Full Title Name:  Detailed Discussion of Cattle Laws

I. Introduction

The United States dairy and meat industries claim over 41 million cow lives per year. Laws and industry custom frame cattles’ lives from their birth until their death. This discussion will cover some of these laws, ranging from grazing rights to rodeo spectacles. The paragraphs below will briefly mention the main topics addressed by the sections that then follow.

For the most part what happens to cattle is regulated not by law but by the cattle industry. Thus, standard cattle husbandry practices typically define what is acceptable. Because husbandry practices arise from the industry’s need to maximize profits while minimizing costs, these practices do more for the cattle owners than they do for the cattle themselves. To save costs it is uncommon to use anesthetics when castrating, de-horning, or branding cattle. Most case law that finds that people cruelly harmed animals stem involve situations where someone did not adequately feed the animal. Sometimes case law seems to protect peoples’ bank accounts more than it protects the health of cattle, although, with more people nowadays becoming more concerned about the welfare of farmed animals, the laws are becoming a little more protective of cattle.

II. History of Cattle-Related Law

Lawmakers typically enact laws not in the interest of cattle welfare, but rather to support the bottom line. Thus it is not shocking that the federal government allows ranchers via the Taylor Grazing Act (TGA) of 1934 to graze their cattle on federal lands. Not even the most protected class of national forest, “wilderness,” is necessarily protected from the deleterious effects of cattle hooves and appetites. The TGA allows ranchers to secure inexpensive permits or leases that are cheaper than commercial permits and leases to graze on private land. Also, the government then spends more money than it receives to make various cattle-industry related improvements to the land to further support American’s alleged need for beef.

The federal government began regulating meat production under the Pure Food and Drug Act of 1906 and the Federal Meat Inspection Act of 1907. How the government actually implements meat inspection changes with the times. Currently, the United States Department of Agriculture inspects the nation’s meat products. It uses a Hazard Analysis and Critical Control Point program (HACCP) where meat manufacturers determine suitable safety controls and the government then oversees these controls, with the focus more on the plant processes than on packaged meat products. Following the discovery of Bovine Spongiform Encephalopathy, better known as Mad Cow Disease, the federal government stepped up some laws that involve the butchering of cattle. Previously, no noteworthy law prevented meat packers from processing “downed cattle” (cattle that are too sick or injured to stand or walk on their own), but not long after Mad Cow Disease appeared, the government forbade downed cattle from ending up on our plates. Whether the government adequately enforces this regulation is a debatable topic.

III. Cattle as Commodities

Legal protection for cattle primarily depends on their ultimate commercial use. Many products that come from cattle (leather, glycerin, collagen, sealants, etc) are largely byproducts of the food production cycle. Therefore, most people raise cattle in the United States for food production purposes, whether dairy or meat. Meat is almost expected to contain various dangerous bacteria when it makes it to a consumer’s home. The consumer is then expected to adequately cook the meat. Due to these assumptions and the need to link an illness to a meat product, it is not always easy to win a lawsuit against a plant manufacturer that sells meat contaminated with harmful agents. Meat is not only expected to carry various pathogens but the USDA also lacks the ability to directly recall meat products that the USDA believes are dangerous to consumers.

Not all cattle are bred for meat. The dairy industry is booming. Most of our dairy cows live in California and Wisconsin. Cows must be made pregnant to produce milk. Their young are taken from them so that the milk can end up on our grocery store shelves. If the calf is female the dairy operator will raise the heifer so that it can one day assume a place alongside its mother as a dairy producer. If the calf is male then it will likely be killed or sent to a veal operation.

As noted above, the veal industry is largely a byproduct of the dairy industry. Veal calves receive inadequate nutrition, are typically confined so that they cannot build muscle mass, and live short uneventful lives in crowded and disease rampant conditions. Veal calves are often physically sick prior to slaughter, with some industry experts believing that around 10% of veal calves die from their harsh living conditions prior to slaughter.

After meatpackers prepare different meat and dairy products for consumers they label and market these products. A subset of the USDA called Food Safety and Inspection Service (FSIS) works to ensure that meat and other products are safe, wholesome, and correctly labeled and packaged. The Food and Drug Administration (FDA) oversees the labeling of dairy products. Labels are often unclear and susceptible to reinterpretation, although sometimes the government agencies intensely scrutinize labeling claims. For example, because hormones naturally occur in milk dairy producers may not claim “no hormones” on dairy products made without the use of synthetic bovine hormones. Furthermore, if a dairy producer explicitly says that no synthetic hormones were used the FDA still “recommends” that the label explain that no significant difference exists between this milk and milk produced with synthetic hormones because otherwise the consumer might believe these synthetic hormones are dangerous for him or her. That synthetic hormones are painful and dangerous for the cows does not play into the labeling issue.

Rodeos are competitive events where participants rope, tie, and ride various animals, cattle (bulls, steer, calves) included. State law decides what is acceptable, although most laws allow the rodeo industry to define acceptable rodeo practices. The Professional Rodeo Cowboy’s Association (PRCA) is the largest rodeo association and thus the PRCA defines what is humane. Some states pass laws to prevent certain events. For example, one event called tie-down roping has a “cowboy” rope a calf by throwing a loop of rope around the calf’s legs to snare the calf. Most rodeos have the cowboy push the calf over after the cowboy secures the calf with the loop of rope, but some states require that the rope does not tie when pulled taught, but rather open up and therefore release the calf. Rodeos typically forgo tie-down roping in areas with this law rather then practice this more humane version of the event.

The extent that legislators protect cattle often relates more to the ultimate consumptive use of the cattle than the concern for the wellbeing of the animals themselves. Enacted laws rarely focus on improving the quality of life for cattle, but rather protect people who raise, feed, and slaughter cattle and people who consume cattle-derived products. Owners of cattle likely view laws that restrict how they raise, feed, and slaughter animals as undesirable because such laws raise costs and could create civil and/or penalties if not followed. Consumers rarely consider cattle outside of their commercial uses, and if so typically picture cattle not inside concentrated animal feeding operations, but rather in small groups interspersed across rolling fields. Even if true, these images of grazing cattle infrequently acknowledge the lack of laws to protect how owners treat their cattle. Viewed as property, cattle fall victim to the vacuum of laws known as acceptable animal husbandry practices.

IV. Cattle Husbandry Practices

In general, formalized laws do not exist for cattle outside of slaughter and transportation. Typically state law allows the industry to set standards. The law does not recognize animal cruelty as long as cattle owners treat their cattle within the boundaries of accepted industry practice. Maryland’s statute on the issue is quite common. MD Code, Criminal Law, § 10-603 states that statutes dealing with crimes against animals do not apply to “customary and normal veterinary and agricultural husbandry practices including dehorning, castration, tail docking, and limit feeding.” A Maryland case applied this statute involving a research facility –the statute also exempts researchers from animal cruelty laws— saying there are “certain normal human activities to which the infliction of pain to an animal is purely incidental and unavoidable.” Taub v. State (296 Md. 439) .

The exemption of animal husbandry protection is typical of most state cruelty statutes, including Texas' laws. Texas, as one of the nation’s largest producers of beef, is caught between legally recognizing acts of animal cruelty and the seeming need to preserve its major economic activity of cattle ranching. Case law also reveals this dichotomy between treating cattle well and a hands-off legal environment. Recently the state appears somewhat receptive to better regulating how ranchers can treat their cattle, both in the legislature and the courts.

