Ms. Ireland explores the methodologies, ethics, and dangers of canned hunting and offers ways to challenge the practice through existing and proposed state and federal statutes. In so doing, Ms. Ireland examines statutory law as it relates to exotic animals, the definition of "animal," anti-cruelty exemptions, and husbandry practices. Finally, the feasibility of statutory enforcement by agencies is examined.
CANNING CANNED HUNTS: USING STATE AND FEDERAL LEGISLATION TO ELIMINATE THE UNETHICAL PRACTICE OF CANNED "HUNTING"
By
Laura J. Ireland*
After a guide drove the ram directly into the path of his client, the hunter shot the trapped animal with an arrow at point-blank range. The wounded ram, with an arrow sticking out of his hindquarters, backed up against the fence that forced him to stay close to his killers. A shot to the head might have meant a quick kill, but would have spoiled the eventual trophy. So the hunter repeatedly took aim at the ram's body, and the animal writhed in pain for four minutes before dying. 1
I. INTRODUCTION
The sign hanging above the entrance to a long, winding dirt road reads, "Bag a Trophy, Guaranteed Kill, No Kill, No Pay!" The owners promise the experience of a lifetime-the chance to kill a wild animal, right in the heart of your home state, with no experience, not even a license, necessary . . . for just a few thousand dollars. You can shoot a lion, bag yourself a 14-point buck, or kill a rhinoceros all from the safety and comfort of a tree stand or an Off-Road Vehicle. Grab your buddies, have a luxurious weekend away, snag a trophy animal, and arrive back at the office Monday morning with a story to tell and an animal's head to hang on the wall. A canned hunt offers precisely that-the illusion of hunting a dangerous animal. In reality, it involves the close-range killing of perhaps a hand-raised deer or a tame former zoo animal-animals who have no fear of humans, and would not even try to escape. Even if such an animal did attempt to escape, there is nowhere to run. Such is the nature of a "canned hunt."
Although there has been no widespread movement to end canned hunting, some legislators at both the state and federal levels have realized the importance of regulating canned hunts to protect the public from dangerous exotic animals, or to protect native wildlife populations from the spread of diseases. A small number of states have enacted legislation to restrict the size of canned hunt enclosures, to regulate hunting practices, or to ensure the safe transportation of animals. 2 Although some states have enacted legislation to regulate the public safety and disease control aspects of canned hunts, the practice itself has not been addressed from an animal welfare standpoint. From such a standpoint, canned hunts are inhumane, unethical, and should not exist.
While strong legislation is required to eliminate canned hunt operations in each state, attorneys may be able to take advantage of state anti-cruelty statutes and humane slaughter regulations to protect animals held in captivity from the "hunters" who visit wildlife parks, game ranches, and hunting facilities. All states have animal anti-cruelty statutes, and the majority of states include felony provisions for certain egregious acts of cruelty. 3 While most states exempt the hunting of wildlife and the raising and slaughtering of livestock from their protection, five state statutes specifically protect captive wild animals. 4 Animals in canned hunts are, in every sense of the word, captive-they are kept within enclosures and are dependent on humans for food and shelter. Moreover, canned hunting should not be included as an acceptable form of hunting or exempted as a common husbandry practice. If it is considered a husbandry practice, it should be subject to humane slaughter regulations.
If a cattle rancher allows a person to shoot his or her cow in the side, watch her suffer as she bleeds to death, and then send her flesh to a grocery store or restaurant, the rancher has clearly violated humane slaughter laws. Similarly, a canned hunt operator who allows someone to shoot a deer, sheep, boar, lion, or other captive animal, should be held in violation of humane slaughter laws. Contrary to the opinions of some canned hunting advocates, these hunts do not involve traditional hunting practices. Rather, they are an alternative form of slaughter and should be regulated accordingly.
This article explores the ethics of canned hunts and argues that existing state and federal statutes support the regulation of these operations. Section II describes the foundations and practices of canned hunts. Section III analyzes current state legislation and proposed federal legislation, including proposals for the most effective methods of banning canned hunting facilities. Finally, Section IV argues that existing animal anti-cruelty statutes may be used to eliminate canned hunts in certain states, and evaluates the likelihood of statutory enforcement given the political realities faced by enforcement agencies.
II. WHAT IS A CANNED HUNT?
The phrase "No Kill, No Pay" epitomizes the spirit of canned hunts. Canned hunting facilities are the playgrounds of lobbyists, lawyers, doctors, businesspersons, and trophy hunters. Often these operations are not regulated by state wildlife agencies-there are no "bag limits," canned hunters are not required to carry hunting licenses, and they do not need firearm experience. 5 For many individuals the ethics of hunting are questionable, and the definition of "canned hunt" is open to interpretation. However, for the purposes of this comment, "captive" wild animals include those mammals that are dependent on humans for food and shelter. The term "canned hunt" does not include those establishments where hunters pay for access to land where the animals roam freely and forage for food. The distinction between conventional hunting and canned hunting is not the size of the enclosure, but the behavior of the animals.
Currently, there are up to two thousand hunting facilities in over twenty-five states. 6 The owners of canned hunting facilities supply a variety of big game trophy and exotic animals for commercial hunts, and guarantee a kill for a set price. Typical fees range from $400 for a white tail deer to $5,000 for an American elk, 7 and some facilities charge up to $20,000 for exotic animals such as lions, and even endangered species such as rhinoceroses, zebras, or tigers. 8
While some canned hunt facilities guide hunters inside fenced enclosures, other facilities allow patrons to "hunt" animals while they are staked or caged. 9 Many canned hunt operations are less than 100 acres in size, 10 although there are some as large as 16,000 acres. 11 Some individuals argue that animals have an opportunity to escape in large facilities, 12 and that "true" canned hunts are only those where the animal is shot while staked or caged, or shot at the moment of release. However, the size of the enclosure is irrelevant to the final outcome of the hunt. Whether an animal is staked while she is shot, cowering against a fence in a 1,500 acre ranch, or eating at her trough, the hunter is still ensured a kill. Guides are intimately familiar with the animals' habits-where and at what time they feed, where they sleep, the trails they walk, where they play, and where they hide. 13 Therefore, guides will often simply trap the animals in a corner of the enclosure in preparation for the kill. 14 It may take more time and effort to find the animals in large facilities, but the kill is still guaranteed. Additionally, even though the animals in large facilities have more space to roam, they are essentially domesticated animals who have little or no fear of humans-they have depended on humans for food and shelter their entire lives.
