Lobdell discusses animal law and its implications for the future of agricultureWritten by Saige Albert
Cody – “There is a new area of law growing, and it is called animal law,” said Caroline Lobdell of the Western Resources Legal Center (WRLC) at the Public Lands Council annual meeting in Cody at the beginning of September. “This is an area where an extreme movement is happening.”
Animal law describes any area of law than impacts an animal, and Lobdell noted that the field is growing.
“Boiled down to its basic components, animal law is animal welfare and animal rights,” she said.
Animals, explained Lobdell, used to be viewed as just property.
“Then we had the concept that we are guardians of animals,” she said. “We raise them for food and use them for transportation, but we need to take care of them.”
Laws were developed through the states, and animal welfare laws were enacted across the country.
“The second and more emerging concept is the animal rights theory,” Lobdell continued. “It is more than just humane welfare and care, but also includes the idea that in and of themselves, animals have legal rights that they are entitled to.”
The first animal law school started after 1977 in New Jersey. Lewis and Clark Law School had the first animal law clinic after that. In the clinic, cases were brought forward on behalf of animals.
A handful of cases represent the type of cases brought under the animal law movement.
“The Nama v. Brown case is from my neck of the woods, and it shows the struggle,” Lobdell said. “California enacted animal welfare laws, and they were challenged under federal predication.”
Ultimately, she explained that plaintiffs were seeking a federal animal protection agency.
“That is the movement in the academic world and on the street,” she emphasized. “It is designed to model the Environmental Protection Agency (EPA.) We have a bipartisan movement and mainstream media on board.”
With a focus on the EPA as a model agency, Lobdell noted that those interested in animal law have also taken cues from the environmental movement and are hoping to replicate it.
“There is a lot we can learn from what the environmental movement did on this side of things,” Lobdell noted. “They are using environmental law as the model.”
In short, Lobdell noted that there are a handful of issues that animal law is focused on, including animal rights versus personhood and the evolution of current environmental laws.
“The second is popular for criminal prosecution,” she says. “Section 9 of the Endangered Species Act and habitat destruction are now used as a tools to protect animals.”
One case she is working on now involves the ranching industry and grizzly bears.
“One of the National Environmental Policy Act (NEPA) claims in that case is the treatment of cow from Lyme disease is hurting grizzly bears,” Lobdell explains. “When the grizzlies eat the cows, the drug eats up their insides and bears die.”
Another area Lobdell sees as interesting is the religious exemption piece of the puzzle.
“If someone wants to worship an animal and sees them in a certain light or values them as a religious totem, that is arguably under a religious exemption,” she said. “Are we ready to see animalists religions?”
Equality among animals
One area where the agriculture industry may have some standing is in classification of animals. As an example, Lobdell uses wild horses and fish.
“A case in point, WRLC brought a case of the Endangered Species Act versus wild horses. We can say that if cows are taken off the range because of impacts, then wild horses have impacts, too. Horses must be managed,” she explained. “Steelhead salmon are also in critical habitat. However, when we ask if they want the nearly-extinct species or the wild horse, they say that fish are different.”
“Folks are going to struggle with classification on which species are going to deserve personhood. It is an area I don’t understand fully yet, and it’s a slippery slope,” she added.
Another concern in animal law is standing. Lobdell posed the question of who has standing and how do they obtain it.
“There is no standing in the NEPA case over grizzly bears,” she said. “There is currently a case where the human plaintiff says they have the right to observe animals in a humane condition. As an industry, I don’t know what we do with that.”
The next level of standing looks at prudential standing, which is determined by a zone of interest test.
“Right now, there is no statute I know of that gives an animal an independent right,” Lobdell says. “If that changes, the argument about prudential standing will equally change.”
With a number of cases that have been introduced looking at an animal’s ability to have personhood or be sentient, Lobdell said agriculture must be proactive and responsive.
“The lessons from environmental law are here,” she said. “When we look at the environmental movement, the industry was asleep at the wheel. They went in under goodwill and public health. They had human interest, science and outsider buy-in.”
Lobdell further noted that the things that ranchers may define as “crazy” aren’t to those people bringing lawsuits forward.
“We have to get to the media,” she asserted. “We can’t be asleep at the wheel like many of us were in the 70s with the environmental movement. We have to cut this off at the pass.”