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SCIENCE and LORE in ANIMAL LAW Maeveen Marie Behan

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SCIENCE and LORE in ANIMAL LAW Maeveen Marie Behan Science and Lore in Animal Law Item Type text; Electronic Dissertation Authors Behan, Maeveen Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 27/09/2021 03:07:56 Link to Item http://hdl.handle.net/10150/194253 SCIENCE AND LORE IN ANIMAL LAW Maeveen Marie Behan ------------------------------------- Copyright © Maeveen Marie Behan 2006 A Dissertation Submitted to the Faculty of the OFFICE OF ARID LANDS RESOURCE SCIENCES In Partial Fulfillment of the Requirements For the Degree of DOCTOR OF PHILOSOPHY In the Graduate College THE UNIVERSITY OF ARIZONA 2006 2 THE UNIVERSITY OF ARIZONA GRADUATE COLLEGE As members of the Dissertation Committee, we certify that we have read the dissertation prepared b y Maeveen Behan entitled Science and Lore in Animal Law and recommend that it be accepted as fulfilling the dissertation requirement for the Degree of Doctor of Philosophy _______________________________________________________________________ Dat e: October 23, 2006 Dr. Stuart Marsh _______________________________________________________________________ Date: October 23, 2006 Dr. Suzanne Fish _______________________________________________________________________ Date: October 23, 2006 Dr. Joseph Hiller _______________________________________________________________________ Date: October 23, 2006 Dr. Ed de Steiguer _______________________________________________________________________ Date: October 23, 2006 Dr. Thomas Sheridan Final approval and acceptance of this dissertation is contingent upon the candidate’s submission of the final copies of the dissertation to the Graduate College. I hereby certify that I have read this dissertation prepared under my direction an d recommend that it be accepted as fulfilling the dissertation requirement. ________________________________________________ Date: October 23, 2006 Dissertation Director: Dr. Stuart Marsh 3 STATEMENT BY AUTHOR This dissertation has been submitted i n partial fulfillment of requirements for an advanced degree at The University of Arizona and is deposited in the University Library to be made available to borrowers under rules of the Library. Brief quotations from this dissertation are allowable without special permission, provided that accurate acknowledgment of source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the copyright holder. SIGNED: ___ Maeveen Behan _____ _____________ 4 ACKNOWLEDGMENTS This project was completed with the help of an Arid Lands fellowship, data contributed by NatureServe, advice from Anita Finnell as program coordinator, and the generosity of Committee Members: Dr. Stuart Marsh, Dr. S uzanne Fish, Dr. Joseph Hiller, Dr. J.E. deSteiguer, and Dr. Tom Sheridan. In addition, credit is due to my longtime friends and colleagues: Charles Harrison, for thinking these ideas through with me way back in law school, and Leslie Dierauf, for giving me my start in conservation biology. Finally, it was Gary Nabhan’s work that sent me in the direction of the Arid Lands interdisciplinary program, which it turned out, was the very best place to be. Many thanks to all of you. 5 DEDICATION For Harry 6 TABLE OF CONTENTS PART I. …..……………………………………………….…….…………………….14 1. INTRODUCTION ……………..…………………….…….…………………….14 1.1 Problem Statement and General Approach …….…………..…………………14 1.2 Purpose ………..……………………………………………..….……… …….19 1.3 Methods ……………………………………………………..………………19 PART II. “NOTE THE ETIC” ……………………………………..……………..…22 2. LAWMAKERS AND SCIENTISTS PRIORITIES ……………………………22 2.1 Species Listed as Threatened or Endangered …………………...……………22 2.1.1 Comparing Overall Priorities………………………………..…………...22 2.1.2 Vertebrates ……………………………….……………….………..……25 2.1.3 Invertebrates …………………………………………..……….………35 2.1.4 Comparison of Influences …………………………………………..….39 2.2 Desert Species …………………………………………….……….………….40 2.2.1 Comparing Overall Priorities for Desert Species…..……….…..…….…41 2.2.2 Desert Vertebrates …………………………….….……..………….…43 2.2.3 Desert Invertebrates ………………………………..……………………48 2.2.4 Comparison of Influences ………………………….…………….……50 7 TABLE OF CONTENTS, continued 3. PRIOR ITIES OF THE JUDICIARY ………………………………..……..…52 3.1 Ancestors of American Courts ……………………….…..…………….……56 3.1.1 Law, Science, and Lore, to 1200 …………………..………..…….…...57 3.1.2 Law, Science and Lore, 1200 to 1500 ……………….…………………66 3.1.3 Law, Science and Lore, 1500 to 1700 … ………………………………78 3.1.4 Summary of Ancestors ………………………………………………...86 3.2 Animals in American Courts ……………………….……...………..………89 3.2.1 Law, Science and Lore, to 1900 ……..………….….