A. Neglect as Animal Cruelty under Texas Law

Cattle on the Ranch

Section 42.09 of the Texas penal code recognizes animal cruelty when a person intentionally or knowingly tortures an animal, although the law recognizes an exception for animal husbandry or farming practices involving livestock. In 2007, Texas legislators passed house bill 2328, which allows the justice system to prosecute cruelty cases at a lower standard. The current standard required that a person intentionally or knowingly harm an animal, whereas the new standard would also hold a person accountable whose reckless behavior harms an animal. The bill also defines “torture” as “any act that causes unjustifiable pain or suffering” which could make it easier to protect cattle against painful practices. A 1999 case, Westfall v. State , found that the defendant, who possessed thirty years of experience in the cattle business, had grossly mismanaged his herd by failing to provide adequate food to the herd and thus left the cattle malnourished, weak, and in pain. Some cattle died in mud, too weak to escape. That the mismanagement fell outside standard husbandry practices sufficed to support the intentional or knowing torture of cattle. Westfall v. State (10 S.W.3d 85) . Several years later in Mack v. State , the Court of Appeals held that Mack failed to adequately provide for his cows such that they suffered from malnourishment and thus committed a cruelty to animals offense under section 42.09 of the Texas Penal Code. Mack v. State (2003 WL 23015101) .

Section 42.09 distinguishes among different acts of cruelty. Some acts comprise felonies, whereas others are misdemeanors. Torturing an animal is a felony, whereas unreasonably depriving an animal necessary food, care, or shelter for an animal in the person’s custody is a misdemeanor. Arguably, house bill 2328 could help secure harsher penalties for people who withhold from an animal food, water, care, or shelter and, as a result, causes unjustifiable pain or suffering because the bill defines torture as “any act that causes unjustifiable pain or suffering” and torture is a felony under Texas law.

To many people the deprivation of food or water constitutes clear-cut animal cruelty. But, other practices common and even essential to animal husbandry are not so well-defined under existing laws. Moreover, these seemingly cruel practices may even be exempted from most state laws.

B. Husbandry Practices on the Ranch

Branding and Marking

Branding is a technique that dates back at least to ancient Egypt. Modern cattle owners brand or mark their herd to identify their cows, prove ownership, and separate commingling herds. Descriptions of some of the common methods of branding and marking follow.

Hot Branding : Applying a hot brand to cattle causes pain and stresses the animal. Branding causes some cattle to avoid food due to stress. Hot branding is the most common branding method.

Freeze branding : Some ranchers use liquid nitrogen to cool an iron to -320 Fahrenheit. The iron is then applied to cattle to create an identifying mark. Freeze branding causes less pain than hot-iron branding. Freeze branding also does not damage the animal’s hide, but rather causes the current hair to die and then white hair grows back in its place. Thus, freeze branding does not work well on cows with light-colored hair. Freeze branding also costs more than hot branding and requires more time for the brand to be readable.

Other Marks : Some ranchers tattoo the ears of cattle. Tattoos are not as easy to read and take more time to apply when compared with branding. Other ranchers use ear tags or neck chains, but they can fall off (also easy for other ranchers to remove and thus claim the cattle as their own), or the tags or chains get snagged on objects and can harm the cattle.

While one might hope that any case or directive that specifically handles how to mark cows would target the welfare of animals, this is not the case. In fact, not-so-distant history shows otherwise. For part of 1986 and 1987, a federal program called the Dairy Termination Program went into effect.   This program encouraged dairy farmers to reduce the production of dairy in order to stabilize dairy prices. The Secretary of Agriculture, who oversaw the program, required dairy farmers brand their cows using hot branding and specifically prohibited other methods of marking cattle. The Humane Society of Rochester filed suit claiming that the hot branding requirement was cruel to animals. The district court agreed and enjoined dairy farmers from having to follow the hot branding requirement. Humane Soc. of Rochester and Monroe County for Prevention of Cruelty To Animals, Inc. v. Lyng (633 F.Supp. 480) .  

Seeing that ranchers who wished to more humanely treat their cattle while taking part in a federal government program had to legally fight for their right to use less cruel cattle-marking techniques, it’s not surprising that other husbandry practices also focus more on economic gains than the health or well-being of the animals themselves.

Castration

Ranchers castrate cattle to promote docility in the cattle. One reason used to support the practice is that reducing a bull’s sex drive reduces its aggression and that more sedate animals are less dangerous. Some people also claim that castration also helps create more tender meat. Castration often occurs when cattle are between two weeks and two months of age. Some ranchers decide not to castrate the cattle, but rather send the calves to feedlots when they are about eight or nine months old. The feedlot operators then castrate the calves when they arrive.

The most commonly used method involves a knife. Sometimes the animal handler will use a pinching device crush the spermatic cord. When crushed the cord no longer supplies blood to the testicle; the testicle then deteriorates. Animal handlers rarely, if ever, use anesthesia or analgesia because they cost money and allegedly decrease efficiency.

One example that shows how the desire to consider animal welfare conflicts accepted husbandry practice arises in New Jersey law. The New Jersey Department of Agriculture finalized a regulation to require the humane treatment of livestock. This humane treatment would be “marked by compassion, sympathy, and consideration for the welfare of animals.” NJ ADC 2:8-1.2. The New Jersey Society for the Prevention of Cruelty to Animals sued the New Jersey Department of Agriculture. The Society alleged that various husbandry practices, castration included, harm animals without providing a benefit to the animal, while only providing a slight convenience to the animal handler. The Superior Court for New Jersey, after reading briefs submitted by both sides of the lawsuit, decided that castration involves only minimal pain to a calf and thus a handler need not use anesthesia nor require a veterinarian’s presence, and thus castration fits into animal husbandry practices as developed by science and industry. New Jersey Soc. for Prevention of Cruelty to Animals v. New Jersey Dept. of Agriculture (2007 WL 486764) .  

Arguably, the science that supports modern animal husbandry science is intertwined with the cattle industry. Many universities that fund cattle-related research have large agricultural science programs. Thus the same problem that arises in law, arbitrary determination of pain versus commercial benefit, manifests in science, and, as seen in the New Jersey case mentioned above, this science helps inform the law. The debate surrounding husbandry practices does not solely focus on castration. People also debate the cruelty and necessity of other practices like tail docking and dehorning.

Tail Docking

Handlers dock dairy cows’ tails to reduce incidence rates of udder infection and to minimize fecal matter from dropping into milk. Some research shows that these benefits are minimal at best and that tail docking hurts and stresses the cows because they can no longer perform natural behaviors like swatting at flies. The American Veterinary Medical Association opposes tail docking, while the American Association of Bovine Practitioners supports the practice.

Dehorning

Similarly, cattle owners dehorn cattle out of economic convenience without regard to the discomfort it can cause the cattle. Cattle owners dehorn cattle to prevent animals from damaging their hides, a risk that increases in feedlots and during transportation, where animals are confined in close proximity to one another. Most cattle handlers do the work themselves without the presence of a veterinarian. To use anesthesia would increase cost and time required, thus handlers rarely use anesthesia.

Methods :

1) Apply a chemical to a calf’s horn bud. This chemical prevents the horn from growing, although the chemical can irritate the calf.

2) A handler might apply a hot iron to a young–five months or younger calf’s horn bud. This prevents the horn from growing.

3) Handlers might use a dehorning spoon to dig the horn from the skull.

