Science and Lore in Animal Law
Item Type text; Electronic Dissertation
Authors Behan, Maeveen
Publisher The University of Arizona.
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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 ………………….……….171
TABLE 3.24, Negativistic Values Summary ………………………..……….………171 12
LIST OF TABLES, continued
TABLE 3.25, Literary Dimension Summary…………………….……………………172
TABLE 3.26, Popular Citations……………………………………….…..…………173
TABLE 3.27, Questions Arising from Agency Determinations………..……………187
TABLE 3.28, Reasons for Rejecting Listing Decisions ….…………..………..……189
TABLE 3.29, Briefs Filed………………………………..…………..………………196
TABLE 3.30, Oral Argument, Early Exchanges………………..……………………198
TABLE 3.31, Oral Argument, Later Exchanges………………..……………………199
TABLE 3.32, Goals and Methods of Science and Law Compared………..…………204
TABLE 3.33, Animals of Law, Science and Lore, All Ages……………..………….208 13
ABSTRACT
This dissertation employs techniques from fol kecology to identify factors that have influenced lawmakers in their decision -making about animals. The purpose of this research is to understand the natural world as seen by lawmakers, identify and explain variation between lawmakers and scientists prior ities, and, ultimately, consider ways to improve communication of understandings between these two cultures. The study is structured to follow Amadeo Rea’s recommendation that scholars “note the etic while searching for the emic” (Rea 1998: xx) It compar es priorities and then discusses findings to get at the question of meaning. What do different animals mean to lawmakers? What forces are operating when they make or interpret laws on behalf of animals? The answer “takes us into the realm of mythology, ” as Rea said it would
(Rea 1998: xx), and provides an opportunity to consider the foundations of law and science, and the role of reason, narrative and imagination across the disciplines and across time, as lawmakers – who are keepers and shapers of their cultures -- continuously define and redefine what it means to be human, and what that means for other animals. Findings indicate that conservation efforts need to increase the cultural relevance of the natural world, rather than hope that science alone w ill change the ethic and priorities of lawmakers.
KEY WORDS
Animal stories, conservation, deserts, folkecology, lawmakers, narrative, natural history. 14
PART I.
1. INTRODUCTION
1.1 Problem Statement and General Approach
In 1973 Congress passed the Endangered Species Act. Three decades later, biologists estimated that one -third of America’s 200,000 -plus native species were a conservation concern (Stein, Kutner, Adams 2000: 101), with 539 species presumed or possibly extinct (Scientists Letter to Con gress 2005: 2). The federal government has
“listed,” that is, brought under the protection of the Act, over 1,250 species that are considered threatened or in danger of extinction. This is a fraction of at -risk species
(Scott et al . 2006: 22). While the Act has forestalled the loss of some listed species, by scientists’ measures “we are not getting ahead of the extinction curve” (Scott et al .
2006: 22). Even within the small subset of at -risk species listed by the federal government, losses outpace gain s. The United States Fish and Wildlife Service reports that twenty -six listed species are now considered extinct (Scott et al . 2006: 31), while only half that many have been delisted due to recovery.
TABLE 1.1: DELISTINGS DUE TO RECOVERY
Date of Listi ng Date of Delisting Species
1967 1987 American alligator
1967 2001 Aleutian Canada Goose
1967 2003 Columbian white -tailed deer
1970 1985 Brown Pelican
1970 1985 Palau ground dove 15
1970 1985 Palau fantail flycatcher
1970 1985 Palau Owl
1970 1994 Arc tic peregrine falcon
1970 1994 Gray whale
1970 1999 American peregrine falcon
1970 2004 Tinian Monarch
1978 1989 Rydbert Milk -vetch
1980 2002 Robbins’ Cinquefoil
Source: TessDelisted 7/6/2006
Another nine species are presumed extinct by the federal agency and have been delisted.
TABLE 1.2: DELISTINGS DUE TO EXTINCTION
Date of Listing Date of Delisting Species
1967 1983 Blue Pike
1967 1983 Cisco longjaw
1967 1990 Dusky seaside sparrow
1970 1982 Tecopa Pupfish
1973 1983 Santa Barbara song sp arrow
1976 1984 Sampson’s Pearlymussel
1977 2004 Mariana Mallard
1980 1987 Amistad Gambusia
1984 2004 Guam broadbill
Source: TessDelisted 7/6/2006 16
These losses are taking place within the context of a global extinction event, which E.O. Wilson pred icts will “be at the level of the Mesozoic meteor strike if we continue at the present rate of environmental degradation ... by the end of the century”
(Wilson 2002: 14). Stated another way, “the average life span of a species ... is roughly one million y ears. Our best estimates are that we’ve shortened the life span of species by 1,000 times” (Wilson 2002: 6).
These losses are also occurring within the context of reconsideration of the
Endangered Species Act. Interestingly, both those who would like to strengthen the
Act (Carroll et al. 1996: 1 -11) and those who would weaken it (Pombo 2005: HR
3824) highlight the need to improve the scientific underpinnings of the law.
Yet, the Act has always been science based, and lawmakers generally have not seemed to understand or enforce the priorities of scientists. Stephen Kellert, in his work on the range of values that Americans express in relation to biological diversity, found that “scientific ... values are expressed only rarely” (Kellert 1996: 44). In fact, science rates lowest of the values, behind humanistic, moralistic, negativistic, utilitarian, ecologisitic, naturalistic, and dominionistic values (Kellert 1996: 41).
This dissertation uses techniques from anthropology known as folkecology, or ethnoeco logy, to identify factors that have influenced Congressional lawmakers and the judiciary in their decision -making about animals. Ethnoecologists try “to see natural history through the eyes of a people” (Rea 1998: iv). 17
The first studies focused on cate gorization and description. They were
“essentially etic – laundry lists of how some group named and used biologically defined species for food, medicine, fiber, ceremony, and so forth” (Rea 1998: xx).
Today, studies try to explain the meaning of such lis ts. For instance, “an emic approach would ask, ‘What does [a particular animal] mean to a people?’ ... The full cultural meaning takes us into the realm of mythology, symbolism, poetry, song, sickness, healing, and the concept of being that somehow spans the gap between humans and wild beings” (Rea 1998: xx).
Amadeo Rea recommends that scholars “note the etic while searching for the emic. Otherwise we merely construct tables” (Rea 1998: xx).
In his 1992 study on Ethnobiological Classification , Brent Berl in found that there are “widespread regularities concerning the categorization and nomenclature of plants and animals” across cultures (Berlin 1992: xi). Jerome Bruner, a founder of cognitive psychology, explains that such understandings are shaped by “th e biological limit on immediate memory” as described in “George Miller’s famous ‘seven plus or minus two’” article (Bruner 1990: 21). According to Miller, information is organized into groups by the human mind, so that a body of knowledge is contained in a limited number of categories (Miller 1994: 16). Classification schemes operate within such a cognitive constraint: a large information set is organized into relatively few categories. 18
The starting point for this study, then, is the understanding tha t “folkbiology has a cognitive structure that is culturally universal and that places a priori constraints on the ways human beings ordinarily categorize and reason inductively about the properties and relationships of organic objects” (Atran 1999: 253). Assuming that there are commonalities, it is interesting to see the ways in which subcultures vary as they prioritize particular aspects of the natural world. What explains such variation?
According to Eugene Hunn, there are four reasons for variation b y a group: first, the size of an organism contributes to variation in classification among cultures
(Hunn 1999: 49); second, ecological salience contributes, so that “abundant and more widely distributed organisms are more likely to be noticed than those l ess abundant and less widely distributed” (Hunn 1999: 48); third, phenotypic characteristics of an organism can increase its salience; and fourth, the organism may be important to the group’s beliefs, investing it with a special cultural salience .
Work b y Hunn serves as guidance in this study. He found “a positive correlation between ... salience of a set of organisms and the average size of those organisms” (Hunn 1999: 50). This is important because by “controlling for the effect of size, we more clear ly recognize and define the role of phenotypic, ecological and cultural salience” (Hunn 1999: 67). Stephen Jay Gould summarized factors contributing to variation in this way: “People usually do not classify exhaustively unless organisms are important [cu ltural significance] or conspicuous [big, distinctive, or abundant]” (Gould 1980: 207). 19
1.2 Purpose
The purpose of this research is to understand the natural world as seen by lawmakers, identify and explain variation in the priorities of lawmak ers and scientists, and, ultimately, consider ways to improve communication and understanding between the two cultures. The study compares the priorities of Congress and the judiciary to those of scientists, and then discusses findings to get at the quest ion of meaning. What do different animals mean to lawmakers? The answer “takes us into the realm of mythology” (Rea 1998: xx), and provides an opportunity to consider the foundations of law and science, and the role of reason, narrative and imagination a cross the disciplines and across time, as lawmakers – who are keepers and shapers of their cultures -- continuously define and redefine what it means to be human, and what that means for other animals. Gaining this insight will allow scientists to become more effective communicators on behalf of endangered species, and it will allow lawmakers to become more effective in their role of balancing economic and ecological considerations.
1.3 Methods
In the section entitled Lawmakers and Scientists P riorities, the priorities of biologists serve as the template to compare the priorities of Congress in funding conservation efforts. For purposes of this study, the priorities of biologists are found in the rankings given to each species listed under the Endangered Species Act. These priorities are compiled in the United States Fish and Wildlife Recovery Report to 20
Congress , which also provides information about whether each species is in conflict with an economic interest (USF&W Recovery Report 2001). Th e priorities of
Congress are found in the annual appropriations made through the federal budget: this information is compiled in annual expenditure reports for each of the listed species.
That members of Congress, and not agency experts, are responsible f or “resource allocation decisions … [and can] simply contradict what the enacting majority intended when it passed … the law” is an assumption that finds support in recently published research (DeShazo and Freeman 2006: 71). Desert species have been iden tified using a database obtained from NatureServe which presents information about listed species, sorted by County. Counties included within the boundaries of the
Chihuahuan, Mojave, and Sonoran deserts correspond to those identified in the federal publi cation on grazing in hot desert lands (GAO/RCED -92 -12 1991: 45). Counties included within the boundaries of the Great Basin desert and Colorado Plateau were estimated based on the map provided in Goudie’s Great Warm Deserts of the World
(Goudie 2002: 20). To assess the impact of species size in setting priorities, field guides, recovery plans and species texts (see References) were consulted to determine the average weight or length of each species. This information is brought together
(Appendix A) to co mpare the conservation priorities of scientists with priorities of congressional lawmakers. (Recovery priorities were not available in the federal report for the sea lion and ten species of seals and whales, so the expenditure information
(less than $20 mi llion total) was not included in the study.) 21
For other sections of the study, including Priorities of the Judiciary, cases were collected using a Lexis search for endangered species and animals, and by consulting secondary sources including the table of c ases in Favre’s text, Animal Law , and the
Department of Justice Overview of and Recent Developments in the Endangered
Species Act (Webb: 1 -47). Cases were selected to be in the study when the issue affected an animal. For example, disputes about attorney fees under the Endangered
Species Act were not included. Each case selected for the study was summarized to capture the following information: case name, citation and date; words used to describe the animal in the decision; issue; holding; authority cit ed; interests involved; fate of the animal; Kellert category (Kellert 1996: 10 -26); and references, if any, to literary or scientific sources. For a table of case citations, see Appendix B. Seven hundred and fifty cases were selected for the study. From this sample it was possible to “note the etic” and “search for the emic” (Rea 1998: xx). When the judiciary acted on behalf of animals in interpreting the law, the cases were assessed to determine whether the reasoning was presented in a formalistic or n arrative style. The works of scientists, and the works of literary authors cited within cases, were read or searched on -line to assess the role of animals. Works by anthropologists, legal scholars, historians and philosophers were researched to provide a broader context for understanding the judiciary’s perspective. 22
PART II. “NOTE THE ETIC”
2. LAWMAKERS AND SCIENTISTS PRIORITIES
2.1 Species Listed as Threatened or Endangered
As the field of folkecology develops, its techniques and insights are being used to look at modern cultures (Ford 2001: 5). This chapter examines conservation priorities of two professional cultures within the United States, scientists and lawmakers. The questions of this chapter include: (1) Do these groups prioritize similarly? The United States Fish and Wildlife Service “assigns a ‘recovery priority number’ to species to help guide the allocation of resources for recovery planning and implementation among listed species” (USF&W Recovery Report 2001: 3). Is
Congression al funding consistent with recovery priorities? (2) If not, how might differences be understood? Is variation due to conspicuousness? Or to importance?
2.1.1 Comparing Overall Priorities When a genus, species, subspecies or distinct pop ulation segment is placed on the list of threatened and endangered species, the United States Fish and Wildlife Service is required under Section 4 of the
Endangered Species Act to have experts draft a plan that will lead to the recovery of the listed plan t or animal. As part of this Recovery Plan process, the agency recommends recovery priorities based on a scale that favors high over low threat levels, high over low recovery potentials, and genus over species, subspecies and 23
distinct population segments. In Table 2.1 the recovery priorities for the listed animal species, grouped by taxon, are averaged to reflect the expert’s recommended rank order for protection.
TABLE 2.1: AVERAGE RECOVERY PRIORITY SET BY SCIENTISTS
RANK PRIORITY TAXON
1 2.3 ARACHNI DS
2 4.8 CRUSTACEANS
3 5.27 BIRDS
4 5.3 MAMMALS
5 5.441 CLAMS
6 5.444 AMPHIBIANS
7 5.47 INSECTS
8 5.51 FISH
9 5.78 REPTILES
10 6.7 SNAILS
When the same broad look at Congressional priorities is undertaken, the data indicate that lawmakers gene rally do not follow the advice of scientists as they fund endangered species recovery efforts. Expenditures authorized by Congress for listed animal species are averaged to show that the priorities of lawmakers, reflected in their actual expenditures, dif fer from those of scientists, as seen in Table 2.2. 4
4 Expenditure data in this report is from fiscal year 2000, selected in part to 24
TABLE 2.2: SCIENCE AND LAWMAKER PRIORITIES COMPARED BY TAXON
LISTED ANIMALS BY RANKING OF RECOVERY RANK OF PUBLIC TAXON PRIORITY ASSIGNED BY EXPENDITURES APPROVED SCIENTISTS BY CONGRESS
ARACHNIDS 1 10
CRUSTACEANS 2 6
BIRDS 3 2
MAMMALS 4 4
CLAMS 5 9
AMPHIBIANS 6 5
INSECTS 7 7
FISH 8 1
REPTILES 9 3
SNAILS 10 8
There are notable differences in average expenditures when the species prioritized by lawmakers are compared to other species. Table 2 .3 shows that the average expenditure for each type of listed fish in 2000 was nearly $2 million while arachnids, the top priority of scientists, received less than $15,000, on average.
maximize the correspondence of listed species found in the Recovery report. 25
TABLE 2.3: LAWMAKER AVERAGE EXPENDITURES COMPARED BY TAXON LISTED ANIMALS LAWMAKER PRIORITY # LISTED
FISH $ 1,981,652 108
BIRDS $ 990,120 88
REPTILES $ 887,152 36
MAMMALS $ 579,944 59
AMPHIBIANS $ 188,388 18
CRUSTACEANS $ 128,581 20
INSECTS $ 79,630 38
SNAILS $ 52,741 30
CLAMS $29,997 68
ARACHNIDS $ 14,627 6
2.1.2 Vertebrates “Mention ‘animal’ and most people will think of a vertebrate. Vertebrates are often the most abundant and conspicuous parts of people’s experience of the natural world” (Pough 1999:3). These are the opening lines of
Ver tebrate Life , a standard text on the topic. And they hold true in this study as applied to lawmakers priorities, even though vertebrates constitute the least number of species within the taxonomic groups.
TABLE 2.4: WORLD WIDE NUMBER OF SPECIES TAXONOMI C GROUP # ESTIMATED PERCENT
INVERTEBRATES 9,100,000 96.3 %
VASCULAR PLANTS 300,000 3.2 %
VERTEBRATES 50,000 .05% Source: Groombridge 1992. 26
Despite the relatively small number of vertebrate species, vertebrates constitute more than one quarter of the listings under the Endangered Species Act and they receive the most funding. The original 1967 list of endangered species had 78 vertebrates, but no plants or invertebrates (Udall 1967).
TABLE 2.5: US LISTINGS OF THREATENED AND ENDANGERED SPECIES TAXONO MIC GROUP # WITH RECOVERY PLANS PERCENT
INVERTEBRATES 170 13 %
PLANTS 741 60 %
VERTEBRATES 331 27 %
1242 Source: USF&W Recovery Report to Congress
Based on this analysis, though the average recovery priority for vertebrate and invertebrate species is similar, lawmakers spent an average of $1.2 million per year on efforts to recover each species of listed vertebrates, while invertebrate recovery efforts received an average of $57,000 per species. Stated another way, among animals the top five avera ge expenditures by taxon were all vertebrate species, and the bottom five were all invertebrate. 27
TABLE 2.6: VERTEBRATE / INVERTEBRATE EXPENDITURE COMPARISON
FY 2000 AVERAGE EXPENDITURES APPROVED BY CONGRESS
VERTEBRATE 1 ($1.2 million average)
IN VERTEBRATE 2 ($57,000 average)
Among vertebrates worldwide, fish outnumber birds, reptiles, amphibians and mammals.
TABLE 2.7: WORLD WIDE COMPARISON OF VERTEBRATE
NUMBER LIVING SPECIES PERCENT OF VERTEBRATES
FISH 23,700 48 %
BIRDS 9650 19 %
REPTILE S 7132 14 %
AMPHIBIANS 4680 10 %
MAMMALS 4500 9 %
TOTAL 49,662 100 % Source: Pough 1999: 5
Interestingly, the ranking of vertebrate species tracks the ranking of lawmaker expenditures down to the last two categories, consistent with Hunn’s statement that ecological salience contributes to variation in priorities between non -scientists and scientists (Hunn 1999: 67). 28
TABLE 2.8: VERTEBRATES COMPARED: WORLD WIDE TO LAWMAKER PRIORITY
PERCENT OF VERTEBRATES, PERCENT OF WORLD WIDE CONGRESSIONAL EXPENDITU RES ON VERTEBRATES
FISH 48 % 43 %
BIRDS 19 % 21 %
REPTILES 14 % 19 %
AMPHIBIANS 10 % 4 %
MAMMALS 9 % 13 %
TOTAL 100 % 100 %
Hunn expanded on early work by Brent Berlin, who wrote that “the first and perhaps most important consideration in determ ining the likelihood that a particular plant or animal will be [prioritized, i.e.] named is the …distinctiveness …of the local species” (Berlin 1992: 263). “A second factor considered is the size of the organism in relation to human beings. Common sense demands that the larger the organism in comparison to humans, the more likely it will be recognized” (Berlin 1992: 263).
When Berlin published his 1992 text, he mentioned that Eugene Hunn was working on a method to determine the importance of species siz e. Hunn published a study on the topic in 1999. Entitled Size as Limiting the Recognition of Biodiversity in
Folkbiological Classifications , the study found that “the fact that size strongly constrains the recognition of biodiversity in traditional ecolo gical knowledge systems suggests caution. ... A very large portion of the total biodiversity of their traditional 29
lands is culturally unrecognized for the simple reason that it is invisible” (Hunn 1999:
67). Hunn warns that “traditional” people may overl ook the small species of their natural system in favor of the large species, but he could have said the same about lawmakers in America.
2.1.2a. Fish Scientists rank fish eighth in the list of ten for recovery priorities, but lawmakers l argest expenditures were in this area. With nearly $2 million in expenditures per species, fish received twice the attention of birds, the second highest expenditure area, and one hundred thirty -five times more funding than arachnids, the scientists highe st priority.
There are over 100 species of listed fish: 84 are less than 12 inches in length; 8 measure between 13 and 24 inches; while 16 are 25 inches or more in length. On average, the small fish received the least amount of funding from Congress at
$208,364 per species, while medium sized fish received nearly twice that amount, and large fish received more than fifty -five times the amount of small fish.
Size is not the only factor driving this disparity. Large fish took on an importance with lawma kers because protection efforts for a number of listed salmon species caused conflict for local economies. In the year 2000, the top five expenditures for listed species were all for salmon, and ranged from $21 million for the Sockeye Salmon to $87.6 mill ion for Chinook Salmon (USF&W 2000: 5). 30
In summary, lawmakers prioritize spending on large fish over small fish, though scientists have a higher priority for small fish (5.46) than large (6.38).
TABLE 2.9: FISH – SUMMARY OF SIZE AND EXPENDITURES
# FISH SPECIES $ EXPENDITURE / SPECIES
12 INCHES OR LESS 84 $ 208,364
24 INCHES OR LESS 8 $ 399,835
25 INCHES OR MORE 16 $ 12,082,322
The influence that size (perceptual salience) has on lawmaker priorities is enhanced by the economic importance of a nu mber of large fish. While there are other expressions of cultural salience in animal law, the role of economics in America’s story is prominent, and evident here.
TABLE 2.10: FISH – EXPENDITURE COMPARISON BASED ON ECONOMIC CONFLICT
# FISH SPECIES $ EXPENDITURE / SPECIES
FISH WITHOUT ECONIMIC CONFLICT 67 $ 99,967
FISH WITH ECONOMIC CONFLICT 41 $ 5,506,601
2.1.2b. Birds Scientists rank birds third in the list of ten for recovery priorities, just behind the lawmakers ranking: in 2 000, birds had the second largest expenditures among animals listed under the Endangered Species Act. The priorities 31
of lawmakers and scientists diverge when size is considered, however. Scientists are more concerned with small and medium birds (4.8 and 5.4 average recovery priority) than large (6.9). But lawmakers spent on average $860,253 on each of the small and medium sized bird species, and $2.7 million on large birds. There are 88 species of listed birds: 60 of these are not involved in protection efforts that generate a great deal of economic conflict; the remaining 28 are in the midst of such conflict. Listed birds in conflict with the economy received an average of $2.28 million per species: this is six times more than birds without an economi c conflict, who received an average of
$386,049 in conservation dollars. The five highest expenditures for listed birds went to (1) the Red -cockaded woodpecker ($11.7 M); (2) Cape Sable Seaside sparrow
($10.2 M); (3) Whooping crane ($8.4 M); (4) Southwest willow flycatcher ($7.9 M); and (5) Northern Spotted owl ($5.8M).
2.1.2c. Reptiles
There are 36 species of listed reptiles that received Congressional expenditures for conservation: 28 are relatively small (snakes, lizards and skinks), while 8 are large
(sea turtles and the desert tortoise). The small reptiles received the least amount of funding from Congress at $87,858 per species, while the large averaged 42 times that amount, or $3.7 million each. 32
TABLE 2.11: REPTILES – SUMMA RY OF SIZE AND EXPENDITURES
# SPECIES $ EXPENDITURE / SPECIES
SNAKES, LIZARDS, SKINKS 28 $ 87,858
SEA TURTLES, DESERT TORTOISE 8 $ 3,684,684
Economic conflict made reptiles five time more valuable in the eyes of lawmakers, than their conflict avoidin g fellows, as seen in Table 2.12.
TABLE 2.12: REPTILES – EXPENDITURE COMPARISON BASED ON ECONOMIC CONFLICT
# SPECIES $ / SPECIES
REPTILES WITHOUT ECONOMIC CONFLICT 16 $ 267,575
REPTILES WITH ECONOMIC CONFLICT 20 $ 1,382,814
2.1.2d . Mammals Mammals are one of two areas in which scientists and lawmakers rankings coincide: both place mammals fourth in the list of ten. There are 59 species of listed mammals: 36 weigh less than one pound; 13 weigh between 1 and 100 pounds; while 10 weigh over 100 pounds. On average, the small mammals received the least amount of funding from Congress at $270,061 per species, while medium sized mammals received four times that amount, and large mammals received slightly more. 33
TABLE 2.13: MAMMA LS – SUMMARY OF SIZE AND EXPENDITURES # MAMMAL SPECIES $ EXPENDITURE / SPECIES
LESS THAN 1 POUND 36 $ 270,061
1 TO 100 POUNDS 13 $ 1,010,784
OVER 100 POUNDS 10 $ 1,135,430
Tables 2.14 through 2.16 show expenditures for large, medium and small mamm als .
TABLE 2.14: MAMMALS OVER 100 POUNDS – EXPENDITURES 1 $ 3,820,170 MANATEE
2 $ 3,557,000 GRIZZLY BEAR
3 $ 1,125,030 FLORIDA PANTHER
4 $ 890,180 SONORAN PRONGHORN
5 $ 500,450 BIG HORN SHEEP
TABLE 2.15: MAMMALS 1 TO 100 POUNDS – EXPENDITURES 1 $ 4,100,000 GRAY WOLF
2 $ 2,657,000 BLACK FOOTED FERRET
3 $ 2,442,000 LYNX
4 $ 1,705,900 RED WOLF
5 $ 876,160 KIT FOX 34
TABLE 2.16: MAMMALS LESS THAN 1 POUND – EXPENDITURES 1 $ 405,160 / each 9 BATS
2 $ 339,804 / each 10 MICE
3 $ 180,114 / each 8 RATS
4 $ 105,412 / each 5 SQUIRRELS
5 $ 26,000 / each 3 VOLES
2.1.2e. Amphibians Scientists are slightly less concerned with amphibians than are lawmakers, ranking them sixth and fifth respectively, in a field of ten types of anima ls.
There are 18 listed amphibians: most of these do not attract much funding but one has captured the attention of lawmakers: the California red -legged frog, made famous in the tall tale by Mark Twain.
TABLE 2.17: AMPHIBIANS – SUMMARY OF IMPORTANCE A ND EXPENDITURES
# SPECIES $ EXPENDITURE / SPECIES
AVERAGE FROG 1 $ 9,000
AVERAGE AMPHIBIAN 16 $ 135,794
RED -LEGGED FROG 1 $ 1,209,290 35
Mark Twain’s story entitled the Notorious Jumping Frog of Calaveras County was published on November 18, 1865 by the Saturday Press , and it established his reputation as a writer (Blair 1960: 156). The jumping frog is an endangered species with a literary tradition that provides it cultural importance. Cultural salience is also established when amphibian protectio n creates economic conflict. Conservation efforts for amphibians that lead to economic conflict have higher value in the eyes of lawmakers, as Table 2.18 shows.
TABLE 2.18: AMPHIBIANS – EXPENDITURE COMPARISON, ECONOMIC CONFLICT
# SPECIES $ EXPENDI TURE/SPECIES
AMPHIBIANS WITHOUT ECONOMIC CONFLICT 9 $ 157,238
AMPHIBIANS WITH ECONOMIC CONFLICT 9 $ 217,539
2.1.3 Invertebrates
“I’m an entomologist,” said E.O. Wilson, “and I work on the little things, as I like to call them, that run the earth. The problem is that people just don’t understand very much about things smaller than a sparrow or a mouse. And yet, these small organisms are the ones that make up the bulk of the ecosystem, at least the animal ecosystem” (Wilson 2002: 4). Si milar insights have been expressed by scientists, including Linneus. Human interest in the natural world falls off as species get smaller. 36
Or, in Atran’s words, common sense understandings “remain valid only so long as … restricted to the manifestly visi ble dimension of the everyday world, that is, to phenomenal reality” (Atran 1990: 3).
We have seen these factors at work with lawmakers. While recovery priorities established by scientists recommend that some invertebrates receive the highest attention , and invertebrates in general receive equal priority to vertebrates, expenditures by lawmakers reflect much lower interest. Vertebrates hold the
Congressional purse strings, receiving an average of 21 times more funding per species than invertebrates in fiscal year 2000.
Table 2.19 reflects the relatively low average expenditures for invertebrate species, despite that spiders and shrimp rate highest with the scientists.
TABLE 2.19: INVERTEBRATE EXPENDITURES COMPARED BY TAXON
LISTED ANIMALS BY AV ERAGE EXPENDITURE / RECOVERY TAXON LAWMAKER PRIORITY (& RANK) PRIORITY, RANK
CRUSTACEANS $ 128,581 (6) 2
INSECTS $ 79,630 (7) 7
SNAILS $ 52,741 (8) 10
CLAMS $29,997 (9) 5
ARACHNIDS $ 14,627 (10) 1 37
While the average vertebrate received $1.2 million i n expenditures, the average listed invertebrate species received $57,453 from lawmakers. Yet, the cultural salience factor identified by Hunn plays a role when protection of an invertebrate species creates an economic conflict, as Tables 2.20 through 2.2 2 show.
TABLE 2.20: CLAMS – EXPENDITURE COMPARISON BASED ON ECONOMIC CONFLICT
# SPECIES $ EXPENDITURE/SPECIES
CLAMS WITHOUT ECONOMIC CONFLICT 55 $ 23,563
CLAMS WITH ECONOMIC CONFLICT 13 $ 57,219
TABLE 2.21: SNAILS – EXPENDITURE COMPARISO N BASED ON ECONOMIC CONFLICT
# SPECIES $ EXPENDITURE/SPECIES
SNAILS WITHOUT ECONOMIC CONFLICT 22 $ 18,924
SNAILS WITH ECONOMIC CONFLICT 8 $ 145,736
TABLE 2.22: CRUSTACEANS – EXPENDITURE COMPARISON, ECONOMIC CONFLICT
# SPECIES $ EXPENDIT URE/SPECIES
CRUSTACEANS W/O ECONOMIC CONFLICT 11 $ 60,602
CRUSTACEANS WITH ECONOMIC CONFLICT 9 $ 211,666 38
Butterflies actually led to the creation of Section 10 of the Endangered Species
Act. Section 10 is the provision which allows local gover nments and private landowners to create habitat conservation plans in exchange for permission to carry out economic activity that impacts the habitat of an endangered species. The provision got its start when a “proposed private housing development on San Bruno Mountain, south of San Francisco, threatened the habitat of three endangered butterflies, setting the stage for a classic megabucks -versus -insect confrontation” (Houck 1997: 954). In the end the developer set aside 87 percent of his land for butte rfly habitat and nearly a quarter century later there are over 400 such plans in the United States.
Other situations of conflict involving invertebrates and developers have originated in California. The Delhi Sands flower loving fly ended up in court , but survived litigation and in 2000 received $100,000 in federal expenditures.
More recently, the San Diego Fairy Shrimp which depends on San Diego’s vernal pools, got in the way of development and in 2000 was worth $234,080 to Congress, as lawmakers tr ied to reduce the economic conflicts. In general, however, expenditures are low for invertebrate species. 39
2.1.4 Comparison of Influences
This analysis demonstrates that species size and ecological salience influence lawmakers priorities to the advantage of vertebrates and some of the larger animals within some vertebrate groups. The danger of this, from a biodiversity perspective, is that the less visible species of the natural system – which is most of them – are not prioritized in sp ending decisions, unless a small species presents a large economic conflict. In addition: “Less than 1 percent of all listed species received approximately half of the reasonably identifiable funding each year” (USFW 2000: 5). In 2000, the seven most ex pensive species received half of the total expenditures (USFW 2000: 4), these being the (1) Chinook salmon; (2) Steelhead; (3) Coho salmon; (4) Sockeye salmon; (5) Chum salmon; (6) Stellar sea -lion; and (7) Red -cockaded woodpecker
(USFW 2000: 5). Matters get worse at the low end of the expenditure list when it is understood that the top 91 species account for 90 percent of the expenditures, leaving only 10 percent for the remaining 1150 -plus listed species. This distribution of funds is out of sync with bi odiversity protection strategies. But it demonstrates the relative weight of economic concerns in lawmaker priorities for species. The top expenditures go to species with economic conflicts; these are almost all vertebrate species. The next section on d esert species deepens this understanding about the central role of economics in species protection decisionmaking. 40
2.2 Desert Species
Roderick Nash, in his influential book entitled Wilderness and the American
Mind, writes that the term “wildern ess” is used 245 times in the Old Testament and 35 times in the New Testament , along with “several hundred uses of terms such as
‘desert’ and ‘waste’ with the same essential significance as ‘wilderness’” (Nash 2001:
13). “Arid wasteland” is identified wi th “God’s curse,” which “led to the conviction that wilderness was the environment of evil, a kind of hell” (Nash 2001: 14 -15). But that was some years ago. The question of this section is whether current lawmakers disadvantage desert animals in funding d ecisions. Are deserts culturally less important than other habitat types?
Desert species have been identified using a database obtained from
NatureServe which presents information about listed species, sorted by County.
Counties included within the bo undaries of the Chihuahuan, Mojave, and Sonoran deserts correspond to those identified in the federal publication on grazing in hot desert lands (GAO/RCED -92 -12, 1991: 45). Counties included within the boundaries of the Great Basin desert and Colorado Pla teau were estimated based on the map provided in Goudie’s Great Warm Deserts of the World (Goudie 2002: 20). Table
2.23 shows the desert counties by state. 41
TABLE 2.23: DESERT COUNTIES
STATE COUNTIES Arizona Cochise, Coconino, Gila, La Paz, Maricop a, Mohave, Pima, Pinal, Santa Cruz, Yuma California Imperial, Inyo, Kern, Lassen, Modac, Riverside, San Bernadino Idaho Cassia, Oneida, Owyee, Twin Falls Nevada All counties New Mexico Dona Ana, Eddy, Grant, Hidalgo, Lea, Luna, Otero, Sierra, Socorro Texas Brewster, Culberson, El Paso, Jeff Davis, Pecos, Presidio, Reeves, Terrell Utah All counties
2.2.1 Comparing Overall Priorities for Desert Species
Table 2.24 provides the recovery priorities for the listed animal species which are ave raged to reflect the expert’s recommended rank order for protection, and compared to desert listings. On average scientists assign a higher recovery priority to desert animals than they do to all animals.
TABLE 2.24: DESERT SPECIES COMPARED -- RECOVER Y PRIORITY
Priority, All Animals Priority, Desert Animals
5.45 4.7 42
When the same broad look at Congressional priorities is undertaken for desert
animals, the data indicate that lawmakers, like scientists, give slight priority to desert animals in endangered species expenditures.
TABLE 2.25: DESERT SPECIES COMPARED – LAWMAKER PRIORITY
Average Expenditure, All Animals Average Expenditure, Desert Animals
$ 807,000 $ 846,000
This attention is generally not due to size. Seventy percent of dese rt listings are small
animals. Fifteen percent are medium, and another fifteen percent are large desert animals.
Rather, increased expenditures for desert animals are likely caused by increased economic
conflicts. Whereas 40 percent of listed animals ar e involved in economic conflicts, 62
percent of desert animals are in the middle of such debates.
TABLE 2.26: DESERT SPECIES COMPARED – ECONOMIC CONFLICT
% All Animals in Economic Conflict % Desert Animals in Economic Conflict
40 % 62 % 43
2.2.2 Desert Vertebrates
2.2.2.a Desert Fish
Desert fish received less funding than the average for all fish, due to the extraordinary expenditures by lawmakers on salmon. The average fish received $2 million and had a recovery priority of 5.5. The ave rage desert fish received $693,061 and had a recovery priority of 4.67. Thirty -six percent (39 of 108) of endangered fish are listed in desert counties. Fifty -nine percent of listed desert fish present an economic conflict.
