Journal of Animal and Natural Resource Law, Vol. 13

Table of Contents

ARTICLES

Strictly for the Birds: The Scope of Strict Liability Under the Migratory Bird Treaty Act

Max Birmingham...................................................................................1

The Federal Circuits have inconsistently applied the MBTA to commercial activities. Although some courts have done so by analogizing to the hunting provisions in the MBTA, these courts are actually just engaging in commercial protectionism. The aforementioned courts rely upon a narrow definition of “take” in order to limit the scope of the MBTA. The MBTA needs to be construed broadly to effectuate its underlying purpose. Without broad application of its provisions, bird populations will continue to decline as companies continue to decentralize, thereby allowing them to render reasonable foreseeability a nullity. Indeed, this has been the case under similar statutes. Although opponents may believe that placing the economic burden of protective measures on industry is too big a burden for them to bear, that is an issue for Congress, not for our courts.

Are Horse No-slaughter Contracts “Lame”? Enforcing a No-Slaughter Contract as a Restrictive Covenant

Melissa Dumoulin................................................................................17

Horses can end up at a slaughter plant for a multitude of reasons and some horse owners have tried to prevent a once loved pet from ending up in a slaughter plant. To prevent horses from going o slaughter, owners and rescue organizations are now adding a “no-slaughter” clause to the horse’s sale contract. The enforceability of a no-slaughter clause against a subsequent owner or third-party possessor is not clear because servitudes on personal property are uncommon.

Can’t We Just Try Federalism? In Defense of a State-by-State Approach to Fracking

Zach Eddy............................................................................................39

Hydraulic fracturing is a process that has been highly politicized over the past number of years with both sides presenting compelling arguments for why the process should be encouraged or outlawed. However, this paper is not meant to weigh the potential benefits and costs of continuing the practice of hydraulic fracturing; rather, it sets out to “confront a far narrower, albeit no less significant, legal question[:]” the authority of a locality to regulate and/or ban oil and gas operations.

International Trapping: The Need for International Humane Trapping Standards

Andrea Fogelsinger..............................................................................67

While trapping seems to be an inescapable part of the relationship between humans and wildlife, the means that are used to trap animals need vast modifications and with the increase of globalization these standards need to occur on an international level. The European Leghold Trap Regulation (Leghold Trap Regulation) and the Agreement on International Humane Trapping Standards (AIHTS) are key components of this change, but these agreements have their limitations and need to be amended to properly safeguard wildlife against humans. This Note will explore the origins and methods of trapping while outlining the reasons that trapping standards need to be changed and suggesting possible solutions to affect change.

Science-Based Farmed Animal Welfare Laws for the U.S.

Kelly Levenda.......................................................................................93

An appropriate response to Americans’ concerns about the wellbeing of farmed animals would be the legislation of scientifically informed welfare laws. Welfare is a measure of an animal’s physical and mental health. Animals are in a state of good welfare if they are “healthy, comfortable, well nourished, safe, able to express innate behaviour, and … not suffering from unpleasant states such as pain, fear, and distress.” The U.S.’s animal welfare laws should be informed by scientific knowledge regarding animals’ mental capacities.

Putting Animal Welfare into the Animal Welfare Act

Bernard Rollin....................................................................................133

The Animal Welfare Act was morally and conceptually flawed from its inception. Though one would expect from its name that its major concern was animal welfare, it was rather directed at reassuring the public that their pet animals would not be kidnapped and sold to research labs for experimentation, which was not in fact uncommon. Among the numerous flaws characterizing the Act were the following: it disavowed any concern with the design or conduct of research; the Act only covered those animals that the Secretary of Agriculture decided were used in research, resulting in the absurdity that the vast majority of animals used in research—rats and mice, as well as birds—were not included in the Act; though proper use of anesthesia and analgesia were required, it was left to the discretion of research facilities to determine if they were used.