Gomer Bulls

Ranchers use “Gomer” bulls to detect cows that are in heat. Veterinarians either perform a vasectomy or surgically relocate the bull’s penis so that bull can experience arousal, but not complete sexual intercourse. This alteration removes the risk of impregnation and transmittal of diseases, although sometimes the bull will lose interest in cows that are in heat. Some ranchers hire vets to perform vasectomies on bulls. This still allows for heat detection without risk of impregnation, but this method can spread diseases. Cattle handlers attach devices to the bulls so that they mark cows that they mount so that cattle handlers can easily identify cows that are in heat. Or, cattle handlers place patches on the gomer bull that change color when the bull stands for mounting purposes.

Regardless of whether or not cattle handlers truly need castrate, tail dock, or dehorn these mammals, the law rarely recognizes a need to humanely perform the procedures. Cattle suffer during the procedures and the effects of losing testes, tails, and horns affect the quality of life that cattle experience prior to their eventual slaughter. Commercial use of bovines goes beyond mere meat product. In fact, of the 95 or so million cattle and calves that live in the United States, the dairy industry claims about nine or ten million of these cattle them. Just as there are animal welfare and contamination concerns in meat production, similar concerns exist for dairy cows.

V. Dairy

Most dairy cows live in concentrated factories whose owners attempt to maximize each cow’s ability to produce milk. An average cow produces between 10,000 to 36,000 pounds of milk per year. A cow must become pregnant to produce milk. Male offspring are often sold off to veal calve operations within three days of birth, while female offspring can become future milk producers. Handlers encourage cows to produce more milk than a cow would produce if left to her own devices. As mentioned above, handlers also typically dock the tails to prevent feces from potentially making its way into the milk, although whether this is really a problem is debatable. Cows also live in cramped environments. Cows often appear agitated when their young are removed from them. Sometimes cow owners inject artificial hormones into the cows, discussed below, to increase milk yields dispute higher rates of udder infection and obvious pain and swelling that occurs as a result of the treatment.

A. Milk Income Loss Contract (MILC) ( 7 U.S.C. § 7982)

Dairy producers who enter the MILC program, established in 2002, may receive financial benefits if they meet requirements defined by the act when milk prices fall below a protected price rate for a limited number of gallons of milk (In short, the program compensates dairy farmers when milk prices are low). 7 C.F.R. 1430.203 defines eligibility requirements to enter the program and 7 C.F.R. 1430.208 defines the payments. The program is said to benefit small farms more than large farms because it only subsidizes a limited amount of milk, about the quantity of milk produced by about 120 cows in a year.

The program temporally expired in 2005 and has faced an uncertain future ever since, although an Iraq war funding bill approved by Congress allotted $31 million to fund MILC through September, with the idea that sometime in August the updated Farm Bill will decide MILC’s fate.

VI. Veal Calves

The veal industry is largely a byproduct of the dairy industry. Male calves born from dairy calves are unable to produce milk and, if raised on pasture, are not as profitable or desirable as cattle bred for beef. Thus the dairy industry typically separate male calves from their mothers within three days, although some dairy operators separate the calves almost immediately following birth, even though calves can suckle milk for up to seven months. Removing the calves from their mothers not only ensures a dairy operation produces more saleable milk, but also allegedly increases docility in calves because, having never formed a bond with their mothers, the calves might view humans as surrogate parents. Docility is a desirable trait because dairy operators often sell the male calves to veal operators who then tether veal calves in small stalls that restrict movement and thus prevent the calves from building muscle. The calves, being unable to move, must stand in their excrement. Combined with an iron deficient diet that consists mainly of powdered milk and antibiotics (to prevent diseases caused from the harsh and typically unsanitary conditions), this restricted life that typically lasts for eighteen to twenty weeks produces white, tender meat known as “veal” that sells for a commendable price. The veal-raising process is harsh on calves, with some reports stating that about ten percent of calves die prior to slaughter due to digestive disorders caused by their mostly liquid and nutritionally lacking diet, as well as due to respiratory conditions that develop by living in cramped, unsanitary conditions.

Failed attempts to use to the law to protect “veal” calves

1. New Jersey Soc. for Prevention of Cruelty to Animals v.   New Jersey Dept. of Agriculture .

Recently the New Jersey Society for Prevention of Cruelty to Animals (Society) challenged the New Jersey statutes that allow the New Jersey veal industry to follow industry-standard practices. The case arose in response to N.J.S.A. 4:22-16.1 which required New Jersey Department of Agriculture (DOA) to develop “standards for the humane raising, keeping, care, treatment, marketing, and sale of domestic livestock.” The New Jersey Society for Prevention of Cruelty to Animals alleges that the enacted laws fail to humanely treat various livestock animals, veal calves included. Specifically: N.J.A.C. 2:8-2.4(h) allows veal producers to defer to the standards that the American Veal Association endorses and thus permits veal producers to tether and house veal calves in individual crates that are twenty-six inches wide. Furthermore, N.J.A.C. 2:8-2.4(g) permits people to use tethers to further restrict movement of confined cattle.

The Society claimed that following the American Veal Association’s Guide does not constitute humane standards. The standards allow facilities to isolate calves into individual pens and to restrict calves movement so that calves may not turn around. The DOA states that it researched numerous studies and concluded that practices endorsed by the American Veal Association are humane and that science supports their use. Specifically, the DOA believes that tethering calves ensures clean water and feed buckets, increases staff size because the tethering prevents undesirable contact between adjacent calves while permitting some contact, such as head licking, that increases social bonds among calves, and restricts aggressive behavior. While opponents of tethering allege that the restricted movement stresses the calves and inhibits muscular development, the Superior Court of New Jersey, Appellate Division, agreed with bovine experts that dismissed these claims and found that the veal-industry endorsed standards satisfied the “humane” standard required by New Jersey law. New Jersey Soc. for Prevention of Cruelty to Animals v.   New Jersey Dept. of Agriculture, 2007 WL 486764 (N.J. Super.A.D., 2007) .

2. Animal Legal Defense Fund Boston, Inc. v. Provimi Veal Corp.

The Animal Legal Defense Fund (ALDF) alleges that veal producers mistreat calves and add antibiotic drugs to the calves’ feed that could possibly endanger human health. The ALDF pointed to a 1) Massachusetts’s consumer protection statute that requires retailers to inform consumers of “relevant information” (940 C.M.R. 3.05(1)), “the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction” (940 C.M.R. 3.16(2)) and 2) to statutes directed against acts that could dull humanitarian feelings and thus corrupt the morals of people who observe or have knowledge of such acts.

As for the first claim, the court found that federal law (Federal Meat Inspection Act and Federal Food, Drug, and Cosmetic Act) preempts Massachusetts’s law and thus the state cannot force retailers to label food in a manner that a federal entity does not require because Congress expressed a clear intent to completely regulate the labeling of meat products.

Second, even though cruelty to animals falls within laws meant to protect Massachusetts’s citizens’ morals, the court decided not to recognize the ALDF’s ability to file such a claim because the statutes are criminal statutes enforceable only by public prosecutors and legislatively-sanctioned groups, the ALDF falling under neither category. Animal Legal Defense Fund Boston, Inc. v. Provimi Veal Corp., 626 F. Supp 278 (D.Mass. 1986) .

The failure of the law to protect cattle goes beyond the animals themselves. As explained later, the law also falls short in protecting our natural resources and the lands that host cattle as they feed. Also, the law does not necessarily protect the humans who eventually consume meat procedures.

