.
Congratulations, Ledy.”
I will only add that Ledy has been the kindest, most
insightful advisor and mentor to me over the years.
It therefore means the world to me to be here today
personally honoring her with this well-deserved award.
ACCEPTANCE: EXCELLENCE IN THE ADVANCEMENT OF
ANIMAL LAW
By: Ledy VanKavage
I am the luckiest person on Earth. I have a great gig working for Best Friends Animal Society and
lobbying for animals. My clients don’t talk back.
Forgive my lateness in receiving the award, but last year at this time we were in Glacier National
Park, my very favorite place. We were taking one of our great nieces, Elise, to camp at the Glacier
Institute. I don’t think Elise would have forgiven me if she would have had to forgo camp just for an
award.
Receiving this award a year later proved to be fortuitous timing for me—I am now able to accept
this award in Chicago, Illinois, the state in which I was raised and which I love, surrounded by family,
co-workers, colleagues, and ABA staff.
I salute you all because this would not have been possible without you.
It is particularly fitting that Chris Green, the outgoing Chair, is presenting this award. I met Chris
years ago when I was speaking at the University of Illinois on a program with Bernie Rollin. I was
amazed at the astute and insightful questions Chris asked during the speech, and we have been
friends since that day. Now he is moving on to Harvard to be Executive Director of their Animal
Law Program.
20
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Animal Law Committee Newsletter
Fall 2015
It is also fitting that Professor Rebecca Huss, Guardian/Special Master of the dogs in the Vick case,
is here today. She’s not only one of my best friends but her brilliant legal mind is where I turn when I
have a complex legal question or just need to vent.
I also need to mention Cynthia Bathurst, founder of Safe Humane Chicago, a former colleague from
Best Friends who worked with me and the USDOJ COPS office on the publication, “The Problem of
Dog Related Incidents and Encounters,” to ensure lethal force isn’t used when police officers deal with
dogs. She is a mentor and a friend.
Obviously, I could not have done any of this without the support of my family—both two-legged
and four-legged. I’m honored that so many two-legged family members are here to celebrate with me
today.
The real reason I became an animal lawyer was because of my childhood dog, Boody. I had a great
childhood with parents who encouraged me and told me I could do anything if I tried.
Boody was a stray pit-bull-terrier puppy that my Lithuanian grandmother found. I fell in love with
him at first sight, and my dad and I brought him home. Boody became my closest companion. We ran
the neighborhood and the woods together. My mom would always know whose house I was at because
Boody waited for me in each friend’s yard. When my parents yelled at me, I’d go hide in his doghouse
and he’d lie in front of me so my parents couldn’t find me. When Boody died an untimely death at age
6, I was devastated.
Boody was a pit-bull-terrier-like dog. Tragically, citizens in some parts of America still have their
beloved pets taken from them—seized and killed simply because of their breed. Here is a plea from
one of them:
My name is Andrea Miller, and I own an 8-year-old, black-and white male but fixed
pit bull named Ali. I just found out today, by a visit from the Health Department, that
pit bulls were outlawed in my city this past December. The city apparently gave owners
2 months to get their previously-owned pit bull approved; however, I was not aware of
the outlawing, and it is too late.
I don’t want to give my dog away, but I’ve contacted city hall, and they are not
willing to give any waivers regarding the situation; they will be back in 7 days to take
him away. I’ve had Ali since the day he was born; the runt of a litter of 10, he had to be
bottle-fed, and I became attached. He’s been my best friend all his life, my only friend
at times. I had a baby 8 months ago, and we did all the training and adjusting to the new
situation. He took to it well, and we decided it would work. We didn’t consider giving
Ali up, then this happened.
He is such a great dog, a huge baby who loves scratches and any attention. I call
him ‘my little butt shaker.’ After all he’s done, I just can’t bear to give up without a
fight and let them put him to sleep. He is literally my child, and I am just devastated
by this. I would prefer to call in, but every time I try to talk about it, I get choked up
and start crying.
I was hoping you could offer me some direction and/or hope. If it was possible,
I’d even move to a pit-bull-friendly city. Unfortunately, it is out of my reach. I’d
be willing to drive any distance to save him and give him the comfort of a loving
home that he deserves or at least a chance at one. No one at city hall or the Health
Department seems to care how heart-wrenching this is, and I just can’t understand
how they can be so coldhearted. I apologize to take your time, but I don’t know
21
21
Animal Law Committee Newsletter
Fall 2015
what to do. I’m just trying to do everything I can. I greatly appreciate your time
either way.
Ali does enjoy playing with other dogs. I frequently take him to my grandmother’s
to play with her two dogs. He has been through socialization classes and frequents pet
stores with us. He gets along with cats, too; one of our cats, KiKi, he is particularly
fond of. They take turns cleaning each other. I’m afraid she will be devastated by this
once she realizes he is no longer around. I just can’t believe this is happening.
