Detailed Discussion of Horse Related Legal Issues
- Craig M. Smith
- Animal Legal & Historical Center
- Publish Date: 2009
- Place of Publication: Michigan State University College of Law
Horses occupy a unique place in American law, as well as the national narrative that informs that law. They are used as beasts of burden on farms, displayed for their beauty at competitive shows, and treated as companion animals by many families around the country. Because of the variety of roles horses play in our society, the law’s treatment of them covers a wide spectrum of often competing goals. Some laws treat them as mere livestock, while others describe them as precious national symbols and mandate unique protections for them. This paper describes the broad contours of equine law, touching on both federal and state approaches to important equine legal issues. Part I gives a brief overview of horses as a species. Part II discusses recent state and federal attempts to prohibit the commercial slaughter of horses for human consumptions. Part III focuses on the federal Wild Free-Roaming Horses and Burros Act, which is concerned with the preservation of wild horses and burros as “symbols of the American pioneer spirit.” Part IV turns to equine related issues in the enforcement of general animal cruelty laws as well as equine specific legal protections. This part gives particular attention to the issue of horse neglect and abandonment.
I. An Introduction to Horses
The evolution of the modern horse has occurred over a period of 45 to 55 million years. Modern domestic horses have a life expectancy of between 25 to 30 years and can vary greatly in size, as demonstrated by a comparison of a Clydesdale draft horse, 72 inches, and the Falabella miniature horse, 30 inches. They exhibit a diverse array of coat colors and patterns. Their senses are generally considered to be superior to those of humans, especially their eyes, the positioning of which allows them to see a range of vision over 350 degrees. Horses are prey animals, i.e. they do not prey on other animals but are themselves preyed upon, and have a keenly developed flight-or-fight response. Usually, their immediate response to a threat is to startle and flee, however they will stand their ground if given little alternative or if they are protecting their young. Though historically considered unintelligent, more recent studies suggest that horses excel at simple learning and are also able to solve advanced cognitive problems. Horses are social animals, able to form companionship attachments to their own species and to other animals, including humans. (See generally Edwards, The New Encyclopedia of the Horse).
As domesticated animals, horses have been used in wide variety of roles. The most sensational role historically has been their use in warfare, where they have often proven to be decisive strategic factors due to their speed and strength. However, their most lasting role has been as a means of human transportation, engendering the expansion of various peoples across vast tracts of land. Indeed, to many in America, including the United States Congress, horses are a proud symbol of westward expansion and development.
Though horses are utilized far less today than in the past, they still play varied and important roles in human society. Police officers often use horses in urban areas for patrol duties and crowd control. Cattle ranches use horses to round up cattle on rugged, distant terrain. In many cases, horses offer the best means of completing a task while balancing environmental concerns, such as avoiding damaging delicate soil or disrupting nature preserves with gas powered vehicles. Horses are also commonly used for entertainment and sports purposes, such as historical movies and horse racing. Though uncommon in America, horses are used as a food source in some parts of the world. Finally, horses are often brought into families as companion animals, enriching human lives through the reciprocal formation of meaningful social bonds.
Like any animal, horses are affected by multiple legal regimes at the state and federal level. But unlike many companion animals, dogs and cats in particular, horses are expensive and resource intensive, and are likely just as often treated as financial investments or livestock as companion animals. This leads to many unique issues as well as unique legal responses to these issues.
II. Horse Slaughter for Human Consumption
The slaughter of horses for human consumption is an area of horse law that has received increased national attention over the past decade owing to the growing number of states which ban the slaughter of horses for human consumption, including the two states where the last horse slaughter facilities existed. While few Americans have ever contemplated eating horsemeat, let alone actually purchased horsemeat, prior to 2007 horsemeat was a significant national export to countries such as Belgium, Italy, Japan, Switzerland, Mexico, and France. As an economic reference point, in 2001 the horse slaughter industry exported 11,940 metric tons of horsemeat at a total worth of $41 million. See Laura Jane Durfee, NOTE: Anti-Horse Slaughter Legislation: Bad for Horses, Bad for Society, 84 Ind. L. J. 353, 356 (2009).
In 2007, Illinois passed a prohibition on the slaughter of horses for human consumption, effectively closing down the last horse slaughter plant in the United States. See 225 ILCS 635/1.5. While there are no horse slaughter facilities currently operating in the United States, it is important to note that only four states have explicitly banned horse slaughter or the sale of horsemeat for human consumption, five if you count Mississippi which has declared horsemeat to be unfit for human consumption. Horse slaughter facilities can still legally operate in most states. Montana, in particular, is considering legislation that would not only explicitly allow horse slaughter for human consumption, but would also provide incentives to lure horse slaughter facilities to the state. See H.B. 418 Leg., (Mt. 2009). However, one reason new horse slaughter facilities have not reopened in the United States, in addition to a decrease in demand, is likely concern that opening a new facility may produce a political backlash resulting in further prohibition. Even opening facilities in states like Montana is financially risky because of potential legislation at the national level. Congress is currently considering the Prevention of Equine Cruelty Act of 2009, which would prohibit horse slaughter for human consumption at the federal level. See S. 727, 111th Cong. (2009); H.R. 503, 111th Cong. (2009).
It is hard to definitively identify what drives the specific prohibition of horse slaughter for human consumption, while allowing the slaughter of cows, pigs, and other animals. Certainly one part of the explanation is simply popular disgust at divergent and foreign dietary norms. But another, more specific explanation, is the unique place horses occupy in the American imagination and the variety of roles horses play in American society. Congress eloquently captured the importance of horses to our national narrative when it described wild horses as “living symbols of the historic and pioneer spirit of the West” in the Wild Horses and Burros Act. See 16 USCS § 1331. Whatever the motivation, anti-horse slaughter provisions seem to be popular with the electorate, coming into force through both legislation and popular ballot initiatives. Should a horse slaughter facility decide to reopen in the United States, it would likely face a hostile political environment.
A. Horse Slaughter Prohibition Legislation
Four states have passed legislation explicitly prohibiting the sale of horsemeat for human consumption: Texas (Tex. Agric. Code § 149.002), California (Cal Pen Code § 598d), Illinois (225 ILCS 635/1.5), and Oklahoma (63 Okl. St. § 1-1136). In California, the prohibition was passed as ballot initiative, meaning that the statewide electorate voted for it directly. A fifth state, Mississippi, has banned the sale of horsemeat by declaring it to be “unfit for human consumption.” See MISS. CODE ANN. § 75-33-3. Generally, these statutes are placed in the food and agriculture divisions of their respective state codes. California is an exception, placing its prohibition in the penal code, perhaps emphasizing that the nature of the prohibition is moral rather than health or safety based.
While each statute varies in its approach to the prohibition, they generally breakdown into four components: 1) a ban on the slaughter of horses for human consumption, or a ban on the possession of horsemeat with the intent to sell it for human consumption, or both; 2) a ban on the transfer of horsemeat to someone who intends to sell it for human consumption; 3) a list of actions that constitute prima facie evidence of an offense; and 4) the penalties for an offense.
