Animal & Natural Resource Law Review Volume XX

Deconstructing Concepts About Nature: An Alternative Perspective for Ecofeminism Based on the Rights of Nature

Leslie Terrones .......................................................................................1

Since Françoise d’Eaubonne first coined the term in the early 1970s, ecofeminism has become a movement that brings together not only feminist theories but also realities that aim to protest against current threats to the environment. Now divided into several branches and often applied to social thought, the ecofeminist movement has attracted an equal number of supporters and detractors who question its practicality. Nevertheless, as it continues to grow, it has learned not only to draw on and bring together the best of other theories but also to extend its questioning to almost every aspect of social relations. To continue this tradition, this article seeks to contrast the ecofeminist movement with another contemporary one, that of the rights of nature.

The Rights of Nature movement, rooted in old theories and ancient beliefs, was not as active as it is today until Ecuador recognized the rights of the Pachamama in its constitution. From that moment on, the movement began to expand and spread into several countries that did not necessarily have similar legal systems. Currently, 22 countries have adopted Rights of Nature laws or have recognized them in judicial decisions at the local and national levels, including dozens of cities and counties throughout the United States. Due to the importance and the reception that this movement has been having in recent years, this article aims to delve into its roots and compare it with ecofeminism, looking not only for disparities between the two movements but also—and most importantly—possible commonalities that can challenge the school of thought of both.

To Sustain Them Forever: Ensuring the Sauk-Suiattle Tribe’s Access to Salmon Through Treaty, Federal Trust Doctrine, and Rights of Nature Protections

Kelly Davis ........................................................................................... 25

The United States is in the midst of a legal debate over a new environmental movement: the rights of nature. The rights of nature movement advances nature’s right to exist, persist, and maintain. The rights of nature movement, however, can and does intertwine with Indigenous peoples’ relationship with nature and their subsequent fight to protect it. In January 2022, the Sauk-Suiattle Indian Tribe sued the City of Seattle, Washington, on behalf of itself and its local salmon to enjoin the maintenance of the Gorge Dam because of the dam’s negative impact on the salmon population and migration patterns. Here, the United States must discontinue the use of the Gorge Dam to avoid negatively impacting the salmon because of the federal Indian trust doctrine, which compels the protection of the Sauk-Suiattle’s treaty rights and resources. Additionally, the Sauk-Suiattle, in its own right, should be able to protect its salmon in its own tribal courts and through co-management practices rooted in rights of nature.

Teaching Animal Law in Europe

Marita Giménez-Candela, Raffaela Cersosimo ................................... 51

Animal Law is steadily increasing in legal education. The need to disseminate this discipline arises from the growing attention to the fate of animals, which is a feature of our society. In addition, the corpus of legal rules for the protection of animals, as well as the reforms pertaining to their legal status, require academic studies and continuous professional development. Despite these cultural and legal advances, Animal Law remains largely absent from most European universities. There are programs available; however, efforts can be made to introduce this discipline into the academic world.

Balancing the Best Interests of Animals and Human Rights in Companion Animal Rescue and Adoption Operations

Daniel W. Dylan, Aurora FitzGerald...................................................73

It is trite to say that provinces and territories in Canada need to comprehensively regulate operations and organizations that are involved in the care, control, and breeding of companion animals throughout their jurisdictions; most specifically, the highly exploitative operations commonly known as puppy “mills” or kitten “mills,” “backyard breeders,” and the like. Little attention, however, has been paid to the absence of regulations which govern companion animal rescue operations. Despite needing to alter laws throughout the country which ubiquitously treat animals as real property, new laws and regulations are needed to adequately govern companion animal rescue operations to precipitate and manifest better overall rescue practices and outcomes for both animal and human persons. The authors of this article set out a possible tri-part regulatory regime that could realistically be implemented within the Canadian jurisdictional framework to achieve these legislative amendments and improvements: (1) creation of a “Best Interests of the Companion Animal” standard; (2) adoption and implementation of the standard within breeding facilities, rescue organizations, and the like at the provincial/territorial level; and (3) ongoing governmental regulation and enforcement of the standard.

Happy to Be Included: Rethinking Our Rejection of Habeas Corpus Rights for Nonhuman Animals Through the Framework of Nonhuman Rights Project, Inc. v. Breheny

Jessica Mansbacher Kibbe.................................................................105

Under the Constitution of the United States of America, nonhuman animals do not have fundamental rights. While Congress and state legislatures have passed laws protecting nonhuman animals from cruel treatment by humans, no court in this country has yet recognized an animal’s right to bodily autonomy and liberty through the writ of habeas corpus.

The discourse surrounding the extension of habeas corpus rights to nonhuman animals is complex and ever-evolving, culminating in the recent, groundbreaking case Nonhuman Rights Project, Inc. v. Breheny. The dissenting opinions in Breheny signal a promising shift in judicial thinking toward recognizing nonhuman animals’ fundamental right to bodily liberty.

The Breheny dissents do not go far enough, however. They brush aside the central argument that U.S. courts have raised thus far to deny animals their day in court—that nonhuman animals do not bear legal duties or social responsibilities in human society, and as such, do not deserve fundamental legal rights.

In fact, nonhuman animals do bear legal duties and social responsibilities within their communities and within our own. Animals’ participation in human civilization is undeniable and vital, thereby necessitating a reevaluation of their standing within the legal system.