TABLE 2.27: DESERT FISH
FISH FY 2000 SIZE ECONOMIC RECOVERY EXPEND CATEGORY CONFLICT PRIORITY Catfish, Yaqui 200 medium 8 Chub, bonytail 1,065,200 medium yes 5 Chub, Chihuahua 16,250 small 2 Chub, humpback 1,564,460 medium yes 2 Chub, Mohave tui 103,200 small 9 Chu b, Owens tui 157,200 small 9 Chub, Sonora 15,000 small yes 2 Chub, Virgin River 386,700 small yes 2 Chub, Yaqui 6,000 small 5 Dace, Clover Valley 43,200 small yes 9 speckled Dace, desert 53,200 small yes 7 Dace, Independence Valley 43,200 small yes 6 speckled Dace, Moapa 58,200 small 1 Minnow, loach 686,860 small yes 4 Minnow, Rio Grande 5,111,920 small yes 2 silvery Poolfish, Pahrump 52,700 small 11 44
Pupfish, Comanche 28,500 small 2 Springs Pupfish, desert 64,680 small yes 2 Pupfish, Dev ils Hole 83,200 small 11 Pupfish, Leon Springs 7,000 small 2 Pupfish, Owens 84,200 small 2 Shiner, Arkansas River 184,510 small yes 5 Shiner, beautiful 200 small 2 Spikedace 734,720 small yes 4 Spinedace, Little Colorado 30,680 small 2 Springfi sh, Hiko White 50,700 small yes 3 River Springfish, Railroad Valley 57,200 small yes 2 Springfish, White River 81,700 small yes 3 Sucker, June 27,700 medium yes 5 Sucker, Lost River 643,700 large yes 4 Sucker, Modoc 97,400 medium 8 Sucker, razorback 5,178,230 large yes 1 Sucker, shortnose 641,700 large yes 8 Sucker, Warner 189,000 medium yes 2 Topminnow 574,480 small yes 9 Gila Trout, Apache 19,200 small 8 Trout, bull 6,611,720 large yes 9 Trout, Lahontan cutthroat 1,934,870 large yes 3 Wound fin 340,600 small 1
2.2.2.b Desert Birds
Desert birds received more funding, but had the same recovery priority as the average listed bird. The average bird received just under $1 million and had a recovery priority of
5.3. The average desert bird received $1.6 million and had a recovery priority of 5.3. 45
Seventeen percent (15 of 88) of endangered birds are listed in desert counties. Seventy -three percent of listed desert birds present an economic conflict.
TABLE 2.28: DESERT BIRDS
BI RD FY 2000 SIZE ECONOMIC RECOVERY EXPEND CATEGORY CONFLICT PRIORITY Bobwhite, masked 0 small 6 Condor, California 573,190 large yes 4 Eagle, bald 5,455,170 large yes 14 Falcon, northern 951,200 medium 3 aplomado Flycatcher, 7,9 30,500 small yes 3 southwest willow Gnatcatcher, coastal 555,040 small yes 3 California Owl, Mexican 2,703,820 medium yes 9 spotted Pelican, brown 383,900 large 9 Plover, western 1,506,990 small yes 3 snowy Pygmy -owl, cactus 518,160 small yes 3 ferruginous Rail, Yum a clapper 157,230 medium 6
Tern, California 1,119,240 small yes 3 least Towhee, Inyo 77,000 small yes 9 California Vireo, black capped 1,638,700 small yes 2 Vireo, least Bells 948,540 small yes 3 46
2.2.2.c Desert Reptiles
Desert reptiles recei ved more funding, and had a higher recovery priority than the average listed reptile. The average reptile received just under $900,000 and had a recovery priority of 5.8. The average desert reptile received $1.5 million and had a recovery priority
of 3.7 5. Eleven percent (4 of 36) of endangered reptiles are listed in desert counties.
Seventy -five percent of listed desert reptiles present an economic conflict.
TABLE 2.29: DESERT REPTILES
REPTILE FY 2000 SIZE ECONOMIC RECOVERY EXPEND CATEGORY CONFLICT PRIORITY Lizard, blunt -nosed 241,750 small yes 2 leopard Rattlesnake New 33,500 small 3 Mexican ridge -nosed Snake, giant garter 423,600 small yes 2 Tortoise, desert 5,354,370 large yes 8
2.2.2.d Desert Mammals
Desert mammals received slightly less funding, but had a higher recovery priority
than the average listed mammal. The average mammal received $580,000 and had a
recovery priority of 5.3. The average desert mammal received $469,000 and had a recovery
priority of 4.17. Twenty pe rcent (12 of 59) of endangered mammals are listed in desert
counties. Fifty percent of listed desert mammals present an economic conflict. 47
TABLE 2.30: DESERT MAMMALS
MAMMAL FY 2000 SIZE ECONOMIC RECOVERY EXPEND CATEGORY CONFLICT PRIORITY 263,250 Bat, lesser long nosed small 8 2,657,840 Ferret, black -footed medium 2 876,160 Fox, San Joaquin kit medium yes 3 25,420 Jaguar large 6 326,750 Kangaroo rat, giant small yes 2 69,890 Kangaroo rat, San small yes 3 Bernardino Merriams 282,830 Kangaroo rat, Tipton small yes 3 149,510 Prairie dog, Utah medium yes 8 890,180 Pronghorn, Sonoran large 3 10,280 Shrew, small yes 3 68,000 Vole, Amargosa small 6 10,000 Vole, Hualapai small 3 Mexican 48
2.2.2.e. Desert Amphibians
The list of desert amphibians is short: they received more funding, but had a lower
ranking recovery priority than the average listed amphibian. The average amphibian received
$188,000 and had a recovery priority of 5.4 . The average desert amphibian received
$780,000 and had a recovery priority of 5.67. Seventeen percent (3 of 18) of endangered amphibians are listed in desert counties. Thirty -three percent of listed desert amphibians present an economic conflict.
TABLE 2.31: DESERT AMPHIBIANS
AMPHIBIAN FY 2000 SIZE ECONOMIC RECOVERY EXPEND CATEGORY CONFLICT PRIORITY Frog, California red - 1,209,290 small yes 6 legged Salamander Sonoran 41,100 small 3 tiger Toad, arroyo 1,090,170 small 8
2.2.3 Desert Invertebrate
The listed crustacean in the desert has the attention of both lawmakers and
scientists. It received more funding and had a higher recovery priority than the average
listed crustacean. The average crustacean received $128,581 and had a recovery priority
of 4.8. The desert crustacean received $817,280 and had a recovery priority of 2. Five
percent of endangered crustaceans are listed in desert counties. 49
TABLE 2.32: DESERT CRUSTACEAN
CRUSTACEAN FY 2000 SIZE ECONOMIC RECOVERY EXPEND CATEGORY CONFLICT PRIORITY Fairy shrimp, vernal 817,280 small yes 2 pool
Desert insects received more funding, but had a lower recovery priority than the average listed insect. The average insect received just under $77,000 and had a recove ry priority of 5.5. The average desert insect received $182,000 and had a recovery priority of
5.66. Eight percent (3 of 38) of endangered insects are listed in desert counties. Sixty - seven percent of listed desert insects present an economic conflict.
TABLE 2.33: DESERT INSECTS
INSECTS FY 2000 SIZE ECONOMIC RECOVERY EXPEND CATEGORY CONFLICT PRIORITY Beetle, valley 416,550 small 9 elderberry longhorn Fly, Delhi Sands 107,000 small Yes 6 flower loving Moth, Kern 22,000 sma ll Yes 2 primrose sphinx
Last but not least, desert snails received more funding and had a higher recovery priority than the average listed snail. The average snail received just under $53,000 and had a recovery priority of 6.7. The average desert snail received $247 ,373 and had a recovery priority of 4.66. Ten percent (3 of 30) of endangered snails are listed in desert counties. One hundred percent of listed desert snails present an economic conflict. 50
TABLE 2.34: DESERT SNAILS
SNAIL FY 2000 SIZE ECONOMIC RECOVER EXPEND CAT EGORY CONFLICT PRIORITY Snail, Bliss Rapids 74,540 small yes 7 Springsnail Bruneau Hot 588,540 small yes 2 Springsnail Idaho 79,040 small yes 5
2.2.4 Comparison of Influences
The question posed at the start of this section was whether current lawmakers disadvantage desert species in funding decisions. The answer, in general, is no. The data indicate that with desert animals lawmakers are not influenced by the habitat type of animals but by economic conflict s, which abound in desert listings. Therefore, desert animals, embroiled in conflict 62 percent of the time, receive greater attention. Desert animals tend to be small, suggesting that size is not the primary influence in lawmakers priorities, yet within categories of reptiles and fish, larger animals receive greater expenditures. Finally, the role of ecological salience helps explain why desert vertebrates receive five times more funding than less visible desert invertebrates. 51
2.3 Summ ary
Now it is possible to return to the questions of this chapter with some answers.
First is the question: is Congressional funding consistent with recovery priorities?
The answer is no. There are a few instances where both lawmakers and scientists assign high priority to a species, but the reasons for doing so are different.
This brings us to the second question: how can differences be understood?
The answer is as Hunn suggests for non -scientific cultures: lawmakers prioritize based on the con spicuousness or cultural importance of an animal. One value of our culture is expressed through protection of the economy. But when other dimensions of culture become associated with a species – such as the folk tale by Mark Twain, or the national symbol ism of the bald eagle -- that too can raise the profile of an animal with constituents and lawmakers, and lead to greater protection.
This analysis uses techniques from anthropology to detail the extent to which non -scientists in our modern culture are i nfluenced by the conspicuousness or importance of species. 52
3. PRIORITIES OF THE JUDICIARY
The last chapter established that scientists and legislators prioritize species differently. Size, ecological salience, economic factors and even the symbol ic or literary significance of an animal can result in greater lawmaker attention. In this chapter we will see the natural world through the eyes of another group of lawmakers, the judiciary, and ask the same questions: do scientists and judges prioritiz e similarly, and if not, how might differences be understood? Are differences due to the conspicuousness of a species or to its cultural importance? And how is that cultural importance expressed?
Both legislators and judges are lawmakers, responding to and shaping their cultures. Law itself is a reflection of culture and has the capacity to evolve with culture (Friedman 2004a: 7). To understand the different roles of legislators and judges in relation to the law, it is useful to start with an overview of legal systems.
Legal historian Lawrence Friedman identified four basic types: (1) a closed system that does not allow innovation (e.g., some religious codes); (2) a closed system that allows innovation (e.g., code / civil law countries); (3) an open s ystem such as the jury trial or the judicial case law method that allows narrative to “govern the selection of facts and give shape to facts” (Bruner1998: 4); and (4) an open system that considers adoption of revolutionary proposals – the way legislatures work “most of the time” (Friedman
1999: 5 -6). 53
Judges in the United States operate in a relatively open system, making law through their interpretations of cases and statutes. American judges inherited a common law approach from England which gives them leeway to determine cases both in light of past precedent and in light of current culture. Judges may have more ability to ground decisions in various dimensions of culture than legislators, because legal issues are presented to them in the form of a nar rative and they respond in writing. This chapter also examines cases to see if it is possible to discern a relationship between narrative and an evolving conservation ethic. Advocates hope that judges will become better scientists, imagining that this wi ll enhance biophilia, but the very nature of judicial writing suggests that something value based, like a conservation ethic, might advance more by story than science. The judicial record makes a good case study for this question.
Lawyers resist believing that law has more in common with literature than with science, but “it must be said that the law does implicitly, almost preconsciously, recognize the power of storytelling. We infer this from the fact that it has been the intent, over the centuries, to formalize the conditions of telling, in order to assure that narratives reach [juries]” (Brooks 2002: 4).
The case law or common law method itself is a form of storytelling that establishes and affirms the culture’s norms in the form of a legal decision. But culture is not static. “Culture ... is about the dialectic between its norms and what is humanly possible, and that is what narrative is about too” (Bruner 2002: 16). Culture enforces 54
norms but allows creation of new norms through transgressions (Br uner 2002: 15).
Judges, when they engage in narrative forms of discourse, may advance an ethic. For
Bruner, narrative stands in contrast to paradigmatic thinking, which is declarative.
In this chapter, decisions are analyzed to determine judicial prior ities for the animal world, and attention is given to decisions that reference literary sources and those that reference science in order to see what the influence of these disciplines has been on the outcome of animal law cases, historically. Decisions t hat take a normative leap are analyzed to see if they are more narrative than paradigmatic, and to see if they share a basic structure. We know from the work of folklorists that narrative has a structure. Vladimir Propp demonstrated “that the underlying form of a folktale, not its surface variations, is what imposes meaning and structure on its parts” (Bruner 1998:
5). And according to Propp, “the tale ascribes with great ease identical actions to persons, objects and animals” (Propp 1958: 5).
Another s cholar who described the role of structure in narrative is Albert Lord.
He carried forward the work of Milman Parry on the “way in which oral epic poets learn and compose their songs” (Lord 2000: 3). The poets do not memorize a story word -for -word, but i nstead draw on “a store of formulas and themes and a technique of composition” (Lord 2000: 99). The genre rules for legal writing and tale telling are similar and include: a single message, economy of prose, little ambiguity, relatively fixed structure, p rohibitions, and a transformative effect (Roberts 2001: 12 -15).
Jerome Bruner would add one more word to that list: trouble! Both narrative and 55
judicial opinions begin when something has gone wrong. Narrative “specializes in what is in jeopardy” (Bruner 2002: 90).
George Miller’s observation -- that memory is limited and so bundles information into categories for storage -- has a related theme: the “process of recoding” is the “very lifeblood of the thought processes” (Miller 1994: 351).
Elizabeth a nd Paul Barber have written that there are “fundamental mytho -linguistic principles”, one of which is compression (consistent with Miller’s insights) – this is the way that myths are stored given the limitations of space in memory (Barber 2004:
3). Analo gy and restructuring, two other principles, assist in the recall and relating of myth.
In a sense, this is what judges do when they participate in the common law tradition: they recall, restructure and relate precedent, in light of the present. And bec ause “law looks to the past for its legitimacy” and to “literary fiction [for] the possible” (Bruner 2002: 14), we will examine the early days of animal law, natural history, and lore in western civilization before analyzing the experience of animals in
Am erican courts. 56
3.1 Ancestors of American Courts
Under the Code of Hammurabi, one of the earliest codes we know of
(Rosenblatt 2003: 4), if an ox was a “habitual gorer” and injured a person, payment was required to redress the injury (Wise 1996: 6). This was the rule some 3,700 years ago, and it is largely the rule today in the United States. Cattle were domesticated
4,250 years before the Code of Hammurabi was written (Diamond 1999: 167), so humans have likely spent more time thinking about rules and our relation to cattle before the time of Hammurabi than we have since. The same could be said of sheep and pigs, domesticated 10,000 years ago, and more dramatically of dogs, who we go back with some 12,000 years (Diamond 1999: 167).
In terms of the judici al record, the western world has been talking about animals in court for more than two thousand years. During that time, there have been different relationships between humans and animals. The Greeks set aside a building on the acropolis to conduct trial s involving (1) animals, (2) murderers who were unknown, and (3) objects that caused deaths (Berman 1994: 4). In medieval Europe animals were thought to have a great deal of power, at times “divinely delegated,” at other times as “instruments of the dev il” (Evans 1906: 3 -5) and they were brought to trial in both the secular and ecclesiastical courts. The early Renaissance was among the darkest time for animals in court (Dinzelbacher 2002: 410).
The priorities of early lawmakers and scientists, an d their contributions to
American animal law are considered in the next three subsections. 57
3.1.1 Science. Law and Lore, to 1200
3.1.1.a. Law, to 1200 Judicial opinions were born of “Roman and early
English law” (Wald 1995: 28). The 6 th century Justinian Co de of Rome was “often cited in the nascent common law courts” of England until 1187 when the “first major common law treatise” was published (Wise 1996: 17).
During those same centuries, western Europe generally underwent “de - urbanization” after the Roma n Empire fell; education became centered in the monasteries (Lindberg 1992: 184) and power in the church. “Law … recognized and followed theological opinion, but it was administered by different kinds of personnel, from secular to lay and ecclesiastical o fficials to inquisitors” (Peters 1978: 138).
Biblical law took a hard line toward animal offenders and their owners: “the ox shall be stoned to death, and its owner shall be put to death as well” (Wise 1996: 6). From this grew the tradition of “trials and punishments of … animals” (Wise 1996: 14).
In 800 A.D. ecclesiastical officials received instruction in the examination of those “charged with incantation [and] divination” (Kieckhefer 1989: 179 -180).
Shortly thereafter the first recorded ecclesiast ical banishment of an animal occurred, when in 824 “a group of moles was excommunicated in the Valley of Aosta (Italy)”
(Girgen 2003: 2).
Edward Evans found records across Europe of ecclesiastical banishments between 824 and 1906 involving the following animals: weevils, locusts and grasshoppers, rats or mice, vermin, caterpillars, flies, Spanish flies and gadflies, 58
cockchafers (beetles), snails, bloodsuckers, worms, insects, moles, serpents, eels, termites, dolphins, and turtle doves. Individual trials were held for pigs, cows and bulls, horses or mares, mules, goats or sheep (with one He -Goat banished to Siberia), dogs, a wolf, and “divers animals” (Evans 1906: 313 -334).
Between 824 and 1200, insects were the priority of the judiciary, according to
Eva n’s records. The devastations of locusts, caterpillars, flies and horseflies were taken to tribunals more than those of serpents or moles. If the invaders “were instruments of the devil, they might be driven into the sea or banished to some arid region; if on the other hand they were recognized as the ministers of God, divinely delegated to scourge mankind for the promotion of piety, it would be suitable ... to cause them to withdraw from the cultivated fields and to assign them a spot where they might li ve in comfort without injury to the inhabitants” (Evans 1906: 5).
Meanwhile in England, as less virulent strand of animal trials developed in “an institution called the deodand,” under which animals “found by a jury to have caused the death of a person [were] forfeit to the king” (Pervukhin 2003: 4). The practice began during or before the 12 th century and persisted in England until 1846 (Wise
1996: 17).
The common law of England, which is the foundation of American law, got its start in 1066 when “a blend of English and Norman law emerged” (Rosenblatt 2003:
10), as judges sought to centralize the justice system in England. “The law they applied was said to be ‘common’ because it allegedly represented customs common to 59
the whole kingdom, in contrast with rules applied only locally, or with the law in ecclesiastical courts” (Hughes 1996: 9).
England is unique among the European countries in developing the common law method. Civil law, also called code law because of its attempt to express all rules in codes rather than judicial decision, was adopted by most other countries. Civil law is “a modified … form of Roman law [that] swept over much of the Continent, starting in the middle ages” (Friedman 2005: xiv). Common law, inherited by America, is bas ed on custom and relies more on jury trials and testimony, so it is “strongly oral in nature,” whereas civil law relies more on written documents (Friedman 2004b: 8).
It was in 1066 that England forged a path for the law that is inherently more narrative than paradigmatic. 60
3.1.1.b. Science, to 1200
Two prominent figures of natural history in the period to 1200 are Aristotle
(384 -322 B.C.) and Pliny (23 -79 A.D.). Aristotle is considered to have a “ pioneering role in the establishment of scie ntific natural history” with his Historia Animalium , a treatment of more than 500 species, “including 120 fish and 60 insects” (Bowler 1992:
51). The work is divided into a discussion of “blooded animals” and another of
“animals devoid of blood,” compari ng “the parts they have in common and of the part peculiar to this genus or that” (Aristotle Book IV 350 B.C.: 1). It reads more like a text on anatomy than a natural history. In the first two books, Aristotle makes most frequent reference to horses, do gs, elephants, cattle, pigs and lions, among the mammals. But he writes about snakes and serpents, bees, frogs, lizards, crocodiles, mollusks and sharks with frequency too.
Pliny, a Roman naturalist, writing centuries after Aristotle, also prioritizes el ephants, lions, horses, bees and fish. But Pliny’s work departs radically from
Aristotle’s in style and substance, and even includes creatures now known to be imaginary, such as the basilisk, phoenix, triton, dragon, sphinx, and mantichora.
In the book of his Natural History dedicated to The Nature of the Terrestrial
Animals , the first ten chapters are about elephants. Pliny writes about “their capacity,” when “first put into harness”; their “docility”; “wonderful things which have been 61
done by the elep hant” and so on, until he branches off to discuss the “antipathy of the elephant and the dragon,” and then dragons are allowed their own chapter.
Of elephants he says they have “qualities rarely apparent even in man, namely honesty, good sense, justice, and also respect for the stars, sun and moon”’ (Pliny
1991: 108). Not only that: “Elephants are to be credited with an understanding of another’s religion … They have been seen when exhausted by sickness – since diseases assail even those huge bodies – lying on their backs and throwing grass towards the sky as though beseeching Earth to answer their prayers. Indeed, as an example of their docility, they do homage to their king, kneeling before him and offering him garlands” (Pliny 1991: 108).
But t hese are not the most far -fetched accounts. For centuries, natural histories had entries for creatures that we would now call mythical. This study will trace the development of one such being – the manticore -- to see how authors deal with it over time. Of the manticore, Pliny says: “Ctesias writes that in India is born a creature that he calls the manticore: this has a triple row of teeth like a comb, the face and ears of a man, grey eyes, a blood -red colour, a lion’s body, and inflicts stings with it s tail like a scorpion. The manticore has a voice that sounds like a pan -pipe combined with a trumpet, achieves great speed and is especially keen on human flesh” (Pliny 1991:
117). 62
3.1.1.c. Lore, to 1200
From today’s perspective, Pliny’s work seems to have more in common with the bestiary tradition, which began in his day, than with natural history. Throughout the Middle Ages, books about animals were a mix of science and lore, put in service to religion. Physiologus, a second century Greek author, i s credited with writing the bestiary that established the model for those that followed. “He included creatures drawn from classical mythology, many of which were composites of parts from the anatomy of humans and animals” (Sax 1990: 66).
Classical myth ology is founded on the works attributed to Homer. When the
Greeks transitioned from an oral to a written culture, some 2800 years ago, The Illiad and The Odyssey were transmitted in writing, creating the epic form for later storytellers, and populating w estern mythology with animals, gods and imaginary creatures.
The story of The Odyssey is familiar. When Odysseus turned for home after the Trojan War, he encountered almost in equal numbers, animals, gods and creatures that we would now call mythologica l. He left Troy and soon had to outwit the Lotus - eaters and the Cyclopes, Aeolus the wind god, rock throwing giants called
Laestrygonians and the enchantress Circe, not to mention the monsters Charybdis and
Scylla. He was detained by Calypso; then rescue d by Zeus through his son and 63
messenger Hermes who was transported to the island on his “beautiful sandals, immortal, made of gold” – he “skimmed along the water like a bird” (Homer 2003:
58). The rescue was short -lived because Odysseus was soon shipwr ecked by Poseidon and required the assistance of a kindly Phaecian king, who listened to his story. Once home in Ithaca, troubles renewed. But Odysseus was heartened by the reunion with his loyal dog Argos, his son, his nurse and his wife, and in time he was able to rid his home of invading suitors and finally end his long journey.
What does this mean? First, “most of the stories of the gods and heroes of ancient Greece and Rome depend on Homer’s two epics” (Dickerson and O’Hara
2006: 95). In fact, th e “only other book [besides The Illiad and The Odyssey ] to which the Western imagination owes so much of its stock of heroes, monsters, images, and tales … is the Bible ” (Squillance 2003: xiii). Rome, upon its founding, enlisted
Virgil to transform Home r’s work into the Aeneid , and so Homer’s characters and plots serve in both the Greek and Roman foundation stories. More importantly, “myth for the Greeks meant thinking about everything from the nature of the universe to our deepest moral attachments and obligations” (Dickerson and O’Hara 2006: 95). The
Odyssey encompasses philosophy, religion, literature and science, all in one epic. In
The Odyssey , dated about 750 B.C., the most referenced animal is the dog, followed by cattle, fish and a host of othe rs, including goats, owls, dolphins, hawks, and sheep. 64
Aesop, another Greek author, is credited with many of the animal fables that were incorporated into subsequent bestiaries and “cultivated by clerics” of the Middle
Ages as vehicles for didactic messa ges” (Simonsen 2002: 13). Born in 620 B.C.,
Aesop is said to have earned his freedom as a reward for his animal tales. In the first century A.D. Rome, Phaedrus recorded 94 fables attributed to Aesop; in the second century Babrius recorded over 200 (Ashlim an 2003: x -xi). The collection grew over time and was modified in the late 1100s by Marie de France into tales called ysopets;
Aesop’s tales were popularized by Joel Chandler Harris in the United States after the
Civil War, and even rewritten by Tolstoy i n the 1870s (Ashliman 2003: xx). A collection of Aesop’s Fables today (Stade edition) contains nearly 300 tales and prioritizes the fox and lion, who have feature roles in 30 stories, the wolf (23 stories), ass (22 stories), dog (18), mouse, stag and frog (9), ox and eagle (8), horse and cock,
(7), pig, bull, hare, cat, goat, and crow (6 stories each). Over seventy different creatures populate Aesop’s fables: 34, almost half, are mammals; one -third are birds;
8 are insects; 4 reptiles; 2 fish; and 2 are i maginary figures (witch, satyr).
Joel Chandler Harris, getting his start 2,500 years after Aesop in 1880, wrote over 180 tales, compiled in The Complete Tales of Uncle Remus . There are forty -six different creatures in the stories: similar to Aesop’s fa bles, 40 percent are mammals; one -third are birds, 2 are insects; 6 reptiles; 2 amphibians; and 3 are imaginary figures 65
(witch, ghost, and spirits). The innovation in the stories is that a physically weak animal is prioritized, so that the rabbit has twi ce the starring roles of the fox and five times the presence of the bear and wolf. Described by the New York Times as “the first real book of American folklore (Hemenway 1982: 14), Brer Rabbit, the hero, survives by undermining the status -quo and outwitti ng the powers -that -be.
Critics try to draw distinctions between tale types. Blount, for example says that “Folklore and myth bring animals nearer to men while fables and satire … apparently doing the same thing, do the opposite; they are divisive and pu t animals in their place – further off” (Blount 1974: 23). Joseph Campbell too distinguishes between myth (“for the spiritual welfare of the community”), legend (a “traditional history”), tales (“pastime”), and fables (“a clever illustration of a politica l or ethical point”) (Campbell 1990: 15 -17). Bruno Bettelheim takes another view, however. He says that “in most cultures there is no clear line separating myth from folk or fairy tale” (Bettelheim 1989: 25). This insight could be extended to apply to the Middle
Ages more generally: by our standards today, the Middle Ages was a time when there was no clear line separating lore, law and science. All were in service to religious concerns. As Umberto Eco explains:
“the Medievals inhabited a world fill ed with references, reminders and overtones of Divinity, manifestations of God in things. Nature spoke to them heraldically: lions or nut -trees were more than they seemed; griffins were just as real as lions because, like them, they were signs of higher truth” (Eco 1986: 53). 66
3.1.2 Science, Law and Lore, 1200 to 1500
3.1.2.a. Law, 1200 to 1500
The western European ecclesiastical trials that began with the excommunication of Italian moles in 824 continued during the years 1200 to 1500.
They occurred in “ areas bordering France, Switzerland, and Italy, and ultimately took place in Germany, Spain, the Scandinavian Countries … ” (Wise 1996: 14).
Two court systems now accommodated animal cases: secular and ecclesiastical tribunals. For individual offenses, an imals were sent to secular tribunals (Evans 1906:
2). Though the defendants had legal representation, the outcome of these cases often involved public execution. Any disorderly conduct, for example “grunting, squealing, or trying to poke noses through th e bars of the prisoner’s box” ... “told against them in sentencing” (Girgen 2003: 7).
Records collected by Evans indicate that pigs had the greatest number of trials, with more than twenty between 1200 and 1500. Weevils and cattle were the next concern of the judiciary, followed by horses, goats, caterpillars, and snails. Mammals and insects seemed to crowd the dockets, but other animals made an infrequent appearance: eels, cockchafters, Spanish flies, bloodsuckers, moles, roosters, and worms (Evans 1 906: 314 -319). 67
In 1480 the most famous lawyer to defend animals in ecclesiastical courts was born. Bartholomew Chassenee established his reputation in the medieval courts of
France by defending, among others, “some rats, which had been put on trial ... on the charge of having feloniously eaten up and wantonly destroyed the barley -crop of the province” (Evans 1906: 18). At trial he is said to have explained the absence of his clients in the courtroom this way: “he urged, in the first place, that inasmuc h as the defendants were dispersed over a large tract of country and dwelt in numerous villages, a single summons was insufficient to notify them all” (Evans 1906: 19). This tactic was successful in buying time and forcing the court, by its own rules, to issue a second notice and publish it widely “from the pulpits of all the parishes inhabited by the said rats” (Evans 1906: 19).
“Considerable time elapsed” and the case came back before the ecclesiastical judge, a vicar, but the defendants were still miss ing. This time Chassenee argued that
“it was the length and difficulty of the journey, and the serious perils which attended it, owing to the unwearied vigilance of their mortal enemies, the cats, who watched their movements and lay in wait for them at ev ery corner” (Evans 1906: 19). In fact,
Chassenee argued, by holding trial in a place that is unsafe for the defendants, the rats could “refuse to obey the writ” and they were exercising their “right of appeal” (Evans
1906: 19). 68
This trial followed the ba nishment of moles by 700 years, raising the probability that while excommunication might seem an ineffective way to deal with infestations, some purpose was being fulfilled. Scholars offer different explanations as to what that purpose might be.
Dinzelb acher proposes that animal trials can be understood in light of factors such as insecurity arising from change, the “ritual magic of legal formalism and public execution”; and the belief that animals had personalities and could feel guilt
(Dinzelbacher 200 2: 421).
Berman writes that “the criminal prosecution of animals can … be viewed as an attempt by a community to apply its own moral scheme to the natural world and create an integrated universal sense of justice” (Berman 1994: 17). Six years later he expanded this point: “Ultimately the trials may have allowed the community to establish cognitive control, to impose order on this world of random violence, and to create a narrative that made sense of inexplicable events by redefining them as crimes and p lacing them within the rational discourse of the trial” (Berman 2000: 14).
Pervukhin, in her article entitled All the Lizards Stand and Say Yes Yes Yes , suggests that some of the trials were meant as a form of play (Pervukhin: 12).
Valerie Flint in her book on the Rise of Magic in Early Medieval Europe outlines the ways in which the Church for practical reasons sometimes allowed certain 69
pre -Christian practices to flourish, including “signs and portents and predictions, lot casting, planetary influences, shape shifts, dream [interpretation], the strangest of animal and herbal remedies, and the most wonderous of substances, all of these were given passage through the Middle Ages on viable craft and sometimes … Christian vehicles” (Flint 1991: 34).
Just prior to the Renaissance of 1500, however, the persecution of witches and magicians began in earnest, following the 1486 publication by inquisitors of Malleus
Maleficarum , which left readers convinced that a teeming underworld of demon worship was bringing ruin to communities. Particularly hard hit was the “low magic” of rural people whose folk medicine, “medicinal charms, amulets, divinations, and adjurations were rejected by the learned” (Jolly 2002: 251). The development of science during this era, the new availability of information from the printing press, and the rising intellectual elite contributed to a growing impatience with the practices that lay in the “gray areas in medieval views …: between magic and religion, magic and science, and magic an d folklore” (Jolly 2002: 251). We will see in the next section how the “witch craze” played out for animals.
But meanwhile, in England, two events of 1215 created the foundation for legal institutions that we know today in America. First, the Pope brou ght an end to trials by ordeal, in part “because ordeals ‘demanded constant miracles’” (Rosenblatt 70
2003: 11). What eventually came to replace this way of ascertaining truth was the jury trial, which had been in development in England under Henry II (1154 -1189) in the mid to late 1100s (Rosenblatt 2003: 11, 26). A writ from Henry III (1216 -72) followed the Papal Decree of 1215 (Rosenblatt 2003: 11, 26), and common law scholars began their long conversation about the proper foundations of justice – a discus sion still going today.
And second, the Magna Carta of 1215 gave us article 39, a promise of fair treatment by authorities that “would grow into the American concept of due process of law” (Rosenblatt 2003: 11). In the areas of animal law and natural reso urce protection,
England had -- since the Norman Conquest of 1066 -- brought forest land into government control (Bean and Rowland 2997: 9). In time, royal prerogative to resources “gave way to Parliament” but game hunting remained the privilege of major landowners (Bean and Rowland 2997: 10). America’s founders reacted strongly against this system which kept land, money and natural resources in the hands of so few of the citizens, as we will see in the discussion of American law. 71
3.1.2.b. Science, 1200 to 1500
Albertus Magnus was “probably the greatest naturalist of the Middle Ages”
(Atran 1990: 271). He lived from around 1200 to 1280 and is thought to be “among the scholars who turned Aristotelianism into the dominant philosophy in the later mid dle ages (Bowler 1992: 61). After a long absence, the works of Aristotle and other thinkers of antiquity were translated into Latin and made available in western Europe
(Bowler 1992: 60). The rediscovery of these texts suggested to many that Truth was kn own by the ancients and now only need be recovered. “For the medieval scholastics, the search for the secrets of nature was a search for lost books” (Eamon
1994: 37).
It is interesting that science, now so concerned with objectivity, worked through th e Middle Ages under the cover of esotericism. Alchemy, part science, part magic and part philosophy (Aromatico 2000: 15), is a classic example. The precursor to chemistry, it was “born of a fusion of Greek philosophy and the Egyptian chemical arts in Al exandria” (Morris 2000: 4), and experienced its “heyday from about A.D.
800 to the middle of the seventeenth century” (Holmyard 1990: 15). Alchemy’s practical goal was to “transmute” metals into gold. The thought was that a “substance, the philosophers’ stone” could turn base metal to precious metal, and even “prolong human life indefinitely” (Holmyard 1990: 15). The recipe for this stone involved 72
sulphur, mercury and salt (Thompson 2002: 69), and was recorded in “secret alphabets, ciphers, and emblematic drawings” (Thompson 2002: 120). Alchemy’s existential goal was to uncover the secrets of nature. Alchemy belonged to a larger literature of secrets. During the Middle Ages “there were many books of ‘secrets’ dealing with the marvelous properties, real or imagined, of beasts, herbs, stone, and the human body” (Best and Brightman 1999: xi). “The message implicit in the literature of secrets was that nature was power -laden, and that this power could be exploited by those who knew, by experience, its secre ts” (Eamon 1994: 79).
Alchemy also belonged to a larger school of natural magic, which sought to understand, “master and control” nature (Boas Hall 1962: 185). Magic has long been denigrated as something less than religion, or less than science. Yet as Randall Styers writes, magic has “maintained its currency,” playing “a major role in defining religion and in mediating religion’s relation to science. An illustrious list of theorists – including such founding fathers of modern anthropology, sociology and religious studies as Tylor, Frazer, Lang, Marett, Mauss, Durkheim, Malinowski and Weber – debated the relation of magic to religion and science” (Styers 1997: 8).
Malinowski, though, writes that “Magic never ‘orginated,’ it never has been made or in vented. All magic simply ‘was’ from the beginning an essential adjunct of all such things and processes as vitally interest man and yet elude his normal rational 73
efforts” (Malinowski 1948: 74 -75). Understood this way, magic is not a subject that can pass into history. Malinowski’s view of magic is similar to what Scott Atran describes within the context of folk knowledge as the mind’s ability to engage in metarepresentation. He says that “metarepresentation allows humans to retain half - understood ideas. By embedding half -baked ideas in other factual and commonsense belief, these ideas can simmer through personal and cultural belief systems and change them. … Supernatural causes and beings are always metarepresentated as more or less vague ideas about ot her ideas ….” (Atran 2000: 108).