The animals available for the killing at canned hunt facilities include surplus zoo animals, 15 hand-raised domesticated game animals, 16 and retired circus animals purchased through auctioneers. 17 While some animals are raised on the facilities, many are transported from elsewhere. Many states require veterinary exams and health certificates for these animals. 18 -requirements reserved for domesticated, not wild, animals. States impose rigorous health standards for transported animals because of the possibility of high-risk disease transmission to native animal populations. 19
Beyond animal welfare concerns, canned hunts are harmful due to the potential impacts of disease transmission. Five states have diagnosed diseases in captive elk herds. 20 Diseases such as tuberculosis, brucellosis, and chronic wasting disease (which is similar to bovine spongiform encephalopathy, also known as "Mad Cow Disease") 21 have been diagnosed in free-roaming and captive wildlife. 22 Diseases may be spread between the captive wild animals themselves, from captive to free-roaming wildlife, or from captive animals to livestock. 23 Despite legal standards requiring fencing of canned hunt facilities for big game and exotic wildlife, 24 captive wildlife may still escape due to human error. There is also the potential for captive animals to make contact with native wildlife through fencing. 25 Finally, keeping animals captive in high concentrations, and transporting them to new locations, also increases the likelihood of disease transmission. 26
Although the size of the enclosure, the species of animals, and the price of the kills vary according to each operation, canned hunt facilities all share the same basic concept: "hunters" pay for a guaranteed kill-they never have to walk away empty-handed.
III. THE MOST EFFECTIVE ACTIONS: ENACTING STATE AND FEDERAL LEGISLATION
While some states have enacted legislation addressing canned hunting, there is no federal legislation at this time. State and federal legislation that ultimately bans the hunting of all animals, wild or captive, would be the most effective mechanism for preventing the inhumane death of captive animals in canned hunt facilities. Short of such legislation, in the interim, regulations banning the hunting of captive animals would address unethical hunting practices, disease transmission, and animal welfare concerns.
A. State Legislation
There has been an increase in state legislation regarding canned hunt operations. A number of states have regulated the size of enclosures, 27 some have banned the hunting of certain animals, 28 and others have banned ownership of exotic animals altogether. 29 Although regulating the size of canned hunting enclosures in order to address disease transmission and banning the ownership of certain animals is a positive step, only laws prohibiting canned hunts will meaningfully address disease transmission, habitat loss, hunting "ethics," and animal welfare concerns. California, 30 Delaware, 31 .Georgia, 33 New York, 34 Oregon, 35 Montana, 36 Wisconsin, 37 and Wyoming 38 have successfully regulated canned hunts of captive exotic animals or big game mammals.
While state action is critical to provide limits on canned hunting facilities, until they are prohibited in every state, federal legislation is necessary to prevent the breeding, sale, and transport of captive wildlife and exotic mammals. Many canned hunting facilities rely on breeders and zoos to supply them with exotic animals. 39 While hand-raised deer, elk, sheep, and birds are the staples of many hunting establishments, exotic animals from zoos and breeders draw the most hunters and the highest prices per animal. 40 Therefore, federal legislation addressing the sale and transport of exotic animals would strike a crippling blow to the canned hunt industry.
B. Proposed Federal Legislation
There are currently no federal laws governing canned hunting operations. The only existing protection for these animals is the Endangered Species Act (ESA) 41 and the Humane Slaughter Act. 42 The ESA protects species of animals listed as endangered or threatened, but "it does not prohibit private ownership of endangered animals, and may even allow the hunting of [privately owned] endangered species." 43 Additionally, the ESA, as federal legislation, prohibits only interstate and foreign commerce, 44 not intrastate commerce, leaving the doors open for breeders and canned hunt operators to operate within their home states. Although the Humane Slaughter Act arguably should apply to canned hunt operations that classify their animals as alternative livestock, it has not yet been interpreted to include animals at canned hunts. 45
Although hunting is typically a state issue, Congress may regulate the sale and transport of animals for canned hunts based on its authority to regulate interstate commerce. 46 It may use this power to regulate the transport, interstate sale, and possession of exotic animals. Both the Senate and House have introduced bills that address the hunting of exotic animals. 47 The Captive Exotic Animal Protection Act of 2001 (CEAPA) would make it illegal to knowingly transfer, transport, or possess in interstate or foreign commerce a confined exotic animal "for the purposes of allowing the killing or injuring of that animal for entertainment or the collection of a trophy." 48
The CEAPA primarily addresses animals that are hunted while staked or caged; it does not cover animals who are able to roam and forage for naturally occurring food. Although the ethics of hunting within even a large enclosure are questionable, the CEAPA would not affect operations larger than 1,000 acres. Additionally, the CEAPA would not affect state management of traditional hunting.
At this time, it is not illegal for zoos to sell their surplus animals to canned hunting facilities; however, those sales are inconsistent with the mandates of the American Zoo and Aquarium Association (AZA). 49 According to the AZA, accreditation recognizes "excellence in and commitment to animal care, professionalism, ethics, conservation, and education." 50 Thus, the AZA exempts accredited facilities from certain government requirements; it renders facilities eligible for funding and grants; and it allows facilities access to animals from other AZA-accredited facilities for loaning and breeding purposes. 51 The AZA purports to hold accredited facilities to high standards and subjects them to routine inspections. 52 However, the numbers of animals sold into canned hunts evidences a lack of enforcement, or ambivalence toward this underground trade. 53
The CEAPA would make it illegal for zoos to knowingly sell or transfer animals to canned hunting facilities, and it may be expanded to include transfers from zoos to "middlemen," such as breeders or auctioneers, who then sell the animals to hunting facilities. The CEAPA would formalize and codify the AZA's mandates, and would create a stronger incentive for zoos to keep surplus animals out of hunting operations.