Nonhuman animals have participated in legal proceedings throughout human history, officially and unofficially, whether as plaintiffs, victims, or subjects of punishment. Animals bear legal duties by engaging in these processes and adhering to legal outcomes.

Nonhuman animals bear social responsibilities, as well. Social responsibility, often undefined by the judiciary, is pertinent to animals just as it is to humans. Elephants live within complex societies, displaying intricate communication, coordinated actions, empathy, and assistance toward fellow elephants. Other animal species exhibit similar sociological patterns, indicating that animals indeed bear responsibilities within their communities and develop unique cultures.

Shared knowledge and socially acquired behaviors demonstrate animals’ abilities to contribute to collective welfare, challenging the argument that animals lack social responsibilities. Moreover, animals adapt their behavior in response to human influence.

The argument that “animals are not humans” is an outdated rationale for denying animals their rights. By acknowledging animals’ social responsibilities and legal duties, humans can and should initiate legal reforms that consider animals’ contributions to society and the mutual obligations shared between species. Granting habeas corpus protections to select animals, as seen in the case of Happy the Elephant, could open doors to recognizing the duties animals bear and the roles they play in human and nonhuman societies.

Because animals bear legal duties and carry social responsibilities, they are intertwined within the fabric of human society. As the judiciary moves toward a more expansive understanding of animals’ roles and contributions, our nation’s legal framework should grow to accommodate an equitable coexistence that benefits both humans and nonhuman animals alike.

Expanding Legal Protections for Victims of Domestic Violence and Animal Cruelty: Including Pets in 18 U.S.C. § 2261

Alexis Wooldridge ..............................................................................135

Due to the co-occurrence of animal abuse and interpersonal (domestic) violence, the emotional importance of animals in interpersonal violence situations, and the impact of companion animal abuse on interpersonal violence victims, laws addressing the ‘link’ between these crimes have developed in modern jurisprudence. This paper reviews the current state and federal laws on animal cruelty and domestic violence, including cross-reporting mandates, abuser registries, and safe haven shelters. Then, existing solutions to the legal challenge of combating animal cruelty as domestic violence are compiled and compared through the lens of impact on the proposed amendment. Finally, an alternative solution is proposed as the amendment to the federal criminal code’s statute criminalizing interstate domestic violence, 18 U.S.C. § 2261, through an analysis of the proposal’s explanation, challenges, rebuttal to the challenges, and implementation. Without language addressing the inclusion of companion animals or pets in the statute, 18 U.S.C. § 2261 as it currently exists allows for a gap in federal domestic violence and animal cruelty laws that cannot be addressed by state law due to its interstate nature. A statutory amendment to 18 U.S.C. § 2261 that allows interstate animal cruelty to be federally charged as a crime of domestic violence is necessary because it provides victims with more comprehensive legal recourse.

Locking Horns: State Agency Regulation of Deer Farms in the “Amish Belt” in the Face of Chronic Wasting Disease

Griffin Cole ........................................................................................163

In the last couple of decades, Chronic Wasting Disease (“CWD”) has become a topic of concern for conservationists, animal welfare advocates, and fair-chase hunters alike. The untreatable nature of CWD combined with its long incubation time makes the disease a threat to the health and welfare of cervids, like deer and elk. Furthermore, the rise of the cervid breeding industry has coincided with and exacerbated the spread of CWD throughout the United States and Canada. On top of this, the outsized representation and prevalence of Amish adherents in the cervid breeding industry raises concerns about the effectiveness of any efforts by federal and state agriculture agencies to effectively regulate cervid breeding and curb the transmission of CWD. Therefore, due to the unique issues with non-compliance that stem from enforcing regulations on Amish communities and the internal expertise of wildlife agencies, it is recommended that states within the “Amish Belt”—a term coined by the author to refer to the states with the highest Amish populations that border the Great Lakes—adopt a regulatory framework that completely aligns with the public trust doctrine view of wildlife management and gives full authority to state wildlife agencies to regulate all cervids within the state. By solely granting state wildlife agencies the power to regulate cervids, regardless of origin, CWD management and mitigation efforts can be left to those with the most institutional knowledge on the subject.

The Olympic Games: An Environmental Calamity

Allyson Hammond ..............................................................................189

Since their inception in 1896, the Olympic Games have brought together over 400 countries, uniting fans worldwide as they cheer for their national athletes. However, the environmental impact of hosting the Olympics often goes unseen. The extensive construction of stadiums, hotels, and infrastructure necessary for the Games causes significant environmental degradation. The International Olympic Committee (IOC) and the Olympic Charter currently lack specific environmental standards for host cities, leading to unsustainable practices driven by economic incentives. This Note argues for the adoption of stringent environmental standards within the Olympic Charter to safeguard the environment. Historically, the IOC only recognized environmental sustainability as a priority after the 1992 Albertville Games’ environmental failures. Despite this, the sustainability of the Games has deteriorated. The self-reporting bias in assessing host cities’ environmental credentials exacerbates the issue, as no independent verification exists. To enhance environmental protection, the IOC could implement best management practices through contractual obligations or international treaty law, ensuring compliance. Additionally, reducing the scale of the Games or rotating them among designated cities could minimize environmental impact. Establishing an independent body for environmental audits could also ensure transparency and honesty in host city selection.