Texas Agricultural Code chapter 149, Sale of Horsemeat for Human Consumption, is representative of the general approach states have taken to prohibit the slaughter of horses for human consumption. It is worth noting that these Texas statutes are also unique in that they were first passed in 1949, far earlier than any other state prohibition, though not enforced until recently. Texas Agricultural Code § 149.001 defines “horsemeat” as “the flesh of the animal of the genus equus.” § 149.002 then prohibits the possession or sale of horsemeat for the purposes of human consumption, while § 149.003 prohibits the transfer of horsemeat to anyone who intends to sell the horsemeat for human consumption. In order to ease the path of prosecutions of offenders § 149.004 describes six circumstances that constitute prima facie evidence of an offense under § 149.002 or § 149.003:
(1) the presence of horsemeat in a retail store in which the meat of cattle, sheep, goats, or hogs is exhibited or kept for sale, unless the horsemeat is in a package or container of not more than five pounds and is plainly labeled "horsemeat"; (2) the presence of horsemeat in the wholesaler's establishment, warehouse, meat locker, meat cooler, or other place of storage or handling of the meat of cattle, sheep, goats, or hogs, unless the horsemeat is in a package or container of not more than five pounds and is plainly labeled "horsemeat"; (3) the presence of horsemeat mixed or commingled with the meat of cattle, sheep, goats, or hogs in hamburger, sausage, or other processed meat products; (4) the transportation of horsemeat between the hours of 10 p.m. and 4 a.m., unless the horsemeat is in individual packages or containers of not more than five pounds and is plainly labeled "horsemeat"; (5) the presence of horsemeat in or the delivery or attempted delivery of horsemeat to a restaurant or cafe; and (6) the presence of horsemeat in or the delivery or attempted delivery of horsemeat to an establishment that prepares, cans, or processes food products for human consumption from the meat of cattle, sheep, goats, or hogs.
§ 149.005 provides that the penalty for an offense under this chapter of the Texas Code is a fine not more than a $1000, or confinement in jail for not less than 30 days and not more than two years, or both fine and confinement. It further provides that a second offense under this chapter is punishable by imprisonment in a state prison for not less than two years and not more than five. Finally, § 149.006 provides that upon conviction of an offense under this chapter, the court shall enjoin the defendant from slaughtering any animal, selling any meat, transporting any meat, or otherwise purveying meat to the public as food for human consumption.
It is important to emphasize that not all states actually prohibit the slaughter of horses for human consumption. Texas, as noted above, only makes it illegal to sell horsemeat, to possess horsemeat with the intent to sell, or to transfer horsemeat to someone who intends to sell it. In effect, this is tantamount to a prohibition on commercial slaughter of horses, since the statutes remove virtually all economic incentive to do so. But, since it is only the sale of horsemeat that is prohibited, horses may still be slaughtered and consumed for non-commercial purposes. On the other hand, in California both the sale of horsemeat and the slaughter of horses for human consumption are prohibited, providing the most comprehensive protection of horses against slaughter.
B. Challenges to Horsemeat and Horse Slaughter Prohibitions
The last three horse slaughter facilities in the United States were recently put out of business by the enforcement of horse slaughter prohibitions in the two states the facilities were located, Texas and Illinois. The owners of the horse slaughter facilities subsequently challenged both states’ slaughter prohibitions in federal court, and both statutes were upheld at the federal circuit level. The primary challenges to the statutes were that they violated the dormant Commerce Clause of the United States Constitution and that they were preempted by existing federal legislation. Although both statutes were challenged on similar grounds, the statutes themselves approached horse slaughter prohibitions in different ways and thus presented slightly, but nonetheless significantly, different legal issues. In Texas, the challenged statute prohibited only the sale of horsemeat, whereas in Illinois both the actual slaughter of horses for human consumption and the sale of horsemeat were prohibited. The challenges to both types of statutes are presented below.
The leading federal case on the prohibition of the sale of horsemeat is Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, in which the Fifth Circuit upheld Texas’ prohibition against challenges that the statute was preempted by the Federal Meat Inspection Act (FMIA) and that it violated the dormant Commerce Clause of the United States Constitution. 476 F.3d 326 (5th Cir. 2007). After having operated in Texas since the mid-1970’s, the two Texas horse slaughter facilities were informed by the state’s attorney general that they were in violation of a Texas statute that was originally passed in 1949. The two slaughterhouses promptly challenged the legislation in federal court, seeking a declaration of their legal rights and an injunction against prosecution. The district court granted a summary judgment motion by the plaintiffs, finding that the prohibition on the sale of horsemeat both violated the dormant commerce clause and, in the alternative, was preempted by the FMIA. On appeal, the Fifth Circuit vacated the trial court's summary judgment order.
The court’s opinion opens with this memorable observation: “The lone cowboy riding his horse on a Texas trail is a cinematic icon. Not once in memory did the cowboy eat his horse, but film is an imperfect mirror for reality.” Having thus framed the challenged activities, the court proceeds to analyze the plaintiff’s claims that Texas’ prohibition on the sale of horsemeat violates the dormant commerce clause and is preempted by the FMIA.
At the outset, the court notes that it is not deciding the applicability of Texas’ prohibition on the sale and transport of horsemeat to an entity that merely transports horsemeat through the state and engages in no other commercial business within the state, as that situation was not currently before the court. Id. at 335. Turning to the facts before it, the court begins its analysis by describing the dormant Commerce Clause, which is a negative component of the Commerce Clause that limits the burdens states can place on interstate commerce. A state can run afoul of the dormant Commerce Clause by either engaging in economic protectionism, treating intrastate trade differently than interstate trade, or by placing excessive, though incidental, burdens on interstate trade relative to the local benefit the statute aims to achieve. Since the legislation at issue treated interstate and intrastate trade in exactly the same way (i.e., no one is allowed to sell horsemeat), the court agreed with the district court that the statute passed muster under the first prong of the dormant Commerce Clause. However, the court reversed the district court’s holding that the prohibition failed the second prong.
The district court held that because the prohibition burdens interstate commerce, the prohibition can only survive if the burden it creates is not excessive to the local benefits achieved by the prohibition. Here the district court found that the prohibition did not fulfill Texas’ claimed interests in (1) preserving horses, (2) preventing the consumption of horsemeat, and (3) preventing horse theft, since “(1) horses can still be killed for nonhuman consumption, (2) can still be consumed so long as the meat is not purchased, and (3) horse theft is already being prevented by another statute.” Therefore, the district court held that the burden on interstate commerce was excessive to the limited, in the district court’s view, local benefits. Id. at 336.
Upon review, the court found that the district court had misconstrued the test for a violation of the dormant Commerce Clause, which is only concerned with incidental burdens on interstate commerce that exceed the burdens on intrastate commerce, not burdens generally. Because there was no difference in the treatment of interstate and intrastate commerce, the court held that the dormant commerce clause was not violated. Furthermore, the court held that even if the district court was looking at relevant burdens for a finding of a violation of the dormant Commerce Clause, the district court was unfounded in finding that Texas’ interests could be advanced just as effectively by other means with less of an impact on interstate commerce. The court emphasized that the prohibition does not need to completely fulfill its interests; it just needs to advance them better than the alternatives. After considering the district court’s list of alternative suggestions the court stated that, “it is a matter of commonsense that the alternatives listed do not preserve horses as well as completely prohibiting the sale and transfer of horsemeat for human consumption.” Id.