While it does not address the entire problem, 54 the CEAPA represents an important first step in regulating canned hunts at the federal level. The CEAPA addresses the most horrific, unethical, and inhumane aspects of canned hunt facilities. It will apply to breeders, zoos, dealers, auctioneers, and canned hunt operators-discouraging the trade and killing of exotic mammals.
C. Strategies to Enact Legislation
Opponents of canned hunting have employed three different strategies to ban or regulate facilities: administrative rules, legislation, and the state ballot initiative process. Working with agencies to promulgate administrative rules that prohibit canned hunts is the most effective and efficient option for eliminating canned hunt operations. In 1999, the Oregon Department of Fish & Wildlife became the first state agency to promulgate an administrative rule banning the hunting of exotic or game mammals held or obtained by private parties. 55 Administrative rules are effective because the process is less political than that of enacting state legislation, there are fewer enforcement problems, and the process provides opportunities for coalition-building. Administrative rules have the same legal effect as statutes, but they are easier to implement than legislation. Thus, the first step in advocating for changes in canned hunt policies should be an appeal to administrative agencies to change their rules and regulations.
If agencies are unresponsive, opponents of canned hunts should seek change through the legislature. Legislators are often hesitant to impose rules on agencies and will likely be concerned about an agency's response to proposed legislation; however, this process may be used to highlight agency interests. Oftentimes, wildlife agencies are particularly sensitive to hunting interests because most of their revenue comes from the sale of hunting licenses. Thus, despite the fact that hunters make up a small percentage of the population, 56 it is easy for these agencies to forget that other groups, such as the animal protection community, are also their constituents. While it may be difficult to pass legislation without agency support, there are many legitimate arguments, even beyond animal welfare, against canned hunts.
Finally, canned hunting could be banned or regulated in certain states through the ballot initiative process. If state legislatures and agencies are unwilling to take action on a particular issue, the initiative process empowers citizens to place that issue on the ballot, or to use the threat of bringing an initiative as a bargaining tool.
Twenty-four state constitutions allow citizens to place issues on the ballot through a direct or indirect initiative process. 57 Nineteen of those states still allow canned hunts. Direct initiatives are citizen-driven constitutional amendments or statutes. 58 Proposed initiatives are placed on election ballots, with no involvement from the state legislature. 59 Indirect initiatives are also citizen-driven; however, proponents of an amendment or statute must petition for signatures and submit them to the state legislature. If the legislature does not approve of the proposal, or amends the original language, the original proposal may be placed on the election ballot. 60
The initiative process also creates an opportunity for animal advocates, ethical hunters, and wildlife biologists to work together to eliminate inhumane, unethical, and biologically harmful canned hunt operations. In Montana, hunters were the driving force behind a 2000 initiative that banned game ranches and canned hunt operations. 61 Though many individuals view Montana as a pro-hunting state, ethical hunters, animal rights activists, and wildlife biologists, built an effective coalition. While it is a significant tool for animal advocates, the initiative process should be a last resort because it is time consuming, expensive, and requires extensive organizing and citizen participation. 62
Just as there are different methods for enacting bans, different language has been used to effectively eliminate canned hunting operations. Oregon's administrative rule bans the outright hunting of exotic or game mammals. However, it allows exceptions for slaughter, science, health and safety, and wildlife management. 63 The inclusion of reasonable exceptions satisfies all affected parties, and allows the agency to address animal welfare, disease transmission, and exotic trade concerns while appeasing traditional hunters and wildlife biologists.
Wyoming's regulation bans ownership of big or trophy game animals. 64 While a ban on ownership necessarily eliminates the canned hunting of those animals, it does not expressly include exotic animals, and it still allows the ownership and hunting of smaller captive animals.
Other states, including Delaware 65 and New York, 66 have addressed some of the more egregious aspects of canned hunting facilities and regulate killing methods and enclosure size. However, both states still allow hand-raised, captive animals to be shot and killed for a fee.
Wisconsin's canned hunt statute bans the killing or wounding of any animal held in captivity, and defines captivity without regard for the size of an enclosure. The ban states:
No person may instigate, promote, aid or abet as a principal, agent, employee, participant, or spectator, or participate in the earnings from, or intentionally maintain or allow any place to be used for the shooting, killing or wounding with a firearm or any deadly weapon, any animal that is tied, staked out, caged or otherwise intentionally confined in a man-made enclosure, regardless of size. 67
The most effective language for rules, statutes, or initiatives would include a ban on owning exotic animals; it would prevent the killing or wounding of any animal tied, staked, or confined in any enclosure, despite the enclosure's size; and it would prohibit paying anyone, other than states in the form of hunting licenses, for the opportunity to hunt.
IV. A LOOPHOLE IN ANIMAL ANTI-CRUELTY STATUTES
Although enacting new legislation is critical in the fight against canned hunts, some states with existing anti-cruelty statutes may support prosecution of canned hunting facilities and their patrons. Historically, anti-cruelty statutes were enacted to protect animals with "economic" value (such as horses, ox, cattle, and sheep), with no protection for domestic companion animals. 68 The philosophies behind anti-cruelty statutes have evolved from a desire to protect economic commodities to a broader view that all animals should be free from abuse and neglect. As a result, most anti-cruelty statutes now protect companion animals. 69 Animals in canned hunting facilities should also be afforded the protection of anti-cruelty statutes because in some states they fall within the definition of "animal" as covered under the statutes; the practices at canned hunts are cruel; and such practices do not fit within allowed state exemptions.
In order to utilize state anti-cruelty statutes effectively, captive wildlife must be included under the definition of "animal," canned hunting must be considered "cruel" under the statute, and the statutes must contain adequate provisions for enforcement.
