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The 2012 osba convention


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2012 OSBA Convention; Animal Law Section on Animal Law Litigation, May 4, 2012

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The 2012 osba convention

  1. 1. The 2012 OSBA Convention: Animal Law CLEA LITIGATOR’S GUIDE TO FITTINGANIMALS INTO ENVIRONMENTAL LAW Mark J. Bamberger, Esq., Owner/Attorney at Law THE MARK BAMBERGER CO., LLC*, 877-644-8181 (O), 937-405-1491 (F) *Offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio
  2. 2. ABSTRACTOhio lags behind many other states in protecting the legal rightsof animals as individuals in and to themselves. Therefore, aslitigators we need to be creative in finding strategies and tactics.Animal law litigators must continue having economicdiscussions about preservation and conservation (what thescientific community terms “enlightened anthropocentrism”)and riding the tide of burgeoning environmental awarenessaround the globe (and even in Ohio) until they are able to get a“buy-in” to protect animals just because those animals shouldhave legal rights to and of themselves (aligned with a classicview of “ecocentrism”).
  3. 3. 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
  4. 4. INTRODUCTION TO ANIMAL LAWLITIGATION: 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)
  5. 5. 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
  6. 6. 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”
  7. 7. 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
  8. 8. TIES TO CLASSIC ENVIRONMENTALLAW 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.
  9. 9. RECENT DEVELOPMENTS IN THERIGHTS 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
  10. 10. RECENT DEVELOPMENTS IN THERIGHTS 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
  11. 11. 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*
  12. 12. Yukon and Meat Wolf Creek Wolf Rescue and Habitat, Brookville, Indiana
  13. 13. 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)]
  14. 14. 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)
  15. 15. 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
  16. 16. EXPECTED FUTURE GROWTH IN THISLAW 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.
  17. 17. 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
  18. 18. “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)
  19. 19. WHY NOT PROTECT THESE GUYS?Wolf Creek Rescue and Habitat, Inc.
  20. 20. 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.
  21. 21. 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) i Offices also in West Chester, Enon, and Spring Valley, Ohio ii Social Media: Skype (mbamberger), Twitter (@georockwolf), Facebook (The Mark Bamberger Co., LLC)