Having concluded that the statue does not offend the Commerce Clause, the court next considered whether the statute was preempted by existing federal legislation. According to the court, its sole task in analyzing a preemption claim is to discern the intent of Congress, though with the caveat that preemption is not to be lightly assumed. Congress can preempt a field by: 1) expressly prohibiting a state from legislating in a particular area, or 2) it can implicitly preempt an area when it conflicts with a state statute or by so pervasively occupying a field as to naturally preclude any state legislation. The FMIA does contain an express preemption clause; however, the court reads this clause narrowly so as to only apply to the inspection of meat, rather than to exclude states from legislating on what type of meats may be sold and thus require inspection. The court also held that there was no implied preemption because the FMIA specifically states that it is not the intent of Congress to occupy the entire field of meat regulation and because both the horsemeat prohibition and the FMIA can be complied with without conflict. Id. at 333.
In 2007 Illinois amended its Horse Meat Act, which previously contained primarily labeling requirements, to prohibit the slaughter of horses for human consumption, the importing or exporting of horsemeat into the state for human consumption, and the sale of horsemeat for human consumption. Cavel International, the only horse slaughter house in Illinois and the last remaining horse slaughterhouse in the United States at the time, immediately challenged the ban on horse slaughter on the grounds that it was preempted by the FMIA and that it violated the Commerce Clause of the U.S. Constitution.
In Cavel Int'l, Inc. v. Madigan, the Seventh Circuit held the prohibition was neither preempted nor unconstitutional. 500 F.3d 551 (7th Cir. 2007). The court’s opinion, written by Posner, quickly dismisses Cavel’s preemption claim, finding that just because the FMIA includes provisions for the inspection of horsemeat does not mean that states must continue to allow horses to be slaughtered. If horsemeat is produced it must comply with the FMIA, but if horsemeat is not produced then the FMIA has no relevance. Id. at 553-54.
The court found the constitutional challenge to be a closer question. Id. at 554. Although Cavel based part of its claim on the provisions of the prohibition that prevented the import or export of horsemeat, the court did not consider these challenges because they did not apply to Cavel, which was only in the business of slaughtering horses. Turning its attention back to the horse slaughter provisions, the court outlined the test for a finding of a violation of commerce clause by a state. Like the Curry Court in Texas, the court described the clearest case of a violation as a statute that discriminated in favor of intrastate commerce over interstate commerce. On this count, the court found that there was no discrimination as neither local nor foreign firms were allowed to slaughter horses. The court then considered whether the prohibitions incidental burdens on interstate commerce are “clearly excessive in relation to the putative local benefits.” Unlike the court in Curry, here the court acknowledged that there is some disagreement as to whether this test is only available to plaintiffs if they can show at least some mild discrimination against interstate commerce. However, the court ultimately decided that the question is moot because any state regulation that burdens interstate commerce and is irrational would be invalid. Id. at 556.
Cavel argued that the prohibition was irrational because the horses will be killed anyway eventually, so it made little difference if they are eaten by humans or “cats and dogs.” The court dismissed this argument, finding that horses that are eaten by cats and dogs are taken to rendering plants for disposal, whereas horses slaughtered for human consumption are bought by the slaughterhouses, thus providing horse owners a financial incentive to end their horses lives prematurely. Illinois has a legitimate interest in “prolonging the lives of animals their population happens to like.” Moreover, Illinois does not have to do everything possible to advance its interest in prolonging the lives of horses; it is permitted to “balance its interest in horses' welfare against the other interests of its (human) population; and it is also permitted to take one step at a time on a road toward the humane treatment of our fellow animals.” Finally, even if no horses live longer as a result of the law, the court held that a state is allowed to express disgust, within reason, at what people do with the dead, regardless of whether they are dead humans or dead horses. Id. at 557.
The court also considered the impact of the prohibition on the foreign Commerce Clause. States are not allowed to conduct foreign policy. State regulations that significantly burden international commerce can complicate the foreign relations of the United States, thus impinging on the exclusive province of the national government. Since Cavel introduced no evidence demonstrating what percentage of horsemeat it provided the world market, and therefore how big of an impact the plants closure would have, the court dismissed foreign Commerce Clause challenge as it applied to Cavel. However, the court did leave open the possibility that a challenge to a horse slaughter prohibition based on the foreign Commerce Clause could, if properly supported, succeed.
C. The Impact of Horse Slaughter Prohibitions on Horse Abandonment Rates
Though courts have so far upheld horse slaughter prohibitions, it is still an open question whether such prohibitions make for sound policy. Specifically, there is concern in some corners that the prohibitions might actually undermine efforts to maximize horse welfare by increasing rates of horse abandonment.
Horse abandonment is a growing concern in the United States, especially as the economy continues to struggle. For most, a horse is a major investment requiring considerable quantities of time and money to properly care for. As many people try to find ways to save, horses, along with other pets and livestock, are often discarded in order to lower costs. Unlike dogs and cats that can usually be dropped off at a shelter with little to no expense to the owner, it is often very difficult to find both a responsible and easy way to dispose of horses. Many people, once they find themselves in the position of having to sell their horse or horses, cannot afford the consignment costs to put them up for sale, and in a down economy may not be able to find a buyer anyway. Instead of sinking more money into the horses to put them down humanely, many simply abandon the horses, perhaps hoping that the horses will survive long enough to be reclaimed once they are able to invest in them again. Some estimates put the number of abandoned horses nationwide at 120,000. See Tonya Root, Prices of Hay Soar for Farmers: Drought Adding to Costs of Feeding Horses, Livestock, SUN NEWS (Myrtle Beach, S.C.), Nov. 16, 2007. Although most, if not all, states have laws against abandonment, prosecutions of horse abandonment cases are expensive and consequently rare.
A student note by Laura Jane Durfee argues that the demise of the horse slaughter industry has actually retarded horse welfare, by eliminating a cheap and easy market for financially strapped horse owners to sell unwanted horses, and thus increasing the prevalence of horse abandonment. Moreover, where it is cost-effective to still to do so, horse owners who wish to sell their horses to slaughter must now ship their horses across the border to Canada or Mexico, potentially increasing the distance horse must travel to slaughter and taking horses beyond the reach of the United States’ humane slaughter laws. See Laura Jane Durfee, NOTE: Anti-Horse Slaughter Legislation: Bad for Horses, Bad for Society, 84 Ind. L. J. 353, 356 (2009).
However, as her note points out, the horse slaughter industry as been in steep decline for decades now, dropping from thirty slaughterhouses in 1954 to only four in 1999. Because prohibitions on horse slaughter are limited to a handful of states and of very recent origins, this general decline cannot be attributed to them. Rather, the decline more likely reflects a decrease in demand, so it is unclear how large an impact prohibitions on horse slaughter are actually having on the horse slaughter industry. Moreover, it is not clear how significant an impact the continued operation of the three remaining pre-prohibition horse slaughterhouses would have had on horse abandonment rates, considering both their limited geographical reach and that the global economic downturn is likely reducing the demand for relatively expensive horsemeat. Over the long-term, prohibitions of horse slaughter might actually reduce levels of horse abandonment, as the availability of the horse slaughter market competes with other buyers of horses and thus incentivizes over-breeding. Finally, there is significant evidence that rates of abandonment have not increased in states with horse slaughter prohibitions. See Legislative Review 2005-2006, 12 Animal L. 277, 282.
III. The Wild and Free-Roaming Horses and Burros Act
Passed by Congress in 1971, the Wild and Free-Roaming Horses and Burros Act (WFRHBA) was implemented to address the drastic decline of wild horses and burros on America’s plains. 16 U.S.C.S. 1331-40. At one point numbering in the millions, by the time this legislation was put into force the wild horse population had shrunk to around 17, 000. Declaring wild horses to be “living symbols” of the west and a “national aesthetic resource,” the WFRHBA charged the Departments of the Interior and Agriculture to protect, preserve, and manage wild horse populations. Presently, more than 37, 000 wild horses and burros roam government managed land.