A. The Definition of "Captive Animal"
Although every state has passed an anti-cruelty statute, the protections, definitions, and exemptions they contain differ from state to state. 70 While one may argue that the animal victims of canned hunts fall within every state's definition of "animal," they clearly fall within the definition of five states: Iowa, 71 New Hampshire, 72 New Mexico, 73 Oklahoma, 74 and Texas. 75 These five states specifically include captive wild animals under their anti-cruelty statutes. The definitions of "captivity" in each state's anti-cruelty statutes, case law distinctions between captive and wild animals, and canned hunt facility practices and procedures provide guidance in interpreting the definition of "captivity."
Even among the states that include captive wildlife or game in their anti-cruelty statutes, there is great variation regarding the definitions of "animal" and "captive animal." Iowa's anti-cruelty statute defines "animal" as "a nonhuman vertebrate;" 76 however, the term does not include "game[,]. . . unless a person owns, confines, or controls the game." 77 Under New Hampshire's statute, "animal" means "a domestic animal, a household pet or a wild animal in captivity." 78 The definition of "animal" is even broader under Oklahoma's statute: "animal" means "any mammal, bird, fish, reptile or invertebrate, including wild and domesticated species, other than a human being." 79 Finally, in Texas, "animal" means a "domesticated living creature and wild living creature previously captured." 80
In State v. Cleve, the New Mexico Supreme Court held that captive wild animals are more similar to domestic animals than to wild animals, and therefore fall within the purview of the state anti-cruelty statute. 81 The issue in Cleve was whether a hunter could be convicted of cruelty to animals while hunting and snaring wild deer. The court determined that wild animals were not covered under the anti-cruelty statute, stating that the statute "applies only to domesticated animals and wild animals previously reduced to captivity." 82 The court explained that wild animals are not covered because "the Legislature did not intend to create a duty on the part of the public to provide sustenance to wild animals." 83
In contrast, animals in canned hunt facilities depend on people for food. Facilities have regular feeding schedules, and the animals are often lured to feeding stations or crop fields. 84 Furthermore, many states include provisions in canned hunt regulations that require owners to provide food, water, and adequate care. 85 As such, operators who do not provide their animals in their care with food, water, or adequate care are guilty of neglect.
The court in Cleve also emphasized that New Mexico's anti-cruelty statute only applies to animals "owned" by people. 86 The animals in canned hunts are clearly owned by the operators of hunting facilities, because the operators purchase animals from breeders or dealers, canned hunters pay thousands of dollars for the right to take these animals, and canned hunts are located on private property. Since wild animals belong to no one, 87 no person owes them a duty of care or protection. However, once a person takes an animal under her control, she reaps the benefits of ownership, has a duty of care, and is subject to anti-cruelty statutes. If owners of hunting facilities are responsible for the sustenance, transportation, and well-being of their animals, they must also be responsible for protecting the animals from cruelty.
Additionally, hunting license classifications aid in distinguishing wild animals from captive animals. Many canned hunting facilities do not require hunters to obtain a state hunting license. 88 If hunters do not need a license, they are not hunting wild animals. Rather, they are simply killing animals who are someone's property.
B. The Definition of "Cruel"
While the definition of "cruelty" differs from state to state, Arizona's statute is typical:
A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another . . . or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed . . . or who willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal or any act tending to produce such cruelty, is guilty of a misdemeanor. 89
Additionally, many states prohibit depriving an animal of necessary sustenance and failing to provide food, water, or shelter. 90
In Iowa, a person commits animal abuse if she "intentionally injures, maims, disfigures, or destroys an animal owned by another person, in any manner, including intentionally poisoning the animal." 91 A person violates the New Hampshire statute for depriving an animal of necessary care, sustenance or shelter, but also for negligently permitting an animal "in his possession or custody to be subjected to cruelty, inhumane treatment or unnecessary suffering of any kind." 92 Oklahoma's statute states:
Any person who shall willfully or maliciously . . . torture, destroy or kill, or cruelly beat or injure, maim or mutilate, any animal in subjugation or captivity, whether wild or tame, and whether belonging to himself or to another, or deprive any such animal of necessary food, drink, or shelter; or who shall cause, procure or permit any such animal to be . . . tortured, destroyed or kill, or cruelly beaten or injured, maimed or mutilated . . . shall be guilty of a felony. 93
Finally, in Texas it is cruel to kill, injure, or poison animals. 94
Typical anti-cruelty statutes prohibit torture, neglect, maiming, killing, and the infliction of unnecessary suffering, 95 all of which occur regularly at canned hunting facilities. There are numerous first-hand accounts and videotaped images of canned hunts that would be considered cruel, inhumane, or unnecessary under any statute. When an untrained person shoots an animal confined in an enclosed area and watches her die a slow death, that person arguably inflicts unnecessary suffering. Clearly, owners of canned hunts willfully destroy, kill, maim, and injure their wild or tame animals in subjugation or captivity.
All state anti-cruelty statutes exempt a number of practices that would otherwise be considered torture, neglect, or unnecessary suffering. 96 The most common exemptions are for scientific experimentation, common farming practices, and hunting. 97 Hpwever, canned hunt practices clearly do not fit within these exemptions.
C. Canned Hunts Are Not Exempt from Anti-Cruelty Statutes
1. Wild Animals Do Not Live in Cages
Canned hunt operators argue that their animals are wildlife. However, animals are captive while in the confines of canned hunting facilities. Animals in these facilities no longer roam freely, and they depend on humans for food and shelter. In a letter to New York Governor George Pataki, an undercover investigator for the Humane Society of the United States stated:
If a hunting facility is completely fenced in, it doesn't matter if it's 10 acres or 200 acres. I found as I visited these hunts that the hunting guides have learned how to trap any animal in a corner of the enclosure, and all the hunts take place near the corners. After just a few visits I found that I could corner any animal in the facility with little work. This isn't hunting . . . it's shooting fish in a barrel. . . . No tracking skills are required, and the animals have no chance whatsoever to escape.