Albertus Magnus’s On Animals has much in common with the natural history works of both Aristotle and Pliny: like Aristotle’s it contains some fact, and like
Pliny’s, some fiction. Like Aristotle, Albertus Magnus divides the animal kingdom into “blooded animals” and “bloodless” animals. And like Aristotle, he pays careful attention to anatomy, proceeding for several books with chapters carrying titles like
“Composition of the Ear and its Physiognomy,” “Bones of the Thigh s, Lower Leg, and
Feet,” and “Disposition and Function of the Kidneys.” By book eight, “On Animals
Habits,” he starts to sound more like Pliny, writing about “Accidents of Animals’
Souls,” “The Greater Cleverness of the Small Animals,” and “Animal Prudenc e and
Stupidity.” In book twenty -one, he writes about perfect and imperfect animals, identifying humans as the most perfect animals. 74
The last books contain accounts of the animals of the world. Albertus compiles the best information available, which inc ludes descriptions of the animal, medical uses of animal parts, and legends of animals behaviors. He writes, for example, that “the saliva of a camel, when taken mixed with water, returns a demoniac from drunkenness. If anyone takes dried and ground came l’s lung in an amount equal to about the weight of a gold coin, he will incur blindness of the eyes” (Book 22 1999:
1457). At times, Albertus will relate an understanding of Pliny’s and conclude that he does not agree. Nevertheless, accounts of a basilis k, unicorn, centaur, sphinx, manticore, harpy, phoenix, hydra, dragon and other mythical beasts are written into the text with few doubts expressed as to their validity.
The entry for the Manticora reads: “The manticore is an animal composed of many ani mals. It has the face of a human, gray eyes, the body of a lion blood -red in color, the tail of a scorpion that is spiked with strong stingers, and a voice that is so sibilant that it imitates the sounds of pipes and trumpets. It eats flesh quite greedil y, and, according to Pliny …, it has three rows of teeth in its mouth. It is quite like the preceding animal” (Book 22 1999: 1522).
In terms of priorities, Albert Magnus has 140 entries for aquatic animals, 113 entries for birds and for quadrupeds, 61 e ntries for serpents, and 49 for vermin.
Viewed from the perspective of pages of writing, he has the most to say about birds 75
(107 pages), almost as much to say about quadrupeds (94 pages), half that interest in fish (48 pages), and half -again the interest in serpents (26) and vermin (24 pages).
Finally, in terms of individual animals, On Animals dedicates the most pages to falcons (35), horses (28), hawks (11), dogs (8), and eagles (6). 76
3.1.2.c. Lore, 1200 to 1500
In the late 1300s Geoff rey Chaucer wrote The Canterbury Tales , one of the great works of the English language, and, importantly, he wrote it in English, rather than in French or Latin, demonstrating that English could give expression to a work of literary art (McCrum et al. 1986: 82). Following the Norman Conquest in 1066, French became “the language of genteel society” and “the language of legal and Parliamentary written records,” while Latin was the “language of the Church and higher education”
(Hanning 2006: xix). But the Tale s reflect England itself, in its common language. In the seventeenth century Dryden described “the debt the English language owes to its first major poet: ‘He must have been a man of a most wonderful comprehensive nature, because … he has taken into the compass of his Canterbury Tales the various manners and humours of the whole English Nation in his age … The matter and manner of the tales, and their telling, are so suited to their different educations, humours, and callings that each of them would be im proper in any other mouth … ‘Tis sufficient to say, according to the Proverb, that here is God’s plenty’”’ (McCrum et al.
1986 : 82).
One of the stories in The Canterbury Tales is an animal fable. Told by a priest, this story follows the contributions ma de by others on a journey of pilgrims going from London to Canterbury. 77
The Nun’s Priest’s Tale brings the animal fable to a height not seen previously in the tradition. The hero of the story is Chanticleer, a rooster, and the heroine is his wife, Pertel ote. Chanticleer relates a dream to Pertelote, in which he sees himself snatched “within our yard” by a beast, who “would have had me dead” (Chaucer 2006:
471). Pertelote dismisses his fears and tells him that he is suffering from a digestive problem and just needs to treat an upset stomach. Later a “black -marked fox, full of sly iniquity” does steal upon the yard and trick Chanticleer through flattery into being captured and carried away (Chaucer 2006: 489). “Alas, that Chanticleer flew from the beams! Alas, his wife took no heed of dreams!” (Chaucer 2006: 495). But a riot of hens, dogs, cows and calves, ducks, hogs, geese and bees follow, giving Chanticleer the opportunity to trick the fox in return and make his escape. By Chaucer’s telling, the story is semi -heroic and sweet, a joy to read, and at the same time, a send up of didactic fables and courtly romances.
In addition to Chanticleer and Pertelote, a number of “bestes, brides, fisshe and mytes” are mentioned by Chaucer in The Canterbury Tales , including cattle, dogs, bears, horses, sheep, pigs, lions, a cat, weasel, fox, hare, monkey, rat, peacock, cuckoo, sparrowhawk, chicken and hawk. Ghosts and faries populate the imaginary world of
Chaucer’s tales as well. 78
3.1.3 Science, Law and Lore, 1500 to 1700
3.1.3.a. Law, 1500 to 1700
The years 1500 to 1700 take us through the Renaissance to the dawn of the
Enlightenment, and through the worst time of persecutions of those thought to be magicians. On the one hand, “w estern Europeans lost their awe of the Ancients and realized that they had as much to contribute to civilization and society as the Greeks and Romans had contributed” (Gribbin 2002: 3). On the other hand, the changing ethos created frantic efforts to shore up “the disintegrating boundarie s of the previous moral universe” (Ben -Yehuda 1989: 233). The consequence for animals was negative.
As one author states that “it may be no accident that the frequency curve of animal trials is similar to that of the witch trials, showing a maximum in th e sixteenth and seventeenth centuries” (Dinzelbacher 2002: 410).
According to Evan’s records, mammals and insects were the major defending parties among animals. Horses and mares experienced the greatest number of prosecutions, followed by pigs, cows an d mules. Weevils, vermin, locusts, dogs, snails, goats and sheep were on trial too, but less frequently according to records. But it should be said that the animals did not always lose. For example, in 1576 weevils were taken to ecclesiastical court for destroying vineyards in a village of France. The lawyer successfully thwarted the banishment with arguments from Genesis indicating 79
that “weevils had a prior right to the vineyards, a right conferred upon them at the time of Creation” (Girgen 2003: 4). This motivated the townspeople to hold a public meeting and agree to set aside a plot of land for the weevils called “La Grand Feisse.”
The attorney for the weevils “declared that he could not accept on behalf of his clients” because the land would not su pport the weevils (Girgen 2003: 4). The judge ordered experts to “examine the site and submit a written report upon the suitability of the proposed asylum” (Girgen 2003: 4). We do not know the resolution of this trial since
“the last page of the records, upon which the final decision of the case was written, has ironically been destroyed by either rodents or insects” (Girgen 2003: 4). But we can see the weevils were putting up a good defense.
The same was true for a 1713 situation, where a “Franciscan monastery was overcome by termites. The insects reportedly devoured the friars’ food, destroyed their furniture and even threatened to topple the walls of the monastery” (Girgen 2003:
3). The Bishop summoned the termites to “appear before an ecclesiastic al tribunal”
(Girgen 2003: 3). Instead of being excommunicated, though, the termites “were commanded to go and remain at a site” negotiated between the Friars and the lawyer for the termites, who argued that because the termites “were God’s creatures, [th ey] were entitled to sustenance” (Girgen 2003: 3). These early cases came at a time when science and the law were just developing and separating from religion. The purpose of 80
these trials was to restore order (Girgen 2003: 11). When animals were not bro ught under control by the proceedings, their unruliness was attributed to witchcraft or the workings of evil agencies, and the efforts of ecclesiastical “conjurers” redoubled.
In England, meanwhile, the years 1500 to 1700 produced the animal law case tha t served as a foundation for many American cases that followed, and the philosophical works by John Locke that gave America its expectations of government by consent ( Second Treatises of Government 1690), and separation of church and state
(Th e Letter on T oleration 1689).
The Case of Swans from the All England Reports 641, Trinity Term 1592, held that “All swans the owner of which is not known belong to the Crown.” Whales and sturgeon were declared royal fish in the same report. The legal consequence o f this holding is that theft of royal animals, even the “eggs of swans out of the nest shall be imprisoned for a year and a day and fined at the will of the King.” The opinion created a higher status for swans than other animals, those “so base a nature that no felony can be committed of them … as of a bloodhound, or mastiff.” The question arises: why was the swan made a “royal fowl”? The case, in answer, reads like a fable, or a fantastic entry in a compiler’s natural history, emphasizing that even at the dawn of the Enlightenment, allegory pervaded thinking about animals.
The Court reasoned: “The law thereof was founded on a reason in nature, for the 81
cock swan was an emblem or representation of an affectionate and true husband to his wife above all other fowls; he holds himself to one female only and for this cause nature has conferred on him a gift beyond all others, that is, to die so joyfully that he sings sweetly when he dies.” “Therefore this case of the swan differs from the case of kine
[cows] or other brute beasts” (Case of Swans: 1592). 82
3.1.3.b. Science, 1500 to 1700
Fifteen years after the Case of the Swans, Edward Topsell translated, “edited and expanded” the work of Konrad Gesner, a founder of zoology (Sax 1990: 66) .
Analogy and symbolism were still alive among the Renaissance naturalists (Bowler
1992: 67, 84). Topsell’s History of Four -Footed Beasts and Serpents retained the creatures now known to be imaginary: the sphinx, hydra, cockatrice, satyr, dragon, man a pe, monster, gulon, lamia, and mantichora. These are described in extended entries, aided by illustrations.
Topsell has much to say about “divers sorts of dragons.” They are
“distinguished partly by their countries … and partly by the different form o f their external parts. Some dragons have wings and no feet; some have both feet and wings, and some have neither feet nor wings, but are only distinguished from the common sorts of serpents by a comb upon their heads, and by a beard under their cheeks”
(Topsell 1981: 75 -76). Topsell’s Mantichora elaborates on the entries of Pliny and
Albert the Great, too. It reads:
“Some writers have thought that the mantichora may be a kind of hyena. This
beast or rather monster (as Ctesias writes) is bred among t he Indians, having a
treble row of teeth beneath and above. Its greatness, roughness, and feet are 83
like a lion’s; its face and ears are like a man’s; its eyes are gray; and it color
red. Its tail is like the tail of a scorpion, armed with a sting, and ca sting forth
sharp, pointed quills. Its voice is like the voice of a small trumpet or pipe. It is
as swift as a hart. Its wildness is such that it can never be tamed, and its
appetite is especially to the flesh of man. Its body is like the body of a lio n,
being very apt both to leap and to run, so as no distance or place hinders it. I
take it to be the same beast which Avicen calls marion and maricomorion.
With her tail, she wounds her hunters, whether they come before her or behind
her, and immediatel y when the quills are cast forth, new ones grow in their
place, wherewithal she overcomes all the hunters. Although India is full of
divers ravening beasts, yet non of them are styled with a title of anthropophagi
(that is to say ‘men eaters’) except only the mantichora. When the Indians take
of whelp of this beast, they bruise its buttocks and tail so that it may never be
fit to bring sharp quills. Afterwards, it is tamed without peril” (Topsell 1981:
143)
In terms of priorities among the four footed beasts, Topsell has the most entries for dogs, grayhounds, bloodhounds and spaniels. Apes, baboons, and monkeys follow.
Then the next most popular animals are the goat, cattle, deer, elk, mouse, lynx, sheep, snake, lizard, bison, and reindeer. 84
3.1.3.c . Lore, 1500 to 1700
William Shakespeare lived from 1564 to 1616 and was a towering figure of the
Renaissance: he is the “most cited and quoted author of every era since” (Garber
2005: 3), influencing thinkers who followed as various as Emerson, Freud, Je fferson,
Marx, Twain, and Lincoln (Garber 2005: 33 -34). He wrote nearly forty plays: thirteen comedies, ten histories, ten tragedies, five romances, and he wrote poetry. From these works many words were contributed to the dictionary, including these tha t made “their first appearance” in his works: “accommodation, assination, dexterously, dislocate, indistinguishable, obscene, pedant, premeditated, reliance and submerged” (McCrum et al. 1986: 99).
People who have never read Shakespeare quote him all the time. A British journalist, Bernard Levin, compiled these (and more) sayings, to make the point:
“If you cannot understand my argument and declare ‘It’s Greek to me,’ you are quoting
Shakespeare; … if you recall your salad days, you are quoting Shakes peare; … if your lost property has vanished into thin air, you are quoting Shakespeare; if you have ever refused to budge an inch or suffered from green -eyed jealousy, if you have ever played fast and loose, if you have ever been tongue -tied, a tower of st rength, hoodwinked or in a pickle, if you have ever knitted your brows, made a virtue of necessity, insisted on fair play, slept not one wink, stood on ceremony, … laughed yourself into stitches, had 85
short shrift, cold comfort or too much of a good thing, if you have seen better days or lived in a fool’s paradise – why, be that as it may, the more fool you, for it is a foregone conclusion that you are quoting Shakespeare …” (McCrum et al . 1986: 99).
Shakespeare is said to reference animals far more than f ellow playwrights too
(Phipson 1883: 3). In fact, he references more animals than authors who set out to write tales exclusively about animals, and he rivals the diversity and number of species written about in the natural histories. Birds, for instance, are everywhere in his works.
He names at least forty -five different kinds (Dent 1972 and online -literature.com).
Shakespeare had access to the diversity of mammals and four -footed creatures and they populate the plays: there are at least thirty -five (De nt 1972), described many different ways (online -literature.com). His most numerous references are to dogs and hounds, horses and mares, wolves and lions, deer and tigers. He has much to say about worms, spiders, spinners, scorpions, bees and other lower forms, serpents and snakes among other reptiles, a variety of fish, and amphibians. But he has more to say about imaginary beings. At least twenty -five are referenced (Dent 1972), and these familiars and agents, ghosts and monsters, mermaids and minotau rs, are mentioned with frequency. When judges quote Shakespeare in their decisions, they are invoking a world rich in real and imaginary beings. 86
3.1.4. Summary of Ancestors
The discussion of law, science and lore in early western culture reveals the degree t o which each discipline was enchanted. Courts administered divine law and had the authority to protect or banish animals based on the animal’s affiliations.
Natural histories treated real and imaginary creatures with the same level of importance. Liter ature began with the understanding that a heroes’ journey would involve monsters, gods, and animals alike.
But why was there such emphasis on the miraculous and the monstrous, we might wonder today, thinking that we have rid ourselves of these intellectu al devices?
Dan Sperber offers an explanation, in a 1996 article entitled Why Are Perfect Animals,
Hybrids and Monsters Food for Symbolic Thought? It is their slight departure from taxonomic expectation that makes them memorable, and fodder for the imag ination
(Sperber 1996: 4, 23). Or in folkbiology’s terms, it is their conspicuousness.
Atran wrote of the mind’s ability to retain half -understood notions. This
“affords us the capacity to model the world in different way, and to conscientiously change t he world by entertaining new models that we invent, evaluate, and implement”
(Atran 2000: 108). So, in a world where nature, its inhabitants and its underlying mechanisms were more mystery than fact, where travel was limited and books were scarce, and whe re “the symbolic character of an animal would derive from its 87
taxonomic anomaly,” hybrids, monsters and perfect animals work as symbols (Sperber
1996: 4, citing Mary Douglas).
When taxonomic “conditions are violated … the resulting representations meet obstacles in conceptual processing and are symbolically processed” (Sperber 1996:
23). The same intellectual devices are at work today when animals are prioritized.
Non -scientists are drawn to or have the most to say about animals that are conspicuous or culturally important. Today that is often because of the animal’s importance to our belief -- our myth -- of what a strong economy means for personal freedom and individual happiness; yesterday it was because of what religion offered. Big and distinctive animals are our versions of the wonders, miracles and monsters prioritized in the Middle Ages.
Viewed in positive light, the wonders and monsters of early law and natural history were placeholders – “half -baked” ideas parked in the minds of our ancestors – which signal a willingness and disposition to imagine the world as more perfect, or to prepare for a more dangerous world than the one currently known from experience.
We will see in the next sections that “around the middle of the seventeenth century many Western investigators of nature were moving from an animistic to a mechanistic conception of the universe” (Sharot 1989: 278). 88
But I will argue that not all the disciplines were disenchanted. Literary expression reached a height in the works of Sh akespeare, but the presence of animals and imaginary beings did not subside. And literature continued to inform law.
It is traditional in intellectual histories to overstate the impact of the
Enlightenment. For purposes of this analysis it is better to caution, as Paul Shepard did, that “Everyone lives in a mythic world, however ignorant of it they may be. [And, the] most revealing source of information about how people conceive of themselves in relation to the nonhuman world is myth” (Shepard 1997: 6 -7).
What was true in western culture up to 1700 has remained true since. That is:
“much of mythology and folklore has always centered on animals. As intermediaries between humanity and the realm of inanimate objects, animals help us to orient ourselves in a world that seems essentially foreign. It would hardly be an exaggeration to say that mankind defines itself primarily in relation to the animal world” (Sax 1990:
65).
Science and lore did take separate paths in the 1700s, departing in method, in the ways in which each discipline thinks about animals, and departing with regard to the role of imagination. What this means for animal law is discussed next. 89
3.2 Animals in American Courts
The next pages discuss non -endangered species animal law cases a long with works of science and lore that were influential during the time periods (1) to 1900, and
(2) 1900 and after.
In the 1800s, some themes of litigation were: determining ownership and fault in property crimes involving animals; the disposition of animals; the status of women and “lunatics” in determining animal ownership; and conflicts between animals and economic interests such as railroads and gold mines.
In the 1900s, themes expanded with the regulatory reach of governments to issues of taxin g, branding, and pet cemeteries. The social context for the time includes that wild animals were made property of the state, the frontier became more accessible, there was a rise in technology, disease was better understood and controlled through germ theo ry, there was increasing urbanization, and the environment, in general, was less threatening.
But, at the same time, the “status of the human soul was threatened” by
Darwin’s work (Bowler and Morus 2005: 129). In addition, the Darwinian approach began t o divide “the era of description and classification from the modern desire to explain everything as the product of natural processes” (Bowler 1992: 248). Perhaps these factors combined to elevate the status of some animals in the law. Prevention of 90
cruel ty cases began to appear in the record, and dogs rose (Favre and Loring 1983: 7) from a position of no value in 1856 (US v. Gideon), to recognition as property in 1940
(State v. Chambers), to occupying “a special place somewhere in between a person and per sonal property” by 1979 (Corso v. Crawford).
The purpose of the analysis of cases is not to restate animal law, but to try to see animals through the eyes of the judiciary. Have certain animals gained importance for cultural reasons, and if so, what ar e those reasons? How have conspicuous animals fared in court? And what forces are at work when a judge interprets law to provide greater protection? What is the effect of narrative and literature, and what is the effect of science in these decisions.
Over 500 non -endangered species cases were selected through a broad search.
The number of cases is not as important as what happens within individual cases when judges reference science or lore. Each case was summarized to capture the following informati on: case name; citation and date; words used to describe the animal in the decision; issue; holding; authority cited; interests involved; fate of the animal; Kellert category (Kellert 1996: 10 -26); and references, if any, to literary or scientific sources .
The Kellert categories have been developed by Stephen Kellert over the years as a way to understand attitudes towards nature. Dr. Kellert identifies nine values that people have in relation to nature and provides these brief definitions: 91
“Aesthetic : physical attraction and appeal of nature Doministic : mastery and control of nature Humanistic : emotional bonding with nature Naturalistic : exploration and discovery of nature Moralistic : moral and spiritual relation to nature Negativistic : fear and av ersion of nature Scientific : knowledge and understanding of nature Symbolic : nature as a source of communication and imagination Utilitarian : nature as a source of material/physical reward” (Kellert 2002: 55).
A scholar from Botswana, working with St ephen Kellert at Yale, applied these categories in a survey effort, adding the category of “theistic” (Mordi 1987: 1 -236).
Because the record for analysis could be developed through the survey technique, Dr.
Mordi’s study was quantitative. In another st udy, Australian scholars used the Kellert categories to assess a series of news articles about the grey nurse shark. Since the record for analysis, articles dating from 1969 to 2003, was created without the Kellert categories in mind, a qualitative method was used to assess attitudes of the press over time (Boissonneault et al . 2005: 1 -17). This study of the judicial record has more in common with the review of newspaper articles than with the survey effort. Categories are employed primarily as a guide t o identify trends in judicial values and priorities.
Table 3.1shows how the categories were applied to animal law cases. 92
TABLE 3.1 APPLICATION OF KELLERT CATEGORIES TO CASES
KELLERT INDICATIONS APPLIED TO CASES OF … CATEGORY
NEGATIVISTIC Di slike, aversion, fear Animals described as base, vile, inferior, savage, vicious, vermin, dangerous, dumb brutes.
SYMBOLIC Representation Animal as metaphor for human value; animal sacrificed for belief
DOMINISTIC Ownership, control, Is sues of ownership and responsibility for actions; mastery occupation; regulation.
UTILITARIAN Material gain, Relative value of resources; decision about where commercial aspect losses lie in accident cases
SCIENTIFIC Ecology, function of Fact bas ed expert testimony or treatises relied upon. nature
AESTHETIC Beauty Protection of resource for public to enjoy; scenic
NATURALISTIC Recreation, direct Sport, health, outdoor activity
MORALISITIC Fair, ethical treatment Anti -cruelty; assumption t hat some acts involve malice; weighing of circumstances on behalf of animal
HUMANISTIC Compassion, empathy, Virtues of animal cited; bond acknowledged. love 93
3.2.1 Law, Science and Lore, to 1900
3.2.1.a. Law, to 1900
In 1765, Sir William Blackstone re duced the whole of English common law to four volumes called Blackstone’s Commentaries on the Laws of England . The book sold as many copies in America as it did in England, facilitating the transfer of law to
America in time for the revolution: “In the f irst century of American independence the
Commentaries were not merely an approach to the study of law; for most lawyers they constitute all there was of the law” (Boorstin 1996: 3). These four volumes became the law school and then law library of frontie r lawyers. Though Blackstone wanted to write the legal equivalent of Newton’s Principia , he showed instead that for the legal profession, reason serves values, politics, or “what one has a mind to do” (Boorstin
1996: 191).
Before Blackstone’s Commentaries , the Tractatus de Legibus et
Consuetudinibus Angliae by Bracton was considered the “greatest medieval common law treatise” (Wise 1996: 18). Bracton honored the Roman law perspective (Wise
1996: 18), which begins with the “idea that a wild animal ( ferae naturae ) is the common property of all, hence no one’s personal property” (Burke 1993: 1). Before
1900, wild animals were exceptional in American property law. They could become property, but there was essentially no “prior possessor” (Burke 1993: 1). The law 94
provided for a qualified property interest upon capture, and in Bracton’s statement of law it was a crime to steal an animal acquired by another (Wise 1996: 18).
Here is Blackstone’s statement about ownership of animals, found in Chapter the Twe nty Fifth, Of Property in Things Personal : “But with regard to animals, which have in themselves a principle and power of motion, and (unless particularly confined) can convey themselves from one part of the world to another, there is a great difference m ade with respect to their several classes, not only in our law, but in the law of nature and of all civilized nations. They are distinguished into such as are domitae , and such as are ferae naturae ; some being of a tame, and others of a wild disposition.
In such as of a nature tame and domestic (as horses, kine [cows], sheep, poultry, and the like) a man may have as absolute a property as in any inanimate beings. … But in animals farae naturae a man can have no absolute property” (Blackstone 1979: Vol. II ,
389 -390). Only a qualified property may exist.
Before Blackstone, the 1592 Case of the Swans acknowledged a property interest in domestic animals, and qualified ownership in certain wild animals unless owned by the King (Wise 1996: 19), though blood hounds and mastiffs were identified as “base” and could not be the subject of a felony.
Later an English authority named Coke extended the list of base animals when he “wrote that some non -human animals, both wild and domestic, such as bears, foxes, 95
apes , monkeys, polecats, ferrets, dogs, and cats [are] of a base nature, … unfit for human consumption; [and] consequently they were not the subject of larceny” (Wise
1996: 19).
Blackstone forwarded Cokes’ position (Wise 1996: 19), which stratified the value o f animals depending in part on their usefulness, with these words, which were considered in American courts for many years: “It is also as much felony by common law to steal such of them as are fit for food, as it is to steal tame animals: but not so, if they are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and singing birds; because their value is not intrinsic, but depending only on the caprice of the owner: though it is such an invasion of property as may amount to a civil injury, and be redressed by a civil action” (Blackstone 1979: Vol. II, 393 -394).
In America, the importance of writing opinions was evident from the beginning. Though judges in England were “authorizing” reports of their spoken holdings, in “the United States … many states in the eighteenth century adopted the statutory requirement that judges write their opinions rather than merely state them orally” (Wald 1995: 28).
Among the most important cases of the period is Pierson v. Post, decided in
1805. It involves “one of the noxious beasts called a fox,” who was chased by
Lodowick Post and his hounds across a “wild and uninhabited, unpossessed and waste 96
land called a beach” until at the end of the chase, Pierson stepped in and killed the fox.
The question for the court was, “what acts amount to occupancy?” Does pursuit create a property right for Post? The court decided that “mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him” (Pierson v. Post: 1805) The court cited Blackstone, Roman law, Bracton and others but said that the because of differing facts, “little satisfactory aid can be derived from the English reporters.” So here we have the early judges putting an
American stamp on animal law: it is the end result, not the chase that counts.
Interestingly, the legal scholar who tried to emulate Blackstone by writing
Kent’s Commentaries on American Law was influential in Pierson v. Post (Wise 1996:
22). But the opinion w as “most directly influenced” by the “seventeenth -century
Hobbesian, Puffendorf” and “recognized no natural right to property; all property rights flowed from the original mythical compact, which protected those things removed from the common stock from se izure by another” (Wise 1996: 22).
In the next pages, animal cases from the pre -1900 days of American law will be discussed to convey a sense of the time and the major topics, and to assess judicial priorities. The cases are presented in this order: (1) Dogs; (2) Domestic Mammals;
(3) Wild Mammals; (4) Birds; (5) Fish and Oysters; and (6) Insects. 97
3.2.1.a.1. Dogs, Before 1900
Dogs had a difficult start in American courts. Robert McCulley thought that his dog Beaver was “a first rate hunting dog, wort h a cow” and he “would as soon have lost the best horse in his stable, which had cost him one hundred and twenty dollars.” But the judge thought McCulley’s affections were misplaced and Beaver was
“the vilest cur that ever cut the throat of a sheep, or su cked his blood” (Lentz against
Stroh: 1820). The jury found the “value of … Beaver’s hide [to be worth an] estimated six cents.”
This case is one of eleven involving dogs before 1900 that evidences a negativistic value toward dogs. In other cases dog s are referred to as “inferior animals” (Commonwealth v. Maclin: 1831), a “whelp” and a “serious and intolerable nuisance” whose night howling justified the neighbor’s killing it (Brill & Brill v.
Flagler: 1840), and “useless … sheep -killing dogs” (Mitchel l v. Williams; 1866).
The 1862 case of Ceif Woolf v. William Chalker lists three reasons why the dog “has always been held to be ‘base,’ inferior and entitled to less regard and protection than property in other domestic animals”: (1) dogs are not serv ed as food,
(2) dogs get rabies, and (3) dogs are kept to guard people and therefore retain their
“ferocity and inclination to mischief.”
Woolf is in line with United States v. Gideon, an 1856 case in which Peter 98
Gideon willfully and maliciously shot Ge orge Bertram’s dog. The court found that the dog was not protected as were other “beasts” under code. “Horses and cattle have an intrinsic value which their names import, and it is but reasonable to suppose that the intention of the law was in using the term ‘beasts’ to include such other animals as …
[asses, mules, sheep, swine] … but it would be going quite too far to hold that dogs were intended” (Gideon: 1856).
The negative attitude toward dogs, that dates back to the 1592 Case of the
Swans decisi on, followed them into the early cases of American law. Thirty percent of the pre -1900 dog cases cite British authority. Yet, a number of judges were willing to see the value in dogs. When “a dark brindled dog, the property of one Daniel
M’Duffie and pa rt of his personal estate, the value of $50” was shot and killed, the court said “dogs are domesticated and tame animals and as much the subject of property ownership as horses, cattle or sheep” (M’Duffie: 1857). Therefore the shooting of the dog was acti onable. “We entertain no doubt that its willful and malicious destruction … was an injury to the personal estate of its owner.”
Similarly, when five Newfoundland dogs were “wickedly and maliciously poisoned” the judge ruled that the jury could infer va lue, despite lack of market value, because there was ample evidence “showing the usefulness and services of the dogs and that they were of special value to the owner.” They were dogs, after all, who 99
could signal “the arrival of any person” and bark to ind icate “man, woman or child”
(August Heiligmann v. William Rose: 1891).
In one group of cases the owners were compensated because the manner in which their dogs were killed seemed so unfair. For instance, a dog that was “passing along the highway” when “some boys scared him to appellee’s yard” and then was shot by the landowner, was found to have value worth “at least nominal damages without proving that the animal was of any pecuniary value whatever” (James K. Brent v. Samuel Kimball: 1871).
Other ju dges let dogs be dogs. One judge would not call a watchdog a nuisance (James Perry v. Elishah Phipps: 1849). Another would not call “the playfulness of a puppy” viciousness, though it scared two girls. “They were frightened. So they might have been at a mouse, but it would not follow that the mouse was vicious” (Genenz v. De Forest: 1888). Still another judge would not allow damages for the dog bite victim who went for treatment from “an empiric” rather than a physician, where the wound was diagnosed a s cancer and the treatment added to the person’s “maladies” (Frederick Moss v. Anson Pardridge: 1880).
Some judges would forgive quite a lot in the way of dog behavior. When
James Parker shot Burrell Mise’s dog as it stood beside Mise, it did not matter that witnesses came forward to say the dog “would catch hold of the tails of their horses, 100
that in their opinion … they did not consider him of any value as property, that said dog was not worth the powder and shot that killed him,” or that the dog “had b itten off the tails of two … cows.” The jury was charged that “smart money” -- exemplary damages – would be allowed (Parker v. Mise: 1855).
Finally, there were a group of literary -minded judges, who ruled on behalf of dogs and made reference to literat ure, lore, legend and folk song. Citing Homer’s
Odyssey and other authors, a New York judge struck down an ordinance that required an owner to kill his dog following an attack. “Under the common law of England a dog was not property. It was not larceny to steal a dog, though it was larceny to steal a dead dog’s hide. But the world moves and these crudities not longer exist, and in this state a dog is property. The dog from the beginning has been the friend and solace of man, and the law has only recogn ized the testimony of human nature, history and poetry in withdrawing him from outlawry” (Shand v. Tighe: 1894).
Eleven percent of these cases involving dogs before 1900 have a literary dimension; all the literary decisions were favorable for the animal. Of sixty -three pre -
1900 dog cases, 54 percent reflect doministic and utilitarian values; 29 percent reflect moralistic and humanistic values; and 17 percent reflect negativistic values. Table 3.2 is a chronology of the words used in the decisions to des cribe dogs. Nine times (14%) we are told the value of the dog; eight times (13%) the dog is described by its breed 101
and eight times (13%) the dog is described in reference to the owner; only four times
(6%) is the dog’s name mentioned.
TABLE 3.2: DOGS, BEFORE 1900
YEAR ANIMAL KELLERT
1820 Robert McCulley’s “dog Beaver” N
1822 Dog U
1825 Dog U
1831 Two dogs N
1838 Dog M
1840 Dog U
1840 Dog, “whelp” N
1844 “certain hound dogs, from ten to twenty in number” D
1847 Dog N
1849 Dog M
1851 Dog U
18 55 Dog M
1856 Dog N
1856 Dog U
1857 “a dark brindled dog, the property of one Daniel M’Duffie” M
1861 Dog D
1861 Dog U
1862 A large and ferocious dog N
1865 “thorough -bred setter dog” U
1866 “useless and sheep -killing dogs” U/ N 102
1871 Dog M
1871 Dogs D
1872 Dog M
1873 Dog U
1873 “a dog of the male kind” H
1875 Dog “of the value of twenty -five dollars” U
1876 Dog M
1876 “a small but valuable dog, which had been killed by a large dog” M
1876 “a dog of the value of ten dollars, the property of … John U Spicer” 1879 “one dog the value of one dollar” U
1880 “a certain dog” M
1881 “a certain dog, the property of said George W. Coplin” U
1881 “two dogs, of the value of $50, of the goods … George Stultz” U
1881 “a dog of less value than $25” U, M
1882 Dogs belonging to Detroit City Railway Company U
1882 Dogs of town of Serena U/D
1884 Dog N, D
1885 Pointer dog U
1888 Dog M
1888 A dog worth $50, killed when it was mistaken for a wolf U
1888 Farm dogs U
1889 Dog U/D
1890 Sheep killing dog D, M
1890 Dog D
1891 Newfoundland dogs H, M 103
1891 “ferocious dog” D
“a fine double -nosed pointer dog, ten or eleven months old, well 1891 trained, valuable as a hunting dog … [for which] the owner had H been offered .. $50 though he said he would not h ave taken $100
1891 Dog M
1892 Dog N
1892 “a certain house dog, the property of John Dobbs” N
1892 Australian kangaroo hound, “worth 800” D
1892 Dog D
1892 Dog D
1893 Horse scared by dog N
1893 Valuable dog, “a Gordon setter, eligible to regist ration” M
1893 Dog D
1894 Dogs H
Two hound dogs, “one was a red and white hound, the other was 1895 a red and white hound without any spots” D
1896 Dog D
1897 “a favorite bird dog” U, H
1897 A terrier named Belle worth $10 U/D
1897 “a Newfoundla nd bitch, known as Countess Lona” D/U
1898 Tag, Henry Jones’ dog U/D 104
3.2.1.a.2. Domestic Mammals Before 1900
Cattle and Buffalo, Before 1900
Disputes over cows before 1900 often involved injuries caused by trespassing cattle. People were “tossed and injured” by cows passing in the streets (Hewes v.
McNamara: 1871); they fought back with pitchforks, leaving “tines” that “remained until forcibly extracted” (Dufer v. Cully: 1871); and they were thrown over railings into streams, even by a bull being driven along with “its head tied to its foot” (Barnum v. Terpening: 1889). If the farmer knew of the cattle’s propensity for mischief, he would be liable. One court recited from the Bible to find that liability for “all injuries
[a certain red and white cow] may inflict” (Stumps v. Kelley: 1859).
American judges distinguished British precedent on the issue of enclosures, favoring open range (Wagner v. Bissell: 1856). In the Territory of Utah a court held that “the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed” (Buford v. Houtz:
1890). Other cases involved cattle rust ling (Dickson v. Territory of Arizona: 1899), cruelty to animals (State v. Bosworth: 1886), and railroad injuries (Mobile & Ohio
Railroad v. Williams: 1875), including one spectacular disaster for cows in Custer
County Dakota, where cows ran toward the to ot of a train, then gathered around an injured steer, until another train came through hitting more cows (Sprague v. Fremont:
1888).
Buffalo are found in the early cases too. In 1876 a judge gave a narrative 105
account of the buffalo calf who was purchased when six months old, “became gentle
… taking food from the hand of a child.” The buffalo “was breachy and of a roving disposition and annoyed the defendant very much by jumping over his fence into the pasture … but he had no trouble in preventing him fro m attacking by the use of a common pitch fork.” Mrs. Anna Gibson, a neighbor, said she “just flapped her apron at him and said ‘shoo,’ the bull turned and ran away in great alarm never stopping, but
‘ran clean away.’” The neighbor killed the buffalo when he found it in his yard with his cow. The court held for the owner of the buffalo: “We are greatly impressed with the conviction there was no license to kill the animal when he was killed” (Ulery v.