I’ve wondered sometimes what life would be like when Ali passed on of old
age, but I always assumed I didn’t need to worry about that for many years. I never
would have imagined something like this could be possible. He’s been the one
reliable, stable friend for so long, I don’t know how I will manage without him. But
I can guarantee it will be easier if I know he is alive, happy, and cared for. I’ve lived
in and supported this city almost my whole life, but I can’t help but feel betrayed
and very bitter.
This gut-wrenching plight is all too common across our country. There are thousands of Alis out
there. I don’t know what I would have done if Boody had been seized and killed simply because of his
breed. I would have never trusted city officials again.
The ABA creed is, “Defending Liberty and Pursuing Justice.” I truly believe that, in America,
responsible dog owners should have the right to own, love, and care for any breed of dog they choose.
It’s that simple.
The ABA House of Delegates acknowledged the importance of this principle by passing a resolution
calling for the repeal of all breed-discriminatory or breed-specific provisions and the enactment of
good, comprehensive, breed-neutral dangerous dog laws with due-process protections for pet owners.
Now 19 states have provisions prohibiting breed-discriminatory laws. I hope we won’t rest until breed
discrimination is banished in all 50 states.
I acknowledge my focus and tenacity can be somewhat problematic. I’m not an easy person to
live with – just ask my husband and friend, Cliff Froehlich. We’ve been married 32 long, arduous
years (for him) – and I could not have been a change agent and received this award without his help
and support. I often tell him it’s not a life, it’s an adventure. He truly has made it worthwhile. It is a
wonderful life.
So I thank you my friends, colleagues, and family.
In the words of Churchill, “We shall not fail or falter; we shall not weaken or tire. Neither the
sudden shock of battle nor the long drawn trials of vigilance and exertion will wear us down. Give us
the tools and we will finish the job.”
The ABA has given us tools to make a difference – to make a better world through kindness to
animals. I truly believe in the Best Friends motto, “Together, we can Save Them All,” and I look
forward to that day and know we all do.
Thank you.
22
22
Animal Law Committee Newsletter
Animal Law Docket: ...
Continued from page 15
words, is there any reasonable construction of the
statute based on its language? Given that relatively
deferential standard, most statutes are upheld in
response to a vagueness challenge.
The second group of challengers to state anticruelty statutes is industry groups whose businesses
are affected by laws that govern the ways in which
animals are treated in food production. For example,
in the past eight years we have seen challenges to
laws: prohibiting the slaughter of horses for human
consumption, on Commerce Clause and Supremacy
Clause grounds;4 prohibiting the sale and possession
of shark fins, on Equal Protection, Due Process,
Commerce Clause and Supremacy Clause Grounds;5
requiring that egg-laying hens be given enough
space to stand up, lie down, and stretch their wings
without hitting another bird or the sides of their
enclosures, on Due Process, Supremacy Clause,
and Commerce Clause grounds;6 prohibiting the
sale of foie gras from ducks who were force fed on
Due Process, Supremacy Clause, Equal Protection,
Contracts Clause and Takings Clause grounds;7 and
prohibiting the sale in retail pet stores of animals
raised in “puppy mills,” on Due Process, Supremacy
Clause, Equal Protection, Contracts Clause and
Takings Clause grounds.8
This list emphasizes the new set of challenges
surfacing in courts throughout the country, due in
part to the introduction over the past decade or so
of laws taking new approaches to the protection of
animals, by regulating the way they are treated in
food production. And in each case, the particularities
of these laws, because of their underlying purposes,
become vital points of discussion in the constitutional
analysis.
For example, plaintiffs often challenge these
laws based on their claim that the federal Animal
Welfare Act governs the treatment of animals and
therefore local authorities cannot impose additional
and more restrictive standards than the federal
law. This preemption objection to local statutes
invokes a key concept for the regulation of animal
cruelty—the longstanding principle that issues of
animal welfare are reserved to the states (and local
23
Fall 2015
municipalities) “as part of the historic police power
of the States.”9 Moreover, the Animal Welfare Act
has a specific savings clause allowing the states
to regulate in the area,10 and thus the preemption
argument should fail.
That local interest, confirmed by case law
and embodied in hundreds of animal protection
statutes, also defends attacks on animal cruelty
laws based on the Commerce Clause. One inquiry
in a Commerce Clause challenge is whether the
putative local benefits outweigh any impact on the
interstate market in the affected items. Because
animal protection is a well-established facet of
public policy,11 the challengers must prove an
overwhelming, and probably discriminatory, impact
on interstate commerce in order to prevail on their
Commerce Clause challenge.
