the 2012 osba convention

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The 2012 OSBA Convention: Animal Law CLE A LITIGATOR’S GUIDE TO FITTING ANIMALS INTO ENVIRONMENTAL LAW Mark J. Bamberger, Esq., Owner/Attorney at Law THE MARK BAMBERGER CO., LLC* www.bambergerlaw.com , m[email protected] 877-644-8181 (O), 937-405-1491 (F) *Offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio

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Page 1: The 2012 osba convention

The 2012 OSBA Convention:Animal Law CLE

A LITIGATOR’S GUIDE TO FITTING ANIMALS INTO ENVIRONMENTAL

LAW

Mark J. Bamberger, Esq., Owner/Attorney at Law

THE MARK BAMBERGER CO., LLC*

www.bambergerlaw.com, [email protected]

877-644-8181 (O), 937-405-1491 (F)

*Offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio

Page 2: The 2012 osba convention

ABSTRACT

Ohio lags behind many other states in protecting the legal rights of animals as individuals in and to themselves. Therefore, as litigators we need to be creative in finding strategies and tactics.

Animal law litigators must continue having economic discussions about preservation and conservation (what the scientific community terms “enlightened anthropocentrism”) and riding the tide of burgeoning environmental awareness around the globe (and even in Ohio) until they are able to get a “buy-in” to protect animals just because those animals should have legal rights to and of themselves (aligned with a classic view of “ecocentrism”).

Page 3: The 2012 osba convention

GOALS OF THIS SESSION

Provide a brief historical background on litigation animal law cases in Ohio

Provide a non-exhaustive list of cases for further research Don’t worry folks, cases will NOT be examined in

detail

Provide a brief overview of strategies and tactics to be used by practitioners venturing into animal law litigation

Page 4: The 2012 osba convention

INTRODUCTION TO ANIMAL LAW LITIGATION: Definitions

“Animals” – non-human, therefore loathe to receive much legal protection

– Growing sentiment for giving more legal protections to “non-humans”

Although as we will see, legal action far trails the passion for change

“Animal Law” – broadly defined as anything tied to animals, including animal survivorship (see Gary Pincher lecture), agricultural and dietary uses of animals, animal rights advocacy, and animal law litigation (the primary subject of this discussion)

Page 5: The 2012 osba convention

HISTORICAL DEVELOPMENT

To know where to go, study where we have been… The classic dilemma in animal law is: “where do

animals fit in our legal process and jurisprudence”– Emmanuel Kant– St. Francis of Assisi– Early American jurisprudence (e.g., Johnson v. M’Intosh

(1823), 21 U.S. 543)– Theodore Roosevelt and Gifford Pinchot– Rachel Carson (1962)– Early EPA years

Page 6: The 2012 osba convention

HISTORY, CONTINUED

– NEPA, CAA, CWA, SDWA (1968-1974) The Endangered Species Act of 1973 (16 U.S.C. §1531, et.

seq.), amendments of 1978 and 1988– The Reagan ’80’s (cost benefit analysis)– Modern environmental protection theories– Modern ideals of protection for respect to the animals

themselves For those wanting to maximize legal rights to animals, what is

the strategy?– We are getting there, but still a long way away– The British common law did not grant animals legal rights;

per se, but saw them as “chattel” and tied to the environmental legal tenant of “nuisance”

Page 7: The 2012 osba convention

TIES TO CLASSICAL PROPERTY LAW

Animals as chattel: Ohio jurisprudence; see published outline for examples; NOT exhaustive list)

A review of recent Ohio case law indicates precious little animal rights law providing animals with legal standing; even through their owners or environmental advocacy groups

– As compared to California, Oregon, or the New England states Is animal legal standing proportional to political or

religious conservatism?– Some of the strongest wildlife protection groups are

located in the Deep South (largely due to interest in protecting fishing and hunting rights)

– Many Ohio animal-related cases tie to animal rendering plants or nuisance law violations

Page 8: The 2012 osba convention

TIES TO CLASSIC ENVIRONMENTAL LAW AND LITIGATION

A tough fit– Legal standing?

Sierra Club v. Morton (1972), 405 U.S. 727– Established environmental groups’ rights to sue on

behalf of animals– See also Stone, C. (1972), Should Trees Have

Standing? Toward Legal Rights for Natural Objects, Cal. L. Rev. 450

– Can this be taken too far? Where do animal laws fit in the history of environmental protection?

– See Outline for a bullet-pointed summary from 1890 to present(i)

(i) Bamberger, M.J., 1995, The Emerald Thread: Environmental Decision Making of the American Presidents (1900-1945), Union Institute & University Press, Cincinnati, Ohio.

