Animal & Natural Resource Law Review Volume XIX

A Family Law Approach to Animal Rights

Felix Aiwanger........................................................................................1

Jurisdictions around the world define the legal status of animals from a property law perspective, which envisions animals as things dominated by humans as their owners. In my presentation, I would like to contrast this paradigm of property law with an approach informed by the regulatory patterns of family law and legal parentage in particular. It aims at reframing the legal status of animals as it is and as it could become, thereby replacing the subject-object divide by a focus on the interests that form part of the legal analysis. The approach is illustrated by the following experiment of thought: If the legal status of animals was assimilated to that of children–would this change of viewpoint by itself imply a different treatment of animals, compared to the current situation? Or could the same treatment as now be derived from what is just another starting point?

An Analysis of the Estrellita Constitutional Case from an Animal Rights Perspective

Marcia Condoy Truyenque....................................................................21

On January 27, 2022, the Constitutional Court of Ecuador (the Court) granted judgment in the case 253-20-JH, called “Rights of Nature and Animals as Subjects of Rights, Estrellita Monkey Case,” popularly known as the Estrellita case.1 The case generated high expectations because the Court selected it for the development of binding jurisprudence. Since its release, the case has received broad public attention due to its ruling and media outlets having announced that Ecuador is the first country where animals have legal rights.

1 Corte Constitucional del Ecuador [Constitutional Court of Ecuador]
Jan. 27, 2022, Judgment No. 253-20-JH/22.

Given the importance of the Estrellita case, an analysis from an animal rights perspective is necessary. First, I will summarize the Rights of Nature under the Ecuadorian Constitution and the history of the Estrellita case. Secondly, I will explain the ruling of the Estrellita case, how the Court recognized individual animals as legal subjects, what rights of wild animals were recognized, the interspecies principle, and the ecological interpretation principle. Thirdly, I will argue why Rights of Nature is not the correct framework for the achievement of rights for animals, mainly because the ecological interpretation principle has the effect of undermining the full realization of those rights. Finally, I will present positive outcomes for animals in Ecuador that derive from the Estrellita case, as the Rights of Nature framework has a symbolic and instrumental value that one can use for the benefit of animals.

Still Strictly for the Birds II: Reviewing the Southern District of New York’s Decision to Vacate an Agency Opinion

Max Birmingham..................................................................................43

The Migratory Bird Treaty Act of 1918 (MBTA) is comprised of exceptionally expansive language, and it should be interpreted accordingly. Congress enacted the MBTA to combat the threat of over-hunting of migratory birds, due largely to the demand for ornamental feathers. The MBTA prohibits the “taking” of migratory birds, but the statute does not precisely define what constitutes a taking. Courts have split as to whether incidental takings (i.e., a take that results from but is not the purpose of an otherwise lawful activity) are covered under the statute. In December 2017, the United States Department of the Interior issued a memorandum (M-37050) stating that incidental takes are outside the scope, and incidental takes cannot be prosecuted under the MBTA.

In the latest battle, the Southern District of New York (“S.D.N.Y.”) exceeded its authority by invalidating M-37050. Moreover, the S.D.N.Y. issued an opinion that conflicts with a Second Circuit ruling, violating the law of the circuit doctrine. The court also did not properly address standing, the threshold question in every federal case. The first Article (“Strictly for the Birds: The Scope of Liability Under the Migratory Bird Treaty Act”) advocates for a broad interpretation. Courts are a cornerstone of the country. They have been bestowed with the awesome power of proper and fair administration of justice. When courts dispense their own brand of justice, no matter how noble or righteous the reason, it is the greatest injustice of all.

Disarticulating Onychectomy: The Case for Banning the Medically Unnecessary Procedure in the United States

Kelsey Bees...........................................................................................85

House cats are one of the most popular pets across the world. Declawing procedures have long been used by cat owners to better control their cats. Many owners equate cat declawing to a simple nail trimming and believe such procedures are safe and commonplace. Recent research has shown, however, that such procedures are detrimental to the cat’s short-term and long-term health. While many European countries have passed legislation banning such procedures, citing the harmful effects they have on cats, the United States has been slow to follow suit. In 2019, New York was the first state to pass a statewide ban on declawing procedures, and other states have introduced legislation with intentions of doing the same. This article takes an in-depth inquiry into declawing procedures in the United States and analyzes ordinances and laws currently in place. The article concludes that a full ban of declawing procedures for cosmetic or nonmedical reasons is needed to best protect the health and well-being of domestic cats. The appendix to this article provides proposed legislation that each state should adopt to effectively ban declawing and protect the well-being of cats.