In the cases challenging retail sales bans of
“puppy mill” puppies, plaintiffs (national breeding
groups as well as local pet stores directly affected by
the ordinances) also raise the federal Constitution’s
Contracts Clause which states that “[n]o State shall
… [pass any] Law impairing the Obligation of
Contracts…”12 Plaintiffs allege that the ordinances
effectively prohibit contracts already in place for
sale of puppies (and kittens and sometimes rabbits)
to local pet stores. But again, the twin notions that
preventing animal cruelty serves a valuable purpose,
and that exercise of that purpose is in the jurisdiction
of local governments, overrides the Contract
Clause’s prohibition because of the reasonableness
of the ordinances in light of the identified goals
behind these laws—animal welfare concerns; public
health and safety concerns; and impact on the
municipal budget because of the increased costs to
local shelters.
At this point, there have been a number of
successes—and few losses—for states and animal
protection groups defending the anticruelty laws.
There is a growing body of published appellate
court decisions13 and many of the successes in the
trial court are pending on appeal. So this is an area
of great interest and contemporary attention in the
courts. By 2020 there will be a whole new set of
cases discussing these traditional constitutional
law issues with a view through the looking glass of
animal law and issues that only are relevant where
23
Animal Law Committee Newsletter
the treatment of animals is part of the calculus.
Perhaps by 2025 a law review article will be
published, tracing the progress of constitutional law
cases addressing animal interests that will write the
next chapter in this developing area.
Fall 2015
drafting, education, and counseling), representing both
individuals and animal protection organizations. He teaches
animal law at three Bay Area law schools, is coeditor of the
Animal Law casebook, now in its fifth edition, and coauthor of
A Global Worldview of Animal Law, published in 2011.
Bruce Wagman is a partner with Schiff Hardin LLP with an
almost exclusive practice in animal law (litigation, legislative
1 See, e.g., Sierra Club v. Morton, 405 U.S. 727 (1972) (foundational standing case for environmental and animal welfare plaintiffs discussing parameters of “aesthetic
injury”); Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y. 1974) (challenging Humane Methods of Slaughter Act on First Amendment grounds).
2 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (declaring limits on standing in cases brought by animal welfare groups); Church of the Lukumi Babalu Aye
v. City of Hialeah, 508 U.S. 520 (1993) (First Amendment challenge to local ordinance banning animal sacrifice); Humane Society of the United States v. Jewell, 2014 WL
7237702 (D.D.C. Dec. 19, 2014) (reinstating endangered species status for gray wolves in the Great Lakes).
3 See, e.g., American Society for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334 (D.C. Cir. 2003) (standing for former
caregiver of elephants in circus); Animal Legal Defense Fund v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) (establishing standing for zoo visitor concerned about treatment
of animals); Alternatives Research & Dev. Found. v. Glickman, 101 F. Supp. 2d 7 (D.D.C. 2000) (standing for student working in animal research laboratories); Humane
Society of the United States v. United States Postal Service, 609 F. Supp. 2d 85 (D.D.C. 2009) (standing for animal welfare group based on its work assisting in responses
to dog fighting operations).
4 See, e.g., Cavel Int’l, Inc. v. Madigan, 500 F.3d 551 (7th Cir. 2007) (upholding Illinois law banning horse slaughter for human consumption); Empacadora de Carnes de
Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326 (5th Cir. 2007) (Texas law).
5 See, e.g., Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136 (9th Cir. 2015) (upholding California law prohibiting sale, possession or distribution of detached
shark fins).
6 See, e.g., Cramer v. Harris, 591 Fed. Appx. 634 (9th Cir. 2015) (upholding California’s Proposition 2).
7 See, e.g., Ass’n des Eleveurs de Canards et D’oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013) (rejecting Commerce Clause challenge to law prohibiting sale of
foie gras produced by force feeding of birds).
8 See, e.g., Missouri Pet Breeders Ass’n. v. County of Cook, 2015 WL 4720055 (N.D. Ill. Aug. 7, 2015) (upholding retail sales ban in Cook County, Illinois); Puppies “N
Love v. City of Phoenix, 2015 WL 4532586 (D. Ariz. July 27, 2015) (upholding Phoenix ban).
9 DeHart v. Austin, 39 F.3d 718, 722 (7th Cir. 1994); see also Leibowitz v. City of Mineola, Tex., 660 F. Supp. 2d 775, 784 (E.D. Tex. 2009) (“Ordinances, including those
regulating the ownership, possession and control of dogs are a proper exercise of a municipality’s police power if they are designed to secure the safety, health and welfare
of the public.”)
10 See 7 U.S.C. § 2145(b) (authorizing the Secretary of Agriculture to cooperate with state and local officials to carry out the purpose of state laws protecting animals).
11 See United States v. Stevens, 559 U.S. 460, 469 (2010) (“[T]he prohibition of animal cruelty itself has a long history in American law, starting with the early settlement
of the Colonies.”).
12 U.S. Const., Art. I, Sec. 10.
13 See, e.g., cases cited in notes 4-7, supra.
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Animal Law Committee Newsletter
COMING TOGETHER TO...