The animals in all of these facilities have at least some interaction with humans, through feedings or round-ups, and therefore are not wild animals by any stretch of the imagination. They are much closer to zoo animals (which many of them were) or pets. 98
The animals held at canned hunting facilities are not exempt from anti-cruelty statutes because they cannot be classified as "wildlife." Most animal advocates and hunters agree: there is no traditional hunting at canned hunts. The animals held in hunting facilities do not act like wild animals. 99 There is no chase, and there is no real hunt. Traditional hunters abide by a hunters' code of ethics-ethics that include a concept of fair chase, the pursuit of free roaming wildlife, and no competition. 100 These hunters oppose canned hunts because they believe them to be inherently unfair and unethical. 101 Shooting captive or domesticated big game in an enclosed area is inconsistent with fair chase ethics. According to Jim Posewitz, the Executive Director of Orion: The Hunter's Institute, fair chase is the "balance that allows hunters to occasionally succeed while animals generally avoid being taken." 102 The entire philosophy behind canned hunts is that the hunters always succeed, and the animals never avoid being taken.
Traditional hunters recognize that society may support hunting for food, to manage wildlife populations, or for conservation. 103 However, a majority of society finds unethical hunting, killing for trophies, and killing for fun-the foundations of canned hunts-highly objectionable. 104 Ted Kerasote, hunter and Sports Afield columnist, stated that "ignoring [this] cancer within our ranks is indefensible and makes us hypocrites in the eyes of nonhunters." 105 Additionally, a representative of the Montana Bowhunters Association stated, "animals become habituated to people when they depend on us for food," and believes these tame animals should not be hunted. 106
Some individuals argue that canned hunters pay for access to private land, not for access to the animals. While some hunting preserves do operate in this manner, canned hunting facilities, whose operators lure hunters with the promise of "no kill, no pay," offer more than mere access to land-canned hunters pay for the animal.
Canned hunt operators and trophy hunters who frequent these establishments may argue that killing animals in canned hunts is analogous to hunting in the wild. However, videotapes, traditional hunters, and the canned hunt brochures themselves all dispute their arguments. Canned hunters do not pay for a traditional hunting experience. Truly wild animals are not fed, transported, or kept in enclosures. Traditional hunters are never guaranteed a kill and they are not able to select their trophy from pictures. Canned hunts, by definition, do not involve wildlife; they involve domesticated, captive animals.
2. Common Husbandry Practices do not Include "Hunting"
Additionally, canned hunt operations should not be exempt from anti-cruelty statutes, even if they are defined as livestock operations, because their practices are not "normal" or "common" husbandry practices. The drafters of anti-cruelty statutes recognized the need to exempt farm animals from the protections of anti-cruelty statutes in order to allow common livestock practices. State legislatures have left the task of defining "common" or "normal" husbandry practices to the industries themselves. 107 Although countless objectionable practices are allowed in the farming industry, pinning an animal against a fence, shooting her in the side, and watching her bleed is not one of them. Canned hunts do mirror agricultural practices-but only in how the animals live, not in how they die. If, however, canned hunting operations were exempt from anti-cruelty statutes, and even if they could convincingly argue that their practices are "normal" and "common," they should then be subject to humane slaughter regulations.
Canned hunts not only supply heads to hang on the wall, and animal skins to drape across the floor, but also allow canned hunters to take the flesh of the animals they have killed. Canned hunt operators prefer to be classified under agricultural, rather than wildlife, regulations because agriculture departments tend to be more sympathetic to canned hunt operations. 108 If these facilities are to be classified as agricultural institutions, they should be held to the same standards for slaughter as other livestock operations.
Congress passed the Humane Slaughter Act, in part, to protect animals from cruel and inhumane deaths. 109 The Act includes protections for "cattle, calves, horses, mules, sheep, swine, and other livestock" who are slaughtered 110 for human consumption. 111 Animals in canned hunting facilities live under the same conditions as traditional livestock. They are hand-raised, transported in trucks, fed, and sheltered by humans. If the animals are kept in large enclosures they may forage, as do livestock. The only difference between the two groups of animals is that sometimes the trucks that normally bring food for the animals in canned hunts also bring humans brandishing weapons.
Canned hunt patrons are slaughtering animals, inhumanely, and their hunts should be violations of humane slaughter regulations. Although the language of the Humane Slaughter Act seems to offer adequate protections for animals and consumers, unfortunately, the scope of the Act is narrow and numerous funding and enforcement problems have plagued its application. 112 The enforcement mechanisms of the Humane Slaughter Act are inherently flawed. First, the Act carries no penalties for violations. 113 Also, the USDA, who is charged with enforcing the act, has strong political ties to the meat industries. 114 The USDA even opposed the Humane Slaughter Act during its introduction in 1958 and when the act was broadened in 1978. 115 In order for the Humane Slaughter Act to be effective, it must include protections for all animals who are slaughtered for human consumption, and it must be enforced by an agency that is not economically or politically tied to the industry.
D. Enforcement of Anti-Cruelty Statutes
While rules, statutes, and regulations designed to protect certain animals exist, there are enforcement obstacles to using these provisions to protect animals killed in canned hunting operations. The most significant obstacle is that anti-cruelty statutes generally only allow district attorneys to bring enforcement actions.
Typically, anti-cruelty violations are prosecuted by either the state Attorney General's office or by county district attorneys. Unfortunately, cruelty cases are not always the highest priorities, and these offices have the prosecutorial discretion not to take these cases. For example, while Texas has an anti-cruelty statute that specifically includes protections for captive wild animals, in reality, bringing an enforcement action in that state would be very difficult, because Texas is home to over 500 canned hunt operations. 116 District attorneys are elected in Texas, as they are in all states, and bringing an action against canned hunts could be political suicide.