VII. Inspection of Meat Products

A. History

The federal government began regulating meat production under the Pure Food and Drug Act of 1906 and the Federal Meat Inspection Act of 1907. Throughout the following hundred years, Congress changed and substituted these acts with new statutory code. In addition, Congress passed the Humane Slaughter Act of 1958 to protect cattle during slaughter, although numerous sources from within slaughterhouses tell horrific stories that, if true, reveal that the slaughterhouse operators are unable or unwilling to ensure that cattle do not die quick and relatively painless deaths.

Currently, the USDA enacted regulations to administer the Hazard Analysis and Critical Control Point program (HACCP). This program allows the meat packing industry to determine suitable safety controls that the government then oversees.

To help advance American Agriculture, Congress established the United States Department of Agriculture (USDA) in 1862. As concerns involving food safety developed, the government imbued the USDA with the task to mitigate the dangers of consuming dangerous meat products. President Franklin D. Roosevelt’s administration extracted the Food and Drug Administration (FDA) from the USDA, but kept the authority to regulate meat and poultry within the USDA’s control, although the FDA does inspect the quality of drugs and food given to cattle. And the EPA regulates what pesticides and how much pesticide residue is allowed into animal feed.

B. HACCP

As of 1996, FSIS requires plants to develop and institute their own food-safety plans. Companies must conduct a hazard analysis that determines “food safety hazards reasonably likely to occur in the production process.” The analysis includes critical points that represent “hazards that can occur before, during, and after entry into the establishment.” To insulate against risk the company should set standards and thresholds to help ensure a safe meat product. 9 C.F.R. § 417.2. This allows companies to address specific points of concern and adapt related solutions rather then mandate a more general regulatory framework for all companies. FSIS officials then validate the HACCP will provide for safer food and will verify that the plan works as intended. Key Facts: The Seven HACCP Principles ( accessible at http://www.fsis.usda.gov/OA/background/keyhaccp.htm ). Thus the HACCP plan encourages inspectors to spend more time checking documentation than to actually inspect meat products for safety.

Case Examples

1. Supreme Beef v. United States Department of Agriculture

Current statutory code limits the USDA’s ability to regulate infectious agents in meat products. As Supreme Beef v. United States Department of Agriculture shows, the USDA may inspect processes that plants use to process meat, but may not regulate infectious agents like Salmonella bacteria contamination that falls outside the scope of in-house plant processes.

To validate and verify Supreme Beef’s HACCP plan, FSIS ran tests to determine the amount of Salmonella bacteria in the plant’s finished product. Supreme Beef v. United States Department of Agriculture, 113 F.Supp 2d 1048 (N.D. Tex., 2000) .   If the tests reveal a high level of the bacteria then FSIS would declare the plant’s HACCP plan as ineffective. FSIS believed that the presence of Salmonella could serve as an indicator of other pathogens likely contained by the meat. FSIS instituted a three-step process that allowed the plant opportunities to correct problems that allowed Salmonella into finished products beyond a threshold level. If Supreme Beef failed this three-step process then FSIS would declare the products as adulterated, and thus FSIS would suspect inspection services, thereby suspending Supreme Beef’s ability to legally sell meat products manufactured at the offending plant. Supreme Beef’s products failed this test when 47 percent of the samples examined contained Salmonella during the first step and then 20.8 percent failed the second step. When FSIS realized the third step would also fail, it contacted Supreme Beef that it would suspend its inspection service, unless Supreme Beef’s products could meet the performance standard of 7.5 percent. 9 C.F.R. § 310.25(b). Supreme Beef filed a lawsuit to prevent FSIS from withdrawing its inspectors, saying that the regulation fell outside the agency’s authority.

The North Federal District Court of Texas ruled that the Federal Meat Inspection Act (21 U.S.C. 601 et. seq. ) only empowered FSIS to prevent the USDA from allowing companies to sell adulterated meat to the public. To find meat adulterated under FMIA requires that the “processor’s plant conditions” are “insanitary.” FSIS’s tests focused on final product rather then on actual in-plant processes, thus the tests did not directly measure plant conditions. This meant that the tests fell outside the boundaries of FMIA. Under FMIA, companies can sell meat laden with infectious agents provided FSIS fails to point to a manufacturing process that adulterates the meat. Supreme Beef v. United States Department of Agriculture, 113 F.Supp 2d 1048 (N.D. Tex., 2000) .

On appeal, the Fifth Circuit Court of Appeals held that FMIA does not protect against the raw materials purchased, but rather the methods used to process these materials. Thus, FMIA does not prevent a company from buying meat that contains high levels of a pathogen. The test that FSIS used did not pinpoint whether the meat was contaminated to begin with or whether Supreme Beef’s processes further contaminated the meat. The USDA is not authorized to regulate Salmonella outside of the meat packing process. And, furthermore, Salmonella inside meat insides does not render them injurious to health because normal cooking processes destroy Salmonella bacteria. Supreme Beef v. United States Department of Agriculture, 275 F.3d 432 (5th. Cir. 2001) .

2. Nebraska Beef, Ltd. v. United States Department of Agriculture

In 2002, the USDA issued Noncompliance records for perceived regulatory violations against a Nebraska Beef factory. Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080 (8th Cir. 2005) . Then, the USDA tried to remove inspection agents from the factory due to its failure to conform to regulation standards, but the company obtained a temporary restraining order to prevent the USDA from doing so. This was the second time a temporary restraining order had been granted to prevent the USDA from removing inspectors from a meatpacking plant. Not long after obtaining the restraining order, the USDA and Nebraska Beef compiled a settlement agreement that required Nebraska to, among other things, hire an employee to oversee and help implement food safety regulations, educate employees about food safety regulations, and hire a third party to assess current food safety. The settlement allowed the USDA to judge whether Nebraska Beef adhered to the agreement, and if the USDA determined that Nebraska Beef did not follow the agreement then it could pull its inspectors from the plant. Critics allege that the agreement did not require Nebraska Beef to do anything beyond what the USDA had already required.

Following the settlement the USDA issued fifty-eight additional Noncompliance Records. Nebraska Beef alleged that these records went against the settlement agreement and sued for damages under what is called a Bivens claim. A Bivens claim allows a party to recover damages when federal officials violate a person’s constitutional rights and where Congress has not provided an adequate remedy. But, a Bivens claim is only available in limited situations, especially when there are no adequate methods to file complaints and to appeal decisions on these complaints. The Third Circuit Court of Appeals recently determined that a Bivens remedy is not available for Nebraska Beef. Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080 (8th Cir. 2005) . It remains to be seen whether the USDA will be able to enforce these perceived violations of the settlement agreement.

It remains to be seen whether the government oversight of meat will suffice to protect consumers from contaminated meat. Because most production lines are unable to track individual cows and because of issues with the recall system, discussed later, diseases that do not quickly develop present new problems that potentially require new oversight protocols. One such problem is the danger of Mad Cow Disease.

C. Mad Cow Disease (Bovine Spongiform Encephalopathy)

Bovine Spongiform Encephalopathy (BSE), also known as mad cow disease, was first found in the United States (Washington) in December of 2003. Investigators believe that the disease entered from Canada because the cow was born there. In June of 2005, inspectors found a second cow that carried BSE. This cow was born in the U.S. and inspectors had tested the cow half a year prior without revealing BSE infection. In 1989, the United States began banning the importation of beef from countries that discovered BSE in their cattle. In 1997, the United States altered its regulations to prevent cattle parts like skulls, spinal cords, spinal nerve tissues, and intestines from being included in cattle feed. These parts are thought to likely contain and thus potentially spread the disease and are also less profitable parts of cattle. BSE will kill infected cattle if the slaughterhouse does not first kill the cattle. Humans that consume products infected with BSE can develop a human version of the disease, known as variant Creutzfeldt-Jakob Disease (vCJD).