Continued from page 16
In 1999, APHIS published notice of a proposed rule
based upon the Consensus Language:
Under the rules governing the negotiated
rulemaking process, and in accordance
with the organizational protocols
established by the Committee, APHIS
agreed to publish as a proposed rule any
consensus language developed during
the meetings unless substantive changes
were made as a result of authority
exercised by another Federal government
entity. Committee members agreed to
refrain from commenting negatively
on the consensus-based language in the
proposed rule. Consensus language was
reached on 13 of the 18 sections that
comprise the regulations, and on one
paragraph in a fourteenth section.9
promulgation and implementation of a
final rule.5
At that time, the agency also laid out guidelines for
the Neg Reg process including those relating to Good
Faith Negotiation and Consensus:
Good faith negotiation.
Because
participants must be willing to negotiate
in good faith, each organization must
authorize a senior official to represent
its interest and to negotiate on its behalf.
The issue of keeping or holding animals
in captivity will not be addressed by
the Committee. The Committee will
address only issues relating to the care
and maintenance of captive marine
mammals.
....
Consensus. The goal of the negotiating
process is consensus.
Generally,
consensus means that each interest
concurs in the result.6
The stakeholders participating in the Neg Reg were:
American Zoo and Aquarium Association (now known
as the Association of Zoos and Aquariums), Alliance of
Marine Mammal Parks and Aquariums, International
Association of Amusement Parks and Attractions,
Marine Mammal Coalition, United States Navy, Center
for Marine Conservation, Humane Society of the
United States, Animal Welfare Institute (representing
a broad coalition of animal concern groups), American
Association of Zoo Veterinarians, International
Association for Aquatic Animal Medicine, International
Marine Animal Trainers Association, Animal and
Plant Health Inspection Service, Marine Mammal
Commission, National Marine Fisheries Service Fish
and Wildlife Service, and Dr. Joseph Geraci, independent
consultant to the Committee.7
Neg Reg sessions were conducted on September 25
and 26, 1995, April 1, 2 and 3, 1996, and July 8, 9, and
10, 1996. Significantly, as noted in the Facilitator’s
Report, “[a]ll members of The [Neg Reg] Committee
attended all meetings and participated fully.”8 At the
close of the Neg Reg, the agreed-upon revisions to the
marine mammal regulations were referred to as the
“Consensus Language.”
25
Fall 2015
The proposed regulations based on Consensus
Language covered standards for marine mammal
welfare ranging from requirements for housing facilities,
to animal health and husbandry, to many aspects of
the transportation of marine mammals.10 The agency
published the final regulations, which were nearly
identical to the Consensus Language, in 2001.11
Substantive Innovations
In addition to the innovative use of a negotiated
rulemaking process to bring stakeholders together to revise
the marine mammal regulations, the Neg Reg also produced
a number of substantive revisions, some of which were
geared towards enhancing animal welfare. In particular,
the regulations produced as a result of the Neg Reg:
•
•
•
•
Incorporated language throughout to
better address the unique conditions
found in open ocean facilities.12
Created additional recordkeeping,
including written protocols, plans,
justifications, and animal-specific
feeding and health records.13
Acknowledged
importance
of
enrichment via safe and effective use
of enhancements and incorporating
enrichment in certain situations.14
Considered pools/pool complexes
and required written veterinary
justification for certain temporary
housing situations.15
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Animal Law Committee Newsletter
•
•
•
•
Provided
for
allowance
of
living organisms “such as algae,
coelenterates, or molluscs” that do not
diminish water quality or pose health
risks.16
Provided for more detailed and
extensive animal and staff training
requirements, including “participation
in and successful completion of” a
training course on “species appropriate
husbandry
techniques,
animal
handling techniques, and information
on proper reporting protocols, such
as recordkeeping and notification
of veterinary staff for medical
concerns.”17
Incorporated additional standards for
veterinary care—greater veterinary
involvement and oversight generally
and in different ways than for other
species covered by the AWA.18
Required transport plans and “letters
of
veterinary
accompaniment.”
Transports of certain animals and
durations require written transport
plans and written documentation
of whether a veterinarian must
accompany the animals.19
Many of these changes could be incorporated
elsewhere in the AWA regulations or in informal agency
guidance, such as a “Tech Note,” to the benefit of all
covered species.20 Enrichment is generally considered a
significant contributor in enhancing animal welfare. Apart
from the above-referenced marine mammal provisions
and environmental enhancements for nonhuman primates,
the AWA regulations are largely silent on the subject.
Similarly, regulated entities should be encouraged to
adopt the more detailed staff training requirements. In
doing so, they would also be putting themselves and their
staff in a position to better serve the animals in their care.
Universally requiring veterinarian-approved transport
plans21 and “letters of veterinary accompaniment”22
makes sense especially for many large, exotic mammals.
In Excellence Beyond Compliance: Enhancing Animal
Welfare Through the Constructive Use of the Animal
Fall 2015
Welfare Act, I strongly recommend these concepts be
incorporated for all animals, noting these measures “are
enormously helpful in safeguarding all animals during
transportation.”23
Because the above recommendations emanate from
broad stakeholder consensus, even simply suggesting others
follow suit voluntarily may actually have a positive impact.