Congress’ power to manage and protect wild horses on the public lands entrusted to it is derived from the Property Clause of the U.S. Constitution. The Supreme Court in Kleppe v New Mexico upheld this construction of the Property Clause in a challenge to the WFRHBA, observing that the "complete power that Congress has over public lands necessarily includes the power to regulate and protect wildlife living there.” See Kleppe v. New Mexico, 426 U.S. 529, 540-41 (1976).
Interestingly, the term “wild horse” is something of a misnomer. A more accurate term might be “feral horses.” As used in the Act, wild horses and burros are any “unbranded and unclaimed horses and burros on public lands of the United States. But the history of wild horses in America is more complex than Act’s legal definition suggests. The genus Equus, to which modern domesticated horses belong, probably originated in North America around 4 million years ago, and then spread to the Eurasian land mass over, presumably, the Bering Strait. Interestingly, however, the late prehistoric North American horses died out around 11,000 years ago. The horses that populate North America today are the descendants of domesticated horses brought over by the Spanish conquistadors in the 16th century. This means that the wild horses that still roam North America are actually the descendants of escaped domesticated horses that eventually spread out over the continent. Though this observation is of little biological impact, because domestication has done little to alter horse biology, it does have some legal relevancy. Wild horses are usually labeled as a non-native species by federal wild life agencies, whose mandate is to protect “native” species. However, a strong argument can be made that wild horses in North America are actually a native species based on their origin in North America and the degree to which they have co-evolved with the North American habitat. See Jay F. Kirkpatrick and Patricia M. Fazio, The Surprising History of America’s Wild Horses, at http://www.livescience.com/animals/080724-nhm-wild-horses.html.
The WFRHBA, as it currently reads, brings all wild horses and burros within the jurisdiction of the Department of the Interior and the Department of Agriculture for the purpose of management and protection. To achieve this goal the Secretary (used in the Act to refer to either the Secretary of the Interior or the Secretary of Agriculture depending on who administers the public lands in question) is authorized to “designate and maintain” specific protected ranges on public lands as sanctuaries. In managing her populations, the Secretary is charged with doing so "in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands," “at the minimal feasible level," and in consultation with state wildlife agencies.” See 16 U.S.C.S 1333(a).
In managing wild horse populations, the Secretary must keep inventories of wild horses and burros in order to arrive at appropriate management levels. If the Secretary determines that overpopulation exists, and that action is necessary to arrive at appropriate management levels, the Secretary must take immediate action. As regards old, sick, or lame animals, the Secretary is authorized to put them down, but only in the “most humane way possible.” Healthy excess horses may be placed in private care and management. See 16 U.S.C.S 1333(b). This is accomplished by way of an adoption program, which seeks to place wild horses with private individuals who are both qualified to receive such animals and can also assure humane treatment and proper care. Importantly, the definition of “wild horse” provided by the Act has been construed to protect “wild horses” regardless of whether they continue to meet the definitional requirements. Thus, even when wild horses are adopted by private actors, they are still protected by the Act. See United States v. Hughes, 626 F.2d 619 (9th Cir. 1980). However, if after one year of adoption the Secretary grants the adopter title to the horse, the horse ceases to be protected by the Act. If private maintenance is not possible, these horses may also be put down in the most humane way possible. See 16 U.S.C.S. 1333(b). Usually, horses that are removed from the range but not adopted are held at long-term government owned holding facilities. Controversially, the Act was amended in 2004 to provide that animals over ten years old who have been unsuccessfully offered for adoption three times may be sold without limitation, including to slaughter houses. However, the House has recently passed H.R. 1018, Restore Our American Mustangs Act (ROAM), which would reverse the 2004 amendment and open tens of thousands of acres of new range for wild horses currently penned in government holding facilities.
The Act also makes provisions for claiming ownership of horses that wander on to public lands and for wild horses that wander onto private lands. In the former case, the branding and estray laws of the state in which the animal is found determine the issue. In the latter case, the property owner may contact an agent of the Secretary or a U.S. Marshall who will have the animal removed. See 16 U.S.C.S. 1334. Again, the act of straying from public lands does not remove the wild horse from the protection of the Act.
Certain violations of the Act are treated as criminal acts and punished accordingly. Examples of criminal violations are willfully removing wild horses from public lands, harassing or causing the death of wild horses, and processing the remains of wild burros into commercial products except as provided for by law. Under the Criminal Fine Improvements Act of 1987, the maximum fine for any misdemeanor, including ones arising from violation of the WFRHBA, was raised to $ 100,000 for individuals.
As can be seen from the discussion above, the WFRHBA provides both comprehensive protections for wild horses as well as wide discretion to the Departments of Agriculture and the Interior in how they implement those protections. However, both of these features of the WFRHBA have opened the door to significant amounts of litigation, as private property interests are impinged upon by wild horse protections and wild horse protectionists often disagree with how the agencies exercise their discretion. Below, several particularly contentious areas for litigation involving the WFRHBA are discussed.
A. Overpopulation, Removal, and Judicial Review
The Secretary is charged with "maintaining a thriving natural ecological balance among wild horse populations, wildlife, livestock, and vegetation and to protect the range from the deterioration associated with overpopulation." The Secretary’s determination that removal is necessary to prevent overpopulation must be based on research and analysis and challenging parties carry the burden of proving by a preponderance of the evidence that the Secretary made a mistake in “ascertaining, collecting, or interpreting the data upon which it relied.” See Roberto Iraola, THE WILD FREE-ROAMING HORSES AND BURROS ACT OF 1971, 35 Envtl. L. 1049, 1056. As might be imagined, the culling of wild horse populations by the Secretary is sometimes litigated by organizations dedicated to the preservation of wild horses who disagree with the agencies determinations.
Generally, the Secretary enjoys wide discretion in implementing the WFRHBA when confronted with judicial review. In American Horse Protection Asso. v. Frizzell, the court upheld the Secretary’s decision to remove 400 horses from certain public lands in Nevada because of the risks of overgrazing, but also asserted that the Secretary’s discretion was not so complete as to deny judicial review of his actions. 403 F. Supp. 1206 (D. Nev. 1975). The plaintiff, a horse advocacy group, argued that the Secretary’s decision to remove wild horses was in violation of his duties under the act to protect and manage wild horses. The Secretary responded by arguing that the Act gave him such wide discretion to implement it that there was no law for a court to apply and therefore the Act fell within an exception to the judicial review procedures of the Administrative Procedures Act. The court agreed with the defendant that the plain language of the act committed to the Secretary wide discretion in determining when overpopulation exists and when removal of wild horses is appropriate. The court also cited language from the legislative history of the Act stating that the “Secretaries of Interior and Agriculture are given a high degree of discretionary authority for the purposes of protection, management, and control of wild free-roaming horses and burros on the public lands.” However, the court also noted that the Secretary’s discretion is hemmed in by provisions of the Act that require the Secretary to proceed in his decisions in the most humane manner possible and to protect wild horses as components of public lands. Therefore, the court held that there was law to apply and that judicial review was appropriate under the APA.