Jones: 1876). The court valued the buffalo according to expense, public benefit of cross breeding, and food.
Of twenty -five cattle cases, eighty -one percent reflect doministic and utilitarian values; eleven percent reflect moralistic and humanistic values; and eight percent reflect negativistic values. O ne case involving cows before 1900 has a literary dimension; this decision was favorable for the owner of the animal. Table 3.3 is a chronology of the words used in each decision to describe the animals. Five times
(20%) we are told who owns the cattle; four times (16%) it is described by its dollar value.
TABLE 3.3 COWS, BULLS, BUFFALO, BEFORE 1900
YEAR ANIMAL KELLERT
1820 “oxen which did the injury” U 106
1845 Cow, “the value of five dollars, the property of William Watts” U
1845 “Spotted bull of the value of twenty dollars” D
1856 “one buffalo bull, a domesticated animal of the value of $50” U
1856 Trespassing cattle U
1858 Neat cattle, a certain steer NA
1859 A certain red and white cow N
1861 “twenty -nine bullocks” D
1869 Cow U
1871 Bull D
1871 Cow D
1875 Ox, “dead near railroad” and cow, “with two broken legs” U
1876 Buffalo U, M
1879 The oxen owned by Saunders and his son. U
1883 “a crippled bull, having but partial use of one of his fore legs” N
1886 Oxen M
1887 A cow, set upon by th ree dogs M
1888 Steer, heifer and calf U
1889 Wild bull D
1889 Cow, “the personal property of Dennis Ramsey, the value of $20” U
1890 Stock U
1890 Cow D
1893 Cattle D
1893 “one head of cattle, the property of Charles … and Joe Wright” D
1899 “a cer tain calf, the property of one Robert Blair” D 107
Horses, Before 1900
The oldest American case in this study dates from 1788 and involves a horse.
In Republica versus Teischer, the Supreme Court was trying to determine if the malicious, willfull and wicke d killing of a horse was an indictable offense. Reasoning that other acts of public wrong had been prosecuted – poisoning chickens for instance,
“cheating with false dice,” and even killing a dog, “an animal of far less value than a horse” – the Court con cluded: “we think the indictment will lie.”
Horses, like dogs, were on the receiving end a great deal of violence in early
America. In 1816, a mare was stabbed with a butcher knife after tramping Landreths’s corn, and the court found that since resentm ent over the injury to his corn, and not
“wanton cruelty or black diabolical revenge” explained the stabbing, it was not malicious mischief (State v. Landreth: 1816). In a case with similar facts, Council stabbed a horse “to save his cornfield,” but this time the court found that “when the act is in itself illegal the law presumes an evil intention” (State v. Council: 1808). In a case of poisoning, Flanagan, Mulvey and McLaughlin were caught trying to give poison potatoes to a horse worth four thousand do llars but fortunately “did fail in the perpetration of said offense” (Commonwealth v. McLaughlin: 1870).
The majority of cases for the period involve accidents: a stage coach disaster
(Kennon v. Gilmer: 1889), a run -away team that knocked the plaintiff s enseless and 108
broke his arm (Jefferson Hall v. Charles Huber: 1895), or a stallion running loose that provoked ladies to jump from carriages so that one was injured as she tried to rescue another whose dress had “caught upon the buggy step” (Hammond v. Melt on: 1891).
In cases of injury, horses were described as “rather a sulky dispositioned horse”
(Whittier v. Town of Franklin: 1865), “of a vicious disposition and a ‘notorious kicker’” (Reynolds v. Hussey: 1886), “nervous and excitable” (Short v. Bhole: 1 895), or lacking an “evil disposition” (Finney v. Curtis: 1889). Near the end of the century cruelty cases were decided. It was left for a jury to decide whether a “bewildered” rider was cruel to leave his horse in the woods overnight (Commonwealth v. Cu rry:
1890), and whether a humane society officer was out of bounds in killing a horse and sending the carcass to the fertilizing company when there was disagreement about the horse’s condition, the owner saying it was constipation, the officer saying it wa s disease “past recovery” (Brill v. Ohio Humane Society: 1890).
Horses are the subject of at least fifteen cases before 1900. Of those, sixty - seven percent reflect doministic and utilitarian values; twenty -six percent reflect moralistic and humanistic v alues; and seven percent reflect negativistic values. Table
3.4 is a chronology of the words used in each decision to describe the horses. One time (7%) we are told who owns the horse, and one time (7%) the horse is described by its dollar value. 109
TABLE 3.4 HORSES, BEFORE 1900
YEAR ANIMAL KELLERT
1788 Horse U
1808 Horse M
1816 Mare, “the property of Young” U
1859 Horse U
1865 “rather a sulky dispositioned horse” D
1870 “a certain horse of the value of four thousand dollars” U
1871 “mare and her co lt under one year” H
1886 Horse, “of a vicious disposition and a ‘notorious kicker.’” N
1889 Horse U/D
1889 Horse U/D
1890 Horse M
1890 Mare H
1891 Stallion D
1895 Horses D
1895 Horse of “nervous and excitable disposition” D 110
Pigs, Before 19 00
Pigs frequented the court system in medieval times and their appetite has kept their owners in court in America too. Solomon Morse lived to rue the day he did not
“keep up” his “chicken eating hog” and it was found with “a duck in her mouth in the publ ic road.” The witness chased and the hog dropped the duck, but the hog
“immediately chased the duck again, and while in hot pursuit the defendant shot her”
(Morse v. Nixon: 1860). “There was much evidence going to show that the hog was well known in the neighborhood and bore a general reputation as a ‘chicken eating hog.’” In fact, Morse might have been “apprised of her bad character” at the time of purchase. So the owner of the ducks prevailed in court on utilitarian grounds: he acted to “save propert y from destruction.”
Hog rustling was discussed in one case where it appeared that four missing hogs showed up in the company of a neighbor who “lived about four miles from his place.” But it “was impossible for him to say positively whether the missing hogs had been stolen, or were still in this large swamp, or had been killed by wild animals or alligators.” So the accused went free. There was “no proof of the corpus delicti”
(Wellman v. State: 1897).
The most notorious of the early pig cases involv ed a “black sow -hog, the property of D.P. Rowland,” who was a pet, “and was in the habit of going up to the 111
house and did not run away.” Yet the sow -hog went missing and Rowland suspected his neighbor, three hundred yards away. The neighbor fled and hog parts were found that “corresponded in size and the hair in color with those of the missing hog.”
Several years later an arrest was made and the judge wrote his opinion in the form of a fable, with its own strange meter and lesson: “In the house hog bone s, in the garden hog hair, hog entrails, hog meat, buried in the earth, refusal of the occupant … to permit a search…, his abrupt departure …, his flight or retreat to a point more than fifty miles distant, and his continuous absence until arrest …. are st rongly suggestive of a suspicious intercourse on his part with some hog or other.” “Any man who inters his pork may expect the late departed hog to be hunted for as stolen, if it is hunted for at all, on his premises” (Stevens v. State of Georgia: 1887).
In these eleven pre -1900 cases that involve pigs, eighty -three percent reflect doministic and utilitarian values while eight percent reflect moralistic and humanistic values and eight percent reflect negativistic values. Table 3.5 is a chronology of the words used in each decision to describe the pigs. Five times (45%) the pig is identified in relation to its owner, and three times (27 %) by its value. One decision is written in literary style and finds for the owner of the pig. 112
TABLE 3.5 PIGS, BE FORE 1900
YEAR ANIMAL KELLERT
1848 “Seeleys hogs” U
1848 “Sow and pigs mangled and tore cow and calf” D/U
1853 Hogs bitten by dogs D
1859 “one sow of the value of ten dollars” U
1860 Sow, “chicken eating hog” N/U
1870 “one sow, of the value of two do llars” U
1873 “a certain hog, of the value of $20, of the personal property …” U
1880 “a hog, the personal property of Joseph Howard” M
1887 “a certain hog, the property of John Railly,” a “fence -breaker” U/D
1887 “black sow -hog, the property of D.P. Rowland” U
1897 Four hogs, the property of the prosecuter U
Mules Before 1900
There are five cases involving mules before 1900 in the study: sixty -seven percent take a utilitarian or doministic perspective, while thirty -three percent are moralistic. In these cases, mules find themselves not classified as cattle (Brown v.
Bailey: 1842); involved in altercations with cows (Williams v. Dixon: 1871) and trains
(L.R. & F.S. Railway: 1881); protected from acts of cruelty (Hurd v. Lacy: 1890); and, as Tabl e 3.6 shows, nameless. 113
TABLE 3.6 MULES, BEFORE 1900
YEAR ANIMAL KELLERT
1842 Mules U
1861 Mules U/M
1871 Ass D/U
1881 Mule U
1890 Mule M
Sheep Before 1900
When the Confederates confiscated and sold a flock of Texas sheep in 1863,
Knox paid $1 0.87 apiece, but Confederate money was “then worth but the third part of a like sum in coin.” The original owner, Mrs. Lee “a loyal citizen of the United
States” later sought compensation for her stolen sheep, “the rebellion being suppressed.” Lee’s cas e gave rise to a Supreme Court review of the Legal Tender acts, and the Court had to decide this question: should payment be in greenbacks or gold? The Legal Tender acts were upheld as valid (Knox v. Lee: 1870). Sheep, like mules are discussed mainly in terms of their utility.
TABLE 3.7 SHEEP, BEFORE 1900
YEAR ANIMAL KELLERT
1870 “flock of sheep in Texas” U
1897 Sheep U/D 114
3.2.1.a.3 Wild Mammals, Before 1900
Before 1900, these wild mammals were involved in court conflicts: a bear, wildcat, deer , foxes, minks, an otter, a ram, a sea lion, whales and a wolf.
Big game hunting aspirations went awry in Louisiana when a bear kept by the
Crescent City Rifle club “broke loose and prowled in the adjoining pasture” of
Valentine Vredenburg, who was attac ked and killed while out looking for his cows.
The court discussed science to determine that the Rifle Club was not a corporation formed under the law allowing such for science and arts – shooting is not a science.
The court held that lions, tigers and b ears are “universally recognized as dangerous” so the keepers are responsible for harm that results (Vrendenburg v. Behan: 1881).
Deer cases also involve hunting situations. In 1878 a deer knows as Ugly Buck attacked a hunter at Congress Spring Park in New York and the court found the park liable, though a taxidermist read from natural history books and a dentist testified that the deer was only dangerous during some times of the year. The court threw out the scientific evidence: “The books of natural history which a witness has read are not of themselves competent evidence” (Spring Company v. Edgar: 1878). In another case, moose liberators released a moose and deer captured by Isaac Jannes during off season. The court found the actions “meritorious and in aid of the purpose of the statute” (James v. Wood: 1889). As for the moose, the court said the legislature intended to “give it absolute immunity from the vexations of men during a portion of the year … necessary for their preservation and protecti on, and to prevent their decimation and extinction.” 115
In a case that set minks against geese, and hunting restrictions against property protection, an 1873 New Hampshire court took the opportunity to describe the relative values of different kinds of ani mals. George Blood, a neighbor, witnessed the event.
“I stood in my doorway; heard the geese cackling; I came out on to the little knoll; I saw four minks swimming towards the geese; some of the geese had then got on to the shore of the pond and some wer e in the water; the minks were from one to three rods distant from the geese ….” (Aldrich v. Wright: 1873). That’s when the defendant came out and shot the minks. Though the law prohibits hunting from May 1 to
October 15, the court found the defendant ha d a “natural and constitutional” right to protect his property. The hunting law does not elevate mink “to the rank of property, nor take them out of the class of vermin.” Citing British precedent, the court described this hierarchy of value: “Human life [is] of inestimable value; domesticated animals
[are] valuable for food or for practical use, far less worthy than the human species; domesticated vermin less worthy still; mischievous wild vermin a public nuisance, …. such is the common law appraisal” (A ldrich v. Wright: 1873).
While some courts were citing Blackstone to lower the value of certain animals, other courts were distinguishing British law to raise value. An otter worth one dollar was stolen from the trap set by John Parish. Does an otter h ave sufficient value to be the subject of larceny? The court held: “All of the distinctions as to the animals feroe nature and as to their base nature which we find in English books will not hold good in this country. The English system of game laws see ms to have been established more for princely diversion than for use or profit, and it not at all suited to 116
the wants of our enterprising trappers. … We take the true criterion to be the value of the animals, whether for the food of man, for its fur, or otherwise” (State v. House:
1871). So the value of otters rose in America, “and even in some parts of North
Carolina” because of its importance to the economy.
The early American cases involving whales provide a striking contrast to the ethic of today. The courts were specifically concerned that their decisions not “be disastrous to the commercial interests of the country” (Shirley v. Italy: 1858).
Disputes over ownership of whales required a description of techniques used to kill and claim whales: t he custom is to “shoot them with bomb -lances from guns made expressly for the purpose” and claim ownership once they have sunk for three days and floated back to the surface (Ghen v. Rich: 1881). The values expressed in these cases show that concern was n ot for the whale but for money and control of resources: the utilitarian and doministic values.
In these eighteen pre -1900 cases that involve wild mammals, seventy -six percent reflect doministic and utilitarian values while five percent reflect moralisti c and humanistic values and nineteen percent reflect negativistic values. Table 3.8 is a chronology of the words used in each decision to describe wild mammals. Only one case mentions an animal name, but this is to support a negativistic perspective that emerged in the discussion of “Ugly Buck.” 117
TABLE 3.8 WILD MAMMALS, BEFORE 1900
YEAR ANIMAL KELLERT
1881 Bear N
1891 “scalp of a wild cat” D
1822 Deer D
1873 “a live animal called a deer” D
1878 Buck deer “known as Ugly Buck” N
1889 “one moose and one deer” D/M
1805 Fox, “one of the noxious beasts called a fox” (P v. P) D
1869 Red and grey foxes, wolves and wildcat scalps D
1830 Martin or sable U, N
1873 Minks U, N
1871 Otter U
1866 Ram D
1898 Sea lion D
1858 Whale U
1863 Bowhead whale U/D
1872 Whales D
1881 Fin back whale D/U
1890 “a wild wolf in the city of Lincoln” D 118
3.2.1.a.4. Birds, Before 1900
State ownership in animals was established by the Supreme Court in the 1895 case of Geer v. Connecticut. The regulation of gam e birds brought the topic to court.
Reviewing Greek, Roman and British law, the Court upheld the power of the state to control wildlife for “the common benefit.” Eighty -three years later Geer was modified by the Supreme Court in Hughes v. Oklahoma, so tha t the state ownership doctrine was understood not to be an exception to “the normal test for burdening interstate commerce” (Favre and Loring 1983: 30).
The reach of game laws is evident in 1800s cases of illegally hunted prairie chickens and quail, la ter discovered on the tables of fine restaurants. In St. Louis on
July 8, 1874, “two prairie chickens were served to customers,” adding to the evidence which supported conviction (Missouri v. Randolph: 1876). In New York, an illegal quail was sold to “Or a Minor for the sum of seventy cents, to be eaten by her as a guest in said hotel, on the said 21 st day of October, 1891,” thus violating the game law
(Roth v. State; 1894).
Disputes over birds could be found in other state courts too. Reminiscent of th e struggles that dog owners had to establish sufficient status in their animals to protect them from theft, the value of a peahen was litigated in the 1857 case of
Commonwealth v. Beaman. Elam L. Pease was victim to “sundry larcenies” by Byron
Dodge and H orace W. Beaman, including that they “feloniously did steal, take and carry away” a peahen and a turkey. The peahen had been fed at Pease’s door “nearly everyday” for three years. The court allowed that “peacocks are among the domestic 119
fowl which are the subject of larceny.” But Elam Pease was not to profit, because his peahen was dead at the time of its apprehension.
Lewis J. Morrill had better luck with the law when Mary Falvey left poison for his barn door fowls: “to wit, two drachms, of a certain poison called rat poison”
(Commonwealth v. Falvey: 1871). Though the “whole fourteen were killed,” the court did find that the hens were personal property and covered by statute.
A turkey “the value of five cents” was considered property by another co urt, thus leading to justice after Mary Turner stole William Ganis fowl (State v. Turner:
1872).
And Miss Ellen (Nellie) Lane endured a trial but regained her mockingbird in an 1883 case which found Horace Haywood indicted for larceny after he “did stea l, take and carry away” her bird and its cage from “the front portico.” The bird was sold to a “gentleman at the Southern Hotel” for $4.25 and returned with a request to purchase, but the offer was denied since “no money can buy it” (Haywood v. State:
18 83). In the subsequent prosecution of Haywood, the court held that “the reclaimed mockingbird in question was no doubt personal property. … To hold that larceny might be committed of the cage but not of the bird would neither be good law nor common sense. ”
Pet birds in that day occupied a difficult place, belonging to people while in their cage, but to nature, or the next captor, upon escape. Mrs. Catherine Mitcherson had a canary she named “Sweet” who she could identify by “a peculiar crest on its head, which was divided in the middle by Mrs. Mitcherson, as one would part a 120
person’s hair” (Manning v. Mitcherson: 1882). Sweet escaped in December of 1881 and was later found in the possession of Patrick Manning. Mrs. Mitcherson requested the bird “in such an insolent manner as to hurt his feelings very deeply,” so he refused to return it. The court got involved and determined that rude though she was, Mrs.
Mitcherson was the rightful owner of the bird, her custody and control established by
“taming, d omesticating, or confining” Sweet.
Finally, courts responded to cases of cruelty with a moralistic value. When
Ralph Smith and Edward Bruner turpentined and burned a goose, the court said that cruelty is not allowed under the law, regardless of ownersh ip of the animal (State v.
Bruner: 1887). The 1896 Waters v. People case is similarly a sign of the changing times. Forty doves were confined by the County shooting club in El Paso, slated for target practice. But the Humane Society objected and the cou rt agreed: “That which was so considered in the decade past may not be so regarded today. … It is common knowledge that within the past few years, as incident to the progress of civilization” that anti -cruelty laws have been passed to “protect dumb creat ures” and “conserve public morals” (Waters v. People: 1896).
In these seventeen pre -1900 cases that involve birds, eighty -two percent reflect doministic or utilitarian values while eighteen percent reflect moralistic or humanistic values. Two cases stan d out for their story -like narrative. Table 3.9 is a chronology of the words used in each decision to describe birds. The value of the bird is mentioned four times (24%); the owner is mentioned three times (18%); and the bird is named one time (6%). 121
TABLE 3.9 BIRDS, BEFORE 1900
YEAR ANIMAL KELLERT
1592 “A swan is a royal fowl” (England) Symbolic
1829 “fourteen tame doves, the property of Benjamin Williams” D/U
1857 “one peahen the value of five dollars and one turkey of the value U of three doll ars” 1871 “fourteen barn door fowls of the value of twenty dollars, of the U personal property of one Lewis Morrill” 1872 “a lot of canary and other bird” U
1872 One turkey of the value of five cents U
1875 Six quail, two pinnated grouse, 100 quail U/D
1876 “three prairie chickens” D
1881 “These turkeys, although wild, are not properly speaking wild D animals” 1882 a canary named ‘Sweet’ with a “peculiar crest on its head, which D was divided in the middle by Mrs. Mitcherson, as one would part a pers on’s hair” 1883 “one reclaimed and tame mockingbird, of the value of twenty - M five dollars” 1887 “a goose, the property of some person or persons to the affiant M unknown” 1888 “quail and other wild fowl or birds” D
1890 “divers quail, which had been killed, by shooting” D
1891 “twenty quail and Virginia partridge” D/U
1894 Six quail, purchased out of state D
1895 Woodcock, quail, ruffled grouse, called partridge or gray D squirrel 1896 Forty live doves, “obtained and kept in confinement for the M purpose of using them as targets to shoot” 122
3.2.1.a.5. Fish and Oysters, Before 1900
Fishery cases date back to the 1700s. In Pitkin v. Olmstead, Josiah Hurlbut and
Timothy Forbs “with much expense and labor cleared a fish place, opposite to the lan d of
Nehemiah, Moses, and Samuel Olmstead” (1790). The court was asked to decide if those who cleared the fish place can exclude others when the resource is a public navigable river. The court granted the laborers exclusive access, stating that the posse ssion will be strengthened through continuing occupation. Later cases had to introduce use restrictions, as awareness of limitations on resources grew. The fishery cases reflect doministic and utilitarian values.
TABLE 3.10, FISH AND OYSTERS, BEFORE 19 00
YEAR ANIMAL KELLERT
1790 Fish D/U
1807 Salmon, sad and alewives U
1810 “1000 shad of the value of two hundred dollars” D/U
1815 “valuable fishery for shad and other fish” D/U
1818 “3000 of the plaintiff’s fish called shad” U/D
1824 Six bushels of oysters U
1826 Fish D/U
1835 2000 oysters U/D
1853 Oysters D/U
1877 “eatable fish,” “eels, clams, oysters, or shell fish” D
1878 Five fish U
1894 23 fish caught “in the Mississippi River opposite Red Rock” U 123
3.2.1.a.6. Insects (Bees), Before 1900
Like fish, cases about bees date back to 1790, when damages were still assessed in
“shillings” (Merrils v. Goodwin: 1790). And like fish, bees were viewed as a commodity for their ability to generate honey. Disputes, and there were many, turned on the q uestion of who owned the bees honey? The owner of the tree? The one who endured stings to gather it? A related question is who owns the honey when the bees fly off to another site?
And can bees be stolen?
In answer, some courts said ownership resides with the one who encloses the hive
(Gillet v. Mason: 1810), or, in later years, to the owner of the soil where the tree stands
(Ferguson v. Miller: 1823). Other courts said the bee finder can take wild bees, since this
“has been considered by the people o f the country as a species of hunting” (Wallis v.
Mease: 1811). When bees fly off they return to the wild, unless “the first owner keeps them in sight” (Goff v. Kilts: 1836). On the question of whether bees were valuable enough to warrant protection from theft, the courts generally answered yes (State v.
Murphy: 1847), particularly since they produce food “fit for man” (Harvey v.
Commonwealth: 1873).
Since bees can be stolen, and ownership rules were complicated, competitors for honey brought suit for s lander when accusations flew. In the case of Mathias Idol v.
Benjamin Jones, one man accused the other of stealing his bee -tree, and called him a
“rogue” who lived in a “rogue -hole and harbored rogues” (1829). The court ruled that trees were not protecte d from larceny, and a rogue is not the same thing as a thief, so the words were not actionable. Similarly, an 1811 slander case failed when the judge, quoting 12 4
Milton in one part of the discussion, determined that “while bees remain in the tree, they are n ot the subject of a felony” (Wallis v Mease: 1811). If there is no felony, then there can be no slander when one is accused of it.
TABLE 3.11 BEES, BEFORE 1900
YEAR ANIMAL KELLERT
1790 Bees D
1810 “A large swarm of bees and a large quantity of hone y, of the D/U value of $10” 1811 A “swarm of wild bees, together with their honey” D/U, H
1823 “Wild bees, in a bee -tree” D/U
1829 Bees D
1836 Bees D
1847 Bees D/U
1870 Bees D/U
1873 Three beehives the value of $5 … U
1885 Bees D/U
1889 Bees U
18 98 Bees D 125
Summary of Cases Before 1900
Within these pre -1900 decisions, the economy, as a cultural concern, had the greatest salience. Cases reflecting doministic (ownership and control) and utilitarian
(material resource) values were the most nume rous. Fish and sheep decisions reflect this value exclusively; decisions about bees, pigs, birds, cows, and wild mammals were also deeply influenced by their role in the economy. The moralistic and humanistic values were expressed most often in cases in volving dogs, horses and mules (Table 3.12).
Animals benefit most from the expression of humanistic and moralistic values, whereas the community or cultural interest in a strong economy is most served by the doministic and utilitarian values, often at th e expense of the animal.
The negativistic value was expressed most often in decisions about wild mammals, and, interestingly, dogs, cows, pigs, and horses. So dogs and horses are both the most loved and among the most denigrated of animals by the early judiciary.
Judges quoted lore or engaged in narrative in decisions involving birds, dogs, pigs, bees and cows, always to the benefit of the animal or its owner. Dogs, birds, and deer were the only animals referred to by their names in cases before 190 0. The animals described in relation to their owners were pigs, cows, birds, dogs and horses. The animals described in terms of their market value were pigs, birds, bees, cows, dogs, fish and horses. The trends and the overall picture of values in anima l law will be analyzed after cases from the 1900s are described. In the next two parts of the paper, pre -1900 science and lore are briefly described to provide a context for these legal decisions. 126
TABLE 3.12, SUMMARY OF CASES BEFORE 1900
DOG COW HORSE PIG MULE SHEEP WILD BIRD FISH BEE
# CASES 63 25 15 11 5 2 18 17 12 12
% D/U 54 81 67 83 67 100 76 82 100 93
% M/H 29 11 26 8 33 0 5 18 0 7
% NEG 17 8 7 8 0 0 19 0 0 0
% WITH 11 4 0 9 0 0 0 12 0 8 LITERARY % BY $ 14 16 7 27 0 0 0 24 8 17
% BY 13 20 7 45 0 0 0 18 0 0 OWNER % BY 6 0 0 0 0 0 6 6 0 0 NAME % BY 13 0 0 0 0 0 0 0 0 0 BREED 127
3.2.1.B. Science, Before 1900
In 1735 Linnaeus published the first edition of Systema Naturae and in doing so “lowered the educational and fi nancial entrance fee to the study of nature” (Koerner
1996: 145). Classification systems “embodied a sweeping human claim to intellectual mastery of the natural world” (Ritvo 1987: 12). “By the end of the century, naturalists
... reduced living things to material systems that could be studied and, by implication, manipulated without moral consequences” (Bowler 1992: 69). It is said that magic was eliminated within natural histories and science “because Nature had to be de - spiritualized if people were to feel comfortable when they used earth for their own selfish ends” (Bowler 1992: 69).
During the age of exploration the “major European powers engaged in a worldwide scramble to identify natural products of economic importance” (Farber
2000: 2). Basic in formation about the world’s species increased, so that instead of cataloguing hundreds of species, the task now was to describe thousands.
Classification schemes resulted, “with reference to …. 600 genera, rather than something in the neighbourhood of 6,0 00 known species.” (Atran et al. 2004: 401).
The work by Linneaus, like that of Blackstone, was popular in America because “its simplicity recommended it to naturalists who did not have access to the great collections of Europe” (Bowler 1992: 164). Su rvey efforts of the United States 128
were undertaken and the hobbyist approach to natural history, carried out by trappers and physician -naturalists (Brown et al. 1994: 18), gave way to professionals who undertook systematic inventories of the natural world. According to Levi -Strauss, “the real separation between science and what we might as well call mythical thought … occurred in the seventeenth and eighteenth century. At that time, with Bacon,
Descartes, Newton, and the others, it was necessary for scienc e to build itself up against the old generations of mythical and mystical thought. …. This was probably a necessary move, for … scientific thought was able to constitute itself” (Levi -Strauss
1978: 6).
Darwin’s 1859 publication of The Origin of Species by Means of Natural
Selection changed paradigms in science and religion. As the material world became an object of study, so too did religion. Religion for many became less a way of thinking and more a topic to think about. As described by one scholar: “In the eighteenth century, Enlightenment rationalism …proposed an intellectual conception of religion as an object of study” (Tambiah 1990: 31). There were “critical changes in cosmological schemes and religious values initiated by the Reformation [ that had an] affinity with developments in economic and scientific activities” (Tambiah 1990:
31). 129
Darwin chose a humble list of animals to forward his world -changing theory.
Mammals are numerous, with dogs, bulldogs, pointers, and bloodhounds mentione d frequently. Rabbits and hares, cows, elephants, whales, wolves, monkeys, mice, the fox and others have the starring roles. Among birds, the pigeon, thrush, duck, ostrich and turkey are prominent, though the Galapagos finches have come to symbolize
Darw in’s work. Beetles and bees are mentioned too. It is the message more than the cast of characters that distinguishes Darwin’s work from earlier works by naturalists.
He wrote about the animals that were familiar to ordinary readers, contributing to the book’s communicative power. 130
3.2.1.C. Lore, Before 1900
After the Norman Conquest, Chaucer wrote the Canterbury Tales and secured a place for English as a language capable of art. Mark Twain did the same for the
American vernacular when he wr ote the Adventures of Huckleberry Finn (McCrum et al . 1986: 234). Twain’s work built off a pre -Civil War genre known as Humor of the
Old Southwest. That tradition got its start with the work of Augustus Baldwin
Longstreet, a lawyer and newspaper editor w ho was among the first Americans to show in his stories that “strength” in writing would derive “from the local language of the land … and from the largely unexplored folk culture” (Forkner 1992: xiv). Four of the leading writers of this genre were lawyer s: Longstreet, Johnson J. Hooper, Joseph
G. Baldwin, and Seba Smith. Lawyers traded tales while riding circuit (Blair 1960:
73), and then transmitted this record of their culture in writing, primarily through newspapers. Their method was humor; their ch aracters were often involved in encounters with animals or the wild; their themes were horse swaps, hunting, dances and contests, fights and races, politics and betting, the formation of justice systems, and camp meetings; and the structure of their storie s included sketches, anecdotes, hoax tales, tall tales and frame stories (Brown 1989: 39 -63). Mark Twain inherited and then elevated the genre in his post -Civil War work.
Animals in Twain’s work can connect the characters to the world of folk belief 131
and the supernatural. For instance, a dead cat is useful to cure warts, as Huck Finn explains: “Why, you take your cat and go and get in the graveyard ‘long about midnight when somebody that was wicked has been buried; and when it’s midnight a devil will com e, or maybe two or three, but you can’t see ‘em, you can only hear something like the wind, or maybe hear ‘em talk; and when they’re taking that feller away, you heave your cat after ‘em and say, ‘Devil follow corpse, cat follow devil, warts follow cat, I’ m done with ye!’ That’ll fetch any wart” (Twain, TS 2002: 49).
The howling of a stray dog in Twain’s world could portend doom (Twain, TS
2002: 74 -75); the “who -whooing” of an owl was something to worry about too
(Twain, HF 2002: 11). Huck Finn describ es the depression he fell into when “Miss
Watson … kept pecking at [him], and it got tiresome and lonesome” so he climbed through the window to be out of doors in the dark night.
“I heard an owl, away off, who -whooing about somebody that was dead, and a whippo -will and a dog crying about somebody that was going to die; and the wind was trying to whisper something to me, and I couldn’t make out what it was, and so it made the cold shivers run over me. Then away out in the woods I heard that kind of sound that a ghost makes when it wants to tell about something that’s on its mind and can’t make itself understood, and so can’t rest easy in its grave and has to go about that way every night grieving. … Pretty soon a spider went crawling up my shoulder, and I flipped it off and it lit in the candle; and before I could budge it was all shriveled up. I didn’t need anybody to tell me that that was an awful bad sign and would fetch me some bad luck, 132
so I was scared and most shook the clothes off of me. I got up and turned around in my tracks three times and crossed my breast every time; and then I tied up a little lock of my hair with a thread to keep witches away. But I hadn’t no confidence” (Twain, HF 2002: 11 -12).
An online literature search of Twain’s wo rk suggests that he had the most to say about mammals, particularly dogs, hounds, horses, cows, elephants and mules.
Whales and squirrels, cats, monkeys and mice and many other mammals populate the works of Mark Twain. Birds are the next priority, in ter ms of number of references and they include jays, peacocks, partridges, quail, cuckoo, doves, pigeons, ducks, eagles, geese and turkeys. The little animals have a place in Twain’s work too: worms and bees, caterpillars and butterflies, scorpions, grassho ppers, hornets, and beetles, to name some. Among reptiles, snakes, alligators, turtles and crocodiles roam the pages.
While animals in Twain’s work provide access to the supernatural world, he does not write about all the imaginary creatures that are f ound in books by authors from England. The work of his contemporary Charles Dickens provides an interesting contrast. Whereas Twain wrote about ghosts, devils, witches and monsters, Dickens wrote about these and more: hydras, sirens, mermaids, griffins, goblins, unicorns and the sphinx. 133
Like Twain, and Shakespeare before him, Dickens prioritizes dogs and horses, in addition to mice, cows, elephants, cats, monkeys, sheep, beavers and ferrets. Twain and Dickens have similar diversity of mammals and bird s in their writing.
The next pages show how animal law, science and lore progressed through the
1900s: the changing values of the judiciary are traced through application of the
Kellert categories; the rise of biodiversity as a concept in science is discu ssed; and we will see the contribution made by tall tales in America and the literary works of British authors to new genres of literature that emerged to provide another frontier for imaginary creatures. 134
3.2.2 Law, Science and Lore, 1900 and After
3. 2.2.A. Law, 1900 and After
Between 1790 and 1900, the population of the United States grew from 4 million to 76 million, and shifted from 5 percent urban to 40 percent urban. During the next century, the population grew to almost 300 million, and the ur ban population expanded to include 80 percent of Americans. At the same time, the animal law cases decided by the judiciary increasingly reflected moralistic, humanistic or naturalistic values, particularly in relation to dogs, horses, and birds.
Sti ll, the primary values expressed in opinions were those most closely tied to the economy: doministic and utilitarian values. From the beginning, American law was founded on the idea that land is a commodity – not something held and inherited, as in Engla nd. Property is something the law can value, so animals had value in the eyes of the law if they were considered property, something contributing to economic gain. Accordingly, the “primary classification distinguished between domestic animals and wildli fe” (Favre and Loring 1983: 5). A distinction between game and non -game animals arose later when hunters became a powerful constituent and economic force. The next subsections describe values and compare decisions from the
1900s to those of early America, noting the role of literature and science along the way. 135
3.2.2.a.1. Dogs, 1900 and After
Many of the themes from the 1800s carried forward into the 1900s, with issues involving ownership, responsibility, obligations to license dogs, conflict s with transportation, and trespass or harm to neighbors’ property. Judges expressed sympathy for owners who lost dogs (Vantreese v. McGee: 1901), and empathy for dogs themselves. Decisions included statements like: “A dog is like a man in one respect, at least – that is, he will do wrong sometimes, but if the wrong is slight or trivial, he does not thereby forfeit his life” (State v. Smith: 1911); or “history may be searched in vain to find a living creature exhibiting as much fidelity and affection [as ] does a dog for his master” (Shadoan v. Barnett: 1926).
A new issue in animal law emerged as people started providing for dogs in their wills. An early court upheld provisions by Mrs. Bessie White Burgess, who left her estate to her sister and then to a church, $1000 for her dog, and $100 to Mrs.
Belilah Stevens “for being kind to me when I needed it” (Willett v. Willett: 1923).
The court actually defined “humane purpose” as part of the decision to appoint a trustee to carry out the trust, which speci fied that the dog “must have three meals daily.” A quarter century later George Searight’s bequest of $1000 to his dog Trixie, including payment to Florence Hand to care for Trixie, was found “not in itself unlawful” but only binding on the conscience of the trustee (Searight v. Miller: 1950).
In 1964 a Florida court considered favorably an appeal on the issue of mental suffering due to the loss of a dog at the hands of a careless garbage man. Heidi the miniature dachshund was killed by a flying trash ca n. The court found market value 136
too restrictive a category, while acknowledging that “the affection of a master for his dog is a very real thing” (La Porte v. Associated Independents: 1964).