Enforcement of these statutes would be more widespread and effective if statutes provided standing to humane investigators and anti-cruelty officers. Animal protection groups have successfully enforced anti-cruelty provisions in Pennsylvania thanks to an anti-cruelty statute that allows state humane agents to initiate criminal proceedings. 117
A strategy for animal advocates would be to lobby for a provision to be included in anti-cruelty statutes that would allow humane investigators or anti-cruelty officers to enforce these statutes, which would increase the likelihood of enforcement actions. Additionally, counties may adopt the Animal Legal Defense Fund's Special Prosecutors Program. Through this program, experienced trial attorneys in private practice may volunteer their time and become deputized by prosecutors' offices in order to prosecute animal cruelty cases. 118 Deputized attorneys, with an interest in protecting animals, could then take these cases and ensure that their state's anti-cruelty statutes are adequately enforced. Finally, some states allow prosecution by private criminal attorneys. 119
V. CONCLUSION
Canned hunting should no longer exist-for animal welfare, wildlife, health and safety, and ethical reasons. Canned hunt operations cater to a few wealthy trophy hunters who exploit hand-raised game, zoo, and circus animals. Even many traditional hunters shun the practices of canned hunting facilities.
Ultimately, strong legislation is needed, at both the state and federal levels, to end this killing of captive animals. Animal advocates, hunters, and wildlife biologists may build coalitions to pass administrative rules, to lobby legislators, or to bring ballot initiatives. In the meantime, the protections afforded to animals through various state anti-cruelty laws may offer alternate avenues for prosecution. However, in order for these provisions to be effective, there must be stronger language and more effective enforcement. Despite the inadequacy of existing laws, any action taken on behalf of animals that prevents the violent death of even one captive animal at a canned hunt would be worth the effort.
*Ms. Ireland is the Director of the National Center for Animal Law. She received her J.D. and Certificate in Environmental & Natural Resources Law from Lewis & Clark Law School, 2001, and her B.A. in Environmental Studies and minor in Economics from the University of Colorado, Boulder, 1997. The author would like to thank The Fund for Animals staff for their inspiration, and the members of Animal Law for their dedication.
1 The Fund for Animals, Hunting Fact Sheet #4 : Canned Hunts: The Other Side of the Fence < http://fund.org/library/documentViewer.asp?ID=42&table=documents > (accessed Feb. 22, 2001).
2 See discussion infra Section IV.
3 Pamela D. Frasch et al., State Animal Anti-Cruelty Statutes: An Overview , 5 Animal L. 69 (1999); see discussion infra Section IV.
4 These five states are Iowa, New Hampshire, New Mexico, Oklahoma, and Texas; see discussion infra Section IV-A. The animals found at canned hunts, such as elk, bears, and tigers, are normally considered wild. However, see discussion infra Section IV.C.1 arguing that, due to their behavior and captivity, these animals cannot be classified as wild animals.
5 The Fund for Animals, Canned Hunts Unfair at Any Price 10 (Feb. 2001); The Fund for Animals, Canned Hunts Unfair at Any Price < http://fund.org/library/documentViewer.asp?ID=338&table=documents > (accessed July 19, 2002).
6 Jeffrey Kluger, Hunting Made Easy: Shooting captive animals to mount their heads on a wall is a booming sport. Should Congress step in? 159:10 Time 62 (Mar. 11, 2002).
7 Beaver Creek Lodge, Rates < http://www.huntingtop10.com/lodges/tx/txlg/rates.html > (accessed July 19, 2002).
9 The Fund for Animals , supra n. 5, at 4.
10 Id . at 14.
11 Hunting Top 10, The Hunt Club < http://www.huntingtop10.com/outfitters/il/ilof3/index.html > (accessed July 22, 2002).
12 Alan Green & The Center for Public Integrity, Animal Underworld: Inside America's Black Market for Rare and Exotic Species 210 (PublicAffairs 1999).
13 Letter from Mike Winikoff, Dir. of Programs, The Ark Trust, Inc., to Gov. George Pataki (N.Y.) (Jan. 9, 2001) (on file with author).
15 Green , supra n. 12, at 138, 149-56.
17 Id. at 216. The exotic animal trade is beyond the scope of this comment. For an overview of this trade, see Green , supra n. 12.
18 See e.g. 520 Ill. Comp. Stat. § 5/3.34 (2001) (mammals released into such areas "must be inspected and certified disease free from a licensed Illinois veterinarian"); Iowa Admin. Code R. 571-112.11 (2001 ) (ungulates "shipped or transported into Iowa for hunting preserve purposes shall be accompanied by an approved Certificate of Veterinary Inspection").
19 The Fund for Animals , supra n. 5, at 16-17.
20 States impacted by diseases include Colorado, Montana, Nebraska, Oklahoma, and South Dakota. State of Colorado Deptartment of Agriculture, Chronic Wasting Disease In Domesticated Elk < http://www.ag.state.co.us/animals/livestock_disease/cwd.html > (accessed Mar. 16, 2001).
21 Id.
22 Id.
23 The Fund for Animals , supra n. 5, at 16-17.
24 See e.g. 163 Neb. Admin. R. & Regs. 4-008.02D (2001) (if ungulates are held in a pasture, the pasture fence "must consist of a permanent sheep-tight fence at least 8 feet in height and constructed in such a manner as to prohibit escape of captive animals and the possible ingress of wild ungulates"); Mo. Code Regs. Ann. tit. 3, 10-9.565(1)(B)(1) (2001 ) ("The shooting area for ungulates shall be a single body of land not less than three hundred twenty (320) acres in size, fenced so as to enclose and contain all released game and exclude all hoofed wildlife of the state from becoming a part of the enterprise and posted with signs specified by the department.").
25 The Fund for Animals , supra n. 5, at 16-17.
27 See e.g. Ark. Captive Wildlife Regs § 15.03 (1-3); Iowa Code Ann. § 484B.4.2(a),(e),(f) (West 2000 ); N.Y. Envtl. Conservation Laws § 11-1904(a)(1-4)(McKinney 2001).
28 See e.g. Md. Nat. Resources Code Ann. § 10-901 (2001); Tex. Parks & Wildlife Code Ann. §§ 62.102(1)(A),(B) and 62.101(2) (1999).
29 See e.g. Wyo. Stat. Ann. § 23-5-103 (2001).
30 Cal. Fish & Game Code § 2124(a) (West 2001): "It is unlawful for any person to possess . . . purchase, sell or transfer any live mammal . . . for the purpose of maiming, injuring, or killing the mammal for gain, amusement, or sport."