Though the Secretary’s removal discretion is wide, courts have suggested that it may be limited when the Secretary’s actions implicate the National Environmental Policy Act. Under NEPA, federal agencies must file an environmental impact statement for all "major Federal actions significantly affecting the quality of the human environment . . ." In American Horse Protection Ass'n, Inc. v. Andrus, the Ninth Circuit stated that the Secretary’s decision to remove 3,500 to 7,000 wild horses in order to maintain the horse population at a permanent level might qualify as “major” federal action and thus require an EIS before removal could occur. 608 F.2d 811 (9th Cir. 1979). While the secretary has wide discretion under the WFRHBA, he has no discretion regarding compliance with NEPA.
B. Wild Horses as Property
By definition, wild horses under the WFRHBA are “free-roaming” on public lands. This can create problems when wild horses stray onto private land, potentially causing damage or disruption, or when non-wild horses become mixed up with wild horse herds. As noted above, the latter issue is resolved by the branding laws of the state where the horse is found. Though the Act is not clear on whether federal or state officials are to make the final determination of horse ownership, the D.C. Circuit court has held that the “final role” in ownership determination issues of this type is reserved for the federal government. 551 F.2d 432, 440 (D.C. Cir. 1977). The former question, however, presents more complex legal issues.
In Fallini v. Hodel private landowners sought removal under the Act of wild horses that had strayed onto their land. 783 F.2d 1343 (9th Cir. 1986). In addition to granting the removal order, the district court also ordered the Bureau of Land Management to take necessary action to prevent wild horses from straying onto private land in the future. On review before the Ninth Circuit, the court held that a mandamus ordering the BLM to prevent future incursions of wild horses was not available because the BLM does not have a plainly prescribed duty to prevent incursions and the remedy under the Act is adequate. After looking at the text of the Act and consulting the legislative history, the court concluded that while the BLM does have a plainly described ministerial duty to remove stray horses, the BLM does not have a duty to prevent straying in the first instance. The court observed that Congress was aware of the possibility that horses would stray, and explicitly provided a remedy for private landowners. However, the court also held that in order for the removal remedy to be meaningful, actual removal must be accomplished within a reasonable time period.
Not only do federal agencies administering the Act not have a duty to prevent incursions, but incursions that do occur do not constitute a taking under the Takings Clause of the Fifth Amendment. The Takings Clause of the U.S. Constitution provides that private property shall not be taken for public use without just compensation. In Mountain States Legal Foundation v. Hodel, an association of cattle ranchers sought to compel the federal government to manage the wild horses that roamed over their cattle grazing lands. 799 F.2d 1423 (10th Cir. 1986) (en banc). The land involved was known as the “checkerboard” because of the alternating patches of private and public land within it. The association argued that the Secretary’s mismanagement of wild horses and disregard for their requests to remove wild horses from their land had resulted in the erosion of topsoil and the consumption of vast quantities of forage and water by wild horses, which constituted a 5th Amendment taking by the federal government. The court, however, rejected the association’s contention that wild horses were instrumentalities of the federal government whose presence constitutes a permanent governmental occupation of their property. The court observed that wild horses are indeed wild animals, no less so than “grizzly bears”. As such, the court noted, it was well settled that wild animals are decisively not owned by the federal government, but rather are a form of common property whose control and regulation by the government is to be exercised as a trust for the benefit of the people. Furthermore, the government’s protection of wild horses is nothing more than a land-use regulation reasonably related to the public interest and does not deprive the landowner’s economically viable use of their land, and therefore does not constitute a taking.
The WFRHBA provides that in cases of overpopulation, the Secretary may remove horses and place them for adoption in private homes with “qualified individuals.” If the private adopter provides proper and humane treatment of the animal for at least one year, the Secretary may grant the adopter title to the animal. See 16 U.S.C.S 1334.
Applicants wishing to adopt a wild horse under this provision must meet several requirements, including being 18 years of age and never have been convicted of an offense of cruelty towards an animal. See Roberto Iraola, THE WILD FREE-ROAMING HORSES AND BURROS ACT OF 1971, 35 Envtl. L. 1049, 1065. If an applicant meets all the requirements, then the applicant must execute a Private Maintenance and Care Agreement (PMCA) with the Secretary. The stipulations of the PMCA are subject to verification through agency visits and inspections conducted by agency officers.
At the administrative level, applicants for wild horses may appeal the denial of their application through administrative channels, but bear the burden of showing that the denial has no rational basis or otherwise does not comply with the law. Denials of applications have been affirmed where the would be adopter lacked adequate facilities, previously engaged in activities connected to the sale of horses for slaughter, or neglected an animal to the point of inhumane treatment. Id.
At the judicial level, disputes involving the revocation of PMCA’s by the agency or failure to transfer title have generated several opinions holding that PMCA’s do constitute contracts between the government and the adopters. In Haberman v. United States, the U.S. Claims Court asserted jurisdiction over a claim brought by individuals who had had their PMCA’s revoked and their adopted horses repossessed when the agency learned that the individuals intended to sell the horses to slaughter once they obtained title to them. 26 Cl. Ct. 1405 (1992). The court found that the PMCA agreement did constitute a contract between the government and the adopter, and thus the Claims Court did have jurisdiction to hear the case. It also noted that individual adopters would have to overcome the suggestion that they violated the terms of the PMCA by intending to sell the horses to slaughter in order to prevail.
In M.E. Eddleman v. United States, an action was brought against the BLM under the Federal Tort Claims Act claiming that the government was negligent in failing to inform the adopters that they would not be eligible to receive title if they intended to sell the horses to slaughter. 729 F. Supp. 81 (D. Mont. 1989). The court dismissed the claim for lack of jurisdiction, characterizing the issue as one sounding in contract, based upon the PMCA, and one that therefore should be brought before the U.S. Claims Court.
While the Secretary may place wild horses in private care, he does not have discretion to transfer title of a horse to a private individual that has not humanely treated the adopted horse or is otherwise unqualified. In Animal Protection Institute v. Hodel, the Ninth Circuit held that the Secretary could not transfer title to a private individual whom the secretary knows will commercially exploit the adopted horse. 860 F.2d 920 (9th Cir. 1988). The Secretary argued that the WFRHBA placed only one requirement on the transfer of title: the private individual must humanely care for and maintain the horse for one year prior to title transfer. The court, however, concluded that the statute commands the secretary to not only determine that the animal has been well cared for, but also that the adopter remains a qualified individual. Given the statute’s prohibition of commercial exploitation of wild horses as well as its concern with their humane treatment, the court concluded that a private individual cannot remain a “qualified individual” if he or she intends to commercially exploit the horse after they obtain title. Therefore, the Secretary is without power to transfer title to an individual he knows intends to exploit adopted horses. To hold otherwise, the court says, would contravene the clear intent of Congress and make the requirement that the adopter treat the horse humanely a farce.
IV. Horses and Animal Cruelty
Horses face unique animal cruelty concerns. Because of their size and cost, horses are often abandoned by owners who either can no longer afford them or no longer care enough to provide for them. In economic downturns the incidence of horse abandonment climbs, taxing the resources of horse shelters and state agencies charged with caring for or humanely putting down abandoned horses, which is a costly enterprise even in good economic times. Moreover, the diverse roles horses play in our society open them up to unique dangers that often require species-specific solutions. The below discussion examines some of the most prominent horse specific animal cruelty issues and the law’s response to them.