Currently, the USDA tests for BSE in only one or two percent of slaughtered cows. The USDA only tests cattle older than thirty months old, although inspectors have found cattle younger than thirty months to carry the disease. The USDA allows producers to pick which cattle to test and producers receive advance notice of a USDA inspection. USDA policy allows only USDA certified inspectors to test for the disease within conditions established by the USDA, thus prohibiting slaughterhouses from conducting their own independent testing of all slaughtered animals.

Even where a company seeks to proactively protect consumers with respect to food safety, its actions may be frustrated. Such a situation arose in the case of Creekstone Farms Premium Beef v. U.S. Department of Agriculture, 2007 WL 1020786 (D.D.C., 2007) . Creekstone Farms Premium Beef (Creekstone) sought to independently test their slaughtered cows so they could more safely provide meat to consumers. Creekstone requested testing kits from the USDA, the same kits that USDA inspectors use to test for BSE. A federal district court heard the case to decide whether the USDAs regulation barring independent testing was within the USDA’s power. The USDA argued that the Virus-Serum-Toxin Act (21 U.S.C. 151: Preparation and sale of worthless or harmful products for domestic animals prohibited; preparation to be in compliance with rules at licensed establishments) empowered it to mandate regulations concerning BSE testing. The USDA argues that the act gives them the sole power to produce, market, and use test kits for harmful pathogens. Thereby making it illegal for companies to develop or use their own test kits, or even use the USDA test kits without USDA approval.

The district court ruled that Creekstone could perform the tests. The USDA appealed the decision, which means Creekstone must wait until the appellate court hears the case before it can run the tests, provided it wins the suit and the USDA does not appeal again. Among other reasons, the USDA fears that testing will result in false positives that will scare consumers and that if consumers demand that other packinghouses also test for BSE then meat prices will increase. The USDA further contends that cattle under thirty months old cannot develop BSE, thus there is no need to test them for BSE. Creekstone Farms Premium Beef v. U.S. Department of Agriculture, 2007 WL 1020786 (D.D.C., 2007) .

D. The Failure of the Cattle Tracking System

It is hard, if not nearly impossible, to track individual cattle within the United States Factory Farm system. After the discovery of BSE in the United States, federal investigators attempted to track down eighty cattle that entered the country with the infected cow. The USDA failed to locate fifty-two of the cows. The USDA could not locate the cows largely because the current processing system allows producers to use different plants, transports load animals from various sources in the same trucks, and retailers purchase beef from various sources and often compile the beef without regard as to where it originally came from. The United States currently lacks a cattle-tracking system, although the USDA set a goal to implement a complete system by the close of 2009. Various tests are in the works, such as a Kansas project that implements a tracking system that uses RFID, GPS, and cellular technology to track cattle as trucks relocate the cattle throughout Kansas.

E. Civil Lawsuits filed in response to eating tainted meat

Despite the government’s apparent concern for consumer safety, providing culpability on the part of a meat producer is an uphill battle. It is often hard to connect an illness to a certain product to the extent necessary to win a lawsuit. Food that causes sickness is often discarded or fully consumed before the sickened victim connects the food to the illness. The court typically compensates people who suffer from eating contaminated meat by allowing recovery for medical treatment, with monetary limited relief for pain and suffering. Recovery is often easier when the tainted food is sold as ready-to-eat, whether a fully processed good or a meal from a restaurant. But for raw meats, the consumer often bears the responsibility of cooking meat, which makes it harder for a victim of tainted meat to recover. Thus, if society expects meat to contain pathogens that consumers can remove by thorough cooking then a consumer who gets sick from eating the meat is likely the party at fault. And, even if the consumer did cook the meat thoroughly, but the food was nonetheless dangerous to the consumer’s health, it can be quite hard to prove to a court that the meat packer or retailer was to blame. BSE is especially dangerous because the causing agent incubates in the system for many years before showing itself. Therefore a person is likely unaware of what meal caused the harm or when the harm originally accrued, and thus has little hope of winning a suit to provide recovery for people infected by BSE. Several cases are instructive of the difficulty of providing fault on the part of a restaurant or producer of meat.

1. Hairston v. Burger King Corp.

Mrs. Hairston ate half a Whopper from Burger King and then fell sick. She went to the hospital the next day and received medicine that suppresses stomach acid before being released. The medicine did not help her, so she returned to the hospital the next day. The doctor ran tests on her and diagnosed her as having acute gastroenteritis, secondary to food poisoning. She sued Burger King and lost. On appeal the court noted that she failed to show that the Whopper caused her sickness, noting that she merely showed that she ate a Whopper and suffered from a stomach ailment, failing to adequately connect the two. Hairston v. Burger King Corp., 764 So.2d 176 (La.App. 2 Cir., 2000) .

2. Boulahanis v. Prevo's Family Market, Inc.

Boulahanis v. Prevo’s Family Market is a Michigan case where the state Court of Appeals affirmed that the Federal Meat Inspection Act (FMIA) preempted state law that would hold defendants liable for failing to detect the presence of E. coli bacteria in meat that the plaintiffs had purchased. The FMIA contains an express preemption clause (21 U.S.C. § 678) that prevents states from adding or modifying federal requirements on meat producers. Claims that purchased meat products were adulterated must then be based on federal standards, not state standards. Because the USDA decided not to address E. coli contamination in its inspection programs, states could not impose liability on manufacturers for not addressing possible E. coli contamination. Boulahanis v. Prevo's Family Market, Inc., 583 N.W.2d 509 (Mich.App. 1998) .

3. Campbell v. Supervalu

In Campbell v. Supervalu the North District Court of Indiana dismissed a claim that the Federal Meat Inspection Act (FMIA) preempted the plaintiff’s state law claims. The plaintiff consumed beef purchased from defendant’s meat department and fell ill, allegedly due to E. coli contamination. A prior case, Boulahanis v. Prevo's Family Market, Inc. , established that neither Congress nor the USDA established regulations to address E. coli bacteria in meat products. The FMIA does contain an express preemption clause (21 U.S.C. § 678) that prevents states from establishing regulations to inspect meat products. While Boulahanis allowed preemption because the state mandated additional requirements on meat inspection to detect E. coli then the USDA had established under FMIA, FMIA preempted the state laws rendering them unenforceable. Here, the plaintiff alleges that the defendant negligently introduced E. coli to the beef, which the federal court saw as distinguishable from Boulahanis because the state law claims do not place additional or different requirements then those set by FMIA and because the suit alleged that the defendant negligently contaminated meat, which the court viewed as being outside the FMIA’s preemption domain. Campbell v. Supervalu, 2007 WL 891682(N.D. Ind., 2007) .

F. Recalls of meat

The Food Safety and Inspection Service (FSIS) is a sub-organization of the USDA. It works to ensure that meat is safe, wholesome, and accurately labeled, though the USDA lacks authority to order a mandatory and direct recall of contaminated meat. Furthermore, the USDA lacks the ability to fine companies that do not comply with USDA regulations. The FSIS may request a manufacturer or distributor recall its meat products, but may not directly force a meat provider to comply. Instead, the FSIS may detain and seize products from commerce. To detain and seize a meat product the FSIS must possess appreciable proof that the product is adulterated, thus this is not a power that the FSIS liberally uses. Rather, companies tend to comply with FSIS recall requests to insulate themselves from product liability and to guard against negative publicity. Therefore, a meat manufacturer or distributor will likely issue a voluntary recall in order to remove products that may be adulterated or misbranded.