Lessons from the Marine Mammal Negotiated
Rulemaking
The Neg Reg demonstrated the power of facilitated
dialogue for contested animal welfare issues. It also opened
the door for the study of the “mutual gains approach”
where different and possibly opposing stakeholders learn
to look beyond their stated and sometimes hardened
“positions” and instead focus upon their underlying
“interests” and the potential for finding common ground
(i.e., wanting to make things better for animals).
As noted in Excellence Beyond Compliance,24 “[t]
he agency [APHIS] (and all stakeholders) should make
better and ongoing use of negotiated rulemakings to
build consensus in developing new regulations (and to
avoid conflict and litigation) when appropriate. . . . This
should become the agency’s model rather than a rare
exception in its rulemaking practices.”25
Conclusion
The Neg Reg may have concluded without having
attained consensus on all points, but it is most remarkable
because it succeeded in bringing about agreement on
updating a large part of the marine mammal regulations
and creating some new measures to enhance animal
welfare. This process for constructive engagement
serves as a timeless model for facilitating change to
better serve animals based on consensus.
James F. Gesualdi, P.C., Islip, Long Island, New York. Mr.
Gesualdi’s practice is concentrated on animal welfare and wildlife
conservation. He works extensively with the U.S. Animal Welfare Act,
and champions ways to improve the administration and enforcement of
the Act. Mr. Gesualdi is the author of Excellence Beyond Compliance:
Enhancing Animal Welfare Through the Constructive Use of the
Animal Welfare Act. He was special counsel to the marine mammal
community’s Working Group on the Reintroduction of Marine
Mammals to the Wild and participated in the U.S. Department of
Agriculture Animal Plant and Health Inspection Service’s Marine
Mammal Negotiated Rulemaking, completing a voluminous “Analysis
and Commentary” on this subject. He serves as a Vice Chair on the
ABA Tort and Insurance Practice Section Animal Law Committee.
1 See Animal Welfare Act, 7 U.S.C. § 2131 et seq.; Animal Welfare Act Regulations, 9 C.F.R. § 1.1 et seq.
2 Marine Mammals; Regulations for Humane Handling, Care, Treatment, and Transportation, 44 Fed. Reg. 36874 (June 22, 1979) (codified at 9 C.F.R. pt. 1, 3).
3 Marine Mammals; Regulations for Animal Welfare, 49 Fed. Reg. 26681 (June 28, 1984) (codified at 9 C.F.R. pt. 3).
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Animal Law Committee Newsletter
Fall 2015
4 Animal Welfare—Standards for Marine Mammals, 58 Fed. Reg. 39458, 39458 (proposed July 23, 1993) (codified at 9 C.F.R. pt. 3).
5 Marine Mammal Negotiated Rulemaking Advisory Committee; Establishment, 60 Fed. Reg. 27049, 27050 (May 22, 1995); see also Federal Advisory Committee Act, 5 U.S.C.
App. 2 § 1 et seq.; Negotiated Rulemaking Act of 1990, 5 U.S.C. § 561 et seq.
6 60 Fed. Reg. at 27050.
7 Animal Welfare; Marine Mammals, 66 Fed. Reg. 239, 240 (Jan. 3, 2001) (codified at 9 C.F.R. pt. 3).
8 Howard S. Bellman, Facilitator ’s Final Report: Negotiated Rulemaking to Revise Regulations Concerning the Captive Care and Maintenance Standards for Marine
Mammals Under the Animal Welfare Act 2 (Sept. 6, 1996).
9 Animal Welfare; Marine Mammals, 64 Fed. Reg. 8735, 8736 (proposed Feb. 23, 1999) (codified at 9 C.F.R. pt. 3).
10 See id.
11 See supra note 8.
12 E.g., the necessity of recall and retrieval training for marine mammals in open ocean facilities where they might be released into the ocean in accordance with a contingency
plan during a natural disaster. 9 C.F.R. § 3.101(b); and veterinary separation rather than isolation of animals in natural water environments, 3.110(b).
13 See, e.g., 9 C.F.R. § 3.101(a)(3) (requiring all facilities to maintain written protocol on cleaning); id. § 3.104(a) (requiring written veterinary justification for some temporary
holding situations); id. § 3.105(c) (requiring keeping of feeding records); id. § 3.108 (requiring adequate number and training of employees or attendants); id. § 3.109 (requiring a
collaborative written plan for the care of an animal housed separately).
14 See, e.g., id. § 3.101(g) (standards for enclosure or pool environmental enhancements); id. § 3.109 (provision of enrichment for animals housed separately).