An echo of this sentiment is heard in a 1972 case, where the court disallowed an eviction following nine years of tenancy by a family with a miniature poodle, taking
“judicial notice that a dog can become a very real family member” (New York Life
Insurance v. Jack Kick: 1972).
In 1979 a New York court placed the highest value on dogs, signaling its rise from the most base of animals in 1820 to the highest status in the eyes of some members of the judiciary: “a special place somewhere in between a person and … personal property” (Corso v. Crawford Dog and Cat Hosp ital: 1979). Ms. Corso was found to “suffer shock, mental anguish and despondency” after her dog’s body was switched out for a cat, discovered just before the funeral when she looked in the casket.
Corso followed decisions that elevated dogs to the stat us of property. This is stated plainly in a 1940 case: “the ancient rule which did not recognize the dog as personal property has been changed by statue or evolution of the law” (State v.
Chambers: 1940). Many courts do not yet follow Corso (Gluckman v. American
Airlines: 1994), but pet ownership statistics alone suggest that the humanistic value will continue to find expression in future cases. It is estimated that 36 percent of homes have dogs, while the total dog population in United States homes in 2001 was
62 million. (Clancy and Rowan: 10). Stated another way, “the percentage of children likely to be living with one or more pets sometime between birth and adulthood is 137
estimated to be as high as 90 percent” (Melson 2001: 34).
Some courts provide extensive literary citations in support of decisions made on behalf of dogs. One decision cites Greek myth, Edmund Burke, Herodotus, Sir
Francis Bacon, Byron, and the legend of William of Orange with his dog who changed the course of history (North Carol ina v. Wallace: 1980). Byron, Isaac Watts, and even a “pooch poem” shore up other opinions on behalf of dogs.
Perhaps the most creative of these judges went to the trouble of closing his opinion with a poem written just for the occasion. The case invol ved a city code that prohibited animals that “howl or bark or emit audible sounds to the annoyance of the inhabitants of this city” (City of Columbus v. Becher: 1962). Neighbors wanted to enforce against Dr. Becher and his small animal hospital, but the court found the ordinance to be invalid: overbroad and indefinite. Or in the judge’s words:
“Dogs will howl and cats will yowl when placed in congregation; These grating sounds may oft result in human aggravation; Laws passed to curb such pesky noise s hould fit the situation; And be so phrased in artful ways to cause no obfuscation; In other words, the laws so passed must plainly be effective; Inaptly framed they lack the force to meet their planned objective. The judgment of the Court of Appeals is af firmed.”
“Scientific research” is mentioned in a case where the value of dogs “as companions and as beloved pets” was discussed, but science was cited in support of a humanistic claim: that it “is not simplistic, ill -informed sentiment that has led our society to observe with compassion the occasionally televised plights of stranded 138
whales and dolphins. It is on the contrary a recognition of a kinship that reaches across species boundaries. The law must be informed by evolving knowledge and attitudes” (Bueckner v. Hamel: 1994).
The role of science is diminished in a Tennessee case that found raccoon conservationists disputing the activities of coon dogs and their trainers. Legislation resulted in hunting limitations in some counties but in other are as it was allowed. In fact the raccoon hunting rules had been adjusted more than 50 times over the years.
Conservationists tried to persuade the court to overturn the law based on the findings of scientists, but the court scolded those advancing the argu ment: “We know of no other discipline where it is insisted the Legislature is bound to follow the opinions of the best experts in a given field” (Tennessee Conservation League v. Cody: 1987).
Changes “from time to time” provide a way to deal with varying conditions, a practical need, and so error has to be tolerated as an outgrowth of discretion.
Overall, the 20 th century was better for dogs than the 19 th century. Courts expressed more humanistic and moralistic values, and less negativistic values. Wi th
32 percent of the decisions expressing moral or humane values, dogs emerged as one of the highest priority animals for the judiciary, valued not just for their market price or role in the economy but for their importance as companions. Judges talked le ss about the dollar value of dogs and referred to them less in terms of their owners.
References to dog’s names and breeds increased. A few of these names are Mark,
Bingo, Big Boy, Popo and Little Bits, Ruffles, Sweetie and Man, Trixie, Dixie, Billie,
Ch oly, Heidi and Misty, Dart, Dutchess, Rambler, Rowdy and Sparkle. 139
TABLE 3.13, COMPARISON OF DOG CASES, BEFORE AND AFTER 1900
BEFORE 1900 1900 AND AFTER
% DOMINISTIC/ UTILITARIAN 54 % 60 %
% MORALISTIC / HUMANISTIC 29% 32 %
% NEGATIVISTIC 17 % 8 %
% WITH LITERARY ASPECT 11 % 9 %
% WITH SCIENTIFIC ASPECT 0 % 1 %
% OF ANIMALS WITH NAMES 6 % 26 %
Cats, 1900 and After
It will pain many dog owners to learn that cats have earned higher marks with the judiciary than dogs. It can be argued that d ogs are weighted down by their early record, and dogs had to do the hard work of bringing the judiciary along to a higher ethic while cats were nowhere to be found in the early days of litigation. “It was doubtless fortunate for the cat,” one judge acknow ledges, “that while the judiciary were ‘kickin’ the dog around the cat kept out of court” (Smith v. Steinrauf: 1934). But the facts remain that cats have a greater percentage of cases expressing moralistic and humanistic values, and less expressing negati vistic, than dogs. Cats have a higher percent of decisions invoking literature and narrative too. 140
TABLE 3.14, COMPARISON OF CAT CASES TO DOG CASES, AFTER 1900
CAT DOG
% DOMINISTIC/ UTILITARIAN 47 % 60 %
% MORALISTIC / HUMANISTIC 47 % 32 %
% NEG ATIVISTIC 6 % 8 %
% WITH LITERARY ASPECT 24 % 9 %
% WITH SCIENTIFIC ASPECT 0 1 %
% OF ANIMALS WITH NAMES 41 % 26 %
Like dogs, cats are found in complicated legal and interpersonal issues in the
1900s. When Anna Bradley died “in her ninetieth year” l eaving $90,000 to Hattie
Peterson, a care taker of recent acquaintance who was to “take good care of my dear cats, Sister, Daddy, Bimbow, Jimmy John and Tricksey,” the short -changed relatives objected that the bequest was not valid. The court upheld the w ill, though, probably making matters worse for the family by pointing out the “entire residue of the estate” will not “be expended for the benefit of the cats alone” (Bradley v. Graham: 1936). In years before, next of kin were able to wrestle money away f rom pets named in the wills of deceased aunts (New England Trust v. Folsom: 1929).
The court had to play the role of Solomon in 1999 when there was a dispute over the ownership of “the subject cat, Lovey, nee Merlin.” Due to the advanced years of the c at, the court decided he should “remain where he has lived, prospered, loved and been loved for the past four years” (Raymond v. Lachmann: 1999). Another court 141
showed its humane stripe allowing a disabled person in public housing to keep her cat despite a no pet rule, given the psychological dependence of the person for the animal
(Whittier Terrace v. Hampshire Masschusetts: 1989).
The darker side of human relations came through in two cases from the 1980s.
In one, an elderly lady tripped over her daug hter’s cat Magique and brought suit for negligence, but the court ruled for the daughter (Lillian Boyer v. Lanette Seal: 1989).
Justice triumphed in the case of a cat -napper too. “Mrs. Veronica Meleson, while sitting in her home in West Los Angles, saw a man … park his Honda car in the red zone in front of her home. He got out of his car and walked toward the driveway on her property which ends in her backyard. After a period of time she saw appellant walking down her driveway toward the street with he r Balinese Lynx Point cat Truffle in his arms. … Mrs. Meleson ran out the front door of her house,” he dropped the cat and it ran to her as the man drove off in his car. But he was back four days later. Can a cat worth $250 be the subject of grand theft ? Indeed it could, the court ruled, seeing
“no reason to distinguish between the theft of a $200 cat and a $200 dog” (People v.
Sadowski: 1984).
Judges making reference to literature in cat cases cited Shakespeare’s
MacBeth, legends of Egypt, lore of th e middle ages (Smith v. Steinrauf: 1934), and the poet William Blake (Clark v. Brings: 1969).
The very best case, though, is that of Blackie the talking cat, which took place in Augusta Georgia, in 1982. The city tried to collect an occupation tax from Carl
Miles for money earned through his talking cat. Blackie was well known by 142
pedestrians who had paid a small fee to hear the cat say things to them.
The judge himself relates that through a “chance contact,” he had “seen and heard a demonstration of Blackie’s abilities.”
“One afternoon when crossing Greene Street in an automobile, I spotted in the median a man accompanied by a cat and a woman. The black cat was draped over his left shoulder. … I spoke, and the man with the cat eagerly responded to my greeting. I asked him if his cat could talk. He said he could, and if I would pull over on the side street he would show me. I did, and he did. The cat was wearing a collar, two harnesses and a leash. Held and stroked by the man Blackie said ‘I l ove you’ and “I want my Mama.” The man then explained that the cat was the sole source of income for him and his wife and requested a donation which was provided. I felt that my dollar was well spent. The cat was entertaining as was its owner. Some que stions occurred to me about the necessity for the multiple means of restraint and the way in which the man held the cat’s paw when the cat was asked to talk. However, these are not matters for the Court and are beyond the purview of a federal judge” (Mile s v. City Council: 1982).
Within the court’s purview was the issue of the constitutionality of the city ordinance. Carl Miles objected to the $50 tax and brought suit alleging that the ordinance infringed his rights for due process, equal protection a nd freedom of speech.
The opinion, after thorough analysis of the constitutional issues, upheld the ordinance. 143
But the judge provided a review of cat lore too, covering works by Dr. Seuss, naming cartoon cats through the ages, quoting nursery rhymes, dis cussing anthropomorphism, and finally placing Blackie in the pantheon of great felines along with Lewis Carroll’s
Cheshire Cat. “For hundreds, perhaps thousands of years,” the judge wrote, “people have carried on conversations with cats. Most often these are one -sided and range from cloying mawkish nonsense to topics of science and the liberal arts. Apparently
Blackie’s pride does not prevent him from making an occasional response to this great gush of human verbiage, much to the satisfaction and benefit of his ‘owners.’
Apparently some cats do talk. Others just grin.”
3.2.2.a.2. Domestic Mammals, 1900 and After
Cows, 1900 and After
In the 1800s issues in cattle disputes were often about trespassing, open range, cattle rustling and railway incidents . These themes continue, and modern topics were introduced into litigation, such as the question of whether “Portuguese -style bloodless bullfights” violate the law (C.E. America v. Antinori: 1968); where does the fault lie when a cow wanders away from an animal hospital (Safford Animal Hospital v.
Kenneth Blain: 1978); and whether a cow is included under an insurance policy’s definition of domestic animal so that State Farm might cover damage caused when “an 144
ordinary gentle range cow,” “a 300 pound heifer, ” fell into the swimming pool (Smith v. State Farm: 1980).
In general, the judicial attitude toward cows in the 1900s was less negativistic, and it was about the same for positive indicators: i.e., moralistic values, and the presence of literary citatio ns or narrative.
TABLE 3.15, COMPARISON OF CATTLE CASES, BEFORE AND AFTER 1900
BEFORE 1900 1900 AND AFTER
% DOMINISTIC/ UTILITARIAN 81 % 88 %
% MORALISTIC / HUMANISTIC 11 % 12 %
% NEGATIVISTIC 8 % 0 %
% WITH LITERARY ASPECT 4 % 6 %
% WITH SCIENTI FIC ASPECT 0 % 0 %
% OF ANIMALS WITH NAMES 16 % 6 %
Terms used to describe the cattle in post -1900 cases include “an unruly team of oxen,” “one black cow with a white mottled face, mule -headed,” a “trespassing bull,” and a frisky excitable heifer prone to jump and rear, at the jail. The only animals to be called by their names in these cases were Old Jake and Young Jake, who were injured by an overzealous neighbor. The judge tells the story this way: 145
“There was much testimony tending to show that on e of the bulls, Old Jake, the older of the two bulls, was vicious. One of the witnesses, Bunk Jones, testified that Old Jake pursued him on a certain occasion and he was forced to climb a cedar tree, where the bull kept him lodged for several hours.
The re was much testimony that Young Jake had ever been disposed to disport himself in a rude, angry and threatening manner; that on a particular day Mrs. Harris, who had some cows, discovered these two bulls coming toward her and her children, and according t o testimony the bulls chased her, and she barely managed to escape them by closing the door of her residence.
The bulls continued to chase about the place, having jumped out of the pasture to consort with the Harris cows. Mrs. Harris screamed for help, and, her husband being busy with accounts at the store, J.L. Cadenhead, appellant here, went to the house … went in the house and got a shotgun loaded with No. 6 shot, shot in the air to shoo the bulls away, and according to his testimony the old bull ‘sho oed.’ He testified that while the old bull was going away from him, apparently in perfect disorder, completely routed, that the young bull jumped the fence and fell in a pile of plows and old debris which had been piled up, and that he shot at Old Jake. We quote a part of his testimony:
Q. They were not making any attempt to bother you? A. No sir, not a bit in the world. Q. At the time you shot the bull was he advancing towards you? A. No; going away from me. Q. And not destroying any property? A. No sir. 146
The proo f further showed that Old Jake was wounded in such a part of his anatomy and to such extent as to destroy his value as a breeding animal, and that Old Jake went to the slaughterhouse to be consumed as beef. There was some evidence that some flower pots and stands were knocked over.
Much testimony was offered to show that the bulls were fence jumpers and vicious, especially Old Jake. On the other hand, plaintiff’s wife and boy swore that the bulls were gentle and amicable, and that the boy rode the bulls a nd played with them. So there was a conflict in testimony, but none as to the conduct of the bulls at the time they chased Mrs. Harris into her residence.”
The result? It reads like a moral to an Aesop fable: “one may not shoot a valuable domestic ani mal in punishment of a wrong … already committed …, or out of a spirit of vengeance …, even though he might have had the right to shoot the offending animal while engaged in the act” (Cadenhead v. Goodman: 1927). The judge had sympathy for the animals w hose story he conveyed and who he called by name. This is a pattern with the judiciary that runs alongside economic themes. 147
Horses, 1900 and After
Horses in 1900s suddenly had names. In prior years horses seemed anonymous to judges, but starting i n 1902, 44 percent went by name, including Alfred G., Lilting
Heart, Mabel, Rocky, Poco, P.J., Sonny, Silver, Princess and Tarzana. In general, the courts hold horses in the highest esteem, along with cats and dogs, writing about them in a way that eviden ces humanistic and moralistic values to rival the utilitarian / doministic outlook.
TABLE 3.16, COMPARISON OF HORSE CASES, BEFORE AND AFTER 1900
BEFORE 1900 1900 AND AFTER
% DOMINISTIC/ UTILITARIAN 67 % 56 %
% MORALISTIC / HUMANISTIC 26 % 38 %
% NEGATIVISTIC 7 % 0 %
% WITH LITERARY ASPECT 0 % 0 %
% WITH SCIENTIFIC ASPECT 0 % 6 %
% OF ANIMALS WITH NAMES 0 % 44 %
Cases in the 1900s involved awards for mental anguish at the death of quarter - horse and its still -born colt (Brown v. Crocker: 1962); a limping horse named Mabel who was spared from an overdriving owner by operation of the anti -cruelty laws (NY v. O’Rourke: 1975) and two starved out horses, said to be a rack of bones, who 148
experienced similar intervention (Washington v. Zawistowski: 2004 ); some accidents involving kicking horses; and a homeowners association objections to a “miniature horse” (Ridgewood Homeowners v. Mignacca: 2003).
Science played a role in a malpractice case when two practicing veterinarians testified that standard of c are was met (Posnien v. Rogers: 1975).
Finally, emotion played a role in a court’s finding of that a caretaker who sold two horses to slaughter without telling the owner, and who allowed the owner, an ill person, to conduct fruitless searches, was “torme nt” that can only be characterized as
“heartless, flagrant and outrageous” (Burgess v. Taylor: 2001).
Other Domestic Animals, 1900 and After
While values expressed in decisions about horses improved over time, cases involving mules reflected about the s ame ethic, with 67 percent expressing utilitarian and doministic values in both early and modern America. Pigs became more of a commodity in modern times, as the attitude in cases shifted from 83 to 100 percent utilitarian and doministic. Sheep and goats remained a commodity in the eyes of the judiciary, earning only doministic and utilitarian types of decisons. 149
3.2.2.a.3. Wild Mammals, 1900 and After
During the 1900s there were numerous wild animal encounters that led to court cases. In general, cas es in the 1900s were a little less negativistic and a little more moralistic and humanistic. Cases involving issues of responsibility and control, the doministic and utilitarian ethic, remained at the same level, accounting for about three - quarters of the decisions. More wild mammals were called by their names in court during the 1900s, for instance, there was a “300 pound Bengal tiger names Stubby,” an
“African lion named Chester,” another African lion named Holmes, dolphins named
Kea, Puka, Kama and Chuc kles, Shamu the killer whale, Sparkle the baby elephant,
Babe and Mia – both raccoons, a fox named McKenzie Duncan and another named
Eva, a monkey named Yondi, coyotes named Krenz and Suda, and a wolf named
Natsayia.
TABLE 3.17, COMPARISON OF WILD MAMM AL CASES, BEFORE AND AFTER 1900
BEFORE 1900 1900 AND AFTER
% DOMINISTIC/ UTILITARIAN 76 % 73 %
% MORALISTIC / HUMANISTIC 5 % 12 %
% NEGATIVISTIC 19 % 15 %
% WITH LITERARY ASPECT 0 % 4 %
% WITH SCIENTIFIC ASPECT 0 % 1 %
% OF ANIMALS WITH NAMES 6 % 16 % 150
Cases with bears fall into three general categories: state agency enforcement, private business liability, and private individual liability for accidents. Almost all of the cases reflect a doministic or utilitarian values.
Cases with big cats are similar to bear cases, but add the issue of pet ownership in the situation of a family who found and attempted to “tame” a baby lynx (Shelly v.
Queen: 1961). There are two classes of accidents: victims who gain the sympathy of the court, and fool -he arted individuals who are left to their fates. The victims include a nine year old mauled by a jaguar at the zoo (Burns v. Gleason: 1987); an audience member trampled as a crowd fled escaped lions (Stamp v. Eighty -sixth Street
Amusement: 1916); a bystand er snatched by a lion through the bars of the cage (Parker v. Cushman: 1912); and a two year old boy mauled by a leopard (Blanchard v. City of
Bridgeport: 1983). The fool -hearted group includes zoo employees and some attendees. Courts express a negativis tic value in half the cases and a doministic value in most others.
Decisions about deer reflect a variety of values, primarily doministic and utilitarian, but also moralistic as judges express impatience with those who engage in headlighting and “unfair ” hunting practices (Pharr v. Mississippi: 1984), naturalistic as judges describe the feeling of being outdoors (Strong v. Bostick: 1982), scientific as courts allow studies that necessitated the death of deer within a national park (New
Mexico State Game Commission v. Udall: 1969), and even humanistic as a court discussed an unnecessary killing of deer in found in a backyard (Idaho v. Thompson:
2001). Three decisions quote literature on behalf of the animals, citing authors 151
ranging from Faulkner to Rawlin gs to Shakespeare. In one decision, a judge came to the defense of Buck, the deer, who “except for his unfortunate looks, which he couldn’t help, was all man.” Buck lacked horns, and so was mistaken for a doe by enforcement officers. The judge pointed o ut that it took “five game agents, two biologists, the opposing attorneys, the United States Marshal and three Deputies, the
Clerk, Court Reporter, and a Federal Judge who is a little tired of such matters” to straighten out an arrest that stemmed from the legislature’s inability to “reckon wisely with the exceptional and the unusual” in nature (United State v. Dowden: 1956).
Dolphins and whales were discussed by courts. In two of the dolphin cases, advocates did not find support from the court when the y took dolphins from the
University of Hawaii, transported them fifty miles and released them in the ocean
(Hawaii v. Vasseur: 1980), or when they objected to the transfer of dolphins from an aquarium to the Navy (Citizens v. New England Aquarium: 1993). An Aqua Zoo employee who lost the tip of his finger to Chuckles the dolphin also encountered an unsympathetic judge, given city immunity (Sakach v. Pittsburgh: 1996). But the Sea
World staffer who agreed to ride Shamu in a bikini – when the boss knew that Shamu
“was conditioned to being ridden only by persons wearing wetsuits” – recovered workers compensation for injuries (Eckis v. Sea World: 1976). In general these cases reflect the doministic value. Yet, another decision involving “a certain cetacean known as a whale of the classification Orca Gladiator” acknowledged that economic 152
health and naturalistic values could be mutually supportive: the state claimed ownership of a whale and argued that “the spectacle of a real whale at play a hundred miles inl and from the sea created interest at home and abroad, and was the source of much inquiry from the press … in other parts of the world; that similar events in other countries, as recorded throughout the ages, were cited and for a time Portland harbor was th e object of unusual reference and great publicity” (State v. Lessard: 1934).
The keeper of an escaped elephant who roamed from a grocery store parking lot, “two miles through the streets of Laredo,” entered into Elsa Perez’s backyard, trampled the famil y swing -set and crashed through a concrete wall was found to have notice of dangerous propensities (H.E. Butt Grocery v. Perez: 1966), as was the keeper of the 400 pound zebra who ran amuck in Massachusetts, despite the argument that the zebra was unowned and wild, while on its tear (Smith v. Jalbert: 1966).
Almost all cases involving ferrets, foxes, raccoons, beavers, mink and muskrats evidenced doministic or utilitarian values, but in the case of mouse found drowned in a coca -cola bottle, the judge lik ened the situation to the 1785 Robert Burns poem in which the efforts of a “wee sleekit cow’rin tim’rous beastie” – the mouse -- showed that the “best -laid schemes o’ mice an ‘men” can leave “nought but grief an’ pain”
(Jackson Bottling v. Chapman: 1914). 153
There were a number of monkey cases. In one, a monkey who “made intelligent communications” was deemed a domesticated house pet by the court, outside the scope of a city ordinance (Rolling Meadows v. Kyle: 1986). In another, the judge said that an “e xpert in the science of zoology” was needed to sort out the question of whether a monkey was wild, or trainable, after a performing monkey abandoned a greyhound it was riding in a show and attacked a baby in the orchestra pit
(Abrevayna v. Palace Theater: 1960). Bite victims always prevailed in liability cases unless they were found to have provoked the attack. Injuries caused to people while they fled from a wild animal were also found compensable, as the case of the Mrs.
Smith demonstrates. She tripped over her doormat while fleeing the neighbor’s
“menacing and advancing baboon” (Candler v. Smith: 1935).
Finally, a few decisions showed how hard it is to shake a bad reputation. Half the cases involving wolves and coyotes reflect a negativistic attitu de by the court. And then there is the skunk, whose reputation is so bad, that when a moonshiner was called a skunk by a prosecuting attorney before the jury, the court found prejudicial error.
The attorney “unnecessarily abused the defendant putting him in the same class with a most odious and despised wild animal” (Little v. Commonwealth: 1927). 154
3.2.2.a.4. Birds, 1900 and After
Birds inspired judges in the 1900s. Nearly one -quarter of the decisions reflect moralistic, humanistic or naturalistic va lues, and the same percent of cases had a literary dimension. Milton, Mathew Arnold, Alfred Lord Tennyson and the lore of
Nymrod were cited, to the benefit of the birds. Even cats, the sweethearts of the judiciary, were on the losing end of a case agains t “a flock of valuable Plymouth Rock chickens” (Helsel v. Fletcher: 1914). The court emphasized the importance of these chickens, “a very ancient and illustrious strain of birds who trace their ancestry back to the landing of the Mayflower, and in all pro bability are direct descendents of that notable pair of bird who … took passage on Noah’s Ark.” Chickens like that are to be protected against cats. In fact the court found “all domestic animals are regarded as property.” The most daring decision concer ns a $48,000 pair of emus, purchased for a breeding business that never materialized. The judge wrote the decision itself in the form of a poem (Liddle v. Scholze: 2000).
Another case involved trespassing turkeys, entangled in a bitter feud between neigh bors. The court found that “the trespasses were only occasional and not willful, and the damages were of a trivial and inconsequential nature,” so no injunction was issued (Tate v. Ogg: 1938). Pigeons, geese, ducks, laying hens, mourning doves, an ostri ch, and a bird who flew into a shopper in Lowes were prominent in other cases. 155
Several gamecock, or fighting chicken cases, were decided in the 1950s, 60s, and 70s. The issue litigated was whether gamecocks were animals and thereby covered under the ant i-cruelty laws. In Arizona the court found that “biologically speaking there can be no doubt that birds or fowls are animals,” but the statute does not “give notice to the ordinary man” (Arizona v. Stockton: 1958). The Kansas court arrived at the same co nclusion, after hearing from “two professors who testified … that persons of common intelligence would consider a chicken a bird, not a hair - bearing animal” (Kansas v. Claiborne: 1973). In Oklahoma, the court went further and found the statute which makes a crime out of encouraging animals to fight invalid, since little boys who have their dogs chase rabbits and rural widows who put up martin boxes to keep the hawks away will become criminals (Lock v. Falkenstine: 1963). But
Hawaii held that the law was n ot vague, a gamecock is an animal, and it is protected
(Hawaii v. Kaneakua: 1979).
TABLE 3.18, COMPARISON OF BIRD CASES, BEFORE AND AFTER 1900
BEFORE 1900 1900 AND AFTER
% DOMINISTIC/ UTILITARIAN 82 % 77 %
% MORALISTIC / HUMANISTIC 18 % 23 %
% NEGAT IVISTIC 0 % 0 %
% WITH LITERARY ASPECT 12 % 24 %
% WITH SCIENTIFIC ASPECT 0 % 0 %
% OF ANIMALS WITH NAMES 6 % 0 % 156
3.2.2.a.5. Fish and Aquatic, 1900 and After
The values expressed in fish cases continued to be primarily utilitarian and doministic, wit h a little more diversity. Scientists were called in to testify about the effect of non -native fish on the system (Maine v. Taylor: 1986); in case about a fishin’ hole, a host of authors were cited for inspiration, including Willie Morris, Eudora
Welty, W alker Percy, William Faulkner, Hodding Carter, Mark Twain, Barry Hannah and James Dickey (Dycus v. Sillers: 1990); and even a goldfish had its day in court, spared from the indignity of being a prize for the ping pong toss game at the county fair (Knox v. Massachusetts Society for Prevention of Cruelty: 1981).
TABLE 3.19, COMPARISON OF FISH CASES, BEFORE AND AFTER 1900
BEFORE 1900 1900 AND AFTER
% DOMINISTIC/ UTILITARIAN 100 % 72 %
% MORALISTIC / HUMANISTIC 0 % 28 %
% NEGATIVISTIC 0 % 0 %
% WITH LITERARY ASPECT 0 % 7 %
% WITH SCIENTIFIC ASPECT 0 % 13 %
% OF ANIMALS WITH NAMES 0 % 0 % 157
3.2.2.a.6. Insects, 1900 and After
The bees discussed in cases from the 1800s are joined in the 1900s by a wasp who caused a car crash (Lussan v. Grain Dealer s Mutual Insurance Company: 1960); butterflies; a brown recluse spider; a bug; and worms, who are “generally frowned upon.” In the case of butterflies, the judge quoted Lewis Carroll, Wordsworth and other poets on the way to determining that the park rang er who issued a citation to butterfly collectors on the charge of destruction of natural cultural and archeological resources was on “shaky legal as well as entomological grounds” (US v. Sproed:
1986). There was a shift in the values expressed in cases in volving these little creatures, from 93 percent doministic and utilitarian in the 1800s, to 63 percent in the
1900s; other values in decisions include humanistic (13 %) and negativistic (24%).
3.2.2.a.7. Reptiles, 1900 and After
Finally, while alligat ors and snakes drew businesslike or negativistic responses from the judiciary, Rocky the 50 year old aldabra tortoise inspired the court to quote
Shakespeare and Dickens, and think about Rocky in terms of his best interests and actual circumstances, in the face of animal rescuers trying remove him from his owner
(Jett v. The People: 1986).
The next sections discuss science and lore of the last century, to provide a context for the decisions of the judiciary. 158
3.2.2.b. Science, 1900 and After
At the t urn of the century, scientists had the benefit of synthetic works such as
Clinton Hart Merriam’s biological survey that described habitats in terms of life zones
(Brown et al . 1994: 21). The paradigm for natural systems at that time was the concept of “ba lance of nature,” which can be traced back to an 1864 book by George
Perkins Marsh, called Man and Nature . This simple model found practical application in the 1905 publication, Research Methods in Ecology by Frederic Clements.
Clements’ view on successi on – an idealized and predictable trajectory -- influenced range ecology and has been described as consistent with the equilibrium model. An equilibrium model assumes that natural systems will rebound from impacts, to a pre - disturbance condition or trajec tory (Hall et al. 2005: 10.13).
To some extent, this understanding still holds sway now, among advocates and as a model for management plans. It is consonant with the ethical perspective of conservation leaders like Aldo Leopold, who relied on the moral dimension of natural resource protection to persuade readers. “A thing is right,” Leopold wrote, “when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise” (Leopold 1948:15). Leopold did not argue that science would be able to describe all the connections of natural systems. He conceded that “science has given us many doubts” (Leopold 1948:10). Instead Leopold 159
appealed to intuitions shaped by the romantic tradition in literature and equi librium models of range scientists, writing that “conservation is a state of harmony between man and land” (Leopold 1948:4). A challenge of the past decades though has been to
“untangle ecological complexity” (Maurer 1999: 8).
Along these lines, by the m id -1900s the work of Watson and Crick contributed understandings about genetics that would develop for use in conservation biology. In the 1960s, biogeography was reinvigorated as a discipline when Hess and others pieced together an understanding of plate tectonics. In 1962 Rachel Carson’s book
Silent Spring communicated the potential dangers of damaging natural systems.
When the Endangered Species Act was adopted in 1973, ecology and wildlife management gained a regulatory dimension that we see express ed in the discipline of conservation biology. It was not until 1982, however, that the term biodiversity began to be circulated. At the same time, the model for the natural system was complicated with the introduction of the non -equilibrium perspective, which came into being to describe systems that are variable, such as deserts. Non -equilibrium models are unpopular with compliance administrators, who seek a standard against which managed land can be judged. State -and -transition models – a “best of both ” option -- contemplate that systems can “alternate stable states [and] experience discontinuous and irreversible transitions” (Whitford 2002: 282). There is a lively exchange among 160
scholars on the state -and -transition model that has brought about a new r espect for local knowledge, as it informs notions of “resilience,” i.e., “the magnitude of disturbance that can be absorbed before the system is restructured with different controlling variables and processes” (Gunderson et al. 2002: 4).
While these new models exist as concept more than guiding principle, they have an attractive explanatory power. Two scholars have gone so far to say that
“developing and applying a model of how bioregions work is at the heart of successful assessments,” and, “frameworks , more than data, are the key to successful bioregional assessments” (Johnson and Herring 1999: 370).
The problem with most models is that they move away from intuitive understandings, in the direction of the non -phenomenological, which is where scientist s and the rest of the community part ways. In Atran’s words: common sense understandings are “an indubitable source of truth for knowledge of the readily experienced local world, but fallible as a means of insight into the scientific universe”
(Atran 199 0: 3). Science defined its goals and methods during the last century too. In general, s cience is an approach intended to maximize certainty that involves an exploration of the material world in order to explain the relationships among observed phenomena (Feder 1996: 12; Simpson 1964: 91). 161
Its method includes candidate explanations that can be tested and disproven if false (Popper 1962: 97). New paradigms can displace old frameworks: “Paradigms gain their status because they are more successful than t heir competitors in solving a few problems that the group of practitioners has come to recognize as acute” (Kuhn
1966: 23). But the work within the paradigm goes forward by the same method, minimizing metaphor (Atran 2000: 277), “in order to preserve lite ralness and repeatability” (Wilson 2001: xvii).
There is much debate on the issue of relativism in science but for this study what is important is that there “is a set or body of norms … that guides scientists in their theorizing and observing,” which th ere surely is (Ruse 1999: 236).
In fact, the distance between endangered species biologists and community priorities speaks to the success of at least these scientists in freeing their thinking of cultural values. The ensuing communication dilemmas hav e turned out to be a problem for biodiversity protection.
By the end of the century, conservation biology had followed other scientific disciplines across the divide, creating work products that are inaccessible to the lay community, about species that lack cultural salience or conspicuousness. This is where we find our endangered species biology today: free of metaphor, having shed the imaginary creatures of the natural histories, and without a significant audience. 162
3.2.2.c. Lore, 1900 and After
If magical thinking -- the world of the imagination -- was eliminated from science and natural history “because Nature had to be despiritualized” to further both materialistic (Bowler 1992: 69) and scientific goals, where did it go? Anthropologists sugges t that it functions “as an adjunct” to rationality (Malinowski 1948: 74 -75), a kind of processing center, that can not be eliminated. Moreover, it functions in a way that allows us to consider “the world in different ways,” in order to “change the world by entertaining new” possibilities (Atran 2000: 108), which is what judges are doing when they interpret the law in a way that advances an ethic. The answer is that imaginary creatures and animal characters have flourished in certain areas of 20 th century literature, in some of the very works that judges are citing.
Literature is “a structured experience of the imagination” (White 1989: 2). In one sense it is subversive, “since its very existence implies that what matters is art, imagination, and truth” (Lurie 1990: xi). But in another sense it is constructive, or re - constructive, since by appealing “to the imaginative, questioning, rebellious
[dimension] within all us, [it can] renew our instinctive energy, and act as a force of change” (Lurie 1990: xi) .
Understood this way, it is not as surprising to see the relation of literary influences to decisions that interpret law in a reconstructive manner on behalf of 163
animals. What is surprising is the power of the relation, particularly since literature has no formal role as authority in legal opinions. Yet, when Shakespeare is cited in an animal law case it is almost as good as having an on -point precedent appear; the decision is likely to be favorable for the animal. One more fascinating aspect of this re lation is that judges are selecting works of literature that run high to the imaginary:
Homer, Shakespeare, Dickens, and more recently Lewis Carroll, whose work opened the door to the genre of fantasy works by J.R.R. Tolkien and others, so popular during the last century.
Alice in Wonderland and Through the Looking Glass by Lewis Carroll are quoted by judges in animal law cases even at the Supreme Court level. In the famous snail darter decision Justice Burger, writing for the majority, criticized the d issent by saying: “This recalls Lewis Carroll’s classic advice on the construction of language:
‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean – neither more nor less’” (Tennessee Valley Autho rity v.
Hill: 1978).
The law is portrayed in hilarious fashion in Carroll’s works. The Queen of
Hearts is quick to condemn, calling for the head of nearly everyone she encounters, but fortunately enforcement is weak, and the King issues pardons. It is th e King who sits as the Judge in the big trial. The jury of creatures “were all writing very busily on 164
slates” before the trial began, which the Gryphon explained to Alice: “They’re putting down their names … for fear they should forget them before the en d of the trial”
(Carroll 1992: 164).
Then the White Rabbit “blew three blasts on the trumpet, and unrolled the parchment -scroll” to read the accusation: “The Queen of Hearts, she made some tarts,
All on a summer day: The Knave of Hearts, he stole those t arts And took them quite away!” “Consider your verdict” the King ordered the jury. But judgment is delayed, as the White Rabbit reminds the Judge that “there’s a great deal to come before that!”