The USDA recalled 140 million pounds of adulterated meat between 1995 and 2000. Most of this meat (seventy percent or more) was not successfully recalled. Around ninety percent of the recalls were due to E. coli 0157:H7 bacteria. Recently in June of 2007 United Food Group recalled 5.7 million pounds of ground beef that could contain E. Coli bacteria.

The mere existence of a recall does not ensure success in a related however. In Thacker ex rel. Thacker v. Kroger Co . the Eighth Circuit Court of Appeals affirmed a district court decision that the Thacker family failed to link an injury to ground beef the USDA requested a recall on. 155 Fed. Appx. The Thacker family bought ground beef from Kroger that was processed ConAgra and likely subject to the recall in early July and then ate the meat in mid-August. Within a week a doctor diagnosed the youngest family member with a disease commonly associated with E. coli. The family never had the meat tested to confirm presence of E. coli. The court affirmed the district court decision because, while the meat was subject to the recall, it was not from the batch of ground beef that the USDA discovered was contaminated. No evidence showed that the meat included in the recall, after the initial discovery, was contaminated. Nor did the family put forward sufficient proof to establish that the sickness stemmed from E. coli contamination arising out of the meat subject to the recall. Thacker ex rel. Thacker v. Kroger Co. (155 Fed. Appx) .

VIII. Product Labeling and Marketing

The Food Safety and Inspection Service (FSIS), part of the USDA, works to ensure that meat and other products are safe, wholesome, and correctly labeled and packaged. Therefore, FSIS is responsible for ensuring that meat labels are truthful and accurate. The Federal Meat Inspection Act provides this authority. 21 U.S.C. §§ 606-611, 619. Furthermore, the Agricultural Marketing Act commands the USDA to “conduct, assist, and foster research, investigation, and experimentation to determine the best methods of processing, preparation for market, packaging, handling, transporting, storing, distributing, and marketing agricultural products.” 7 U.S.C.A. § 1622.

The FDA handles labeling for milk under the Federal Food, Drug, and Cosmetic Act. 21 U.S.C. §§ 301-399 .

A. Claims Concerning Hormone-Free Milk

The Food and Drug Administration (FDA) oversees the labeling of milk products. In September of 2003, the FDA warned milk suppliers that they misbranded their milk products if they applied labels that read “No Hormones” or “Hormone Free.” The FDA declared these claims misleading because cow milk contains naturally occurring hormones that suppliers are unable to separate from the milk and because the label implies a difference in the milk product itself, rather than a difference in how the supplier produced the milk.

Suppliers likely used claims like “No Hormones” to indicate to consumers that their cows were not injected with synthetic Bovine somatotrophin (rBST),   a hormone commonly used to increase milk production. The FDA recommends that suppliers could accompany the statement “From cows not treated with rbST'' with the statement that `No significant difference has been shown between milk derived from rbST-treated and non-rbST-treated cows.” As another option, the FDA also suggests the supplier could list the reasons (excluding safety or quality) for not treating cows with rBST, provided the label remains truthful and is not misleading.

Cows injected with rBST produce greater quantities of milk than cows that have not injected, but the injected cows often suffer from numerous veterinary problems. A 25-fold increase in incidence of mastitis (inflammation of the breast) due to the increased milk production is not uncommon. Cows that receive rBST are 50 percent more likely to suffer from lameness than cows that do not receive the hormone. Due to the increased risk of disease, dairy farm operators sometimes overuse more antibiotics in an attempt to offset potential infections caused by using rBST on cows, although suppliers remain careful to not ship milk contaminated with antibiotics due to the restrictions against selling such milk.

The FDA maintains that milk from cows treated with rBST produce milk is virtually identical to cows not treated with rBST. Because of the FDA’s position on rBST milk suppliers may not claim that milk from cows not treated with rBST is superior or safer than dairy products derived from rBST-treated cows. Instead, companies may label products to say whether or not the milk supplier used rBST.

Not all consumers are happy with the FDA’s decision to not require mandatory labeling that tells consumers whether or not milk producers injected cows with rBST or other artificial hormones and some milk consumers challenged the agency’s position on labeling. John Stauber, Glenn Stoddard, et al. challenged the FDA’s approving the use of Posilac® (a synthetic rBST hormone manufactured by Monsanto) in cows. The milk consumers, claimed, among other things, that the FDA “failed to require mandatory labeling of products from cows treated with Posilac.”

“Under the Food, Drug, and Cosmetic Act , food is deemed misbranded if it’s labeling is false or misleading in any particular.” 21 U.S.C. § 343(a)(1). 21 U.S.C. § 321(n) further declares products as misbranded if the labels fail to reveal material facts. The milk consumers contended that milk derived from rBST-treated cows differed “materially” from milk derived from cows not treated with rBST.

The court found that the milk consumers failed to prove that milk gained from rBST-treated cows contains higher levels of antibiotics, tastes different, or differs in any noticeable way from “ordinary” milk. Also, that consumers might demand mandatory labeling was not enough to require labeling, but that the FDA was required to ensure that products are not misbranded and that consumer demand could not require the FDA to forgo this duty. Stauber v. Shalala, 895 F.Supp. 1178 (W.D.Wis., 1995) .

B. Other Labels

1. Grass-fed

In May of 2006 solicited comments on a revision of the grass fed marketing claim. LS-05-09: “Grass (Forage) Fed--Grass (annual and perennial), forbs (legumes, brassicas), browse, forage, or stockpiled forages, and post-harvest crop residue without separated grain shall be at least 99 percent of the energy source for the lifetime of the ruminant specie, with the exception of milk consumed prior to weaning. Routine mineral and vitamin supplementation may also be included in the feeding regimen. Grass (forage) fed claims will be verified, as provided in 7 CFR part 62, by a feeding protocol that confirms a grass or forage-based diet that is 99 percent or higher.”

This proposal allows companies to market beef as grass-fed even if the cows were confined in a feedlot operation, provided they consumed harvested forage. Furthermore, the proposal does not distinguish between feeding cows antibiotics to treat illness and giving cows antibiotics as a preventive measure, a practice common in confined feedlot operations. The proposal broadly defines “forage” and thus ranchers or feedlot operators could use the “grass-fed” label but still feed cows harvested “immature grains,” which are not as healthy for   cows as actual grasses and can harm their health. Another complaint raised by concerned citizens during the commenting process is that allowing “immature” grain because immature is undesirable, because the term “immature” is not well defined and does not prevent producers from potentially eviscerating the grass-fed standard by feeding vast quantities of grain to cows and yet receive the grass-fed label. The term “pasture” does not exist in the proposal and thus feedlot operations are not excluded from using the term; no distinction is made between confining animals for their protection versus doing so as a standard.

Because many consumers are not likely to equate “free range” with confinement feeding, keeping “free range” separate from “grass-fed” can invalidate the welfare standards that consumers might seek and thus believe these terms guarantee that the cattle led stress-free, pastoral lives.

The auditing for “grass fed” falls under 7 C.F.R. § 62.207, which allows for assessment via documentation or onsite visits.

