Animal Law

Volume 12 2005 (full volume - pdf 561.53 KB)

Introduction

ANIMAL WELFARE: ITS PLACE IN LEGISLATION
Congressman Christopher Shays

Articles

MAN’S BEST FRIEND DOES NOT LIVE BY BREAD

ALONE: IMPOSING A DUTY TO PROVIDE

VETERINARY CARE

Phyllis Coleman

Although all states outlaw cruelty to companion animals,

most jurisdictions only prohibit causing unnecessary suffering

as well as failure to provide food, water, and shelter.

They do not address whether owners must obtain veterinary

care. Even the few statutes that mention such treatment

do not define exactly what kind and how much is

required. This article highlights the deficiencies in these

laws. It argues that keeping pets creates an obligation to

get them medical treatment when they are sick or injured

and also explains why such a duty is necessary. In addition,

it proposes uniform legislation that creates an explicit obligation

to provide health care to companion animals, imposes

a duty on veterinarians to report cruelty, and

establishes strict penalties for violations.

LOOKING FOR A NEXUS BETWEEN TRUST,

COMPASSION, AND REGULATION: COLORADO’S

SEARCH FOR STANDARDS OF CARE FOR PRIVATE,

NON-PROFIT WILDLIFE SANCTUARIES

Katherine A. Burke

In 2004, the Colorado legislature amended its wildlife statutes,

formally recognizing the existence of private, nonprofit

wildlife sanctuaries under the jurisdiction of the Colorado

Division of Wildlife (CDOW). Opponents to the 2004

amendments and CDOW staff have repeatedly expressed

concerns that private sanctuaries should not be authorized

in the absence of regulations and enforcement mechanisms

sufficient to protect the animals and the people who come

into contact with them. In implementing the sanctuary

statute, CDOW has followed a familiar pattern, relying on

the accreditation program of the American Association of

Zoological Parks and Aquariums (AZA) to provide the basis

of its regulations. In doing so, CDOW has failed to understand

that the AZA standards are wholly inappropriate for

sanctuaries; they are inadequate to protect the safety of animals

and humans; and they are overly burdensome and

even diametrically opposed to the status and goals of private,

non-profit wildlife sanctuaries. Instead, CDOW could

have acknowledged the stringent, comprehensive, and extensive

standards promulgated by The Association of Sanctuaries

(TAOS), which are carefully tailored to the

operations of sanctuaries. This article considers the plight

of Colorado wildlife sanctuaries, which is by no means peculiar

to the state of Colorado, and carefully examines the

standards promulgated by the AZA and by TAOS. The article

concludes that the TAOS accreditation program would

have provided a significantly better basis of sanctuary regulation,

and that by failing to take advantage of this, CDOW

has missed an important opportunity to create a nexus between

trust, compassion, and regulation.

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REPARATIONS AS A BASIS FOR THE MAKAH’S RIGHT

TO WHALE

Russell C. D’Costa

The grant of whaling rights to the Makah Native-American

tribe may be interpreted as a form of reparations owed to

the tribe from the United Stated government. History details

the many wrongs inflicted on the Makah by the government,

and these wrongs therefore serve as the basis for

reparations. Considered first is a brief review of recent attempts

by the federal government to compensate Native

Americans for past wrongs. Next, an examination of the

history and culture of the Makah tribe provides a greater

understanding of the significance of whaling to the Makah.

The essay then expounds on why permitting the tribe to engage

in whaling is an acceptable form of reparations. Finally,

arguments against the Makah’s whaling are also

examined and critiqued.

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Comments

MAXIMIZING SCIENTIFIC INTEGRITY IN

ENVIRONMENTAL REGULATIONS: THE NEED

FOR CONGRESS TO PROVIDE GUIDANCE WHEN

SCIENTIFIC METHODS ARE INADEQUATE OR

WHEN DATA IS INCONCLUSIVE

Mariyetta Meyers

A “best science available” directive appears in a variety of

environmental law statutes. Although seemingly clear, this

directive has created an abundance of litigation with various

plaintiffs challenging agency decisions under the Administrative

Procedure Act’s (APA) arbitrary and capricious

standard of review. The courts’ review of the agency decisions

based on such science largely depends on the various

ways in which the “best science available” directive is written

in the particular statute. That is, the more specific the

congressional mandate, the less latitude the agency has in

implementing congressional will; the broader the statutory

language, the more breathing space the agency enjoys. This

in turn relates directly to the plaintiffs’ ability to bring

about successful challenges to agency regulations. The less

specific the statutory language defining what constitutes

best science available, the more leeway is available to the

agency, and the less likely the plaintiffs are to prevail on a

challenge that agency actions are arbitrary and capricious

under section 706 of the APA. Since agencies are given

broad discretion in their decisions—even those based on science—

this Comment argues for clear congressional guidelines

in best science available directives, because only such

guidelines would ensure greater agency compliance with

congressional intent, give courts more direction in reviewing

agency decisions under the APA, and, in the long run,

maximize the scientific integrity of agency rules and decisions.

In the environmental and wildlife protection contexts,

this will ensure that agencies achieve Congress’s

objectives, resulting in greater species protection.

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