15 See, e.g., id. § 3.104(a) (space requirements and veterinary justifications and oversight for different situations).
16 See, e.g., id. § 3.107(a)(3).
17 See, e.g., 9 C.F.R. § 3.108(b), (d). APHIS has noted that, “for purposes of enforcing the requirement, APHIS would use available professional organization standards as a point
of reference. We may also use the experts within the marine mammal community as resources, as well as our own expertise and any professionally recognized standards.” 66
Fed. Reg. at 244. Similarly, in the preamble to the proposed rule on marine mammals, the agency noted that “[t]he Marine Mammal Negotiated Rulemaking Advisory Committee
agreed that, for purposes of enforcing this requirement, APHIS should use professional organization standards, such as those used by the International Marine Animal Trainers
Association, as a point of reference.” 64 Fed. Reg. at 8740.
18 See, e.g., 9 C.F.R. § 3.110 (standards for provision of veterinary care). Marine mammals are the only animals covered under the AWA with species-specific veterinary care
provisions. This is in addition to the generally applicable provisions concerning the attending veterinarian and program of veterinary care, found at 9 C.F.R. §§ 2.33 (research
facilities) and 2.40 (dealers and exhibitors). Additionally, several other revisions to the regulations for care of marine mammals expressly require veterinary input or justification in
certain situations.
19 See, e.g., id. § 3.116 (care in transit).
20 James F. Gesualdi, Excellence Beyond Compliance: Enhancing Animal Welfare Through the Constructive Use of the Animal Welfare Act 88–89 (2014) (discussing
informal informational bulletins or “Tech Notes”); see also id. at 89 (highlighting better or best practices).
21 Id. at 74 (“Information generally included in transport plans consists of details like the means of transport, travel containers, route, accompanying staff, care, handling,
monitoring and data-recording instructions, ambient temperature parameters, provision of adequate ventilation and air circulation, contingency plans and emergency contacts and
facilities along the route.”).
22 Id. (discussing requirement of letter of veterinary accompaniment).
23 Id.
24 Id. at 91–92.
25 For more information on negotiated rulemaking generally, see David M. Pritzker and Deborah S. Dalton, Negotiated Rulemaking Sourcebook (Office of the Chairman,
Administrative Conference of the United States 1995), https://www.acus.gov/sites/default/files/documents/Reg%20Neg%20Sourcebook%20Chap%201_0.pdf. See also
Recommendations of the Administrative Conference of the United States: (i) Procedures for Negotiating Proposed Regulations, No. 82-4 (Adopted June 18, 1982); (ii) Procedures
for Negotiating Proposed Regulations, No. 85-5 (Adopted December 13, 1985); (iii) Agencies’ Use of Alternative Means of Dispute Resolution, No. 86-3 (Adopted June 20, 1986),
available at https://www.acus.gov/tags/mediation/recommendations; Thomasina V. Rogers, Administrative Conference of the United States, Building Consensus in Agency
Rulemaking: Implementing the Negotiated Rulemaking Act, Report of the Administrative Conference of the United States on Agency Implementation of the Negotiated
Rulemaking Act 1–6, 11–12 (1995), https://bulk.resource.org/acus.gov/gov.acus.1995.consensus.pdf.
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Animal Law Committee Newsletter
ANIMAL PROTECTION...
Continued from page 17
as interoperability and cost have prevented their full
development and use.6 However, as development and
production costs decrease and the value of technology to
animal lives is established, we will see greater progress
in the use of technology in animal protection.
Apps for Animals
There is an app for everything, including for animals.
In 2013, the Animal Legal Defense Fund (ALDF)
launched the first animal abuse reporting app.7 ALDF
has since partnered with LiveSafe, a mobile app, to add
more features and capabilities.8 Anyone can use the
app to report animal fighting, hoarding, abandonment,
wildlife abuse, and more. It works as follows:
When you submit a tip, a GPS embedded
text, photo, video, or audio report is sent
to your local authorities via the LiveSafe
mobile app. If you live in a jurisdiction
that is already connected with LiveSafe
—many jurisdictions across the nation
already are—then the tip goes direct
to your local law enforcement. If your
local authorities are not yet connected
with the app, then the tip goes to a call
center staffed with individuals who will
quickly locate the appropriate local
authorities and forward the tips to the
correct contact for your jurisdiction.9
In addition, cities throughout the country are creating
apps that make it easier and safer for citizens to report
problems. In many major cities, residents can use apps
to report everything from neighborhood code violations
to animals running loose. Using the app also allows
those making a report to take photos and send them
along with the request, which often expedites a loose
animal’s return to his or her home.10
Other apps, such as those that entertain with
sophisticated games and electronic gambling, have in
part contributed to the decline in greyhound and horse
racing. Looking ahead, one can only speculate whether
the next generation will prefer their entertainment, such
as zoos and circuses, in animated form on apps rather
than live.
The Proliferation of Drones
It seems that drones are suddenly everywhere,
creating flight problems for commercial aircraft and
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Fall 2015
privacy problems for people. But can those same drones
that hinder airplanes hinder people who harm animals?