A. Horses and Animal Cruelty Statutes
Every state now has some form of an animal cruelty statute to protect animals, though the degree of protection afforded varies widely. In the context of horses, general animal cruelty statutes may provide no protection at all because they define horses as livestock, which are sometimes exempted, or they may provide unique protections, such as prohibitions against “soring” and “tripping.” Where animal cruelty statutes make a distinction between “farm animals” or “livestock” and other animals, horses almost invariably end up being classified as livestock, though it is often hard to tell exactly where a statute locates horses in its regulatory scheme. In New York, for example, the animal cruelty laws make a distinction between farm animals, defined as “any ungulate, poultry, species of cattle, sheep, swine, goats, llamas, horses or fur-bearing animals” raised for commercial or subsistence purposes, and companion animals, defined as any dog, cat, or any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal, but excluding “farm animals.” It is unclear, given these two definitions, if a horse that is not raised for commercial purposes could qualify as an animal that is normally raised near the household, and therefore as a pet. See NY AGRI & MKTS § 350.
The ambiguity in the New York definitions is typical of the general tension in the law’s treatment of horses, whose place in American society straddles the line between companion animal and commercial investment. A recent Oregon amendment to its abandonment statute aptly illustrates this tension. In its original form, Oregon’s abandonment statute applied only to domestic animals and excluded livestock, including horses. Perhaps in response to news stories cataloguing the rise in horse abandonment, the legislature has recently amended the statute to apply to horses as well as domestic animals, though not to any other animal categorized as livestock. 2009 Ore. SB 398. However, in the final analysis all states offer some protection against cruelty to horses regardless of classification, and often provide protection above and beyond what a general animal cruelty statute standing alone might offer.
Many, if not most, animal cruelty statutes apply broadly to at least all mammals, and thus include horses within their protection. In the New York statute discussed above, even though horses are most likely always defined as “farm animals,” they are still protected by the general animal cruelty statutes which forbids “unjustified” killings, neglect, and cruelly beating or overdriving any animal. Where a general animal cruelty statute does exclude livestock from its protection, it is usually accompanied by a sister statute which prescribes protections for livestock. Texas, for example, has two separate animal cruelty statutes, one for “livestock” animals, including horses, and one for “nonlivestock” animals. See Tex. Penal Code § 42.09. In general, the two statutes overlap, protecting both types of animals from neglect, cruelty, and being overworked, while making an exception for conduct engaged in by the actor that is a generally accepted and otherwise lawful animal husbandry or agriculture practice involving livestock animals.
Many animal cruelty statutes also contain specific protections for horses that might not otherwise be covered by a general anti-cruelty command. The most common of these are prohibitions against docking, soring and horse tripping. Docking and soring will be given a more detailed treatment below, but as a general description docking is the practice of removing a part of a horses ear or tail and soring is the practice of applying intense, often very painful, heat to a horses leg or hoof with the intention of improving their gate for presentation at shows. Horse tripping is often an event in rodeos, whereby a horse is scared into running at a full gallop only to have its hind legs lassoed so that it comes crashing down. Most, if not all, horse tripping prohibitions make an exception for horse tripping if it is done to identify the owner of the horse or to provide veterinary care for the horse. See, e.g., Tex Penal Code § 42.09; Cal. Penal Code § 597(g). A final unique statutory protection worth noting is that some states, likely owing to the high commercial value of certain horses, provide extra penalties for the killing of registered horse breeds. In Florida, for example, any person who willfully and unlawfully kills, maims, causes great bodily harm or permanent breeding disability to a horse is guilty of a second degree felony, whereas ordinary animal cruelty is only a misdemeanor. Moreover, the statute also makes it a felony to attempt to kill or maim or horse or conspire to kill or maim a horse. See F. S. A. 828.125.
While states vary in the protection they offer to livestock animals, most if not all states make it a crime to neglect or abandon horses. Though neglect and abandonment are related, many states, though not all, provide specific definitions for both. In Texas, for example, neglect occurs when an actor “fails unreasonably to provide necessary food, water, or care for a livestock animal in the person's custody.” Abandonment occurs when an actor “abandons unreasonably a livestock animal in the person's custody,” including “abandoning a livestock animal in the person's custody without making reasonable arrangements for assumption of custody by another person.” In Oregon, the legislature has gone a step further in the definition of abandonment by providing that it is no defense to a prosecution for abandonment to simply drop an animal off near a shelter, without actually making arrangements for its care. See O.R.S. 167.340. Such statutory provisions ease the path animal cruelty prosecution, as otherwise a person who simply released a horse or dog into the wild might be able to argue that they did not deprive the animal of food and water since the animal was no longer in their property, having been abandoned, and therefore no longer their responsibility.
Estimates of horse abandonment are highly speculative, ranging from 90,000 to 300,000. These numbers must be taken with some skepticism, given that they are often provided by organizations that have a vested interest in exaggerating horse abandonment rates to prop up arguments in favor of horse slaughter, are usually the product of limited local research in isolated areas, and often provide little to know verifiable sources for there statistics. See John Holland, Emerging Data a Growing Dilemma for Horse Slaughter Proponents, available at http://www.vickitobin.com/sitebuildercontent/sitebuilderfiles/emergingdata.pdf. Indeed, most government sources do not track numbers of abandoned horses, but rather “estray” horses, which often includes horses that are merely lost or escaped rather than abandoned. Id. However, it is certainly true that the price of horse maintenance, particularly hay, has increased dramatically over the past several years, putting increasing financial pressure on horse owners and rescue organizations. In some places, the price of hay has risen from $85 per ton to over $225 per ton. See Hard Times Lead Owners to Abandon Horses, NPR.ORG, June 2, 2008, http://www.npr.org/templates/story/story.php?storyId=91142984. Unlike dogs, cats, and other small domestic animals, horses cannot simply be dropped off at a shelter or pound. They are expensive creatures that are difficult to transport. Even when horse shelters can be located and reached with little expense, they are often filled to capacity and reluctant to take on the significant cost of new additions.
Though widespread in certain areas, horse neglect and abandonment is a crime in virtually every state. A number of issues arise in the prosecution of horse neglect and abandonment cases, prominent among them being proving ownership and/or custody, an appropriate mens rea, and determining whether or not police had probable cause to seize neglected or abandoned horses and arrest the owner or caretaker.
Horses are often owned by one person but placed in the charge of another, whose duty it is to care for the horse. For example, owners who live in the city and have neither the time nor the space to properly care for the animals, will board them in the countryside. In cases of neglect or abandonment this can raise problems for the prosecutors and courts charged with apportioning responsibility between the owner and the person who maintained actual custody of the animal. How final apportionment is determined depends on how courts construe the relevant animal cruelty statute. Unfortunately, most statutes are highly ambiguous as to how responsibility should be apportioned between an owner of an animal and the animal’s caretaker in cases of neglect or abandonment. Even exceptionally well-defined animal cruelty statutes, such as Texas’ statutes, do not provide clear answers on this question. The Texas statute defines neglect as “unreasonably failing to provide necessary food, water, or care for a livestock animal in the person's custody.” Similarly, the crime of abandonment also refers to the person who has custody over the animal. Custody is defined as “responsibility for the health, safety, and welfare of a livestock animal subject to the person's care and control, regardless of ownership of the livestock animal.” See Tex. Penal Code § 42.09. While this statute makes clear that a person does not have to be the owner of the horse in order to be charged under the statute, it is nonetheless ambiguous as to whether being the owner is enough by itself to support liability. Another question left open is whether the owner of a horse who places the animal in another person’s custody, but fails to provide that person with the proper resources to care for the horse is liable under the statute.