– witnesses for example (Carroll 1992: 166 -167).
The wi tnesses take the case sideways but in time the tarts are seen on the table; still the King calls for the verdict, followed by the Queen, who calls for “sentence first
– verdict afterwards” (Carroll 1992: 187). Alice objects to this as “stuff and nonsense, ” only to have the Queen call for her head, to which she responds: “Who cares for you? … You’re nothing but a pack of cards!” The trial ends in chaos as all the cards in the courtroom rise up “and come flying down upon her” (Carroll 1992:
188).
It spea ks well of judges that they cite Carroll and do not fear the comparison to his perspective on the justice system. Nor do judges apologize for citing children’s literature, whether it is by Lewis Carroll, Mark Twain, Charles Dickens or Dr. Seuss. 165
The no vel “was born in the middle of the eighteenth century, and the first children’s bookstore opened almost immediately thereafter” (Goldthwaite 1996: 10).
As the romanticism of the late 1700s and early 1800s transformed into a period of realism in American l iterature, more imaginary works were packaged as children’s literature. The literature grew. Among these works are tales that retain the what - happens -next type of story form that has passed down through the ages from Homer to
Shakespeare to Dickens to Tw ain to Carroll -- authors cited in animal law cases. Legal scholarship is acknowledging this relation, with one author writing that “mythological elements of children’s stories ought themselves to be regarded as an essential site for the emergence of part icular understandings of law” (Manderson 2003: 4).
In his Natural History of Make Believe , Goldthwaite writes that “important years for make -believe were … roughly from the 1840s to the 1950s” (Goldthwaite
1996: 11), and that the “role of make -believe i s to baptize the imagination”
(Goldthwaite 1996: 12). It is thought that we are in the midst of another imaginative era.
Animal stories will probably always have a safe harbor in children’s literature.
In her book Why the Wild Things Are , Gail Melson re lates that “in a study of 650 children from ages two to ten, half of all the inkblot interpretations involved animal images. After age ten, animal imagery emerging out of inkblots gradually subsides, 166
but adults typically describe animals in Rorschach inkb lots at least a quarter of the time” (Melson 2001: 137).
Melson, like others, has recommended “a fresh look at children’s picture books, stories, and school readers, many of which are tales told by and about animal characters” so that the symbolic roles might be decoded (Melson 2001: 15).
For this study, the Publisher’s Weekly Top 50 All Time Bestselling Children’s
Books (Appendix C) were analyzed to determine the presence of animals and imaginary creatures. Among the story books (not counting dictiona ries and reference books), animals and imaginary creatures were found in more than 90 percent of the tales, with the most numerous appearances by dogs, cats and horses – favorites of the judiciary too. Over 100 different kinds of animals populate the book s, with almost as many different kinds of imaginary creatures alongside.
Tables 3 -20 and 3 -21 show the depopulation of imaginary beings from the natural histories, and the coinciding expansion of the imaginary realm in literature. 167
TAB LE 3.20, SCIENCE -- ANIMALS AND IMAGINARY CREATURES
ARISTOTLE PLINY ALBERT THE TOPSELL DARWIN ESA GREAT SCIENTISTS 350 BC 50 AD 1250 1607 1859 2000 Fish Bees Falcon Dog Dog Arachnid Horse Elephant Horses Ape, monkey Hare, rabbit Crustaceans Dog Lions Hawk Cattle Pigeon Birds Elephant Dolphin Dogs Goat Cow, cattle Mammals Snake Horse Eagles Deer Beetle Clams Cow Eagle Elk Thrush Amphibians Lion Dog Mouse Bee Insects Pig Hippo Lynx Elephant Fish Bee Owl Sheep Whale Reptiles Deer Peacock Snake Wolf Snails
IMAGINARY IMAGINARY IMAGINARY IMAGINARY IMAGINARY IMAGINARY
Basilisk Basilisk Satyre Phoenix Phoenix Gulon, Su Triton Sirenes Man ape Dragon Dragon Dragon Sphinx Sphinx Sphinx Mantichora Chymer a Mantichora Sea monsters Sea beasts Monster Unicorn Unicorn Unicorn Corocotta Centaur Lamia Hydra Hydra Harpy Aegopithecus 168
TABLE 3.21, LORE – ANIMALS AND IMAGINARY CREATURES
HOMER SHAKESPEARE DICKENS TWAIN LEWIS TOP 50 CARROLL 750 BC 1600 1840 -1870 CHILDRENS 1865 -1910 BOOKS 1865 -1871 1902 – 2000 Dogs Dogs, hounds Dogs, hounds Dog, hounds Cat, Kitty Dog Cattle Horse, mare Mouse Horse Rabbit Cat Fish Bird Horse, mare Spider Mouse Horse Goat Worm Birds Cow Ea glet Mouse Owl Serpent Worm Elephant Dodo Rabbit Dolphin Wolf Cow Mule Lory Cow Dogfish Lion Butterfly Turkey Walrus Bear Hawk Deer Elephant Snake Lion Duck Worms Tiger Cat Whale Turtle Owl Sheep Fish Monkey Squirrel Lobster Pig …
IMAGINARY IMAGINARY IMAGINARY IMAGINARY IMAGINARY IMAGINARY
Cyclopes Monster Ghost Ghost Cheshire cat Witch Circe Ghost Giant Devils White Rabbit Ghost Laestrygonians Dragon Monster Monster March Hare Dragon Sirens Witch Goblin Witch Mad Hatter Elf Lotus -eaters Phoenix Serpent Serpent King & Q Hearts Giants Scylla Goblins Dragon Dragon Knave of Hearts Goblin Charybdis Mermaid Griffin Gryphon Leprechaun Calypso Centaur Witch Mock Turtle Mer -people Gorgon Harpy Ghoul Red King & Q Santa Muses Griffin Mermaid White King & Q Troll 13 Gods Sphinx Unicorn Jabberwock Unicorn Agents Sphinx Jubjub bird Wizard Familiars Siren Bandersnatch Werewolf Sea monster Hydra Tweedledum Centaur Tweedledee Gnome Rockinghorse fly Sphinx Monster 3 headed dog Humpty Dumpty Phoenix Toves Hippogriff Unicorn Basilisk Skrewt Boggart Hinkypunk 169
Kappa Kelpie Pixie Grindylow Manticore Double tail dog Sewer Monster Duck dog Woozle Heffalump Grinch Who Thing 1 Thing 2 Yipiyuk Nook Gox Yink Yop Zeds Mewhoo Exactlywatt Razortooth Sline Flying Festoon Fryemup Dan Zizzerzazzerz uzz Q. quackeroo Upsidedownman Pinocchio Dwarf … 117 animals + 96 imaginary 170
3.2.3. Summary of American Animal Law Cases
Doministic and Utilitarian Values
The judiciary, like Congress, expresses top prior ity for the economic considerations in its decisions: 69 percent of the non -endangered species animal law cases reflect a utilitarian or doministic value. And, like Congress, the most important animal within this area of cultural concern is the fish, whi ch is also the most prevalent of vertebrate species worldwide.
TABLE 3.22, DOMINSITIC AND UTILITARIAN VALUES SUMMARY
ANIMAL % D/U
1 FISH 92 %
2 BEES (INSECTS) 82 %
3 OTHER DOMESTIC 82 %
Humanistic and Moralistic Values
The court decisions also va lue dogs, cats, horses, birds and other domestic animals, the vertebrates closest to us. These are the creatures we have surrounded ourselves with for many thousands of years, and with whom we have worked out relationships over time. The moralistic and h umanistic values are reflected in 21 percent of cases, a percentage that is likely to increase. 171
TABLE 3.23, MORALISTIC AND HUMANISTIC VALUES SUMMARY
ANIMAL %
1 DOGS, CATS, HORSES 32 %
2 BIRDS 21 %
3 OTHER DOMESTIC 12 %
Negativistic
The negativist ic value is found in 10 percent of cases, a percentage that is likely to decrease as time goes on. Excluding reptiles as a small sample, it is the wild mammals who draw the most negative responses, followed by dogs, cats and horses.
TABLE 3.24, NEGATIV ISTIC VALUES SUMMARY
ANIMAL %
1 WILD MAMMALS 17 %
2 DOGS, CATS, HORSES 10 %
Literary
There is no formal role for literature in legal opinions. A citation to a literary work does not have the authority of a citation to legislation, prior court decisi ons, legislative history, or legal scholarship. But in these animal law cases, when a literary work was mentioned, or when the opinion took on a marked narrative style, the outcome for the animal or its owner was most often favorable. The value expressed by 172
the courts in these decisions was almost always humanistic or moralistic. A remarkable eight percent of the cases had a literary dimension, with birds, little creatures, dogs, cats and horses inspiring the most invocations of imagination by the judici ary. The percent would likely be higher if working dog cases (seeing eye and bloodhound) had been included in the study group but they were excluded due to the specialization of the issues involved.
TABLE 3.25, LITERARY DIMENSION SUMMARY
ANIMAL %
1 BIRDS 19 %
2 INSECTS 10 %
3 DOGS, CATS, HORSES 9 %
Some of these literary -minded decisions called on legends dating back to
Egypt, engaged in story like narrative, or took on the form of fables and poems, but many cited, quoted or referenced works by g reat authors. Earlier discussions in the study describe the extensive role for animals and imaginary creatures in the works of authors cited by the judges, including Homer, Shakespeare, Dickens, Twain, Rawlings and even Dr. Seuss and Lewis Carroll.
Tab le 3.26 shows the birth date of these and other authors who were cited in animal law cases as inspiration for decisions that often supported the interests of the animals or their owners. 173
TABLE 3.26, POPULAR CITATIONS
AUTHOR BORN
Homer 800 BC
Shakesp eare, William 1564
Milton, John 1608
Watts, Isaac 1674
Blake, William 1757
Burns, Robert 1759
Byron, Lord 1788
Dickens, Charles 1812
Arnold, Matthew 1822
Carroll, Lewis 1832
Twain, Mark 1835
Rawlings, Marjorie 1896
Faulkner, William 1897
Seuss, Dr. 1904
Welty, Eudora 1909
Science
The non -endangered species animal law cases did not make use of science for the most part. Yet, the animals in Darwin’s work are much like those prioritized in law and literature: the dog, rabbit, common birds, cows and even bees. The 174
familiarity of these animals likely contributed to the communication power of
Darwin’s work. The animals prioritized by the scientists setting goals for the
Endangered Species Act, however, do not mirror the priorities of non -scie ntists. The unfamiliarity of species combined with technical writing, contribute to the communication problems of modern scientists.
In general, surveys of Americans demonstrate a “hierarchy of concern” for animals, with people having the highest concern for dogs subjected to research (89%), then seals (85%), whales and dolphins (84%), horses (78%), birds (76%), cats (71%), farm animals (70%), rabbits (67%), fish (64%), and then much less concern is expressed for mice (34%), frogs (33%), and snakes (21%) (Herzog et al.: 61). This hierarchy includes the species prioritized in judicial decisions that reflect humanistic or moralistic values.
In the next pages the priorities of modern conservation biologists and those of courts dealing directly with enda ngered species cases will be compared, to see how the science -based law is interpreted by the judiciary 175
3.3 Endangered Species Cases
During the last quarter of the 20 th century, laws that recognize the value of rare species were passed. Federal catego ries of protection include migratory birds, marine mammals, ocean fish, and endangered species (Bean and Rowland 1997: 61). “The
Endangered Species Act defines species to include subspecies of fish, wildlife and plants and distinct population segments of vertebrate fish and wildlife that interbreed when mature” (Peterson 2002: ix). However, plants have less protection under the federal law, since few penalties attach to private or local government impacts to endangered plant life (Endangered Species Act, Section 9). In the next pages there is discussion of how the judiciary writes about endangered animals and how their perspective compares to that of scientists.
3.3.1 Overview of Cases
It is reasonable to suppose that the application of a science -based law w ould result in judicial interpretations where Kellert’s scientific value would find strong expression. This is not happening in endangered species decisions, however. The great majority of cases before 2000 express the doministic value in the sense that they turn on the question of who has ownership and control of the decision, the timing, or the information that will affect animals. Is it the Executive Branch? Or an agency? 176
Or individuals who challenge the decision? Once the decision about authority is made, the effect on the endangered animal could be beneficial, neutral or detrimental.
By my reading of approximately 250 endangered species cases through 2000, it is the doministic and utilitarian values that find strongest expression in around 88 pe rcent of the cases, compared to 69 percent in non -endangered species cases. Science is prominent in 11 percent of these cases, and the humanistic, symbolic and negativistic values share the remaining one percent of cases.
For a law designed to protect s pecies, a fairly high number of cases end without additional process or decisonmaking that might benefit the species. In cases selected through 2000, about 36 percent of the decisions do not favor the species at issue.
The endangered species cases are unl ike other animal law cases in tone and style. They are cold and clinical, compared to the non -endangered species cases. It is almost unthinkable that certain lines from the animal law cases would be found in endangered species cases: that outdated stand ards would be called “crudities”
(Shand), or the actions of people in a conflict be characterized as “heartless, flagrant and outrageous” (Burgess). With a few exceptions mostly at the Supreme Court level, endangered species decisions also lack a literary or narrative dimension, despite that nearly 60 percent of the animals in selected decisions through 2000 were large and another 17 percent were charismatic. 177
One explanation for differences could be that endangered species cases are constrained by the ap paratus of a statute; they are outside the story -telling, culture -rich approach of the common law. But the same could be said of most animal law cases these days, which involve state laws and complex codes. It is not the statutory nature, but the scienc e-based nature of the Act that creates differences. Generally, the common law approach and “tradition contribute a great deal to the interpretation of legislation and regulation” (Hughes 1996: 23), unless the rule involves “detailed language and technical data beyond a court’s competence” (Calabresi 1982: 162).
This is one problem contributing to the disengagement of the judiciary . Judges lack ownership of scientific information and they do not have ready access to a better understanding, given the natur e of scientific writing.
Another problem that contributes to the disengagement of judges in these cases is that the fact situations usually lack an encounter between an individual and an animal. Endangered species fact patterns are cast as abstractio ns: for example, when industry objects to actions that protect an animal identified in Latin by its genus and species, it is more difficult to connect with the parties. But when a runaway bull, or trespassing turkeys, or a dog who has a name creates a pr oblem, then the judge can more easily imagine himself in the situation, and he can imagine himself getting out of the situation through the resolution of the problem. This process of engagement might 178
call to mind a good story, too. But the abstract confl ict of an interest group, and an unseen endangered species identified in a foreign language, does not offer the same invitation. In the words of one scholar: “The confrontation with an animal is a very fundamental human experience, which puts us in touch with a realm largely prior to the great dualities which we manipulate in the development of human culture.
Animals mediate between human beings and the inanimate world” (Sax 1990: 18).
Without this engagement, there will be no inspiration to narrative ; without the narrative there will be no investment of imaginative powers; and without that, the judge will not be of the mindset to “model the world in a different way” (Atran 2000:
108).
The endangered species decisions stay within the narrow bounds o f the Act, often describing these boundaries in elaborate detail. This is a problematic position given that even if the Endangered Species Act was fully funded and aggressively implemented, it would not address the larger problem of collapsing natural sys tems, since the law is species based, not mindful of natural systems, and it is limited to a set of species who gain legal attention when it is almost too late to recover them. At -risk species and habitats are greatly in need of a more expansive legislati ve framework, and an engaged judiciary. In the next pages, representative cases from the first twenty -five years of the Endangered Species Act will be discussed. 179
Mammals
A striking feature of cases brought under the Act is the amount of litigation ove r animals who are not native to the United States. Does U.S. funding for foreign projects create a nexus requiring application of the Endangered Species Act? The
Supreme Court did not think so (Lujan v. Defenders: 1992). Still, elephants, leopards, kang aroos, “an Afghan Urial ovis orientalis blanfordi,” orangutans, gorillas, cheetahs, rhinos, tigers and the Giant Panda have all been the subject of federal court decisions under provisions of the Act.
Mammals are among the most litigated endangered anim als, but the cases brought to court involve primarily large and charismatic members of the group: whales, grizzly bears, seals and sea lions, and wolves. Justice Marshall found himself dissenting in a 1986 case where overharvesting of whales by Japan was tolerated given a negotiated agreement about future limits. Quoting Melville in one of the few endangered species cases that makes reference to literature, he wondered “whether
Leviathan can long endure so wide a chase, and so remorseless a havoc; whethe r he must not at last be exterminated from the waters, and the last whale, like the last man, smoke his last pipe and then evaporate in the final puff” (Japan Whaling Association v. American Cetacean Society: 1986)
In a 1992 case, the court did engage in a discussion about the science of whales 180
when aquarium plans to import whales met advocates’ objections. The court interpreted information to say that whales will still “be found in the ocean in abundance,” however, and the aquariums adherence to process led to a decision in their favor (Animal Protection Institute v. Mosbacher: 1992).
There are numerous grizzly bear cases that debate management on public lands. But private party conflicts with bears create some of the most compelling fact situations in endangered species case law. The Supreme Court denied cert to Richard
Christy who leased land near a federal park and lost twenty sheep to roaming grizzlies.
Justice White wrote a brief dissent, citing Blackstone and the Constitution to say the right to defend property “has long been recognized at common law and it is deeply rooted in the legal traditions of this country” (Christy v. Lujan: 1989).
Ranchers have been involved in conflicts resulting from wolf recovery and reintroduction programs too (New Mexico Cattle Growers v. USF&W: 1999), as have hunters (U.S. v. McKittrick: 1998; Gibbs v. Babbitt: 2000). The reintroduction program of the 1990s shows the variation in agency action over the course of the last decades. In the 1980s, conservation int erests sued Interior for not taking enough action to protect wolves (Defenders v. Andrus: 1980; Sierra Club v. Clark: 1985).
Initially, science played a limited role in the review of listing decisions.
Discussed in more detail below, a 1997 court questi oned the basis of an agency 181
decision not to list the lynx as endangered when it “contradicted the advice of its own experts.” “Although the Court must defer to an agency’s expertise, it must do so only to the extent that the agency utilizes, rather than i gnores the analysis of its experts”
(Defenders of Wildlife v. Babbitt: 1997).
In 1998, another court rejected federal agency rationale when permits allowed
Alabama Beach Mouse habitat to be impacted. The court was unimpressed by the agency’s best guess that impacts would not effect the viability of the species and held that Fish and Wildlife “must gather the necessary scientific data and conduct the required scientific analysis” in order to avoid making an arbitrary and capricious decision (Sierra Club v . Babbitt: 1998).
This case reflects the lay perspective that science can provide ready answers: the answers are out there, if only the foot -dragging federal biologists would have the pluck to go get them! Expectations can be unreasonably high, since n atural resource science and its research techniques are little understood and not well communicated to the non -scientists.
In another mouse case, the judge interpreted competing scientific decisions as evidence of bias on the part of the scientist who re commended the greatest protection measures (Joy Morrill v. Lujan: 1992). Holly Doremus, a scholar versed in law and biology, has described the dilemma of scientists working with endangered species 182
issues. “Congress [and others have] repeatedly emphasized the importance of science in conservation decisions, behaving as if the science of conservation has no limits,” but science alone can not “resolve the problems plaguing the ESA” because it “cannot tell us whether a group of organisms has value to society, or what risk of extinction society should tolerate” (Doremus 1997: 2).
The agencies are forced into a “science charade in which they must pretend to make non -scientific decisions entirely on the basis of science” (Doremus 1997: 2 -3).
A better approach would “combine scientific credibility with democratic legitimacy”
(Doremus 1997: 3).
Birds
Most of the birds involved in endangered species litigation through 2000 were charismatic: the bald eagle, spotted owl, peregrine falcon, Mississippi Sandhill c rane,
California condor, and whooping crane. The bird controversies that have led to recent advances in the law, and the best applications of science, have involved the Palila bird from Hawaii, the Northern Spotted Owl and the Redcockaded woodpecker, disc ussed further in the next pages. A decision involving the piping plover in Massachusetts was significant in that it made local governments part of the chain of liability under the Act when permits lead to impacts by private parties (US v. Town of Plymouth : 1998). 183
Fish
Fish litigation is dominated by species who are relatively big, and in conflict with the economy. Salmon are the most contested fish, but conflicts involving suckers and small desert fish have occurred. Two small fish have had some of t he largest impacts on natural resource law. The Devil’s Hole pupfish is endangered but found protection under the Antiquities Act, with the Supreme Court holding that when land was set aside for the preservation of the pupfish “it acquired by reservation water rights … sufficient to maintain [its habitat and] preserve its scientific value” (Cappaert v. U.S.: 1976). The justices demonstrated an understanding of fish ecology as they arrived at their 9 -0 decision in favor of the pupfish.
The snail darter is the other tiny fish that made a big statement as the Supreme
Court found that the Endangered Species Act required “the permanent halting of a virtually complete dam for which Congress has expended more than $100 million” …
“since the language admits of no exception” (TVA v. Hill: 1978).
Reptiles
The most litigated reptiles are almost exclusively the large and popular species: sea turtles of all kinds, and the desert tortoise. Crocodiles, alligators, snakes a few small lizards and turtles have b een discussed in the opinions issued during the first 184
quarter century of the Act. In the sea turtle cases, scientific information has aided decision making in the turtle excluder conflicts, and in Volusia County’s efforts to ensure that beachfront lightin g does not confuse newborn baby turtles as they make their dash for the ocean, guided by the reflection of the moon off the water.
Other Animals
Amphibians, insects, snails, clams, crustaceans and arachnids have been the subject of relatively few ca ses. In 1985, conservation measures for Mission Blue butterflies were litigated after the agency issued one of the first Section 10 permits.
Friends of Endangered Species argued that the study relied upon by the agency was flawed. The court found that t he agency knew of limitations but complied with the law, relying on the best science available (Friends v. Jantzen: 1985). 185
3.3.2. Science in Court
The Endangered Species Act specifically requires reliance on science. For decisions about listing species, the agency is to rely “solely” on the best available scientific and commercial data. In listing habitat, science and economic information is relevant to the decision. The first twenty -five years of cases under the Endangered
Species Act show th at the determinations are usually not shaped by the judge’s understanding of science, but rather are concerned with the question of who controls decision making and information about species.
The courts for years deferred to the United States Fish and Wi ldlife Service, but the agency is often in court as interest groups disagree with the agency’s statement of scientific information, some interest groups arguing that it is too strong, others arguing that it is too weak. Now the judges themselves are joini ng the interest groups as critics of the agency, for not having ready answers. For more than twenty years following passage of the Endangered Species Act, the courts tended to respect the judgment of agency scientists, but “this aura of immunity began to crumble ... in the mid -1990s” (Ruhl 2004b: 3), soon after the Supreme Court handed down the Daubert decision.
In the 1993 case of Daubert v. Merrill Dow Pharmaceuticals, the Court
“developed threshold standards for the admission of scientific evidence” ( Doremus 186
2004: 8), and in doing so, adopted scientific standards with the intent to guide trial court judges so that they can be effective gatekeepers on the reliability of such evidence. “Seven justices agreed that the meaning of a key phase in the Federa l Rules of Evidence – scientific knowledge – cannot be given intelligent meaning without venturing beyond the standard law library into the domains of science and philosophy”
(Foster 1999: 2).
More than twenty amicus curiae were filed by scientific and m edical organizations, with the National Academy of Sciences describing the importance of the scientific process, and the American Medical Society and New England Journal of
Medicine describing the importance of peer review.
The Supreme Court upheld Rule 702 as the test for admitting the testimony of scientists in trial court. It reads in part: “If scientific ... knowledge will assist the trier of fact to understand the evidence,... a witness qualified as an expert ... may testify ... if
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case” (USC Fed Rules Evid R 702).
The Daubert case provi ded trial courts with guidelines to assess the reliability – and therefore admissibility -- of the science based testimony. The trial judge can ask whether the scientific theory or technique offered by the expert (1) is testable; (2) has 187
been peer reviewe d; (3) has a low rate of error; (4) enjoys consensus support of science community; and (5) and is subject to a standards and controls. Chief Justice Rehnquist grumbled in his dissenting opinion about the “markedly different” briefs not being “the sort of material we customarily interpret” (Daubert 1993: 18). He was having none of the Majority’s open door policy to science, writing that he was “at a loss to know what is meant when it is said that the scientific status of a theory depends on its
‘falsifiabi lity’” (Daubert 1993: 19).
Daubert, nonetheless has been influential in encouraging judges to question rather than defer to science in endangered species cases. Now courts expect that biologists have answered these and other questions (Ruhl 2004a: 3 -4):
______
TABLE 3.27: QUESTIONS ARISING FROM AGENCY DETERMINATIONS (RUHL):
# Listing (Section 4): Species? Sub -species? Distinct population? Range? Threats? Over -
utilized? Disease? Predation? Likely to become extinct? Probability of extinction? Timeline of
extinction?
# Critical Habitat (Section 4): Essential habitat? Management? Space needs? Physical and
physiological requirements? Location of breeding? Location of habitat? How much habitat?
# Recov ery Plans (Section 4): Measures to recover? Site specific? General management? 188
# Jeopardy (Section 7): Direct effects? Indirect effects? Cumulative effects? Impact on
population? On reproduction? On recovery in the wild?
# Take Prohibition (Section 9): Haras s? Shoot? Pursue? Hunt? Kill? Trap? Capture? Collect?
Harm, so extensive as to kill or injure individuals? Intent?
# Incidental Take Permit (Section 10): Minimize? Mitigate? Not reduced survival/recovery in
wild? Extent of take? Mitigation ratio for species ? Funding? Management? Monitoring?
Duration?
______
Given the habits born of a quarter century of judicial deference, and scientists reluctance to translate or popularize their information, it i s not too surprising to learn that half of the forty -two legal challenges brought under Section 7 have led to at least partial rejection of the agency determination by courts (Doremus 2004: 53).
More striking is this result: of thirty -two “reported deci sions evaluating the merits of agency listing decisions, seventy -eight percent have ruled against the agency,” not including those cases involving missed deadlines (Doremus 2004: 17).
The reasons for rejection, compiled by Dr. Doremus, reflect the magnitu de of the communication gap between judges and scientists. 189
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TABLE 3.28: REASONS FOR REJECTING LISTING DECISIONS (Doremus 2004: 17, 51 -53) :
# ‘Failure to describe assessment of science 1
# Failu re to explain science determination according to requirements of law 2
# Failure to cite support for decision 3
# Failure to consider available data and information 4
# Failure to allow public access to science data and information 5
# Incorrect interpretation of the law 6’
______
In two recent cases, separate courts rejected U.S. Fish and Wildlife decisions involving the California tiger salamander (CBD v. USF&W) and the Gray wolf (NWF v. Norton): both invol ved combining distinct populations in an effort to reduce
1 (1) Moden v. USF&W, 281 F. Supp. 1193 (2003); (2) Fund for Animals v. Williams, 246 F. Supp. 2d 27 (2003); (3) Friends v. USF&W, 12 F. Supp. 2d 1121 (1997) (Doremus 2004)
2 Defenders v. Norton, 258 F.3d 1136 (2001) (Doremus 2004)
3 Carlton v. Babbitt, 900 F. Supp. 526 (1995) (Doremus 2004)
4 (1) Connor v. Burford, 848 F. 2d 1441 (1988); (2) San Luis v. Badgley,136 F. Supp. 2d 1136 (2000); (3) Friends v. USF&W, 945 F. Supp. 1388 (1996) (Doremus 2004)
5 (1) Alabama -Tombigbee v. Interior, 26 F. 3d 1103 (1994); (2) Idaho Farm v. Babbitt, 58 F.3d 1392 (1995); (3) Endangered Species Comm. v. Babbitt, 852 F. Supp. 32 (1994) (Doremus 2004)
6 (1) Homebuilders v. USF&W, 268 F. S upp. 2d 1197 (2003); (2) American Wildlands v. Norton, 193 F. Supp. 2d 244 (2002); (3) Alea Valley v. Evans, 161 F. Supp. 2d 1154 (2001); (4) Middle Rio Grande v. Babbitt, 206 F. Supp. 2d 1156 (2000); (5) Oregon NRC v. Daley, 6 F. Supp. 2d 1139 (1998) (Dor emus 2004) 190
protection. The California judge called the agency’s determination “bereft of any analysis” while the judge in the wolf determination criticized the agency decision as one “based upon geography, no t biology” (Orders, August 18, 2005).
In most rejections, the message from the Judge to the scientist is, ‘I’m not convinced, yet.’ But in rare instances, courts will “expressly reject the agencies’ substantive scientific determinations” (Doremus 2004: 17 ). Examples of such determinations are described below.
Northern Spotted Owl A “prominent example” of a case that involves “a direct challenge to the substance of a listing decision” is the 1988 decision of Northern
Spotted Owl v. Hodel (Bean and Rowla nd 1997: 207). Though short, the decision traces the scientific scholarship about the northern spotted owl from the
“comprehensive studies of its natural history by Dr. Eric Forsman, whose most significant discovery was the close association between spott ed owls and old growth forests,” (NSO 1988: 2), to the work of the expert group assembled for the 1987 status review of the species, “including Dr. Mark Shaffer, staff expert on population viability” (NSO 1988: 3). Shaffer’s study found that “continued ol d growth harvesting is likely to lead to the extinction of the subspecies in the foreseeable future,” a
“prognosis” that all peer reviewers (Soule, Wilcox and Goodman) agreed with (NSO
1988: 3, 6). Yet the U.S. Fish and Wildlife Service issued a finding t hat the proposed 191
listing was “not warranted at this time” (NSO 1988: 4). Refusing to offer judicial deference “blindly,” the Court found that the “Service has not set forth grounds for its decision against listing the owl” (NSO 1988: 5), and gave the agen cy 90 days “to provide an analysis for its decision” (NSO 1988; 7). In 1990 the agency listed the owl as threatened.
Canadian Lynx A decade after Northern Spotted Owl a similar fact situation arose, but this time the animal considered for listing was t he Canadian lynx. In
Defenders of Wildlife v. Babbitt, a group of agency biologists recommended that the
Lynx be listed, but the Acting Director rejected the proposal in a five page memo that
“cited no scientific study or Lynx expert, but instead set fort h a number of conclusions that directly contradicted the conclusions reached by the Region 6 biologists” (DW
1997: 5). Citing Northern Spotted Owl v. Hodel the court stated it would “defer to an agency’s expertise ... only to the extent that the agency ut ilizes, rather than ignores, the analysis of its experts”; therefore in this case the decision not to list the lynx “must be set aside” (DW 1997: 14).
Slickspot Peppergrass In August 2005, a federal district court reversed a decision by the U.S. Fish and Wildlife Service to withdraw a listing proposal for
Slickspot peppergrass. The agency found no “strong evidence of a negative population trend,” but the judge said this conclusion, in light of agency determinations that the 192
plant had 82 percent chance of extinction in 100 years or less” “defies common sense and the FWS own experts’ conclusion and recommendations” (Order: 25 -26).
As judges become comfortable doubting the credibility of information, a new problem will arise. To whom will the courts defer in the future? Professor Doremus writes that the best available science requirement in the Endangered Species Act has encouraged the judiciary to take a “hard look” at the decisions of the agencies, and while not often altering “the substantive treatment of science” it puts pressure on the
“agencies to make reasonably good use of science in their substantive decisions”
(Doremus 2004: 26). The remedy to this problem involves “more transparent decision making, a commitment to continually increasing knowledg e,” (Doremus 2004: 27), and, I would add, a willingness to animate the understandings of science in order to better convey them to non -scientists.
In the future, courts will defer to the best translators of scientific information.
They will be drawn to t he best narratives. And they will prioritize endangered species that obtain cultural relevance or that are made conspicuous through the telling. 193
3.3.2. Sweet Home and Palila: Anima, Animus, Animal
The phrase “to animate” is a cognate of the Latin word ani ma, which means spirit in the first declension, but the second declension (animus) means mind, and the third
(animal) means living creature. This section describes two of the most far reaching endangered species cases, Sweet Home and Palila, and considers the ways in which the animation of the creatures discussed contributed to the favorable outcome, and led to an acceptance of scientific information.
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon is among the most important cases involv ing the Endangered Species Act that has gone before the Supreme Court. In 1995 the Court upheld the definition of harm that Interior was using to define ‘take’ under Section 9:
“Harm, in the definition of take in the Act means an act which actually
kills or injures wildlife. Such an act may include significant habitat
modification or degradation where it actually kills or injures wildlife by
significantly impairing essential behavior patterns, including breeding,
feeding or sheltering” (Bean and Rowland 1 997: 214).
This definition came through to the high court by way of Hawaii, where the district court in 1979 found that the State, by allowing feral sheep and goats to destroy the mamane -naio forest, habitat of the endangered Palila bird, had engaged in th e 194
“unlawful taking of the Palila” (Palila 1979: 15). Stated another way: the “significant environmental modification or degradation” caused by the feral animals was “actually injuring or killing” the Palila bird (Palila 1979: 14). The Ninth Circuit uphe ld the decision in 1981, adding that “the district court’s conclusion is consistent with the
Act’s legislative history showing that Congress was informed that the greatest threat to endangered species is the destruction of natural habitat” (Palila 1981:4, citing TVA v.
Hill).
Palila has been called “quixotic” for its daring attempt to confirm that habitat modification falls within the prohibitions of Section 9, and for the fact that the case was brought in the bird’s name. A “stuffed Palila” was carried in to court each day by the lead attorney and “placed prominently at the counsel table” (Houck 2004: 30), animating the discussion about the bird, and in another sense, creating a kind of encounter that is usually missing with endangered species, if for no ot her reason than their low numbers.
Neither the bird’s standing to sue, nor the characterization of habitat degradation as “take” caused the lower courts to struggle. The opinions of the federal district court judge and the Ninth Circuit panel reflect an a cceptance of principles of ecology. But, what was clear in Hawaii when the financial stakes were relatively low and opposing interests were sport hunters, became foggier in the continental U.S., 195
when the interests were “landowners, logging companies, and families dependent on the forest products industries in the Pacific Northwest and in the Southeast” (Sweet
Home 1995: 3).
Now the bird in controversy was not the exotic and distant Palila, but the much litigated poster -child for endangered species conflict , the Northern spotted owl. And there was an accomplice too, from the Southeastern United States, the Red -cockaded wookpecker. The record created by the Sweet Home case is a fascinating set of documents. The next pages describe the Amicus Curiae briefs, which show the agency, owl and woodpecker to be significantly outflanked; the oral argument transcript, which reveals and illuminates the level of engagement of the Justices; and the Supreme Court decision itself, which reflects the way that legal reasoni ng gets mapped onto scientific principles.
Friends of the Court
A look at the Amicus Curiae briefs filed in Sweet Home would leave the impression that habitat sympathizers did not stand a chance. In four briefs, thirty -one scientists and environmental groups supported the position to include habitat modification within the definition of harm, while in twenty briefs, over seventy interests spoke against this. The seventy opponents represent the power and might of economic interests, encompassing states, tribes, water / cattle / sheep / real estate / oil 196
and gas / farming/ mining and timber interests, chambers, congressmen, counties, cities, banks and foundations.