Sweeping Regulations Sweep-up Cruisers: How Increased Regulation for Derelict Boats Restricts Access to America’s Waterways for Cruisers

Jonathan Tromp..................................................................................123

Throughout history, the waterways of the United States have served as sources of food, means of commerce and exploration, as well as avenues for recreation and adventure. The beneficiaries of the water are diverse, including waterfront homeowners, cruisers traversing the waterway, to those living aboard vessels at anchor, each of whom have, often competing, priorities with respect to use and access of the waterways. In response to these competing factions, addressing concerns often focused on the issue of derelict and abandoned vessels and state legislators are caught in a tug of war of competing influences. Recent years have seen an increase in overly restrictive regulation passed in response to legitimate issues, but which are so wide sweeping as to sweep-up those cruisers who traverse the waterway in pursuit of distant shores or for the unique experience and character of the waterways themselves. Though an issue often discussed amongst cruisers and stakeholders in waterfront communities, it receives little attention and media coverage, let alone critical analysis. This paper seeks to provide a three-part synopsis of the current state of regulation and the effects on cruisers and other users of the waterways, primarily focusing on the Atlantic Intracoastal Waterway, discussing the drivers of this regulation, namely the issues of derelict vessels and “not in my back yard” influences. This analysis provides a brief primer on the sources of regulation, a summary of current regulation in Atlantic ICW states, as well as [deleted] a proposed model for regulation and infrastructure improvements which can reasonably address the concerns and needs of the various users of the waterways.

Litigation Conservation: Positively Impeding Animal and Natural Resource Lawsuits in County Courtrooms

Anthony M. Leo...................................................................................155

In a time where lawsuits are plentiful and expensive, the United States imposes inadequate barriers against the commencement of environmental actions by national groups. Local governments have become customary targets for such environmental litigation. National environmental groups often have a limited connection to the communities they are litigating against and spend a sizeable portion of their budgets on fruitless actions instead of the legitimate causes that they were formed to protect. Litigation between environmental groups and counties wastes precious financial resources, from both sides, that could otherwise be spent within local communities to directly improve the status of animals and natural resources. The money is tied up in litigation when it could be spent in a superior way. By limiting national environmental organizations’ ability to sue local governments through enhanced standing doctrines and principles, the environment will benefit as billions of dollars are no longer fed to the litigation economy and are instead diverted to environmental causes. Embrace the environmental litigation conservation conversation.

From Doghouse to the Dog’s House: How American Trust Law is Defying Animals’ Property Status

Skylar Steel..........................................................................................187

In a society that has remained apprehensive of taking the progressive step to abolish animals’ status as property, American society has demonstrated that such a property status has become obsolete. Americans no longer see the animals they bring under their care and into their homes as chattel, but instead, as members of their families. Despite this radical change in the treatment of our companion animals, American law remains stagnant in defining animals as mere personal property, categorized in the same box as inanimate objects, like the furniture in our homes. Notwithstanding this legal status as property, American society’s treatment of animals in various areas of the law illustrate a change in societal attitudes from viewing animals as property to seeing animals as something much dearer to our hearts and deserving of more protections under the laws. While no American court has dared to revoke or change such a legal classification, the United States legislatures and judicial systems have found ways around this limiting categorization to better align with American society’s treatment of its companion animals. One particular area of law has made substantial developments towards society’s evolved recognition of animals as more than mere property: Estate Planning. An exploration into the history of Estate Planning grants insight into how this area of law has been able to become so progressive in its treatment of companion animals by recognizing the unique bond that humans form with the animals in their care and what American society can learn from such a recognition to be able to apply such perceptions and protections to other areas of the law. while Estate Planning has been the most successful in overcoming the barrier of animals’ classification as property, other areas of law such as tort remedies for harm caused to our animals, malpractice suits, duties imposed on humans to provide care, criminal laws prohibiting abuse of animals, and even family courts opening their doors to disputes involving humans’ beloved animals, all suggest the property status of animals is outdated and American society needs to take the bold step of eliminating such an antiquated classification.