In Qaddura v. State, a Texas court of appeals provided some insight into these questions, holding that the owner of livestock who placed them in the care of his tenant while he was on vacation for a month, but failed to provide his tenant with enough food for the livestock could be found guilty under the animal cruelty statute. 2007 Tex. App. LEXIS 1493. Qaddura owned a slaughterhouse where he kept sheep and goats for slaughter. On several occasions he was warned by police that if he failed to provide better care for the animals prior to slaughter, he would be charged with animal cruelty. After promising to comply with the Sheriff’s orders, Qaddura left for a month long vacation, explicitly placing the animals in the custody of his tenant, who in return would be allowed to park his mobile home on the property. Although the tenant testified that he fed and provided fresh water to the animals every day, the sheriff who responded to a smell complaint originating at the slaughterhouse testified that he saw little evidence of water and the only feed around was moldy old hay. At trial, the jury believed the sheriff and convicted the owner of the slaughterhouse of animal cruelty. On appeal, the court upheld the evidence as sufficient to support the verdict. Even though the owner left the animals in the care of his tenant and told the tenant to feed the animals, the evidence was sufficient for the jury to conclude that the owner knew there was not enough feed for the animals and that the owner did not order the tenant to secure more feed. Thus, the jury could reasonably conclude that the owner “at least knowingly failed unreasonably to provide necessary food, care, or shelter for an animal in his custody,” even though the animals were in the physical custody of his tenant for a significant period of time.
In Westfall v. State, another Texas court of appeals held that a genuine issue of material fact existed as to whether a ranch manger, the agent of the owner of a herd of cattle, could be charged as an accomplice to animal cruelty. 10 S.W.3d 85 (Tex. App. 1999). On his appeal from a conviction for animal cruelty, the owner of 300 starved cattle contended that the judged failed to instruct the jury that if the state’s witness against him, here the ranch manager, was an accomplice to the crime, the jury would have to find that there was additional corroborating evidence tending to connect the defendant to the crime. The court held that the trial court should have submitted the instruction to the jury, as it could be argued that as ranch manager was a “high managerial agent” of the partnership which owned the cows, and therefore potentially liable for their condition. However, the court also noted that the jury could conclude that the ranch managers continued requests for more food is evidence of his exercise of due diligence to prevent the commission of the offense, and therefore did not fail “unreasonably” to provide necessary food.
However, in People v. Arcidicono, a New York court held the bailee of a horse liable for failing to provide necessary sustenance to the horse, even though the owner of the horses had refused to pay for the necessary feed. 360 75 Misc. 2d 294 (1974). At trial the defendant bailee had testified that he knew that he was charged with the care and custody of the horses and that the diet provided by the owner was not sufficient to sustain the horses. The court held that statute imposed liability on any person, without regard to their relationship to the animal, whose “refusal or neglect to furnish an animal with proper sustenance causes unjustifiable injury to any animal.” Id. at 295. The court further noted that although the bailee may escape civil liability for any damage done to the horses by the owner’s failure to provide the necessary sustenance, New York’s animal cruelty statute “is designed solely for the protection of animals.” Id. at 296. Therefore, the court reasoned, the defendant bailee could not claim the same defense against his prosecution for knowingly failing to provide proper sustenance to horses in his charge.
Similarly, in People v. Henderson, a Michigan court of appeals held the owner of 69 emaciated and neglected horses liable under its animal cruelty statute, even though the owner did not have day-to-day responsibility for tending to the horses. 282 Mich. App. 307. The Michigan animal cruelty statute prohibits any person from knowingly or recklessly killing, torturing, maiming, mutilating, or disfiguring an animal without just cause. See MCL 750.50(b). After returning a loose horse to a local ranch, animal control conducted a limited inspection of the horses and premises at the ranch, and discovered that several of the horses were severely malnourished, suffering from untended wounds, and were covered with lice and other parasites. Both the owner of the horses and the primary caretaker of the horses were charged with “torturing” three of the horses under the animal cruelty statute. Also pursuant to the animal cruelty statute a forfeiture order was issued by the district court.
On its first appeal, the forfeiture order was reversed because the court concluded that the owner was in fact an “innocent owner,” inasmuch as he did not have custody of the animals and that his mere ownership did not make him responsible for the animals’ torture. This holding was then appealed to the Michigan Court of Appeals, which reversed the circuit court’s holding. The owner relied upon People v. Johnson for the proposition that, “an innocent or absentee owner cannot be held criminally liable for mistreatment of a horse that he owns but that is cared for by someone else.” Henderson, 282 at 320. The appeals court dismissed this claim, pointing out that the animal cruelty statute at issue in Johnson had since been repealed and replaced with the statute under which the owner was being prosecuted. The old statute, applied to a person “having the charge or custody of any animal, either as owner or otherwise,” which was construed to make ownership irrelevant to the charge or custody requirement. The new statute applied to, “[a]n owner, possessor, or person having the charge or custody of an animal,” which the court construed as prohibiting an owner of an animal, even where he does not have day-to-day custody of the animal, from failing to provide that animal with adequate care. The court further noted that the fact that the owner had placed the animals in the charge of another defendant was of no consequence, as the other defendant did not in fact take care of them.
It is important to note that neglect is not necessarily related to negligence. If an actor purposefully neglects an animal to the point of causing it unjustifiable pain, such neglect may amount to torture. This is an important nuance to keep in mind, as many statutes designate harsher punishments for torture than for neglect bred of negligence. See MCL 750.50(b).
In People v. Henderson, discussed above, the owner of three emaciated, lice covered, and wounded horses was charged with three counts of torture for failing to provide proper care, including veterinary attention, for the horses. 282 Mich. App. 307. The court upheld the charge even though the defendant owner did not have responsibility for the day-to-day care of the animals. While the court did not completely discount the possibility that an “innocent owner” defense might be available here, it was highly skeptical that such a defense did in fact exist. Regardless, the court held, such a defense would not be available here, where the owner had a sufficient presence on the ranch, and experience with horses, to be aware of the conditions on the ranch and the longstanding sufferings of the horses. Given these facts, the court found that there was sufficient probable cause to believe that the owner willfully failed to seek necessary veterinary care and treatment, that the horses were tortured, i.e. suffered severe physical or mental pain, agony or anguish, and that it was the owner’s willful neglect which resulted in the horses being tortured.
In horse abandonment and neglect cases, defendants often challenge the evidence against them on the basis of the Fourth Amendment, alleging that police officers violated their constitutional rights by searching their premises or seizing their horses without a warrant, which often times officers investigating animal cruelty might not have obtained. In horse related cases, two particularly relevant Fourth Amendment doctrines are standing, addressing who may claim a Fourth Amendment violation, and the related “open fields” exception.
It is by now a well-established element of Fourth Amendment jurisprudence that “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133 (1978). Because the exclusionary rule is intended to deter Fourth Amendment violations, only a person who has had his or her rights violated may benefit from the rules protection. In order to have standing then to raise a Fourth Amendment claim, a person must have a reasonable expectation of privacy in the area searched. What constitutes a reasonable expectation is determined by the person’s actual subjective expectation and whether that expectation is one society is willing classify as reasonable. In this context, the Supreme Court has held that a person cannot claim a reasonable expectation of privacy in a third party’s premises or property. Id. This is relevant in cases of horse neglect and abandonment because the horses in question will often be boarded on property not owned by the owner of the horse and on which the owner does not reside. Though there is very limited case law on this question with specific regard to the boarding of horses, a Delaware court as held that the renter of a horse stall, who takes sufficient steps to make sure that no one can see into the stall, does have a Fourth Amendment privacy interest in the rented stall. See State v. Elliott, 2003 Del. C.P. LEXIS 50.
