Animal & Natural Resource Law Review Volume XVIII

Table of Contents

ARTICLES

Welcome (Back) to the Jungle: The Status of America’s Tiger Crisis

Carney Anne Nasser...............................................................................1

While Tiger King captivated a global audience at the beginning of the Covid-19 pandemic, the reality show failed to explain how characters like Joe Exotic, Jeff Lowe, and Doc Antle are merely symptoms of a problem created by the very federal agencies that are meant to prevent animal abuse and trafficking in protected species. The two federal agencies tasked with overseeing big cat exhibition and trade have, through a series of misguided regulatory actions, furthered the very abuse, exploitation, and trafficking that they have statutory obligations to prevent—directly contributing to what experts describe as “America’s Tiger Crisis.” Indeed, the U.S. Department of Agriculture, responsible for enforcing the federal Animal Welfare Act, has encouraged puppy mill-style breeding of tigers by allowing roadside zoos to offer lucrative public contact sessions and photo ops with cubs; and the U.S. Fish & Wildlife Service made interstate trafficking of tigers easier for roadside zoos and unscrupulous breeders by promulgating a loophole in the federal Endangered Species Act regulations that substantially diminished agency oversight of tigers between 1998-2016. The absence of a federal law prohibiting big cats as pets has enabled a patchwork of state laws—including four states that still exercise no oversight of privately-owned apex predators—to facilitate the big cat trade and diminish the U.S.’ credibility in international conversations about wildlife conservation and illicit trafficking.

In my previous article, Welcome to the Jungle: How Loopholes in the Federal Endangered Species Act and Animal Welfare Act are Feeding a Tiger Crisis in America (2016), I explained how regulatory deficiencies and inadequate enforcement have created a surplus of big cats who end up in the exotic pet trade, forced to live their lives warehoused in cramped cages at roadside menageries, or dead. Since 2016, the U.S. Fish & Wildlife Service has closed what was commonly referred to as “The Generic Tiger Loophole”; however, it is advocacy organizations— not federal agencies—that have driven the most progress for captive exotic animals in the past six years through a series of precedent setting citizen suits against roadside zoos. This article will explain how recent citizen suits under the federal Endangered Species Act have improved the legal landscape for tigers and other captive big cats in the United States, how federal agencies have contributed to or impeded progress since 2016, and what federal legislative changes are still necessary to end the game of legal whack-a-mole and resolve America’s Tiger Crisis once and for all.

From Social Justice to Animal Liberation

Carter Dillard & Matthew Hamity.......................................................57

Protecting and liberating animals is surely part of social justice’s core of freeing the vulnerable from the powerful, but in many ways the animal movement exists outside of that tide. Arguably that is because of its historic focus on the animals themselves, rather than upon the antecedent, anthropocentric, and outcome-determining nature of human power systems, the ones through which humans oppress one another, and the systems many animal advocates unwittingly accept even as those systems undo any progress—though things like population growth—the advocates claim to be making. This myopia makes claims regarding animal law and liberation a misnomer. Recent attacks on women’s bodily autonomy in terminating pregnancies which will also have a devastating impact on nonhumans, and the animal rights movement’s relative silence in the face of these attacks while continuing largely performative campaigns, is exemplary. This article offers recognition of these power systems through an animal rights perspective, systems which threaten humans and nonhumans from a common source, and a framework for threading animal rights into social justice more generally to overcome those specific actors—many of whom masquerade as animal activists—behind the power imbalance. It also offers a test for the success of the transition, whereby normative systems come to rely on true consent more than coercion or incentives, as a sign that power is being redistributed from the powerful to the vulnerable.

The Allocation & Exploitation of Natural Resources in Space

Monica Kamin.......................................................................................93

This Article details the principles of ownership and the creation of legal title in order to evaluate how the systems which the international community has previously relied upon to determine the rights of ownership in territories that fall outside of the jurisdiction or control of any one state’s borders could be applied to the allocation of natural resources in outer space. The absence of an accepted legal framework, paired with the lack of an internationally recognized regulatory body that could create or enforce international space law creates many legal uncertainties, especially as the advent of space mining looms ever closer on the horizon. Previous attempts to create an international legal framework and system of enforcement for the exploration and exploitation of space resources have proved to be largely unsuccessful, which is unsurprising considering the historic political tension between major players in the Space Race as well as the current political climate, COVID-19, and the rise of nationalism across the globe over the last decade. In the face of these realities and motivated by a desire to explore the stars and exploit their spoils, states have begun to legislate these issues on a national level, claiming it aligns with the scant international space laws already in place. This Article analyzes these modern interpretations of international space law and the repercussions of states creating national frameworks to decide an international issue, before hypothesizing how interested parties will eventually allocate and exploit space resources in practice.

"Welcome To Jurassic World”: The Legal Ramifications of De-Extinction Explored through the Jurassic Franchise

Jessica D. Hollan.............................................................................. 129

As the scientific community comes within a decade of releasing de-extinct animals into the wild it is clear that the legal realm is not prepared to protect these creatures. Anticipating the legal needs of these hybrid creatures comes through gaps in the current animal welfare laws and laws regarding hybrids. This Article discusses the current progress on de-extinction, the failings of the current animal welfare laws, and options for the future, all explored through the Jurassic franchise. While set in a fictitious universe, Jurassic uses dinosaurs to demonstrate real-life failings in animal exploitation. These failings will only become more relevant when they can apply to real world de-extinct animals. The law needs to be proactive instead of retroactive in order to have protections in place for these hybrid animals long before they are released into the world and exploited.