______
TABLE 3.29: BRIEFS F ILED
BRIEFS FILED IN SUPPORT OF ARGUMENT THAT MODIFICATION CONSTITUTES HARM # Environmental Law Committee of the Association of the Bar of the City of New York # Friends of Animals # National Wildlife Federation, Trout Unlimited, Sierra Club, Defenders, Wilder ness, EDF, Audubon # Scientists: Cairns, Carson, Diamond, Eisner, Gould, Janzen, Lubchenco, Mayr, Michener, Orians, Pimm, Simberloff, Terborgh, Wilson
BRIEFS FILED TO OPPOSE # American Farm Bureau, California / Oregon/ Texas Farm Bureaus # American Forest and P aper Association # California Water Contractors, California Water Agencies, Central Valley Project Water Association # Cargill Incorporated # Chamber of Commerce of the United States, National Association of Realtors, NA Office Properties # Competitive Enterprise Institute # Congressmen Baker and Pombo and the Building Industry Association of Northern California # Davis Mnts Heritage, Texas Farm Credit, Texas Wildlife Association, Defenders of Property Rights # Florida Legal Foundation and Southeastern Legal Foundations # Institute for Justice # Mountain States Legal Foundation, American Sheep Industry, Rocky Mnt Oil, AZ -NM Counties Coalition 197
# National Association of Homebuilders and Council of Shopping Centers # National Cattlemen’s Association and the CATL Fund # Nationwide Publ ic Projects Coalition, Granite Construction, 7 Water Districts, City of Safford, Ocean Beach # Navajo Nation, Jicarilla Apache Tribe, Southern Ute Tribe, Ute Mountain Tribe # Pacific Legal Foundation # State of Arizona, Arizona State Land Commissioner, State of California # State of California, State of Kansas, State of Nebraska, State of Utah # State of Texas # Washington Legal Foundation, Allied Educational Foundation, Fairness to Land Owners Committee ______
Interestingly, the U.S. Fish and Wildlife Service had tried to adopt a weaker definition of harm during the early 1980s, despite Palila, but their proposal “drew a storm of protest” so they aligned the regulation with the Ninth Circuit interpretation
(Bean and Rowland 1997: 214). By 1995, habitat protection was promoted by the US.
Fish and Wildlife Service, but now it had been struck down by the D.C. Circuit Court, and faced difficult odds with the Supreme Court. 198
Oral Argument
Palila was discus sed in the oral argument for Sweet Home on April 17, 1995.
Early in the oral argument, the Court began to ask questions about habitat in relation to animals, by talking about “a frog, or whatever” (Transcript: 3 -4). One Justice asked questions of Edwin K needler, Deputy Solicitor General, that reflect a negative perspective toward Palila.
______
TABLE 3.30: ORAL ARGUMENT, EARLY EXCHANGES (Transcript: 3 -4)
COURT: Do you think that that Palila case from Hawaii is consistent with your view? KNEEDLER: We do.... COURT: What actual injury or death was there, do you know? KNEEDLER: Yes. The goats and sheep were permitted to graze, eating the shoots of the trees on which the protected bird depended f or its entire habitat – in fact for feeding, shelter, breeding – and we think that this fits very readily into the normal understanding of what the word harm means. COURT: What about the word take? ... You’re saying you take an animal when you plow your la nd and accidentally destroy the habitat of the animal. You have taken the animal. I mean, nobody – nobody would use the word in that sense. KNEEDLER: Well the concept of take ... has its roots in ancient wildlife law ...but Congress built upon that
______199
Kneedler continued to handle questions of this sort and then reserved time for rebuttal. When John Macleod presented on behalf of Sweet Home, the conversation shifted when a Justice posed a hypothetical that involved a koala bear. Koala bear conservation was not at all an issue, but the other Justices became engaged at that point, moving from the koala bear to a discussion of “little children” and back to the koala bear, developing their po sition as they went along, the rationale animated by, or inspired by, a conspicuous creature.
______
TABLE 3.31: ORAL ARGUMENT, LATER EXCHANGES
COURT: You know, I just want to know what’s right ... – you see, I felt, ... to be totally honest, that there is no way to reach your position ... without thinking that the person who goes out and kills koala bears for fun is also outside the Act. (Transcript: 16) MACLEOD: Your Honor, I believe that’s a circumstance which would not be covered under the Act. COURT: Yes, that’s right. Now my problem is ... to me it isn’t plausible that Congress wanted to pass this Act and not prohibit a person who for other reasons is shooting the guns off and happens to wipe out a species, knowing it. (Transcript: 17) COURT: As Justice Breyer’s question points out, it seems to me that what you’re saying is not even consistent with the common law of crimes. If [a person] shoots at little children ... because he just want s target practice ... your position [is that he is outside the law]. That’s not even standard criminal liability. (Transcript: 18). ______200
The oral argument began with Justices expressing a utilitarian perspective and then it took a humanistic turn. The Justices became engaged, at least in part, because the koala example created a connection to wildlife, a human understanding of protection, that “a frog or whatever” might not have been able to achieve.
The Justices went from the koala hypothetical to children to legal principles, and then they were in familiar territory. When Kneedler rose for rebuttal the koala bear remained the animal invoked for hypothetical questions, until finally in the last minutes, an irritated Justice asked: “Can’t we pick an uglier example than the koala bear? We don’t have any koala bears in this country, do we? We pick the cutest, handsomest little critter .... “ When the laugher died down, it was seven que stions from the end of the hearing and a successful result for the regulation that protects habitat under the Act. The spotted owl was mentioned only in passing and the woodpecker stayed out of the record altogether.
Written Opinion
The 6 -3 decision by the Supreme Court was divided over the issue of intent, with the majority finding that intent is not relevant. The majority also found that harm does not require “direct” and immediate injury or death, but called upon the tort concepts of foreseeability a nd proximate causation to interpret the regulation. Michael 201
Bean cautions that what is foreseeable to biologists is not necessarily so for judges and non -scientists. The Court’s own examples demonstrated the problem of mapping legal rationale onto scienti fic principles (Bean and Rowland 1997: 216). Still, it was a fortunate turn for the agency, to have an engaged Court find in favor of habitat protection.
Lesson
Science alone did not carry the case in Sweet Home. Wildlife became animated for the Just ices; then they connected with the subject, and put legal reason in service to the ethic of conservation. Boorstin’s essay on the method of law explains how “the all -important factor in [legal reasoning] is what one has a mind to do”
(Boorstin 1996: 191).
A lesson of the animal law cases is that the priorities of folkbiology do find expression. Scientists hoping to conserve animals would do well to translate their findings into a narrative that shows the animal’s cultural importance or distinctiveness. Not everyone has the instant appeal of the koala, but a good story goes a long way to getting the attention those whose decisions reflect and shape our culture. 202
PART III. “WHILE SEARCHING FOR THE EMIC”
4. EPISTEME AND IMAGINATION
4.1. Law is
In prio r discussion, culture, science and literature have been defined for purposes of this paper. This section addresses the questions: How do law and science compare, as disciplines? “What do we know when we know the law?” (White 2002:
1396). And, to bridge the communication gap between lawmakers and scientists, must science be translated, or can law adjust to meet scientific information on its ground?
To begin, here are some comparisons. Science has been defined as an approach intended to maximize certain ty that involves an exploration of the material world in order to explain the relationships among observed phenomena (Feder 1990:
12; Simpson 1964: 91). Science is a field of discovery. Law, on the other hand, is defined as “that which is laid down, orda ined, or established” (Black 1979: 795).
Laws are not discovered, but made. Stated another way, the object of study in science is the material world, while the object of study in law is a constructed world.
Scientific reasoning is different than legal reasoning too. Scientific questions – questions about nature and the physical world -- are addressed by a method that includes candidate explanations which can be tested and disproven if false (Popper
1962: 97). Science moves forward when hypotheses are s hown to be false, and when 203
such candidate explanations hold up. While a hypothesis is not determined to be true when it can’t be falsified, the information that survives repeat testing is likely to provide a more accurate description of nature and the phy sical world than a candidate answer that is not testable. The virtue of the falsifiable standard for theories or hypotheses is that the information which survives such testing contributes to the body of working knowledge available to scientists.
In law, reason is subordinate to values. “Reason must be used to show man the consequences of his system of values and to persuade others to accept that system.
But man must know his values” (Boorstin 1996: 191). “The all -important factor in this process of rea son, then, is what one has a mind to do” (Boorstin 1996: 191).
Lawmakers use reason to justify decisions, rather than to make decisions.
Accordingly, “the greatest power of law lies not in particular rules or decisions but in its language, in the coerciv e aspect of its rhetoric – in the way it structures sensibility and vision” (White 1985: xiii).
In a 1997 article Goldfarb describes differences between law and science, presented in part here: (1) The role of law is to resolve conflict; it is not predic tive or scientific; (2) Law is value laden, by its nature “moralistic and political”; (3) Law is not cooperative, but adversarial; (4) In order to resolve conflict, law is decisive, and decisions are not usually revised in light of new information; (5) The influence of 204
politics makes legal outcomes “geographically variable,” rather than universal; and (6)
Causation as understood in law can be very different than scientific notions of causation (Goldfarb 1997:257).
Table 3.32 presents a summary of distincti ons offered by authors, describing the goals and methods of science and law.
TABLE 3.32: GOALS AND METHODS OF SCIENCE AND LAW COMPARED
SCIENCE LAW
“deals with nature” (Golan:2) deals “with society” (Golan:2)
“organizes knowledge of world” (Golan:2) “d irects our actions” in the world (Golan:2)
“search for cosmic understanding” (Daubert:17) “particularized resolution of disputes” (Daubert:17)
Intent: maximize certainty (Feder; Simpson) Intent: bring an end to conflict/ res judicata (Black)
object of s tudy is the material world Object of study is the constructed world
certainty sought through falsifiability (Popper) certainty sought through cultural authority
ethic of discovery (Faigman 1999:6) ethic of interpreting precedent (Faigman 1999:6)
aspires to be value free inherently value laden
Benjamin Cardozo, among the great judges and talented legal writers in
American history, described his experience of the judicial process. He said, first: “I take judge -made law as one of the existing realities of life” (Cardozo 1921: 10). As to the source of law, it begins with the “habits of life,” which give rise to “juridical conceptions” and then judicial reasoning, which creates legal opinions that serve as 205
precedent for future cases (Cardozo 1921: 19). B ut nowhere in these foundations is there a universal truth of “inflexible validity,” from which conclusions can be reached through deduction (Cardozo 1921: 22 -23).
Cardozo described the thought processes of judges in crafting their opinions.
“We go forw ard with our logic, with our analogies, with our philosophies, till we reach a certain point. At first, we have no trouble with the paths; they follow the same lines.
Then they begin to diverge, and we must make a choice between them. History of custom or social utility or some compelling sentiment of justice or sometimes perhaps a semi -intuitive apprehension of the pervading spirit of our law must come to the rescue of the anxious judge, and tell him where to go” (Cardozo 1921: 43). The
“resulting prod uct is not found, but made” (Cardozo 1921: 115).
Justice Patricia Wald, writing seventy -five years later, described her experience in similar terms. “Judges decide outcomes, and then tell the story in a way that makes the outcome look like a perfectly logical and necessary consequence of the law, handed to us from above, as applied to the facts, handed to us from below. I do not mean to suggest there are not real constraints in the process itself … But skill in storytelling definitely enlarges the sc ope of judicial discretion” (Wald 1995: 11). Precedent is a constraint, but “there is precedent nowadays for virtually every proposition. Judges … have wide choices (Wald 1995: 17), and use “rhetoric to maneuver” (Wald 1995: 28). 206
So law is not a scienc e. In the end, legal knowledge is “not factual, but rhetorical and imaginative” (White 2002: 1399). “The … sciences can provide data the lawyer can use, but to use them he must translate them into terms that make sense to his audience” (White 1989: 5). Law is more like literature, which is a “structured experience of the imagination” (White 1989: 2). Professor James Boyd White writes that what stories offer the law is “not a set of propositions or a method leading to a set of results, but the experience of directing one’s attention to a plane or dimension of reality that is normally difficult or impossible to focus on, namely the ethical and linguistic plane, where we remake in our texts both our languages and ourselves”
(White 2000: 71)
This is what is happening in animal law cases when judges engage in narrative and rethink the boundary lines between humans and animals; and this is why the outcome is so often positive for the animal or its owner. When judges connect with that ethical and linguistic di mension through narrative, they have access to the means of converting empathy to community standards, a method for marrying “wonder to power” – which, Dan Tarlock says is the “central project of conservation law” (Tarlock
1996: 15).
Robert Cover, in hi s famous article Nomos and Narrative said it this way: “in this normative world, law and narrative are inseparably related” (Cover 1983: 2). 207
Manderson takes this thinking one step further: “myth is the fusion of law and literature” (Manderson 2003: 8). The judicial process over time and over the course of many decisions, advances the story of our culture. It facilitates the creation of new myths. The dog, in the course of a century, rose in official status from base to best friend. The hero, over t he course of centuries, is transforming from the monster slayer of Homer’s time to one who can understand and at times can implement Leopold’s land ethic. The overarching myth of culture has shifted from “an ideology of fate to an ideology of the possible … We suspect that shifts of this kind are constantly in progress and that one of the ways of spotting them is by looking at how we deploy our narrative gifts not only in fiction, but in the conduct of the law” (Amsterdam and
Bruner 2000: 134).
It seem s that science will have to translate its findings if the goal is to advance the ethic of conservation or the ethos of biophilia. Making the Endangered Species
Act more science -based will aid in decision support, but science on its own will not ensure the decision goes in the direction of the humanistic or moralistic values. For centuries, stories have been doing this work. An awareness of this fact might make them even more effective. 208
4.2 Conclusion: Across Disciplines, Across Time
A goal of this project was to see animals through the eyes of the lawmakers.
Priorities of lawmakers were examined along with those of natural historians and storytellers through the ages. When all the priorities gathered throughout the study are viewed together, we can see the animals who have been most interesting to us, across the disciplines and across time. They are dogs, cows, horses, elephants and lions. In the words of current scholarship, they are among the most salient, the largest, and the most distinctive animals.
TABLE 3.33: ANIMALS OF LAW, SCIENCE AND LORE, ALL AGES
LAW SCIENCE LORE
DOG DOG DOG
COW COW COW
HORSE ELEPHANT HORSE
SEA TURTLE HORSE LION
DEER LION CAT
WILD CATS RABBIT RABBIT
WHALES BEAR BEAR
BEES FOX FOX
SALMON MOUSE ELEPHANT
CATS OWL MOUSE, OWL 209
Now we have a list; we can note the etic (Rea 1998: xx). The consistency of prioritized animals across time and across disciplines lends support to Atran’s view that
“there is considerable recurrence of symbolic conten t across … [sub] cultures” and “the recurrence owes chiefly to universal cognitive” processes (Atran 2000: 84).
But what do these animals mean? Based on the ideas discussed in this study, these animals are valued because they give us access to imaginati on. Dogs, who we talk to, who return our attention, and who we call by name, provide the most access, because they are already identified as creatures like us “ through their initiation in the magic world of language” (Yamamoto 2000: 117). Horses, lions a nd elephants, who symbolize perfection, danger and the near incomprehensible grandness of what’s out there in the world, provide access to imagination because through them we can consider and reconsider our place and purpose in the world. And cows, domest ics who cooperate with our purposes and gain little in return, connect us with ethical dimensions of imagination where we work and rework the balance between sympathy and survival.
Just as stories lie below and inform the disciplines, these animals repre sent the values that lie below and inform justice – the “habits of life” that Cardozo said were the source of law: friendship, freedom, and fairness. Modern scientists can bring attention to at -risk species through a translation that invokes these time -tested and fundamental cultural concerns. 210
In conclusion, when the techniques of anthropology are used to illuminate patterns in our own modern culture, a powerful source of wisdom is revealed, one that has a strong tendency to benefit animals. Myth and so ng, poetry and stories are not just the province of pre -scientific cultures. They have been inspiring American lawmakers for centuries, and can assist biologists as they pursue their science -based approach on behalf of endangered species. 211
AP PENDIX A, PRIORITIES
MAMMALS, 2000
MAMMAL FY 2000 EXPENDITURE SIZE CATEGORY ECONOMIC RECOVERY CONFLICT PRIORITY 908,760 Bat, gray small 8 29,610 Bat, Hawaiian hoary small 9 1,890,630 Bat, Indiana small 8 263,250 Bat, lesser long nosed small 8 12,000 Bat, little Mariana fruit small 5 130,000 Bat, Mariana fruit small 3 63,100 Bat, Mexican long -nosed small 5 93,600 Bat, Ozark big -eared small 3 255,490 Bat, Virginia big -eared small 9 3,557,250 Bear, grizzly large Yes 3 499,010 Bear, Louisiana black large 9 268,500 Caribou, woodland large Yes 3 438,290 Deer, Columbian white -tailed large Yes 9 520,000 Deer, key medium Yes 6 2,657,840 Ferret, black -footed medium 2 876,160 Fox, San Joaquin kit medium Yes 3 25,420 Jaguar large 6 6,300 Jaguarundi, Gulf Coast medium 6 236,370 Kangaroo rat, Fresno small Yes 3 326,750 Kangaroo rat, giant small Yes 2 105,010 Kangaroo rat, Morro Bay small Yes 6 69,890 Ka ngaroo rat, San Bernardino small Yes 3 Merriam=s 342,060 Kangaroo rat, Stephens small Yes 2 282,830 Kangaroo rat, Tipton small Yes 3 2,441,940 Medium 15 Lynx, Canada
3,820,170 Manatee, West Indian large Yes 5 212
13,500 Mountain beaver, Point Arena medium Yes 9 459,000 Mouse, Alabama beach small Yes 3 3,550 Mouse, Anastasia Island beach small Yes 6 34,550 Mouse, Choctawhatchee beach small Yes 3 38,000 Mouse, Key Largo cotton small Yes 3 234,000 Mouse, Pacific pock et small Yes 3 134,430 Mouse, Perdido Key beach small Yes 3
Mouse, Prebles meadow small Yes 9 2,270,300 jumping 192,140 Mouse, salt marsh harvest small Yes 2 25,540 Mouse, southeast beach small Yes 9 6,530 Mouse, St. Andrew beac h small Yes 3 41,700 Ocelot medium 5 589,170 Otter, southern sea medium Yes 9 1,125,030 Panther, Florida large Yes 6 149,510 Prairie dog, Utah medium Yes 8 890,180 Pronghorn, Sonoran large 3 38 ,000 Rabbit, Lower Keys marsh medium Yes 6 621,460 medium Yes 6 Riparian brush rabbit
2,000 Rice rat small Yes 3 500,450 Sheep, bighorn CA large Yes 3 230,000 Sheep, bighorn SN large 3 10,280 Shrew, small Yes 3 18,000 Squirrel, Carolina northern small Yes 6 flying 212,200 Squirrel, Delmarva Peninsula small Yes 9 fox 10,500 Squirrel, Mount Graham red small Yes 3 120,110 small Yes 3 Squirrel, northern Idaho ground
166,250 Squirrel, Virginia northern flying small Yes 9 68,000 Vole, Amargos a small 6 0 Vole, Florida salt marsh small 6 10,000 Vole, Hualapai Mexican small 3 4,100,170 Wolf, gray medium Yes 8 213
1,705,900 Wolf, red medium Yes 5 76,000 Woodrat, Key Largo small Yes 3
579,944 AVERAGE 5.3
34,216,680 TOTAL (59) 313
BIRDS, 2000
BIRD FY 2000 SIZE CATEGORY ECONOMIC RECOVERY EXPENDITURE CONFLICT PRIORITY
Akepa, Hawaii small 8 49,000 honeycreep
Akepa, Maui small 6 66,000 honeycreep
Akialoa, Kauai small 5 12,000 honeycreep
Akiapola=au small 2 49,000 honeycreep
Albatross, short - large 8 972,860 tailed
Blackbird, yellow - small 2 195,000 shouldered
Bobwhite, masked small 6 0
Broadbill, Guam small 5 12,000
Caracara, Audubon=s medium Yes 9 4,140 crested 573,190 Condor, California large Yes 4 184,370 Coot, Hawaiian medium 14
Crane, Mississippi large Yes 6 70,140 sandhill 8,409,150 Crane, whooping large Yes 2 49,000 Creeper, Ha waii small 8 214
12,000 Creeper, Molokai small 5 71,500 Creeper, Oahu small 5 51,000 Crow, Hawaiian medium yes 2 477,300 Crow, Mariana medium 2 2,000 Curlew, Eskimo medium 5 255,910 Duck, Hawaiian medium 2 47,000 Duck, Laysan medium 2 5,455,170 Eagle, bald large yes 14 948,780 Eider, Stellers medium 9 600,000 Eider, spectacled medium 9 951,200 Falcon, northern medium 3 aplomado 13,000 Finch, Laysan small 8 honeycreep 12,000 Finch, Nihoa small 8 honeycreep 7,930,500 Flycatcher, southwest small yes 3 willow
Gnatcatcher, coastal small yes 3 555,040 California
Goose, Hawaiian medium 2 253,330 41,710 Hawk, Hawaiian medium 14 6,000 Hawk, Puerto Rican medium 6 broad -winged 6,000 Hawk, Puerto Rican small 3 sharp -shinned 41,000 Honeycreeper, small 7 crested 1,037,030 Jay, Florida scrub small yes 2 102,700 Kingfisher, Guam small 3 Micronesian 14,460 Kite, Everglade snail medium yes 3 12,000 Mallard, Mariana medium 5 67,000 Megapode, 9 Micronesian 12,000 Millerbird, Nihoa small 8 32,000 Monarch, Tinian small 14 140,040 Moorhen, Hawaiian medium 9 common 215
96,300 Moorhen, Mariana medium yes 9 common 3,793,900 Murrelet, marbled small 3 6,000 Nightjar, Puerto small yes 5 Rican 111,000 Nukupu honeycreep small 5 12,000 O’o, Kauai small 4 honeyeater 12,000 O’u, honeycreep small 4 2,703,820 Owl, Mexican medium yes 9 spotted 5790,540 Owl, northern medium 3 spotted 1,877,460 Palila honeycreep small 1 1,111,580 Parrot, Puerto Rican small 2 95,000 Parrotbill, Maui small 1 honeycreep 383,900 Pelican, brown large 9 12,000 Petrel, Hawaiian medium 2 dark -rumped 48,000 Pigeon, Puerto Rican medium Yes 3 plain 2,593,190 yes Plover, piping small 2 1,506,990 Plover, western small yes 3 snowy
Po=oulia honeycreep small 4 95,000 77,280 Prairie -chicken, medium 3 Attwater=s greater 518,160 Pygmy -owl, cactus small yes 3 ferruginous 295,480 Rail, California medium yes 3 clapper 472,500 Rail, Guam medium 2 157,230 Rail, Yuma clapper medium 6 172,680 Rail, light -footed medium 6 clapper 12,000 Shearwater Newells medium 3 To wnsends 2,507,150 Shrike, San Clemente small 9 loggerhead 10,161,500 Sparrow, Cape Sable small yes 3 seaside 216
137,150 Sparrow, Florida small 9 grasshopper 75,600 Sparrow, San small 9 Clemente sage 199,420 Stilt, Hawaiian medium 9 3,097,160 Stork, wood large yes 5 142,000 Swiftlet, Mariana ?? 9 gray 1,119,240 Tern, California least small yes 3 1,609,550 Term, least interior small yes 3 pop 115,690 Term, roseate NE medium 3 12,000 Thrush, M olokai small 5 12,000 Thrush, large Kauai small 5 57,000 Thrush, small Kauai small 2 77,000 Towhee, Inyo small yes 9 California 1,638,700 Vireo, black capped small yes 2 948,540 Vireo, least Bells small yes 3 1,330 Warbler , Bachmans small 5 308,200 Warbler, Kirtlands small yes 2 1,458,450 Warbler, golden - small yes 2 cheeked 12,000 Warbler, nightingale small 8 reed 12,000 White -eye, bridled small 6 11,681,390 Woodpecker, red - small yes 8 cockaded
990,120 AVERAGE 5.3
TOTAL (88) 464 87,130,600 217
REPTILES 2000
REPTILE FY 2000 SIZE CATEGORY ECONOMIC RECOVERY EXPENDITURE CONFLICT PRIORITY 1,500 Anole, Culebra Island small 5 giant 2,500 Boa, Mona small 3 81,000 Boa, Puerto Rican small yes 11 6,000 Boa, Virgin Islands small yes 3 tree 32,640 Crocodile, American large yes 2 2,000 Gecko, Monito small 5 11,500 Iguana, Mona ground small 3 241,750 Lizard, blunt -nosed small yes 2 leopard 78,100 Lizard, Coachella small yes 5 Valley fringe -toed 31,000 Lizard, Island night small 8 15,300 Lizard, St. Croix small yes 2 ground 33,500 Rattlesnake New small 3 Mexican ridge -nosed 4,775,040 Sea turtle, gre en large yes 1 3,671,410 Sea turtle, hawksbill large yes 1 3,876,680 Sea turtle, Kemps large yes 2 ridley 3,641,070 Sea turtle, large 1 leatherback 4,837,760 Sea turtle, large yes 7 loggerhead 3, 288,500 Sea turtle, olive large yes 8 ridley 2,320 Skink, bluetail mole small 3 4,100 Skink, sand small 1 1,390 Snake, Atlantic salt small 12 marsh 252,730 Snake, eastern indigo small yes 12 13,860 Snake, copperbelly small yes 3 water 372,600 Small yes 9 Snake, Chocho water
423,600 Snake, giant garter Small yes 2 218
108,000 Snake, Lake Erie Small yes 3 water 79,500 Snake, San Francisco Small yes 3 garter 5,354,370 Tortoise, desert Large yes 8 445,510 Tortoise, gopher Small 9 33,710 Turtle, Alabama red - Small 5 belly 122,940 Turtle, bog Small yes 6 48,000 Turtle, flattened Small 14 musk 0 Turtle Plymouth Small 9 redbelly 14,080 Turtle, ringed map Small 14 9,020 Turtle, yellow Small 14 blotched map 24,500 Whipsnake, Alameda Small yes 9
887,152 AVERAGE 5.8
31,937,480 TOTAL (36) 208
AMPHIBIANS, 2000
AMPHIBIAN FY 2000 SIZE CATEGORY ECONOMIC RECOVERY EXPENDITURE CONFLICT PRIORITY 9,000 Coqui, golden frog small Yes 5 1,209,290 Frog, California red - small Yes 6 legged 5,500 Guajon small 11 262,760 Salamander Barton small Yes 2 Springs 115,200 small Yes 5 Salamander, California tiger
108,500 Salamander Cheat small Yes 8 Mountain 28,200 Salamander desert small 8 slender 261,770 Salamander small 8 flatwoods 219 0 Salamander Red Hills small 7 3,900 Salamander San small Yes 2 Marcos 96,200 Salamander Santa small Yes 6 Cruz long -toed 0 Salamander small 8 Shenando ah 41,100 Salamander Sonoran small 3 tiger 900 Salamander Texas small 5 blind 1,090,170 Toad, arroyo small 8 145,000 Toad, Houston small Yes 2 8,000 Toad, Puerto Rican small Yes 2 crested 5,500 Toad, Wyoming sma ll 2
AVERAGE 188,388 5.4
TOTAL (18) 3,390,990 98
FISH, 2000
FISH FY 2000 SIZE CATEGORY ECONOMIC RECOVERY EXPENDITURE CONFLICT PRIORITY 200 Catfish, Yaqui medium 8 68,00 0 Cavefish, Alabama small 1 28,000 Cavefish, Ozark small 8 1,065,200 Chub, bonytail medium yes 5 77,000 Chub, Borax Lake small 2 16,250 Chub, Chihuahua small 2 1,564,460 Chub, humpback medium yes 2 43,000 Chub, Hutton tui small 9 103,200 Chub , Mohave tui small 9 217,500 Chub, Oregon small 8 157,200 Chub, Owens tui small 9 54,700 Chub, Pahranagat medium yes 3 roundtail 16,300 Chub, slender small 5 220 15,000 Chub, Sonora small yes 2 22,760 Chub, spotfin sm all 11 386,700 Chub, Virgin River small yes 2 6,000 Chub, Yaqui small 5 742,000 Cui -ui large 8 43,200 Dace, Ash Meadows small 9 speckled 27,950 Dace, blackside small 11 43,200 Dace, Clover Valley small yes 9 speckled 53,200 Dace, desert small yes 7 23,000 Dace Foskett small 9 speckled 43,200 Dace, Independence small yes 6 Valley speckled 1,000 Dace, Kendall Warm small 12 Springs 58,200 Dace, Moapa small 1 277,500 Darter, amber small 5 200 Darter, bayou small yes 8 20,000 Darter, bluemask small 5 37,000 Darter, boulder small 5 2,490 Darter, Cherokee small yes 2 20,000 Darter, duskytail small 2 3,690 Darter, Etowah small 2