2. Free-Range

Currently the USDA-FSIS does not define the term “free range”. Rather, the FSIS allows producers of meat products to claim “Free-Range” or “Pasture Raised” if they describe the housing of their cattle and prove that the animals had continuous, free access to pasture for a significant portion of their lives, although FSIS does not define “significant.”

On April 10, 2006, the USDA requested comments to help regulate the role of pasture in organic dairy production. The USDA requested opinions concerning how to measure, enforce, and comply with regulations, and how much minimum pasture nutrition regiment, and how much access to pasture to require. As of today, the USDA has yet to release proposed regulations.

3. Natural and Naturally Raised

No uniform standard exists for the labels “natural” or “naturally raised”. The label “natural” is available for products that contain no artificial ingredients, synthetic colors or chemical preservatives, and the product and its ingredients. Because producers do not typically add coloring or preservatives to meat, meat producer usually can easily use this label. Natural does not mandate that producers adhere to organic standards or feed the cattle within pastures.

On November 21, 2006, the USDA announced listening sessions on marketing claims for naturally raised livestock. USDA officials held these sessions in three cities to present a framework for the proposal and related issues thereof and to receive comments from interested parties. As of today the USDA has not proposed a definition or standard for “naturally raised.”

4. Antibiotics

USDA-FSIS and FDA regulate the claim “No antibiotics used”. Manufacturers can not use the phrase “antibiotic free,” because current technology cannot verify that no antibiotics had ever been administered. But, “no antibiotics used” and “no detectable antibiotic residue” claims are allowed if the product has been tested for antibiotics. In 2002 Agricultural Marketing Service, a division of the USDA, proposed three levels of antibiotic-related claims: “no antibiotics used”, “no sub therapeutic antibiotics added” and “no detectable antibiotic residue.”

IX. Grazing

A. History and Overview of Grazing on Federal Land

In 1897, the federal government began to manage livestock that grazed in the government’s land. In 1906, the government initiated a fee system on ranchers whose herds grazed on federal land. Congress passed the Taylor Grazing Act in 1934. This act created the Grazing Service – which no longer exists, but the Bureau of Land Management (BLM) now oversees grazing on federal land—to establish grazing rights on federal lands to ranchers via a system of permits and leases. As explained by the Ninth Circuit Court in Faulkner v. Watt, 661 F.2d 809 (9th Cir. 1981) , the “purpose of the Taylor Grazing Act is to stabilize the livestock industry and protect the rights of sheep and cattle growers from interference.” The Federal Land Policy and Management Act of 1976 shortened maximum permit lengths to ten years and permitted conditions and restrictions to be placed on permits and leases. Cattle ranchers cannot directly sell the permits, but are free to sell the base property (ranch) and/or the livestock that harbors the permit, although the permit may or may not transfer to the new owner. 36 C.F.R. § 222.3(c)(1)(iv-v).

Fees to use federal lands for grazing are calculated in different ways. The Public Rangelands Improvement Act provides a formula used to compute fees based on how much forage cattle can eat in a month. This measurement is called the price per animal unit month (AUM). Thus an AUM is the amount of forage required to support one 1000 pound cow for one month. Legislators can also set fees for specific rangelands. Also, the Independent Offices Appropriation Act authorizes agencies to set certain fees.

In 2004 on 235 million acres of land, ten federal agencies managed about 22.6 million AUMs. On this land 989,460 cattle operations owned and managed nearly ninety-five million cattle. The BLM manages nearly all of this rangeland: 231 million acres. These agencies spent around $144.3 million dollars in 2004, using this money to support grazing (managing permits, managing grazing allotments, posting of signs, assessing land conditions, improving allotments, building fences, irrigating, “deterring” livestock predators, as well as covering internal costs like personnel, computer systems, and budget expenses). For example, the Wildlife Services division of the USDA spent over five million dollars combating predator and nuisance species on public lands to protect and promote grazing interests.

In contrast to the $144.3 million they spent in 2004, the agencies collected $21 million that year. Some of this money went to states and counties that host grazing lands and some went to pay to further improve rangelands for grazing.

AUM fees vary per state and region. The first use of AUM in 1980 came to $2.36 per AUM for BLM permits and $2.41 per AUM for Forest Service permits. In early 2007, the government reduced the fee from $1.56 to $1.35 per AUM. $1.35 is the lowest price allowed by the Public Rangelands Improvement Act. In 2004, the BLM charged $1.43 per AUM. While the BLM partially wishes to promote grazing, other agencies often charge more per AUM with fees ranging from $0.29 to $112 or more per AUM. As stated above, the BLM manages most of the federal grazing lands, thus the $1.35 per AUM fee is the most commonly charged federal fee for permits allowing herds to graze on federal lands. Private landowners who charge ranchers who wish to use the private land for grazing charge much more: in 2004, private ranches charged an average of eight dollars per AUM in Arizona up to $23 per AUM in Nebraska.         

If unchecked, grazing can wreck the land, especially if herds are large and unable to travel freely from location to location. One AUM typically equals 30 pounds of dry forage a day, thus a thousand pound cow might consume nine hundred pounds of vegetation each month. Herds can easily deplete rangelands of flora. Cattle hooves compact soil, thereby preventing proper water absorption. Organisms that live in the soil often fail to thrive as well as in untrampled soil and therefore it takes longer for these organisms to revitalize rangelands that have been grazed by cattle. A 1988 GAO report stated, “Throughout the public rangelands, and in the riparian areas in particular, the primary cause of degradation is poorly managed livestock grazing. When more livestock are allowed to graze in an area than the land can support, forage consumption exceeds the regenerative capacity of the natural vegetation. When this carrying capacity of the land is exceeded, vegetation is lost resulting in erosion, watershed damage, and other deterioration.” This deterioration is not a short-term problem either; it can take hundreds of years to replenish damaged topsoil. The federal government spends over $200 million on soil protection and reconstruction programs.

B. Grazing on “Wilderness”

16 U.S.C. § 1133(d)(4) (the Wildnerness Act) allows grazing on wilderness-designated land that has established grazing on it. Appendix A in House Report 101-405 affirms this interpretation: “The legislative history of this language is very clear in its intent that livestock grazing, and activities and the necessary facilities to support a livestock grazing program, will be permitted to continue in National Forest wilderness areas, when such grazing was established prior to classification of an area as wilderness.”

On June 27, 2007 the North District Court of California stated that agencies could allow grazing on newly acquired lands categorized as “wilderness” even if a temporary suspension of grazing on the land had occurred. The Ventana Wilderness Alliance filed suit to prevent livestock grazing on “wilderness-designated” land newly acquired by the United States Forest Service. Ventana Wilderness Alliance v. Bradford, 2007 WL 1848042 (N.D. Cal., 2007) . First, the Alliance claims that grazing on the land, known as Kozy Kove, violates the Wilderness Act of 1964 (16 U.S.C. § 1131 et seq. ) because grazing is a prohibited activity unless it occurred on the land prior to the wilderness designation, whether grazing was “established.” Second, the Alliance also charged that grazing would harm the land and that the environmental assessment conducted by the Forest Service was insufficient to properly assess potential damages that grazing on this land could cause. As to the first claim, the court ruled that grazing was “established” on the land due to prior grazing and that any suspension of grazing during the transfer of possession of the land in order to assess environmental conditions did not bar future grazing, but rather promoted good environmental practices. Concerning the second claim, the court pointed to case history that only requires agencies only take a “hard look at the environmental consequences of their actions” and found that the Forest Service properly prepared a detailed environmental impact statement despite the alliance’s claims that the study disregarded other data that indicated grazing at the levels allowed would harm plant life and promote erosion.