…………………..93 3.2.2 Law, Science and Lore, 1900 and after …………………..………….…134 3.2.3 Summary of American Animal Law Cases……………….……….…..170 3.3 Endangered Species Cases …………………………………...….…………175 3.3.1 Overview of Cases ……………………………………….……..……..175 3.3.2 Science in Court …………………………………………….….……..185 3.3.3 Sweet Home and Palila: Anima, Animus, Animal ………. .………...193 PART III. “WHILE SEARCHING FOR THE EMIC” ………………..…………202 4. EPISTIME AND IMAGINATION ……………………………..…………….202 4.1 Law is…………………………………………………………………………202 4.2 Conclusion: Across Disciplines, Across Time ………………………….…208 8 APPENDI X A, PRIORITIES ……………………………………….…………..211 APPENDIX B, CASES …………………………………………….……….………230 APPENDIX C, BOOKS ……………………………………..…………………..…264 REFERENCES ………..………………………………………………….………266 9 LIST OF TABLES TABLE 1.1, Delistings Due to Recovery ……………………………..…………………14 TABLE 1.2, Delistings Due to Extinction……………………………………………….15 TABLE 2.1, Average Recovery Priority Set by Scientists ………..……..….…………23 TABLE 2.2, Science and Lawmakers Priorities Compared by Taxon ……..………..…24 TABLE 2.3, Lawmaker Aver age Expenditures Compared by Taxon………..…………25 TABLE 2.4, World Wide Number of Species ………………………………....………25 TABLE 2.5, U.S. Listings of Threatened and Endangered Species…………....………26 TABLE 2.6, Vertebrate / Invertebrate Expenditure Comparison……………...……….27 TABLE 2.7, World Wide Comparison of Vertebrate……………………………………27 TABLE 2.8, Vertebrate Compared: World Wide to Lawmaker Priority………...……28 TABLE 2.9, Fish, Summary of Size and Expenditures…………………………..…….30 TABLE 2.10, Fish, Expenditure Comparison Based on Economic Conflict…….………30 TABLE 2.11, Reptiles, Summary of Size and Expenditures………………….…….…32 TABLE 2.12, Reptiles, Expenditure Comparison Based on Economic Conflict………...32 TABLE 2.13, Mammals, Summary of Size and Expenditures………………….………33 TABLE 2.14, Ma mmals Over 100 Pounds, Expenditures………………….….………33 TABLE 2.15, Mammals 1 to 100 Pounds, Expenditures……..……………………….33 TABLE 2.16, Mammals Less than 1 Pound, Expenditures…………………….………34 TABLE 2.17, Amphibians, Summary of Importance and Expenditures……….….……34 TABLE 2.18, Amphibians, Expenditure Comparison, Economic Conflict…….………35 10 LIST OF TABLES, continued TABLE 2.19, Invertebrate Expenditures Compared by Taxon…………………….…36 TABLE 2.20, Clams, Expenditure Comparison Based on Economic Conflict…….….37 TABLE 2.21, Snails, Expenditure Comparison Based on Economic Conflict..…….…37 TABLE 2.22, Crustaceans, Expenditure Comparison, Economic Conflict…….…..…37 TABLE 2.23, Desert Counties…………………………………………………………41 TABLE 2.24, Desert Species Compared, Recovery Priority……………….. ………….41 TABLE 2.25, Desert Species Compared, Lawmaker Priority………………..…..……42 TABLE 2.26, Desert Species Compared, Economic Conflict…………….……………42 TABLE 2.27, Desert Fish…………………………………………………………..….43 TABLE 2.28, Desert Birds………………………………………………………….…45 TABLE 2 .29, Desert Reptiles……………………………………..………………..…46 TABLE 2.30, Desert Mammals……………………………………..………………...47 TABLE 2.31, Desert Amphibians…………………………….………………….……48 TABLE 2.32, Desert Crustacean…………………………….…………………….……49 TABLE 2.33, Desert Insects………………………………………………… …….…….49 TABLE 2.34, Desert Snails………………………………………….…………….……50 TABLE 3.1, Application of Kellert Categories to Cases ………………………….……92 TABLE 3.2, Dogs, Before 1900………………………………………………..…..…101 TABLE 3.3, Cows, Bulls, Buffalo, Before 1900…………………………………….…105 TABL E 3.4, Horses, Before 1900………………………………………………….….109 11 LIST OF TABLES, continued TABLE 3.5, Pigs, Before 1900………………………………………….……………112 TABLE 3.6, Mules, Before 1900………………………………..……………………113 TABLE 3.7, Sheep, Before 1900………………………….………….………………113 TABLE 3.8, Wil d Mammals, Before 1900…………………….………………………117 TABLE 3.9, Birds, Before 1900…………………………………….…………………121 TABLE 3.10, Fish and Oysters, Before 1900………………………….….……….….122 TABLE 3.11, Bees, Before 1900 ……………………………………….………..……124 TABLE 3.12, Summary of Cases, Before 1900…………………………….…………126 TABLE 3.13, Comparison of Dog Cases, Before and After 1900…………..….….…139 TABLE 3.14, Comparison of Cat Cases to Dog Cases, After 1900……………….....140 TABLE 3.15, Comparison of Cattle Cases, Before and After 1900……………………144 TABLE 3.16 , Comparison of Horse Cases, Before and After 1900…………………147 TABLE 3.17, Comparison of Wild Mammals, Before and After 1900……..….……149 TABLE 3.18, Comparison of Bird Cases, Before and After 1900.…………….….….155 TABLE 3.19, Comparison of Fish Cases, Before and After 1900…………….………156 TABLE 3.20, Science – Animals and Imaginary Creatures ……………………………167 TABLE 3.21, Lore – Animals and Imaginary Creatures ………………………………168 TABLE 3.22, Domestic and Utilitarian Values Summary…………….………..……170 TABLE 3.23, Moralistic and H umanistic Values Summary
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