A Fair Go for Farm Animals: How Australian Law Can Better Protect Animals Used in the Agricultural Industry

Jessica Tselepy....................................................................................161

The environments in which non-human animals (NHAs) are farmed today are far from the ideals of Australia’s popular bush narratives. Ideas of free-roaming cattle and the ‘bushman’ are iconic in post-colonial Australia, yet the conditions of factory farms are in reality the overwhelming norm for these sentient lives. This Article outlines the inadequacy of Australia’s past and present welfare legislation, which concerns the treatment of NHAs held for agricultural purposes. With a historic lack of transparency that has allowed cruel practices to prosper, an obstinate political environment that projects dependency rhetoric, and a growing public interest in improving the welfare protections for farmed NHAs, the need for change in the agricultural industry is more pressing than ever before. Through a reconceptualization of what constitutes ‘unnecessary suffering,’ the introduction of a new National Animal Welfare Department, and improvements to standing and sentencing requirements, such necessary changes may be realised. In manifesting these changes, the Australian government would not only be representing the values of the public that they have a duty to represent, but would be acting to change an industrial status quo that is shameful and pervasively cruel.

Shutting the Barn Doors after the Media has Run Away: Studying the Relationship between Ag-Gag Laws and the Reporting of Zoonotic Diseases

Jamie K. VandenOever........................................................................175

In the wake of the COVID-19 global pandemic, all eyes are on preparing for the next zoonotic virus with pandemic capabilities. As the United States holds a major agricultural market, the first place to look is the plethora of factory farms in the nation. These factory farms pose as a breeding ground for zoonotic viruses and provide an even larger threat without proper monitoring of farm conditions and practices. The presence of Agricultural Gag (ag-gag) laws, however, contribute to a high information barrier, preventing reporters and whistleblowers from having complete access to the farms and providing thorough updates on food safety and animal welfare to the public. While many First Amendment challenges have been brought against such legislation, there should be stronger consideration given to a public health exception of pandemic prevention. An exploration of efficacy and timeliness in reporting, as well as a comparative look of COVID-19 responses from more transparent agricultural industries, highlights the importance of overruling these ag-gag laws.

Confusing the “Bark” Side with the Dark Side: The Legal Practice Of Devocalizing Domesticated Animals

Sophie I. Pohl......................................................................................211

In a time where society views companion animals as family rather than personal property, the law in the United States and State legislation continue to work against modern views through the many ways they perpetuate the treatment of animals as personal property. Subject to the owner/s of the animal/s and their decisions, whether their choices be cruel, unnecessary, or rationale, the animal is rendered a choiceless victim in almost all aspects of its fate. Through legalized elective, non-therapeutic, and voluntary convenience procedures, the owners of animals have the power to mutilate, brand, tattoo, or even permanently silence sentient beings. When the veterinarian community and law are working against each other, the only ones at consequence are the voiceless animals. In order to put an end to the overwhelmingly legal procedure of devocalization in the United States, model legislation is necessary and should consist of specific language to protect all domesticated animals and eliminate the exceptions and loopholes found in State legislation that are currently enabling this cruel and unnecessary practice to continue.

Sin or Science: The Legal and Ethical Implications of Growing Human Organs Inside of Pigs

Arnulfo Caballero...............................................................................239

The purpose of this Article is to highlight the various legal and ethical issues that arise from the growing of human organs inside of pigs. This Article will talk about the history of genetic engineering and will detail the processes that are used in genetic engineering today. This Article will also bring to the forefront the most cutting-edge legal issues that come about through genetic engineering, and how limited this area of law is. Ethical issues surrounding the issues of genetic engineering, specifically growing human organs inside of pigs and beyond will also be analyzed. Finally, this Article will curtail a possible alternative to growing human organs inside of pigs.

Animals are Not Objects but are Not Yet Subjects: Developments in the Proprietary Status of Animals

Pablo Lerner.......................................................................................267

De-objectification of animals is becoming a more accepted term when discussing the legal status of animals. The idea of de-objectification has been recognized within the legal systems of various countries; these laws establish that animals are not objects, but sentient beings.

This Article seeks to analyze the various realizations of de-objectification, establishing that it constitutes a more advanced stage of animal protection. The discussion surrounding de-objectification should be understood as part of the tension between the animal welfare approach and a more radical position striving for animal rights recognition. Although de-objectification does not intend to abolish animal ownership, it shifts the paradigm of animal treatment from a welfarism of rules and prohibitions to one of principles. The importance of de-objectification is not only rhetorical, and although de-objectification does not necessary imply a revolution in animal law, it aims to produce a gradual change in the boundaries of the proprietary status of animals.

The Article goes beyond the debate about de-objectification and deals with the idea of recognizing animals as legal persons. Accordingly, comparison between animals and corporations, artificial intelligence or natural resources is carried out. The Article certainly supports the process of de-objectification of animals, but it is rather skeptical regarding personification.

Since de-objectification is in the first stages of its legal recognition around the world, it is hard to point out univocal conclusions. Nevertheless, even if there are not clear cut answers to all the quandaries, the analysis of de-objectification is an important part of the debate about the relationship between human and not-human animals.