The answer appears to be yes in a very significant way.
In response to the seemingly unstoppable poaching
tragedy taking place in Africa, some tech companies
and animal protection organizations are teaming up to
try to help stop poaching with the use of drones. In
Kenya, the tech company, Airware, and the Ol Pejeta
Conservancy, which is focused on protecting white and
black rhinos, have joined forces to develop drones that
can spot poachers.11 Additionally, a group called Air
Shepherd, in partnership with the Lindbergh Foundation,
recently raised funds to put more drones in the air to
stop elephant poaching.12 The drones are flown in areas
heavily trafficked with elephants and when poachers are
spotted, the operators alert nearby rangers. Efforts such
as these are in their infancy and still require the support
of rangers to arrest poachers. Nevertheless, there is a
sense of optimism that drones can be an effective tool to
combat poaching.
In efforts closer to home, researchers are utilizing
drones to save animals and scientists. Drones can fly
closer to wildlife, eliminating the risk of helicopter and
airplane accidents that can occur when researchers have
to fly at low altitudes in order to observe wildlife. In
California, biologists are hoping that drones can help
restore the California condor population. Young condors
being re-introduced into Baja, California do not have
condor role models to show them where to scavenge for
food. Drones are being used to lure the young condors
to the coast where food is obvious and plentiful.13
In the agricultural industry, drones are being lauded
as revolutionary in their potential to increase crop yields
and reduce their damage.14 Drones provide farmers
with low-altitude detailed views of crops. These views
can spot everything from irrigation problems to pest
infestations that cannot be seen at eye level.15
However, farm animals may benefit as drones are
used by animal advocates to expose the secretive and
often unknown practices of factory farms. A recent
aerial view of Smithfield Farms revealed a hog farm
with an open sewage lagoon the size of four football
fields.16 To empty the lagoon, the sewage is sprayed
onto the surrounding lands, traveling downwind and
polluting the air of nearby residents.17 While these
practices may be legal, their exposure may surprise
and anger the public in a way that brings about change.
Will Potter, journalist and author of Green is the New
Red, recently raised $75,000 to buy drones and other
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Animal Law Committee Newsletter
equipment to investigate animal agriculture.18 Legal
experts say that questions as to whether Potter’s
aerial filming of factory farms will be against the law
is “unclear” and will take “years to test the laws in
court.”19 These examples illustrate how drones may
be used to further the work of the animal protection
movement; this may just be the beginning.
Conclusion
As animal lawyers, we may see these technological
advances as great for animals, but question how they
relate to our practice. However, virtually every advance
in technology comes with legal implications, and
technological advances for animals are no different.
Fall 2015
It is easy to envision the role of intellectual property,
constitutional law, torts, property law, privacy, evidence,
employment law, business law, and animal law in
developing and using technology for animals.
Yolanda Eisenstein is an attorney with an animal law practice
in Dallas, Texas. She teaches animal law and wildlife law. She is
past chair of the American Bar Association Animal Law Committee
and the State Bar of Texas Animal Law Section. She is the author
of Careers in Animal Law, The American Bar Association Legal
Guide for Dog Owners, and a contributor to Animal Cruelty: A
Multidisciplinary Approach to Understanding. 1 See Physicians Committee for Responsible Medicine, http://www.pcrm.org (last visited Oct. 15, 2015).
2 Id.
3 See Humane Society Veterinary Association, http://www.hsvma.org (last visited Oct. 15, 2015).
4 See, e.g., Beyond Meat, http://beyondmeat.com/ (last visited Oct. 29, 2015).
5 H. James Wilson, Baiju Shaw, & Brian Whipple, How People are Actually Using the Internet of Things, Harvard Bus. Rev. (Oct. 28, 2015), https://hbr.org/2015/10/howpeople-are-actually-using-the-internet-of-things.
6 Rohit Bhargava, Don’t Get Left Behind! OPC Standards are accelerating Industrial IoT transformation, Miscrosoft (June 15, 2015), http://www.microsoft.com/enterprise/
industry/discrete-manufacturing/blog/opc-standards-are-accelerating-industrial-iot-transformation.aspx#fbid=IexOzgr-Y3t.
7 Animal Legal Defense Fund, LiveSafe, Mobile App to Report Animal Cruelty, http://aldf.org/resources/when-you-witness-animal-cruelty/aldf-livesafe-mobile-app-to-reportanimal-cruelty (last visited Oct. 15, 2015).
8 Id.
9 Id.
10 See, e.g., PiP Alert System, http://www.petrecognition.com/ (last visited Oct. 29, 2015).
11 Matthew Wall, Can Drones Help Tackle Africa’s Wildlife Poaching Crisis? BBC News: Technology of Business (July 21, 2014), http://www.bbc.com/news/business-28132521
(Oct. 15, 2015).