One reason there is limited case law on the question of privacy interests in boarded horses might be the “open fields” doctrine, which holds that open fields, i.e. pasture lands, do not implicate a privacy interest protected by the Fourth Amendment. Thus in State v. Ziemann, a Nebraska court of appeals side stepped the petitioner’s claim that she had a legitimate expectation of privacy in a farmstead, because she leased the grass on the farmstead for a dollar, by invoking the “open fields” doctrine. The court held that even if such a lease might implicate the petitioner’s Fourth Amendment rights in some circumstances, the petitioner here was only leasing an open field, for which she cannot have a legitimate expectation of privacy. 14 Neb. App. 117 (2005). The open fields doctrine was first deployed by the Supreme Court in Hester v. United States and was more recently reaffirmed in Oliver v. United States, observing that, “open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.” Oliver v. United States, 466 U.S. 170. In defining what an open field is, the court noted that, “An 'open field' need not be 'open' or a 'field' as those terms are commonly used; a fenced, thickly wooded area may be an open field for purposes of fourth amendment analysis." Id. at 180, n.11.
While courts have construed “open fields” fairly broadly, a difficult question arises when barns or stables erected in open fields are searched without a warrant or probable cause. One way the question is often resolved turns on whether the barn, stable, or corral is within the curtilage of the home, which is the "area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life.” United States v. Taylor, 458 F.3d 1201, 1206 (11th Cir. 2006). If something falls within the curtilage, then it generally enjoys Fourth Amendment protection. However, the curtilage of a home is "limited to that property that the individual should reasonably expect to be treated as the home itself," and “must be an integral part of that group of structures making up the 'immediate domestic establishment of the home.'" Id. at 1207. In United States v. Dunn, the Supreme Court laid out four factors whether Fourth Amendment protections attach to an area argued to be curtilage: 1) the proximity of the area to the home; 2) the uses to which the area is put; 3) whether the area is within an enclosure surrounding the home; and 4) the steps taken to secure the privacy of the area from public view. 480 U.S. 294, 300. In Dicesare v. Stout, the Tenth Circuit Court of Appeals applied these four factors and determined that a horse corral near a home was not protected by the Fourth Amendment because the area was used for pastureland and the fence enclosing the area did not and was not intended to prevent the public from viewing the area. 1993 U.S. App. LEXIS 9796.
The Supreme Court left open in Dunn whether a barn or stable outside of the curtilage of a home is nonetheless protected by the Fourth Amendment, holding that even if the barn in question was protected, the officers were allowed to peer into the barn through an open door from their vantage point in an open field. However, in Reams v. Irvin, a U.S. district court held that an old dairy barn, which was being used to hide dead horses, was neither within the curtilage of the home nor protected by the Fourth Amendment. 2008 U.S. Dist. LEXIS 25350. In applying the Dunn factors, the court determined that the barns distance of 150 yards from the dwelling on the farm, its use for the commercial production of dairy products, its lacks of enclosure, and its missing doors all militated against it being part of the curtilage of the home and Fourth Amendment privacy protection. Similarly, in Westfall v. State, a Texas court of appeals held that a barn that was being used to house starving cattle was not protected by the Fourth Amendment because it was not located next to a dwelling and could not be associated with the “intimate activities of the home.” 10 S.W.3d 85. In coming to its holding, the court partially relied on an earlier Texas case that established that a building or a small barn in an open field are not entitled to Fourth Amendment protection.
B. Other Horse Cruelty Issues
One often overlooked role horses play and have played in our society is their use as proxies for social status and wealth. The pursuit of increasing the symbolic potency of horses for their owners through aesthetic improvements has led to the creation of a number of cosmetic practices which often result in the infliction of pain and suffering on horses. Chief among these practices are docking, nicking and tail blocking, all of which involve cosmetic procedures on horsetails. No federal legislation directly regulates or prohibits any of these practices. And although every state has some form of animal cruelty law, only 12 states specifically prohibit some form of cosmetic enhancement on horsetails, and no state prohibits all three of the most common practices. See generally Sandra Tozzini, HAIR TODAY, GONE TOMORROW: EQUINE COSMETIC CRIMES AND OTHER TAILS OF WOE, 9 Animal L. 159 (2003).
Where docking generally relates to the length of the tail, nicking and tail blocking are intended to manipulate how a horse moves and positions its tail. Nicking involves cutting the tendons in a horses tail to create an artificially higher carriage, generally for show purposes. Currently, only five states prohibit nicking of horsetails. (Connecticut, Massachusetts, New York, Ohio, and South Carolina). Tail blocking involves an alcohol injection into a horses tail nerves, with the intention of controlling, or rather limiting, the horses ability to move its tail during shows. Though the effects of the injection eventually wear off, the side effects of the injection can include incoordination of gait, the development of a very hard tail, and permanent nerve damage. Currently, no law directly prohibits tail blocking. Id. at 169.
Though more limited in application than docking, soring is a far more painful practice that has been prohibited by federal legislation. Soring is the act of deliberately injuring a horse, usually its feet, in order to obtain a particular type of gait prized at certain horse shows. The object of soring is to cause a horse to suffer an intense pain as its feet touch the ground. In response to the pain, a horse will usually quickly pick its feet up and thrust them forward. Horses will also reach further with their hind feet to take the weight of their front feet and lessen the pain. The practice of soring is probably most closely associated with Tennessee walking horses. See American Horse Protection Asso. v. Lyng, 681 F. Supp. 949, 951.
In 1976 Congress passed the Horse Protection Act, prohibiting soring and declaring the practice to be “cruel and inhumane”. Though the HPA has been around for decades, enforcing it has proven difficult. Due to limited resources, horse industry organizations have been allowed to largely police themselves. While this has produced some decrease in the practice, soring is a continuing problem in horse show circuits. See 15 USCS § 1822; see also Horse Soring Fact Sheet at http://www.hsus.org/horses_equines/tn_walking_horses/what_is_soring_fact_sheet_.html.
Horses in America are inextricably woven into our national narrative, recognized even by Congress as symbols of the “pioneer spirit.” Though often classified as livestock by state laws, in reality they are often treated as companion animals by families, as aesthetic objects by connoisseurs, and as protected wild animals by the United States government. Unlike cows, sheep, pigs, and other livestock, the slaughter of horses for human consumption as been prohibited in several states and legislation is currently pending in Congress that would prohibit it nationally. The horse is also the only domesticated species of livestock that is protected as a precious wild animal on federal lands and allowed to roam freely in a natural state. This is a type of public and political sentiment that is usually reserved for dogs, cats, and endangered species. And it goes to show that horses occupy an incredibly unique position in our society, at a nexus of popular conceptualizations about animals stretching from food sources to friends to symbols of our vitality as a nation. If the current political capital being expended on behalf of horses at both the state and national level is any indication, then the arc of horse welfare is certainly bending away from their traditional role as beasts of burden and towards there absolute admission into that pantheon of treasured American animals, next to dogs, cats, and bald eagles.
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