31 Del. Code Ann. tit. 7, § 704(a) (2000):
No person shall make use of any pitfall, deadfall, scaffold, cage, snare, trap, net, pen, baited hook, lure, urine or baited field or any other similar device for the purpose of injuring, capturing or killing birds or animals protected by the laws of this State. . . except as otherwise expressly provided.
32 Ga. Code Ann. § 27-5-12 (2001): "It shall be unlawful to shoot, kill, or wound any wild animal held under a wild animal license or permit or any farmed deer for enjoyment, gain, amusement or sport."
33 Nev. Rev. Stat. § 504.295 (1) (2001): "[N]o person may: Possess any live wildlife unless he is licensed by the division to do so. Capture live wildlife in this state to stock a commercial or noncommercial wildlife facility. Possess or release from confinement any mammal for the purpose of hunting."
34 N.Y. Envtl. Conservation Laws § 11-1904(1)(A)(1-3) (McKinney 2000):
No person who owns, operates or manages a facility that harbors non-native big game mammals shall knowingly permit . . . the taking on such premises by any person who pays a fee to take a live non-native big game mammal . . . by shooting or spearing of a non-native big game mammal that is tied or hobbled . . . staked or attached to any object . . . confined in a box, pen, cage or similar container of ten or less contiguous acres from which there is no means for such mammal to escape.
35 Or. Admin. R. 635-064-0010 (2001):
It is unlawful to hunt, kill, or attempt to hunt or kill, exotic mammals (as defined in Or. Admin. R. § 635, Division 56) or game mammals (as defined in O.A.R. 635, Division 45) held or obtained by private parties; however: Any person may slaughter such an animal for meat, leather, or fur production; Any person may euthanize such an animal for scientific, health, safety or other valid husbandry concerns; and the department's Wildlife Division Director may authorize any person to hunt or kill such an animal if the Division Director determines it would be in the best interest of sound wildlife management.
36 The citizens of Montana passed a ballot initiative in 2000 banning game ranches. Mont. Code Ann. § 87-4-407 (2000). The proponents argued that canned hunts and game ranches are unethical, that they promote disease transmission to native wildlife populations, and that they fracture wildlife habitat. Montanans Against the Domestication and Commercialization of Wildlife <http://www.macow.org/> (accessed Feb. 23, 2001).
37 Wis. Stat. Ann. § 951.09 (West 2001):
No person may instigate, promote, aid or abet as a principal, agent, employee, participant, or spectator, or participate in the earnings from, or intentionally maintain or allow any place to be used for the shooting, killing or wounding with a firearm or any deadly weapon, any animal that is tied, staked out, caged or otherwise intentionally confined in a man-made enclosure, regardless of size.
38 Wyo. Stat. Ann. § 23-1-103 (2001): "There shall be no private ownership of live animals classified in this act as big or trophy game animals."
39 Zoos sold more than 19,000 animals between 1992 and mid-1998. Linda Goldston, The Animal Business: Many Zoos Give Away or Sell Off Surplus Animals, Which Often End Up Exploited or Even Hunted Despite Safeguards, San Jose Mercury News 1A (Feb. 7, 1999). See discussion infra Section II.
40 See The Fund for Animals , supra n. 5.
41 16 U.S.C. § 1531 (2000). US Fish and Wildlife Service, The Endangered Species Act of 1973 < http://endangered.fws.gov/esa.html > (accessed July 22, 2002).
42 7 U.S.C. § 1901 (2000) . Humane Methods of Livestock Slaughter < http://www4.law.cornell.edu/uscode/7/ch48.html#PC48 > (accessed July 22, 2002).
43 See Humane Society of the United States, Canned Hunting-A Guaranteed Kill <http://www.hsus.org/whatnew/cannedhunting031500.html> (accessed Apr. 24, 2001).
44 Green , supra n. 12, 120-21; 16 U.S.C. § 1538 (E).
45 See discussion infra Section IV(2).
46 NLRB v. Jones Laughlin Steel Corp., 307 U.S. 1 (1937); US v. Lopez, 514 U.S. 549 (1995).
47 For the 107th Congress, Sen. Joe Biden (D-DE) and Rep. Sam Farr (D-CA) have introduced S. 1655 and H.R. 3464 respectively. Library of Congress <http://thomas.loc.gov/ cgi- bin/query/z?c107:S.1655> (accessed Jan. 31, 2002). Library of Congress <http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.3464:> (accessed Jan. 31, 2002).
48 Library of Congress <http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.3464:> (accessed Jan. 31, 2002).
49 See American Zoo and Aquarium Association < http://www.aza.org > (accessed July 22, 2002).
50 American Zoo and Aquarium Association, Accreditation Fact Sheet 2002 < http://www.aza.org > (accessed July 22, 2002).
53 See Green , supra n. 12, ch. 7.
54 The CEAPA does not include game mammals or smaller captive animals. Additionally, it does not address the transport of animals intrastate, nor does it prohibit the hunting of captive animals.
55 Or. Admin. R. 635-064-0010 (2001).
56 In 1996, hunters made up only 5.3% of the population, and the percentage has been steadily declining since 1975. The Fund for Animals, Children in the Crosshairs: The Hunting Industry, Wildlife Agencies, and Children Hunting Children http://fund.org/library/documentViewer.asp?ID=116&table=documents (accessed July 22, 2002).
57 The twenty-four states are Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming. Initiative & Referendum Institute, States with Direct and In-Direct Initiative Amendments; Direct and In-Direct Initiative Statutes and Popular Referendum <http://www.iandrinstitute.org/factsheets/fs1!2.htm> (accessed July 22, 2002).
58 Initiative & Referendum Institute, What is Initiative and Referendum <http://www.iandrinstitute.org/factsheets/fs1.htm> (accessed July 22, 2002).
61 See Mont. Code Ann. § 87-4-407 (2001).
62 Telephone Interview with Kelly Peterson, Oregon Representative, Northwest Regional Office of the Humane Society of the United States (Sept. 24, 2001).