12 Elisha Fieldstadt, Drones Used to Stop Elephant and Rhino Poachers in Africa, NBC News (Apr. 4, 2015, 8:41 PM ET), http://www.nbcnews.com/news/world/air-shepherduses-drones-stop-elephant-rhino-poachers-africa-n335801 (Oct. 5, 2015).
13 American Association for the Advancement of Science, Condors & Drones, Science Update (Feb. 12, 2014), http://www.scienceupdate.com/2014/02/condor (Oct. 5, 2015).
14 Chris Anderson, Agricultural Drones, MIT Tech. Rev., http://www.technologyreview.com/featuredstory/526491/agricultural-drones (last visited Oct. 5, 2015).
15 Id.
16 Speciesism The Movie, Spy Drones Expose Smithfield Foods Factory Farm, YouTube (Dec. 17, 2014),, https://www.youtube.com/watch?v=ayGJ1YSfDXs (Oct. 15, 2015).
17 Id.
18 Peggy Lowe, Deploying Drones To Get An Overview Of Factory Farms, NPR: The Salt (July 19, 2014, 12:09 PM ET), http://www.npr.org/sections/
thesalt/2014/07/19/332344201/deploying-drones-to-get-big-picture-of-factory-farms-from-above (Oct. 15, 2015).
19 Id.
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Animal Law Committee Newsletter
WHALES AND NATIONS:...
Continued from page 18
in numbers in only a few short years. Among other
things, the recording and distribution of whale songs
quickly created a widespread impression that whales
were special, sentient beings. The argument against
killing whales thus had shifted completely away from
one of economic efficiency. As Dorsey puts it, the
“sperm whale that had once overwhelmed Captain
Ahab was now gentle and intelligent.”
This change in sentiment became clear in 1978
when Australia concluded that it would ban the
import of whale products, stop hunting in Australian
waters, and work to end whaling globally. Though
the commercial moratorium that was passed in 1982
(to go into effect in 1986) was anticipated by most
parties, it was not expected to be the end of the
issue due to the continuing survival of the objection
system. Happily for whale defenders, American
soft power ultimately forced Japan to withdraw its
objection and accept the moratorium. In May 1986,
however, the Japanese “launch[ed] a defense of an
expanded scientific whaling program that would
also put meat in the markets.”
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Fall 2015
Whales and Nations ends here—with the
pronouncement that would be the first step toward the
case that the ICJ would resolve in 2014. For a book
focused on the development and eventual decline of
the commercial whaling industry, this is a natural
ending point. Readers of this book, though, will hope
for a follow-up work from Mr. Dorsey. Because Japan
has already announced that it will revise its Antarctic
whaling program and quickly resume killing, the time
between 1986 and the present would yield a second
highly informative and readable book from such a
gifted writer. As the author points out in his epilogue,
though, the greatest threat to whales is no longer ships
carrying harpoons, but rather, ships carrying petroleum
products to consumers and solid waste products from
consumers to be dumped in the oceans. Perhaps a
book on the threats of climate change and pollution to
marine species is another option. In any case, Whales
and Nations should be read today by those who seek a
solid understanding of how environmental diplomacy
has shaped the whaling industry and how it might
impact other issues in the future.
Tom Krepitch is completing his final year of law school in
Phoenix, Arizona. He also currently serves as a legal intern
with the Animal Legal Defense Fund and as a District Leader
volunteer with the Humane Society of the United States.
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Animal Law Committee Newsletter
Fall 2015
2016 TIPS CALENDAR
January 2016
20-22 Fidelity & Surety Committee Midwinter Meeting Waldorf Astoria
Contact: Felisha A. Stewart – 312/988-5672 Hotel, New York, NY
February 2016
3-9
ABA Midyear Meeting
Manchester Grand Hyatt
Contact: Felisha A. Stewart – 312/988-5672
San Diego, CA
18-20 Insurance Coverage Litigation Midyear Mtg.
Arizona Biltmore
Contact: Ninah Moore – 312/988-5498
Phoenix, AZ
April 2016
6-9
Motor Vehicle Product Liability Program
Contact: Donald Quarles – 312/988-5708
8-9
Toxic Torts Midyear Meeting
Contact: Felisha A. Stewart – 312/988-5672
Arizona Biltmore
Phoenix AZ
Arizona Biltmore
Phoenix, AZ
May 2016
11–15 TIPS Section Spring CLE Conference Intercontinental Buckhead Contact: Felisha A. Stewart – 312/988-5672
Atlanta, GA
Speaker Contact: Donald Quarles – 312/988-5708
August 2016
4– 7 ABA Annual Meeting
Marriott Marquis Hotel
Contact: Felisha A. Stewart – 312/988-5672
San Francisco, CA
Speaker Contact: Donald Quarles – 312/988-5708
October 2016
12–16 TIPS Fall Leadership Meeting
Contact: Felisha Stewart – 312/988-5672
Hotel Del Coronado,
Coronado, CA
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www.ambar.org/tipsanimal
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