C. Grazing and Endangered Species

In Forest Guardians v. Veneman , the Forest Guardians sued the United States Forest Service to prevent grazing permits that allowed cattle on lands near waterways where spikedace and loach minnows live. The Forest Guardians alleged that grazing would conflict with 16 U.S.C. 1536, which prevents agencies from carrying out actions that are “likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” The Forest Service reviewed possible grazing impacts and allowed a level of grazing that would not put the endangered fish in “jeopardy” of extinction, although the court noted that the grazing would likely delay, if not impair, the recovery of the two species. Thus the Forest Service could issue the grazing permits. Forest Guardians v. Veneman, 392 F.Supp.2d 1082 (D. Ariz., 2005) .

X. Rodeo

The Animal Welfare Act (7 U.S.C. 2131-2156) “promulgate[s] standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.” 7 U.S.C. § 2143(a)(1). Unfortunately, the Animal Welfare Act exempts rodeos from its control. 7 U.S.C. 2132(h) . Similarly, state laws sometimes exempt an animal cruelty statute’s provisions from rodeo practices. Missouri’s statute exempts many cruelty provisions that conflict with “rodeo practices [that are] currently accepted by the Professional Rodeo Cowboy's Association.” V.A.M.S. 578.007(5). This is not a unique provision; twelve other states explicitly exempt rodeos from state cruelty laws.

Some states, usually states where rodeos are not highly popular, pass more laws to regulate various rodeos more stringently then the PRCA guidelines allow. The state with the most notable laws is likely Rhode Island. Rhode Island is the only state that has banned steer roping, where contestant trips the steer to the ground with the rope rather then by pushing the steer down. It is also the only state that requires breakaway roping that undoes the loop upon cinching rather then tightening the rope so that the calf falls. The PRCA does not recognize breakaway roping, thus does not sanction rodeos in Rhode Island. The state has other unique points in its law related to rodeos, including such provisions as:

• a veterinarian with two years experience with large animals must be present and has complete authority over the treatment and use of the rodeo animals. R.I. ST. § 4-20-5.
• the law limits the calf roping events to breakaway roping that releases the calf without subjecting it to a sudden stop or fall. R.I. ST. § 4-20-7.

Fines are between fifty and five hundred dollars for each offense that violates a provision. R.I. ST. § 4-20-9.

Outside of the few jurisdictions that implement stricter statutory standards, rodeos largely regulate themselves so that the industry decides what is cruel and what is not. Not many new laws affect rodeos; in fact many statutes –like the Missouri statute—encourage rodeo associations to forge their own regulations concerning how they treat animals used in rodeos. The Professional Rodeo Cowboy’s Association (PRCA) formed in 1936, albeit under a different name, in order to protect rodeo participants from unfair rodeo promoter tactics. Rodeo participants organized, enacted a strike, and the promoter granted their demands. From there, the group changed names, grew, and dominated the rodeo scene. The PRCA sanctions about 650 rodeos annually in North America. About nine thousand members comprise the association and PRCA sanctions rodeos in thirty-nine states. In addition, there are many rodeos sanctioned each year by different groups that employ standards similar to PRCA’s standards. Then, promoters across America host up to a thousand more rodeos that lack a governing body’s oversight or authorization.  An examination of some common rodeo events is instructive.

1. Bull Riding

Rider holds onto a grip fastened to the bull’s chest and tries to hold on as the bull bucks. The rider gains points for staying on and for style, by raking his spurs against the bull. The PRCA mandates that the spurs be blunt and locked. Furthermore, the bull cannot be prodded into the ring via an electric prod, although not all rodeos follow PRCA regulations. Some states and localities have codified this restriction into local law.

2. Tie-down roping

PRCA allows handlers to electrically prod calves that are typically between four to six months old in order to get them into the ring. The contestant rides a horse and swings a loop of rope in an attempt to snare the running calf. PRCA allows the contestant to rope any part of the calf, with the head being an appealing target for many contestants. Once the rider snares a calf, the rider will stop the horse so that the calf is stopped. Often the calf falls to the ground. Sometimes the calf cannot return to its feet without the rider’s help. Once caught, the rider pushes the calf to the ground and ties up three of its legs.

3. Team roping

Two riders compete as a pair “against” a larger male bovine called a corriente steer. This animal weighs about six hundred pounds. One contestant will rope the hind legs while the other contestant snares the horns.

4. Steer Wrestling

This event also features two contestants. One contestant tries to keep the steer running along a straight course so that the other contestant can lunge from a horse to the steer so he can take the steer down to the ground by grabbing its horns and twisting the steer’s neck as they fall.

Penalties for Not Conforming to PRCA Rules

PRCA provides standards, but does not publicly release what the penalties are for not following many of the standards. Rather, PRCA keeps the fine confidential between itself and the fined entity.   Some known fines reveal that there is potential for rodeo promoters to abuse the standards. For example, while PRCA requires a veterinarian be present at a rodeo, it does not go into specifics as to what qualifications are necessary. Even more unsettling are allegations that the fine for not having the veterinarian present is two hundred dollars, which is likely much less than the cost of hiring a veterinarian for the day, thereby not creating a financial incentive to follow the standard. Also, the duties of the vet are limited. A different rule empowers the judge to decide whether a sick or injured animal will compete. ( http://www.reviewjournal.com/lvrj_home/2004/Dec-09-Thu-2004/sports/25438504.html ). In general, the rules often allow judges to override a rules import, such as allowing an animal to be used more than once provided the director allows it. ( http://www.animalsvoice.com/PAGES/writes/editorial/features/enter/shark_prca_rules1.html ).

XI. Conclusion

Because laws often seem to mirror the consciousness of the people, it seems that education is the key to changing how we interact with our fellow species, cattle included. People believe they require meat and dairy products in order to live healthy lives. With grocery stores around the corner and cattle locked up out of sight and out of mind, people can purchase their meat and dairy products without mustering a thought as to what goes into creating these products. Typically, cows are often not thought of by our people or, if contemplated, people commonly consider cows stupid and worthless outside of their benefit to society. At our worst, we torture cattle inside our feedlots, commoditize cattle into “products” inside our manufacturing plants, and turn cattle into playthings within our rodeos. There is a gulf between the average citizen and cattle. This gulf allows the industry to define what practices are acceptable because no one else thinks about cattle and thus no one stands up to say what we do to these creatures is wrong.

Without an uprising, without a social clamor for there to be changes in how we view our interactions with cattle the cattle industry dollars will dominate laws related with cattle. Standard husbandry practices will continue to dominate the definitions of what our society accepts. We can enact tougher laws that require gentler handling that involves anesthetics, decent veterinary care, tougher inspection of safer meat products, and wiser use of our land, but then we must also possess the willpower and resolve to enforce these laws. Furthermore, historically the decisions of court lawsuits typically favored the cattle industry. With the contemporary animal welfare movement and consumers’ desire for “greener” products there is newfound hope that society is discovering the required willpower and resolve. Thus, the more we as a society learn about sustainable development and our fellow Earthlings, like cattle, the more we can alter our behavior in light of this new knowledge.  And, the more likely we will find the political resolve to pass more protective laws that favor the comfort of cattle as much, if not more, as these laws look toward the bank accounts of those that profit from how we exploit cattle.