63 Or. Admin. R. 635-064-0010 (2001).
64 Wyo. Stat. Ann. § 23-1-103 (2001) .
65 Del. Code Ann. tit. 7, § 704 (2000).
66 N.Y. Envtl. Conservation Laws § 11-1904(a)(1)-(a)(4) (McKinney 2001).
67 Wis. Stat. Ann. § 951.09 (West 2001).
68 David S. Favre & Murray Loring, Animal Law 122 (Quorum Books 1983).
70 See generally Frasch et al ., supra n. 3.
71 Iowa Code Ann. § 717B.1 (West 2001).
72 N.H. Rev. Stat. Ann. § 644:8 (2001).
73 State v. Cleve, 980 P.2d 23 (N.M. 1999).
74 Okla. Stat. Ann. tit. 21, § 1680 (West 2000).
75 Tex. Penal Code Ann. § 42.09 (1999).
76 Iowa Code Ann. § 717B.1(1) (West 2001).
77 Id. at § 717B.1(1)(b) (emphasis added).
78 N.H. Rev. Stat. Ann. § 644:8 (II) (2001) (emphasis added).
79 Okla. Stat. Ann. tit. 21, § 1680.1(1) (West 2000) (emphasis added).
80 Tex. Rev. Civ. Stat. Ann. art. 42.09(a)(5) (West 1999) (emphasis added).
82 Id.
83 Id. at 27.
84 The Fund for Animals , supra n. 5, at 5.
85 Fla. Stat. Ann. § 372.16(2) (West 2000):
All private game preserves or farms . . . shall be fenced in such manner that domestic game thereon may not escape and wild game on surrounding lands may not enter and . . . shall be equipped and operated in such a manner as to provide sufficient food and humane treatment for the game kept thereon.
South Carolina Dept. of Nat. Resources, Hunting Rules and Regs in South Carolina <http://water3.dnr.state.sc.us/dnr/etc/rulesregs/img/huntingrules.pdf> (accessed Mar. 18, 2001):
Proper care must be given to all animals maintained in captivity at shooting facilities. Such care must ensure: (1) clean water is provided as necessary; (2) food is wholesome, palatable and free from contamination; (3) animals are provided adequate cover and bedding to assure safety during adverse environmental conditions; (4) excreta are removed from cages or enclosures as often as necessary to prevent contamination of the animals; (5) an effective program for the control of insects, parasites and avian and mammalian predators is established and maintained; and (6) animals with propensity to fight or which are otherwise incompatible are kept segregated. gone
In Washington, to obtain a game farm license the applicant must demonstrate that "the rearing and holding facilities are adequate and structurally sound to prevent the egress of game farm wildlife," "operating conditions are clean and humane," and "no hazards to state wildlife exist from the operation." Wash. Admin Code 232-12-027(4)(b)-(d)(2000).
87 Pierson v. Post, 3 Caines 175 (N.Y. 1805) ("[P]roperty in [wild] animals is acquired by occupancy only.").
88 See e.g. Arizona Game and Fish Dept. Regs., R12-4-414H.
89 Pamela D. Frasch et al., Animal Law 623 (Carolina Academic Press 2000).
90 See generally Frasch , supra n. 3.
91 Iowa Code Ann. § 717B.2 (West 2001).
92 N.H. Rev. Stat. Ann. § 644:8 (III) (a),(f) (2001).
93 Okla. Stat. Ann. tit. 21, § 1685 (West 1999) (emphasis added).
94 Tex. Rev. Civ. Stat. Ann. art. 42.09(a)(5) (West 1999).
95 See generally Frasch , supra n. 3.
96 Id.
97 Id.
98 Letter from Mike Winikoff, supra n. 13.
99 MSNBC, Canned hunting-Fair game? <http://www.msnbc.com/news/382123.asp#BODY> (accessed Feb. 23, 2001).
100 Jim Posewitz, Beyond Fair Chase: The Ethic and Tradition of Hunting 57 (Falcon Press 1994).
103 Id. at 111; see The Fund for Animals , supra n. 5, at 11.
104 Posewitz, supra n. 100, at 111.
105 Ted Kerasote, The Future of Hunting, Sports Afield 106 (Sept. 1992), cited in Frasch, et al., supra n. 3, at 105.
106 Kluger, supra n. 6, at 63.
107 David J. Wolfson, Beyond the Law: Agribusiness and the Systematic Abuse of Animals Raised for Food or Food Production, 2 Animal L. 123 (1996).
108 Green , supra n. 12, at 163. ("In one state after another, the game farmers have pressed legislators to reclassify a growing list of animals as agricultural products, much like apples, alfalfa, and other cash crops-a change that allows them to raise, sell, and slaughter exotics without the hassle of fish-and-game department inspections or other government intrusions.").
109 Humane Slaughter Act, 7 U.S.C. §§ 1901-1906 (2000). For a critique of the Humane Slaughter Act in practice, see Gail A. Eisnitz, Slaughterhouse: The Shocking Story of Greed, Neglect, and Inhumane Treatment Inside the U.S. Meat Industry (Prometheus Books 1997).
110 The definition of "slaughter" is "butchery; killing of animals to provide food." Webster's Dictionary for Everyday Use 350-51 (John Gage Allee ed., Ottenheimer Publishers 1990).
111 7 U.S.C. § 1902 (2000) (emphasis added).
112 See e.g. Eisnitz, supra n. 107.
116 Kluger, supra n. 6, at 63.
117 18 Pa. Consol. Stat. § 5511(i) (2000):
Power to initiate criminal proceedings - An agent of any society or association for the prevention of cruelty to animals, incorporated under the laws of the Commonwealth, shall have the same powers to initiate criminal proceedings provided for police officers by the Pennsylvania Rules of Criminal Procedure. An agent of any society or association for the prevention of cruelty to animals, incorporated under the laws of this Commonwealth, shall have standing to request any court of competent jurisdiction to enjoin any violation of this section.
118 You may contact the Anti-Cruelty Division of the Animal Legal Defense Fund at (503) 231-1602 for more information.
119 See Douglas E. Beloof, Victims in Criminal Procedure chs. 4-5 (Carolina Academic Press 1999).