Page 9: The 2012 osba convention

RECENT DEVELOPMENTS IN THE RIGHTS OF ANIMALS

Examples of case law (far from exhaustive)– Animal cruelty in agriculture and food production

National Case Law Recent Ohio Case Law

– Animal and Domestic Abuse National Case Law Recent Ohio Case Law

– Animals in Research National Case Law Recent Ohio Case Law

Page 10: The 2012 osba convention

RECENT DEVELOPMENTS IN THE RIGHTS OF ANIMALS

– Constitutional Issues National Case Law Recent Ohio Case Law

– Endangered Species National Case Law Recent Ohio Case Law

– Ownership of “Exotic” Animals National Case Law Recent Ohio Case Law

Page 11: The 2012 osba convention

RECENT TRENDS

Riding the tide of burgeoning environmental awareness– Listen to your kids!– Growing awareness of the damage humans have done, and continue to

do, on the environment Federal and state agencies often protect the “cuddly” and the

“noble”– Endangered species

Can have massive economic impacts (e.g., “snowy owl”) But their plight can be used to our advantage

– Wolves E.g., Yellowstone and other national park re-introduction programs Generally excellent results, with some caveats Evidence of the need for environmental balance in natural

environments This is a personal passion of the speaker*

Page 12: The 2012 osba convention

Yukon and Meat Wolf Creek Wolf Rescue and Habitat, Brookville, Indiana

Page 13: The 2012 osba convention

RECENT TRENDS

Polar Bears– Whether they prefer Coke or Pepsi– The idea of cuddly bears starving to death in the Arctic is a haunting image– That can be used to our advantage

Pit Bulls– In Ohio, soon not classified as “vicious and dangerous”– And thus strict liability

Wild Animals– The recent disaster in eastern Ohio– What were the authorities to do?– The state of regulation of wild animal purchase and acquisition in Ohio is

shameful– Many other states are more aware of the problems and risks [e.g., Wisc.

(R.C. §169)– Federal leadership [e.g., H.R. 80 (Captive Primate Safety Act)]

Page 14: The 2012 osba convention

OHIO: WHERE DO WE STAND?

Ohio is generally behind the east and west coast in animal law

– Some positive signs of change Passion remains high for change Franklin County’s Environmental Court (Judge Hale,

presiding) Special prosecutors in this field (e.g., Kyle Silvers,

Esq., Toledo)

Page 15: The 2012 osba convention

OHIO: WHERE DO WE STAND?

Statutory treatment– O.R.C. Title 9 (Agriculture, Animals, and

Fences) §945: Human Slaughter of Livestock §953: Rendering Plants §955: dogs §959: Offenses Relating to Domestic Animals

– Bottom Line: Very little serious protection for animals as sentient beings; only in terms of the impact on humans

Page 16: The 2012 osba convention

EXPECTED FUTURE GROWTH IN THIS LAW PRACTICEi

Environmental or “green” law is considered a “growth” area in the coming decade.

– Somewhere in that is a subset of “animal law” Steps from here?

– Political action leading to changes in the law Which in turn would render animal law cases more salient

– Which in turn would start to change Ohio’s perception of what animal law protections should include

[i] Refer to revised version herein of Bamberger, M.J., 2008, Fitting Animals into Environmental Law.

Page 17: The 2012 osba convention

JURISPRUDENCE

How far can this go?– American legal jurisprudence will always favor

the human over the non-human animals Historically consistent with anthropocentrism

– But possibly also consistent with what is termed “enlightened anthropocentrism”

– e.g., progressive conservatism of the early 1900s

Page 18: The 2012 osba convention

“PRESSURE POINTS” TO SUCCESS

Cuddly animals (Look into her eyes!) Dietary issues (Vegetarianism and veganism are healthier) General Health concerns (Puberty rates in children due to

diet) Land resource issues (Meat-based diets demand huge

resource allocations) Fishing and hunting rights

– They are some of the strongest conservationists– Ask not why they protect, just that they do

Religion (“Stewards of the planet”) Enlightened Anthropocentrism (Protect animals for our own

good)

Page 19: The 2012 osba convention

WHY NOT PROTECT THESE GUYS?

Wolf Creek Rescue and Habitat, Inc.

Page 20: The 2012 osba convention

CLOSING THOUGHTS

Environmentalists have always been a little tone death when it comes to valuating environmental resources

– Including the value of preserving heads of animals

– They have to continue having economic discussions about preservation and conservation until they are able to get a “buy-in” to protect animals just because those animals should have legal rights to and of themselves.

Page 21: The 2012 osba convention

CONTACT

Mark J. Bamberger, Ph.D., J.D.Northern Officei and Mailing Address:8 S. 3rd Street - Tipp City, Ohio 45371(O) 877-644-8181 - (F) 937-405-1491

(WS) www.bambergerlaw.comii

(E) [email protected]

i Offices also in West Chester, Enon, and Spring Valley, Ohio ii Social Media: Skype (mbamberger), Twitter (@georockwolf),

Facebook (The Mark Bamberger Co., LLC)