Darter, fountain small yes 2 35,400 12,490 Darter, goldline small 8 79,000 Darter, leopard small yes 11 3,000 Darter, Maryland small 5 6,000 Darter, Niangua small 8 786,290 Darter, Okalossa small 11 13,490 Darter, relict small 5 12,590 Darter, slackwater small 8 28,910 Darter, snail small 11 1,000 Darter, watercress small 2 18,900 Gambusia, Big Bend small 2 0 Gambusia, Clear small 2 Creek 31,140 Gambusia, Pecos small 2 221 0 Gambusia, San small yes 2 Marcos 305,090 Goby , tidewater small yes 7 275,250 Logperch, Conasauga small 5 136,250 Logperch, Roanoke small yes 5 121,550 Madtom, Neosho small yes 11 7,000 Madtom, pygmy small 5 0 small Madtom, scioto 5
34,700 Madtom, smoky small 5 20,200 Madtom, yellowfin small 11 Minnow, Devils 8,500 small 2 River
686,860 Minnow, loach small yes 4 5,111,920 Minnow, Rio Grande small yes 2 silvery 3,552,530 Pike minnow, large yes 8 Colorado 52,700 Poolfish, Pahrump sm all 11 90,200 Pupfish, Ash small 15 Meadows Amargosa 28,500 Pupfish, Comanche small 2 Springs 64,680 Pupfish, desert small yes 2 83,200 Pupfish, Devils Hole small 11 7,000 Pupfish, Leon small 2 Springs 84,20 0 Pupfish, Owens small 2 43,200 Pupfish, Warm small 9 Springs 124,733,460 Salmon, Atlantic large yes 3 6,000 8 small Sculpin, pygmy
184,510 Shiner, Arkansas small yes 5 River 200 Shiner, beautiful small 2 22,990 Shiner, blue small 8 40,860 Shiner, Cahaba small 2 123,000 Shiner, Cape Fear small 5 787,000 Shiner, Pecos small 3 bluntnose 4,750 Shiner, palezone small 5 116,150 222 Shiner, Topeka small yes 8 4,000 Silverside, small 8 Waccamaw 3,610,990 Smelt, delta small yes 2 734,720 Spikedace small yes 4 141,700 Spinedace, Big small 3 Spring 30,680 Spinedace, Little small 2 Colorado 67,200 Spinedace, White small yes 2 River 200,020 Splittail, Sacramento medium yes 1 50,700 Springfi sh, Hiko small yes 3 White River 57,200 Springfish, Railroad small yes 2 Valley 81,700 Springfish, White small yes 3 River 44,890,660 Steelhead large yes 3 489,990 Stickleback small 3 unarmored threespine 382,000 5 large Sturgeon, Alabama
360,170 Sturgeon, gulf large 12 645,060 Sturgeon, pallid large yes 2 2,825,250 Sturgeon, white large yes 3 27,700 Sucker, June medium yes 5 643,700 Sucker, Lost River large yes 4 97,400 Sucker, Modoc medium 8 5,178,230 Sucker, razorback large yes 1 641,700 Sucker, shortnose large yes 8 189,000 Sucker, Warner medium yes 2 574,480 Topminnow small yes 9 Gila 19,200 Trout, Apache small 8 6,611,720 Trout, bull large yes 9 14,000 Trout, Gila small 2 101,600 Trout, greenback Large 15 cutthroat 1,934,870 Trout, Lahontan large yes 3 cutthroat 16,010 Trout, Little Kern large 9 golden 58,200 9 Trout, Paiute large 223 cutthroat
340,600 Woundfin small 1
1,981,652 AVERAGE 5.5
214,018,416 TOTAL (108) 595
CLAMS, 2000
CLAM FY 2000 SIZE CATEGORY ECONOMIC RECOVERY EXPENDITURE CONFLICT PRIORITY 10,190 Acornshell, southern Small 5 22,110 Bankclimber, purple Smal l 11 21,040 Bean, Cumberland Small Yes 5 9,380 Bean, purple Small 5 8,000 Blossom, green Small 6 11,280 Blossom, tubercled Small 6 10,000 Blossom, turgid small 5 10,000 Blossom, yellow small 6 3,780 Catspaw small 6 44,000 Catspaw, white small yes 6 146,530 Clubshell small 5 0 Clubshell, black small yes 5 35,750 Clubshell, ovate small 5 48,550 Clubshell, southern small 5 18,670 Combshell, Cumberlandian small 5 8,500 Combshell, southern small yes 2 10,000 Combshell, upland small 5 29,600 Elktoe, Appalachian small 5 11,060 Elktoe, Cumberland small 5 13,000 Fanshell small 5 9,000 Fatmucket, Arkansas small 8 2,030 Heelsplitter Alabama small yes 8 34,270 Heelsplitter Carolina small yes 5 434,800 Higgins eye small yes 5 224 11,500 Kidneyshell triangular small 5 4,200 Lampmussel Alabama small 5 300 Lilliput, pale small 5 104,780 Mapleleaf, winged small yes 2 48,780 Moccasinshel l, Alabama small 8 13,890 Moccasinshell, Coosa small 5 12,180 Moccasinshell, Gulf small 5 0 Moccasinshell small 5 Ochlockonee 11,000 Monkeyface Appalachian small 5 18,780 Monkeyface Cumberland small yes 5 37,920 Mucket or angenacre small 8 137,950 Mucket pink small 5 17,450 Mussel, oyster small 5 10,630 Pearlshell, Louisiana small 8 19,300 Pearlymussel, birdwing small yes 4 12,780 Pearlymussel, cracking small 4 2,000 Pearlymussel, Curtis small 6 14,780 Pearlymussel dromedary small yes 4 20,990 Pearlymussel littlewing small 4 19,500 Pigtoe, Cumberland small 5 9,280 Pigtoe, dark small 5 11,000 Pigtoe, finerayed small 5 2,000 Pigtoe, flat small 5 20,070 Pigtoe, heavy small yes 5 1,390 Pigtoe, oval small 5 10,780 Pigtoe, rough small 5 13,300 Pigtoe, shiny small 5
22,000 Pigtoe, southern small 5 44,580 Pimpleback, orangefoot small 5 21,50 0 Pocketbook, Ouachita small yes 4 rock 61,780 Pocketbook, fat small 8 23,830 Pocketbook, finelined small 8 1,190 Pocketbook, shinyrayed small 5 45,000 Pocketbook, speckled small 5 10,780 225 Rabbitsfoot, rough small 6 109,410 Riffleshell, northern small 6 22,290 Riffleshell, tan small 5 16,620 Ring pink small 5 1,000 Slabshell, Chipola small 11 28,790 Spinymussel, James small 5 6,300 Spinymussel, Tar River small 5 1,000 Stirrupshell small 5 20 ,000 Three -ridge, fat small 5 65,660 Wedgemussel, dwarf small 5
29,997 AVERAGE 5.4 2,039,800 TOTAL (68) 370
SNAILS, 2000
SNAIL FY 2000 SIZE CATEGORY ECONOMIC RECOVERY EXPENDITURE CONFLICT PRIORITY 28,650 Ambersnail Kanab small yes 6 680 Elimia, lacy small 8 72,040 Limpet, Banbury Springs small 8 680 Lioplax cylindrical small 8 3,000 Marstonia, royal small 5 0 Pebblesnail flat small 5 6,000 Riversnail Anthonys small 5 190 Rocksnail painted small 8 300 Rocksnail plicate small yes 5 300 Rocksnail round small 8 0 Shagreen Magazine small 8 Mountain
Snail, armored small 5 20,000
74,540 Snail, Bliss Rapids small yes 7 1,500 Snail, Chittenangovate small 5 amber 3,000 Snail, flat -spired three - small 8 toothed 50,000 Snail, Iowa Pleistocene small 14 104,000 Snail, Morro small yes 8 226 shoulderband
Snail, Newcombs small 1 12,000
950 Snail, noonday small 9 5,000 Snail, painted snake small 8 coiled f orest 73,640 Snail, Snake River physa small yes 5 12,000 Snail, Stock Island tree small 3 17,390 Snail, tulotoma small 8 217,180 Snail, Utah valvata small yes 5 0 Snail, Virginia fringed small 4 mountain 211,600 Snai ls, Oahu tree small 2 0 Springsnail, Alamosa small 14 588,540 Springsnail Bruneau Hot small yes 2 79,040 Springsnail Idaho small yes 5 0 Springsnail, Socorro small 14 52,741 AVERAGE 6.7 1,582,220 TOTAL (30) 201
INSECTS, 2000
INSECTS FY 2000 SIZE CATEGORY ECONOMIC RECOVERY EXPENDITURE CONFLICT PRIORITY 144,390 Beetle, American small Yes 5 burying 0 Beetle, Coffin Cave small Yes 2 mold 400 Beetle, Comal small Yes 1 Springs dryopid 400 Beetle, Comal small Yes 2 Springs riffle 13,500 Beetle, delta green small 8 ground 0 Beetle Hungerford small 5 crawling water 1,400 Beetle Kretschmarr small Yes 2 Cave mold 65,000 Beetle Mount small Yes 8 Hermon June 11,400 Beetle Tooth Cave 227 ground small Yes 2 416,550 Beetle, valley small 9 elderberry longhorn 54,500 Butterfly, bay small Yes 3 checkerspot 19,500 Butterfly Behren=s small Yes 3 silverspot 14,500 Butterfly callippe small Yes 9 silverspot 32,000 Butterfly, El Segundo small 12 blue Butterfly, Fenders 220,500 small 3 Blue
533,880 Butterfly, Karnner small 5 blue 19,500 Butterfly, Lange=s small 9 metalmark 18,500 Butterfly, lotis blue small Yes 6 50,500 Butterfly, mission small 9 blue 81,500 Butterfly, Mitchells small 3 satyr 14,500 Butterfly, Myrtles small Yes 9 silverspot 413,000 Butterfly, Oregon small 3 silverspot 123,000 Butterfly, Palos small 6 Verdes blue 60,000 Butterfly, Quino small Yes 3 checkersp ot 1,000 Butterfly, Saint small 3 Francis satyr 13,500 Butterfly, San Bruno small 9 elfin 17,500 Butterfly, Schaus small Yes 3 swallowtail 107,500 Butterfly, Smith=s small 9 blue 128,500 Butterfly, small Yes 8 Uncompahgre fritill ary 58,860 Dragonfly, Hines small 5 emerald 107,000 Fly, Delhi Sands small Yes 6 flower loving 66,000 Grasshopper, Zayante small 5 band -winged 22,000 Moth, Kern primrose small Yes 2 sphinx 21,690 Naucorid, Ash small 8 Meadow s 228 41,000 Skipper, Laguna small Yes 3 Mountains 2,000 Skipper, Pawnee small Yes 9 montane 41,980 Tiger beetle, small 6 northeast beach 4,000 Tiger beetle, Puritan small 5
77,393 AVERAGE 2,940,950 208 TOTAL (38)
ARACHNIDS, 2000
ARACHNID FY 2000 SIZE CATEGORY ECONOMIC RECOVERY EXPENDITURE CONFLICT PRIORITY 1,400 Harvestman, Bee small Yes 2 Creek Cave 11,400 Harvestman, Bone small Yes 2 Cave 2,400 Pseudoscorpion, small Yes 2 Tooth Cave 12,860 small Yes 1 Spider, Kauai
small 5 Spider, spruce fir 57,300
2,400 Spider, Tooth cave small Yes 2
14,627 2.3 AVERAGE
87,760 14 TOTAL (6)
CRUSTACEANS, 2000
CRUSTACEAN FY 2000 SIZE CATEGORY ECONOMIC RECOVERY EXP ENDITURE CONFLICT PRIORITY 13,000 Amphipod, Hays small 5 Spring 39,000 Amphipod, Illinois small 2 cave 12,000 small yes 1 Amphipod, Kauai
400 Amphipod, Pecks small yes 2 cave 14,000 Crayfish, Cave small 5 229 20,000 Crayfish, Nashville small yes 11 207,220 Crayfish, Shasta small 5 105,700 Fairy shrimp, small 8 Conservancy 203,700 Fairy shrimp, small 8 longhorn 130,560 Fairy shrimp, small yes 6 Riverside 234,080 Fairy shrimp, Sa n small yes 2 Diego 817,280 Fairy shrimp, vernal small yes 2 pool 0 Isopod, Lee County small 8 cave 5,000 Isopod, Madison small 4 Cave 0 Isopod, Socorro small 2 67,000 Shrimp, Alabama small 5 cave 39,700 Shrimp, Californi a small yes 8 freshwater 12,000 Shrimp, Kentucky small 5 cave 0 Shrimp, Squirrel small yes 5 Chimney Cave 650,970 Tadpole shrimp, small yes 2 vernal pool
128,581 4.8 AVERAGE 2,571,610 96 TOTAL (20) 230 APPENDIX B, CASES
NON -ENDANGERED SPECIES CASES (CHRONOLOGICALLY)
Case of Swans, Court of King’s Bench, All England Reports 641, Trinity Term 1592
Republica versus Teischer, 1 U.S. 335, 1 L.Ed. 163, 1 Dall. 335, 1788
Merrils v. Goodwin, 1 Root 209 , 1790 Conn. Lexis 86, 1790
Pitkin v. Olmstead, 1 Root 217, 1790 Conn. Lexis 99, 1790
Pierson v. Post, 3 Cai. R. 175, 1805 N.Y. Lexis 311, 1805
Commonwealth versus Jonathan Knowlton, 2 Mass. 530, 1807 Mass. LEXIS 157, 1807
State v. Council, 1 Tenn. 305 , 1808 Tenn. LEXIS 24, 1 Overt. 305, 1808
Carson against Blazer, 2 Binn. 475, 1810 Pa. LEXIS 26, 1810
Gillet v. Mason, 7 Johns. 16, 1810 N.Y. Lexis 153, 1810
Wallis v. Mease, 3 Binn. 546, 1811 Pa. Lexis 32, 1811
Chalker against Dickinson, 1 Conn. 382 , 1815 Conn. LEXIS 14, 1815
State v. Landreth, 4 N.C. 331, 1816 N.C. LEXIS 29, 1816
Adams against Pease, 2 Conn. 481, 1818 Conn. LEXIS 18, 1818
Lentz against Stroh, 6 Serg. & Rawle 34, 1820 Pa. LEXIS 9, 1820
William Angus v. William Radin, 5 N.J.L. 957 , 1820 N.J. LEXIS 31, 1820
Buster v. Newkirk, 20 Johns. 75, 1822 N.Y. Lexis 63, 1822
Findlay against Bear, 8 Serg. & Rawle 571, 1822 Pa. LEXIS 193, 1822
Ferguson v. Miller, 1 Cow. 243, 1823 N.Y. Lexis 155, 1823
Hayden against Noyes, 5 Conn. 391, 1824 C onn. LEXIS 26, 1824
Hinckley v. Emerson, 4 Cow. 351, 1825 N.Y. LEXIS 82, 1825
John Waters versus David Lilley, 21 Mass. 145, 1826 Mass. LEXIS 73, 4 Pick. 145, 1826
Commonwealth v. Thomas Chace, 26 Mass. 15, 1829 Mass. LEXIS 155, 9 Pick. 15, 1829 231
Mathia s Idol v. Benjamin Jones, 13 N.C. 162, 1829 N.C. LEXIS 33, 1829
Freeman C. Norton v. Edward Ladd, 5 N.H. 203, 1830 N.H. LEXIS 24, 1830
The Commonwealth v. Madin, 30 Va. 809, 1831 Va. LEXIS 64, 1831
Fleet v. Hegeman, 14 Wend. 42, 1835 N.Y. LEXIS 118, 183 5
Goff v. Kilts, 15 Wend. 550, 1836 N.Y. Lexis 87, 1836
John Dodson v. George Mock, 20 N.C. 282, 1838 N.C. LEXIS 107, 1838
Allan Cummings v. Charles O. Perham, 42 Mass. 555, 1840 Mass. LEXIS 122, 1840
Brill & Brill v. Flagler, 23 Wend. 354, N.Y. Lexis 137, 1840
Brown v. Bailey, 4 Ala. 413, 1842 Ala. LEXIS 360, 1842
Durden v. Barnett & Harris, 7 Ala. 169, 1844 Ala. LEXIS 595, 1844
Taylor v. State, 25 Tenn. 285, 1845 Tenn. LEXIS 85, 1845
The State v. Pierce, 7 Ala. 728, 1845 Ala. LEXIS 261, 1845
Kin g v. Kline, 6 Pa. 318, 1847 Pa. LEXIS 138, 1847
The State v. Murphy, 1847 Ind. Lexis 87, 1847
Samuel Seeley v. William Peters, 10 Ill. 130, 1848 Ill. LEXIS 27, 1848
Van Leuven v. Lyke and Dumond, 1 N.Y. 515, 1848 N.Y. LEXIS 48, 1848
James Perry v. Elis hah Phipps, 32 N.C. 259, 1849 N.C. LEXIS 101, 1849
State v. William Latham, 35 N.C. 33, 1851 N.C. LEXIS 106,1851
Smith v. Causey, 22 Ala. 568, 1853 Ala. LEXIS 310, 1853
Smith against Levinus, 8 N.Y. 472, 1853 N.Y. LEXIS 60,1853
Parker v. Mise, 27 Ala. 480, 1855 Ala. LEXIS 76, 1855
Samuel Sherfey v. Robert Bartley and Wife, 36 Tenn. 58, 1856 Tenn. LEXIS 52, 1856
The State v. Crenshaw, 22 Mo. 457, 1856 Mo. LEXIS 32, 1856 232 United States v. Gideon, 1 Minn. 292, 1856 Minn. LEXIS 9, 1856
Wagner v. Bissell , 3 Iowa 396, 1856 Iowa Sup. LEXIS 183, 1856
Commonwealth v. Horace W. Beaman, 74 Mass. 497, 1857 Mass. LEXIS 104, 1857
State v. M’Duffie, 34 N.H. 523, 1857 N.H. LEXIS 133, 1857
J. Shirley v. Bark Italy, 2 Haw. 133, 1858 Haw. LEXIS 10, 1858
The State v . Otto Lange, 22 Tex. 591, 1858 Tex. LEXIS 313, 1858
Barbara Stumps v. Susanna Kelley, 22 Ill. 140, 1859 Ill. LEXIS 34, 1859
The State of Iowa v. Enslow, 10 Iowa 115, 1859 Iowa Sup. LEXIS 185, 1859
Waters v. Moss, 12 Cal. 535, 1859 Cal. LEXIS 104, 1859
Solomon Morse v. James Nixon, 53 N.C. 35, 1860 N.C. LEXIS 146, 1860
George Davis v. William Green, 2 Haw. 367, 1861 Haw. LEXIS 13, 1861
Johnson v. The State, 37 Ala. 457, 1861 Ala. LEXIS 111, 1861
Edward Pressey v. George Wirth, 85 Mass. 191, 1861 Mas s. LEXIS 450, 1861
White v. Brantley, 37 Ala. 430, 1861 Ala. LEXIS 102, 1861
Ceif Woolf v. William Chalker, 31 Conn. 121, 1862 Conn. LEXIS 46, 1862
John Heppingstone v. John Mammen, 2 Haw 707, 1863 Haw. LEXIS 1, 1863
Anson v. Dwight, 18 Iowa 241, 1865 I owa Sup. LEXIS 10, 1865
Isaac Whittier v. Town of Franklin, 46 N.H. 23, 1865 N.H. LEXIS 6, 1865
Mitchell v. Williams, 27 Ind. 62, 1866 Ind. LEXIS 253, 1866
Pickett and wife v. Crook, 20 Wis. 358, 1866 Wisc. LEXIS 39, 1866 233
Joseph McPheeters v. Hannibal and St. Joseph Railroad Company, 45 Mo. 22, 1869 Mo.
LEXIS 89, 1869
James Stafford v. The Commonwealth, 3 Ky.Op 497, 1869 Ky. LEXIS 496, 1869
Andrew Shubrick v. The State, 2 S.C. 21, 1870 S.C. LEXIS 6, 1870
Calvin Adams v. Henry Burton and Another, 43 Vt . 36, 1870 Vt. LEXIS 43, 1870
Commonwealth v. Thomas McLaughlin, 105 Mass. 460, 1870 Mass. LEXIS 295, 1870
Legal Tender Cases; Knox v. Lee; Parker v. Davis, 79 U.S. 457, 1870 U.S. LEXIS 1220, 1870
Commonwealth v. Mary E. Falvey, 108 Mass. 304, 1871 Mas s. LEXIS 334, 1871
E.B. Dufer v. Thomas Cully, 3 Ore 377, 1871 Ore. LEXIS 28, 1871
James K. Brent v. Samuel Kimball, 60 Ill. 211, 1871 Ill. LEXIS 501, 1871
Phoebe A. Hewes v. Owen McNamara, 106 Mass. 281, 1871 Mass. LEXIS 9, 1871
Robert Williams v. S. A. Dixons and J.L. Dixon, 65 N.C. 416, 1871 N.C. LEXIS 121, 1871
Samuel Swift and another v. Isaac Applebone, 23 Mich. 252, 1871 Mich. LEXIS 87, 1871
State v. William House, 65 N.C. 315, 1871 N.C. LEXIS 93, 1871
Winfrey v. Zimmerman, 71 Ky. 587, 1871 Ky . LEXIS 124, 1871
Henry P. Uhlein v. William Cromack, 109 Mass. 273, 1872 Mass. LEXIS 51, 1872
Reiche v. Smythe, 80 U.S. 162, 1871 U.S. LEXIS 1324, 1872
State v. Mary Turner, 66 N.C. 618, 1872 N.C. LEXIS 139, 1872
Swift v. Gifford, 1872 U.S. Dist. LE XIS 69, 23 F. Cas. 558, 1872 234 Aldrich v. Wright, 53 N.H. 398, 1873 N.H. LEXIS 29, 1873
Eldred Harrington v. Fielding F. Miles, 11 Kan. 480, 1873 Kan. LEXIS 80, 1873
Jesse Duncan v. The State, 49 Miss. 331, 1873 Miss. LEXIS 121, 1873
Harvey v. The Comm onwealth, 64 Va. 941, 1873 Va. LEXIS 81, 1873
Mayor … of Washington City v. Return J. Meigs, 1 Mac Arth. 53, 1873 U.S. App. LEXIS 1869, 1873
State v. Solomon Norton, 45 Vt. 258, 1973 Vt. LEXIS 5, 1873
Mobile & Ohio Railroad Company v. Williams, 53 Ala. 595, 1875 Ala. LEXIS 240, 1875
Royal Phelps v. Joseph Racy, 60 N.Y. 10, 1875
The State of Ohio v. Robert Lymus, 26 Ohio St. 400, 1875 Ohio LEXIS 425, 1875
Barret v. Utley, 75 Ky. 399, 1876 Ky. LEXIS 106, 1876
Eli Ulery v. Clayborn Jones, 81 Ill. 403, 1 876 Ill. LEXIS 352, 1876
John Heisrodt v. Christopher Hackett, 34 Mich. 283, 1876 Mich. LEXIS 160, 1876
The State of Missouri v. Daid Randolph, 1 Mo. App. 15, 1876 Mo. App. LEXIS 4, 1876
The State v. William Brown, 68 Tenn. 53, 1876 Tenn. LEXIS 17, 187 6
George Hallock v. Nathaniel Dominy, 69 N.Y. 238, 1877 N.Y. LEXIS 828, 1877
Spring Company v. Edgar, 99 U.S. 645, 1878 U.S. LEXIS 1588, 1878
State v. Foard Krider, 78 N.C. 481, 1878 N.C. LEXIS 261, 1878
Bass v. The State, 63 Ala. 108, 1879 Ala. LEX IS 24, 1879
The State v. Stephen Holder, 81 N.C. 527, 1879 N.C. LEXIS 221, 1879 235
Thompson v. The State of Alabama, 67 Ala. 106, 1880 Ala. LEXIS 253, 1880
Frederick Moss v. Anson Pardridge, 9 Ill. App. 490, 1881, Ill. App. LEXIS 191, 1880
Glen v. Rich, 8 F. 159, 1881 U.S. Dist. LEXIS 131, 1881
Kinsman v. The State, 77 Ind. 132, 1881 Ind. LEXIS 612, 1881
L.R. & F.S. Railway Co. v. Finley, 37 Ark. 562, 1881 Ark. LEXIS 139, 1881
The King v. Maun, 4 Haw. 409, 1881 Haw. LEXIS 15, 1881
The State v. Doe, 79 In d. 9, 1881 Ind. LEXIS 711, 1881
Thomas Mullaly v. The People, 86 N.Y. 365, 1881 N.Y. LEXIS 220, 1881
Valentine Vredenburg v. W.J. Behan, 33 La. Ann. 627, 1881 La. LEXIS 163, 1881
George Hendric v. August Kalthoff, 48 Mich. 306, 1882
Manning v. Mitcherso n, 69 Ga. 447, 1882 Ga. LEXIS 242, 1882
Philip Cole v. John Hall, 103 Ill. 30, 1882 Ill. LEXIS 139, 1882
Haywood v. The State, 41 Ark. 479, 1883 Ark. LEXIS 204, 1883
Solon T. Glidden v. Frank Moore, 14 Neb. 84, 1883 Neb. LEXIS 46, 1883
Peter Warner v. Ja cob Chamberlain, 12 Del. 18, 1884 Del. LEXIS 5, 1884
Jennison v. The Southwestern Railroad, 75 Ga. 444, 1885 Ga. LEXIS 153, 1885
Philip Rexroth v. Herbert Coon, 15 R.I. 35, 1885 R.I. LEXIS 48, 1885
Reynolds v. Hussey, 64 N.H. 64, 1886 N.H. LEXIS 18, 1886
The State v. Loren Bosworth, 54 Conn. 1, 1886 Conn. LEXIS 14, 1886
Dave Stephens v. The State, 65 Miss. 329, 1887 Miss. LEXIS 63, 1887
State v. Stephen Godfrey, 97 N.C. 507, 1887 N.C. LEXIS 205, 1887
Stevens v. The State of Georgia, 77 Ga. 310, 2 S.E. 6 84, 1887 Ga. LEXIS 109, 1887
The State v. Bruner, 111 Ind. 98, 1887 Ind. LEXIS 219, 1887 236 Genenz v. De Forest, 2 N.Y.S. 152, 1888 N.Y. Misc. LEXIS 76, 1888
George Ranson v. Nathaniel Kitner, 31 Ill. App. 241, 1888 Ill. App. LEXIS 396, 1888
Shaw v. Craft, 37 F. 317, 1888 U.S. App. LEXIS 2742, 1888
Sprague v. Fremont, E&MV RR Co., 6 Dakota 86, 1888 Dakota LEXIS 67, 1888
The People v. Thomas O’Neil, 39 NW 1, 1888 Mich. LEXIS 615, 1888
Anna Barnum v. Myrenus Terpening, 75 Mich. 557, 1889 Mich. LEXIS 1087, 1 889
Isaac Jannes v. Thomas Wood, 83 Me. 173, 1889 Me. LEXIS 106, 1889
Kennon v. Gilmer, 131 U.S. 22,1889 U.S. LEXIS 1795, 1889
Michael Finney v. Forrest Curtis, 78 Cal. 498, 1889 Cal. LEXIS 626, 1889
Roswell Knowles v. William Mulder, 74 Mich. 202, 1889 M ich. LEXIS 630, 1889
Town of Arkadelphia v. Clark, 52 Ark. 23, 1889 Ark. LEXIS 4, 1889
Walker v. The State, 89 Ala. 74, 8 So. 144, 1889 Ala. LEXIS 265, 1889
Buford v. Houtz, 133 U.S. 320, 1890 U.S. LEXIS 1914, 1890
Commonwealth v. George M. Curry, 150 Mass. 509, 1890 Mass. LEXIS 318, 1890
Dr. A. Brill v. The Ohio Humane Society, Ohio Misc. Lexis 28, 1890
Gibbons v. Van Alstyne, 9 N.Y.S. 156, 1890 N.Y. Misc. LEXIS 63, 1890
Hurd v. Lacy, 93 Ala. 427, 9 So. 378, 1890 Ala. LEXIS 215, 1890
John McLaughlin v. Arthur Kemp, 152 Mass. 7, 1890 Mass. LEXIS 6, 1890
Klenberg v. Russell, 125 Ind. 531, 1890 Ind. LEXIS 484, 1890
Manger Bros. v. Milton Shipman, 30 Neb. 352, 46 N.W. 527, 1890 Neb. LEXIS 107, 1890
The American Express Company v. The People, 133 Ill. 649 , 1890 Ill. LEXIS 1141, 1890
August Heiligmann v. William Rose, 81 Tex. 222, 1891 Tex. LEXIS 1342, 1891
Commonwealth v. W.M. Wilkinson, 139 Pa. 298, 1981 Pa. LEXIS 991, 1891 Conway v. Grant, 88 Ga. 40, 1891 Ga. LEXIS 292, 1891
Cornelius Johns v. County C ommissioners of Orange County, 28 Fla. 626, 1891 Fla. LEXIS 130, 1891 237 Henry Hurley v. The State, 17 S.W. 455, 1891 Tex. Crim. App. LEXIS 86, 1891
Mary Hammond v. George Melton, 42 Ill. App. 186, 1891 Ill. App. LEXIS 248, 1891
Sosat v. The State, 2 Ind. App. 586, 1891 Ind. App. LEXIS 217, 1891
Carrie Hubbard v. Ellery Preston, 90 Mich. 221, 1892 Mich. LEXIS 618, 1892
David Nehr v. State of Nebraska, 53 N.W. 589, 1892 Neb. LEXIS 351, 1892
Ellwood Jenkins v. Jedediah Ballantyne, 8 Utah 245, 1892 Utah LEXI S 49, 1892
Hunt v. The State, 3 Ind. App. 383, 1892 Ind. App. LEXIS 26, 1892
Josie Quilty, and Infant v. Rebecca Battie and Joseph Battie, 135 N.Y. 201, 1892 N.Y. LEXIS 1608, 1892
Carra Cameron v. J.C. Bryan, 89 Iowa 214, 1893 Iowa Sup. LEXIS 195, 1893
J.B. Pace v. C.L. Potter, 22 S.W. 300, 1893 Tex. LEXIS 212, 1893
John Wilson v. The State, 32 Tex. Crim. 22, 1983 Tex. Crim. App. LEXIS 198, 1893
Margaret Ten Hopen v. Thomas Walker, 96 Mich. 236, 1893 Mich. LEXIS 749, 1893
Strouse v. Leipf, 101 Ala. 43 3, 1893 Ala. LEXIS 283, 1893
Roth v. State, 51 Ohio St. 209, 1894 Ohio LEXIS 141, 1894
State of Minnesota v. Jospeh Mrozinski, 59 Minn. 465, 1894 Minn. LEXIS 188, 1894
The People ex rel William Shamd v. James Tighe, 30 N.Y.S. 368, 1894 N.Y. Misc. LEXIS 783, 1894
Fink v. Evans, 95 Tenn. 413, 32 S.W. 307, 1895 Tenn. LEXIS 109, 11 Pickle 413, 1895
Jefferson Hall v. Charles Huber, 61 Mo. App. 384, 1895 Mo. App. LEXIS 74, 1895
Patrick Short v. Louis Bohle, 64 Mo. App. 242, 1895 Mo. App. LEXIS 549, 1895
Ge er v. Connecticut, 161 U.S. 519, 16 S. Ct. 600, 1896 U.S. LEXIS 2185, 1895
J.W. Woolsey v. John Haas, 65 Mo. App. 198, 1896 Mo. App. LEXIS 177, 1896 238 Waters v. The People, 23 Colo. 33, 46 P.112, 1896 Colo. LEXIS 149, 1896
Citizens’ Rapid Transit Co., v . Dew, 1897 Tenn. LEXIS 120, 16 Pickle 317, 1897
County of Inyo v. Perro Erro, Domingo Higoa, Juan Inda, Antone Erraca, 119 Cal. 119, 1897 Cal. LEXIS 865, 1897
Graham v. Smith, 100 Ga. 434, 1897 Ga. LEXIS 79, 1897
Sentell v. New Orleans & Carrollton Rai lroad Co., 1897 U.S. LEXIS 2061, 1897
Wellman v. The State, 100 Ga. 576, 1897 Ga. LEXIS 103, 1897
Henry Jones v. Illinois Central Railroad Co., 75 Miss. 970, 1898 Miss. LEXIS 7, 1898
James Mullett v. James Bradley, 53 N.Y.S. 781, 1898 N.Y. Misc. LEXIS 60 3, 1898
State of Iowa v. Victor Repp, 104 Iowa 305, 1898 Iowa Sup. LEXIS 321, 1898
Joseph Dickson v. Territory of Arizona, 6 Ariz. 199, 56 P. 971, 1899 Ariz. LEXIS 75, 1899
George Smith v. St. Paul City Railway Company, 1900 Minn. LEXIS 766, 1900
Georg ia Southern and Florida Railway Company v. Thompson, 111 Ga. 731, 36 S.E. 945, 1900 Ga. LEXIS 703, 1900
Louisville and Nashville Railroad Co. v. Fitzpatrick, 129 Ala. 322, 1900 Ala. LEXIS 291, 1900
State v. Thompson, 25 Ind. App. 581, 1900 Ind. App. LEXI S 137, 1900
William Ingraham v. George Chapman, 177 Mass. 123, 1900 Mass. LEXIS 1008, 1900
Cora Brill v. William Christy, 7 Ariz. 217, 1901 Ariz. LEXIS 39, 1901
Jesse Gale and Walter Farr v. Raimundo Salas, 11 N.M. 211, 66 P. 520, 1901 N.M. LEXIS 24, 1901
Josephine Martinez v. Michel Bernhard, 106 La. 368, 30 So. 901, 1901 La. LEXIS 662, 1901
Thomas Ford v. Bernard Glennon, 74 Conn. 6, 1901 Conn. LEXIS 70, 1901 239 Vantreese v. McGee, 26 Ind. App. 525, 60 N.E. 318, 1901 Ind. App. LEXIS 297, 1901
Asher v. Co mmonwealth, 113 Ky. 296, 1902 Ky. LEXIS 50, 1902
The State of Ohio v. Shaw, 65 N.E. 875, 1902 Ohio LEXIS 126, 1902
W.I. Fisher v. A.H. Badger, 95 Mo. App. 289, 1902 Mo. App. LEXIS 41, 1902
Strong v. Georgia Railway and Electric Company, 118 Ga. 515, 1903 Ga. LEXIS 600, 1903
Frank Jordon v. Elizabeth Carberry, 185 Mass. 181, 1904 Mass Lexis 777, 1904
Moore v. Electric, 136 N.C. 554, 1904 N.C. LEXIS 302, 1904
Ex Parte Louis Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75, 1905
Friedman v. Goodman, 1 24 Fa. 532, 152 S.E. 892, 1905 Ga. LEXIS 775, 1905
Reed v. Goldneck, 112 Mo. App. 310, 1905 Mo. App. LEXIS 128, 1905
State v. Shattuck, 96 Minn. 45, 1905 Minn. LEXIS 489, 1905
Robert T. Harrington v. William E. Hall, 22 Del. 72, 1906 Del. LEXIS 25, 19 06
Hayes v. Miller, 150 Ala. 621, 1907 Ala. LEXIS 438, 1907
Hubert L. Dickerman vs. Consolidated Railway Company, 79 Conn. 427, 1907 Conn. LEXIS 64, 1907
Walter Molloy v. John Starin, 83 N.E. 588, 1908 N.Y. LEXIS 1034, 1908
Addison Gooding v. Chutes Co mpany, 155 Cal. 620, 1909 Cal. LEXIS 470, 1909
Beasley v. State, 98 Ark. 324, 1911 Ark. LEXIS 143, 1911
Means v. Morgan, 2 Ala. App. 547, 56 So. 759, 1911 Ala. App. LEXIS 112, 1911
State v. Ashton Smith and Henry O.Cauley, 156 N.C. 628, 1911 N.C. LEXIS 237, 1911
The Vessel “Abby Dodge,” A. Kalimeris v. The United States, 223 U.S. 166, 1912 U.S. LEXIS 2222, 1911
Eager v. Jonesboro Lake City and Eastern Express, 103 Ark. 288, 1912 Ark. LEXIS 194, 1912 240
Parker v. Cushman, 195 F. 715, 1912 U.S. App. LEXIS 1423, 1912
Copley v. Willis, 152 S.W. 830, 1913 Tex. App. LEXIS 538, 1913
Holcomb v. Van Zylen, 174 Mich. 274, 1913 Mich. LEXIS 457, 1913
Lemuel Kimple v. Phillip Schafer, 143 N.W. 505, 1913 Iowa Sup. LEXIS 152, 1913
Carl Thurston v. Alonzo Carter, 92 A. 295, 1914 Me. LEXIS 130, 1914
Jackson Coca Cola Bottling Co. v. Harry Chapman, 64 So. 791, 1914 Miss. LEXIS 30, 1914
Liesner v. Wanie, 156 Wis. 16, 1914 Wisc. LEXIS 60, 1914
Helsel v. Fletcher, 98 Okla. 285, 1914 Okla. LEXIS 750, 1914 Okla. LEXIS 750 , 1914
Sarah Phillips v. Lou Gardner, 106 Miss. 828, 1914 Miss. LEXIS 23, 1914
Teresa Bischoff v. G. Leroy Cheney, 92 A. 660, 1914 Conn. LEXIS 103, 1914
Graves v. Dunlap, 87 Wash. 648, 1915 Wash. LEXIS 962, 1915
Alabama City G&A Ry Co. v. Lumpkin, 195 Ala . 290, 1915 Ala. LEXIS 336, 1915
Irene Sabin v. S.M. Smith, 26 Cal. App. 676, 1915 Cal. App. LEXIS 184, 1915
Brown v. Eckes, 160 N.Y.S. 489, 1916 N.Y. App. Div. LEXIS 10456, 1916
Emil Stamp v. Eighty -sixth Street Amusement Co., 1916 N.Y. Misc LEXIS 1373, 1916
State v. Widman, 112 Miss. 1, 1916 Miss. LEXIS 49, 1916.
Cincinnati NO&TPR Co v. Roy Ford, 139 Tenn. 291, 1917 Tenn. LEXIS 105, 1917
William Barrett v. The State of New York, 116 N.E. 99, 1917 N.Y. LEXIS 987, 1917
Ponder v. State, 141 Tenn. 481, 1918 Tenn. LEXIS 111, 1918
Barefield v. State, 16 Ala. App. 491, 1918 Ala. App. LEXIS 183, 1918
I.M Meekins v. James Simpson, 176 N.C. 1918 N.C. LEXIS 202, 1918
State v. Pollock, 42 S.D. 360, 1919 S.D. LEXIS 140, 1919
Hines v. Thompson, 86 So. 450, 1920 Mi ss. LEXIS 64, 1920 241
State v. W.J. Grimmett, 33 Idaho 203, 1920 Ida. LEXIS 33, 1920
Duval v. Harvey, 148 La. 739, 1921 La. LEXIS 1340, 1921
Henry v. Waldrop, 206 Ala. 135, 1921 Ala. LEXIS 51, 1921
State v. J.B. Anderson, 144 Tenn. 564, 1921 Tenn. LEXIS 57, 1921
McKee v. Gratz, 260 U.S. 127, 1922 U.S LEXIS 2349, 1922
LaCoste v. Department of Conservation of the State of Louisiana, U.S. LEXIS 2820, 1923
Mason Jones v. E.H. Metcalf, 96 Vt. 327, 1923 Vt. LEXIS 170, 1923
The State of Connecticut v. Antonio Gi lletto, 98 Conn. 702, 1923 Conn. LEXIS 41, 1923
Willett v. Willett, 247 S.W. 739, 1923 Ky. LEXIS 685, 1923
Johnston v. Wilson, 32 Ga. App. 348, 123 S.E. 222, 1924 Ga. App. LEXIS 388, 1924
Steward v. Gwinn, 136 Miss. 806, 1924 Miss. LEXIS 168, 1924
Ammo ns v. Kellogg, 137 Miss. 551, 1925 Miss. LEXIS 11, 1925
Byrnes v. City of Jackson, 140 Miss. 656, 1925 Miss. LEXIS 302, 1925
Central Lumber v. Porter, 139 Miss. 66, 1925 Miss. LEXIS 114, 1925
Howard & Herrin v. Nashville C. & St. L. RY. Co, 284 S.W. 894 , Tenn. LEXIS 51, 1925
McDonald v. Castle, 24 P. 215, 1925 Okla. LEXIS 343, 1925
John W. Johnson & another v. Ernest D. Talbot & others, 1926 Mass. LEXIS 1078, 1926
Reese v. Hughes, 144 Miss. 304, 1926 Miss. LEXIS 357, 1926
Shadoan v. Barnett, 217 Ky. 20 5, 1926 Ky. LEXIS 34, 1926
Alta Baer v. Pauline Tyler, 261 Mass. 138, 1927 Mass LEXIS 1306, 1927
Cadenhead v. Goodman, 148 Miss. 88, 1927 Miss. LEXIS 10, 1927
E.A. Stephens & Company v. Albers, 81 Colo. 488, 1927, 1927 Colo. LEXIS 379, 1927
Hill v. Mi cham, 116 Ohio St. 549, 1927 Ohio LEXIS 301, 1927
Little v. Commonwealth, 221 Ky. 696, 1927 Ky. LEXIS 796, 1927 242
Paolo Perazzo v. Jose Ortega, 32 Ariz. 154, 1927 Ariz. LEXIS 159, 1927
Herman v. Mackenzie, 197 Wis. 281, 1928 Wisc. LEXIS 354, 1928
The State ex inf. North Todd Gentry v. Ramona Kennel Club, 1928 Mo. LEXIS 778, 1928
The New England Trust Company v. Charles Folsom, 1929 Mass. LEXIS 1385, 1929
Montgomery v. Maryland Casualty Company, 151 S.E. 363, 1930 Ga. LEXIS 22, 1930
Vaughan v. Miller Bros 101 Ranch Wild West Show, 1930 W. Va. LEXIS 39, 1930
State v. Foy Ward, 328 Mo. 658, 1931 Mo. LEXIS 403, 1931
Mary Kesler, F.B. Davis and Myrtle Davis v. Jones, 50 Idaho 405, 1931 Ida. LEXIS 32, 1931
Bugai v. Rickert, 258 Mich. 416, 1932 Mich. LEXIS 1289 , 1932
In re Matter of the Estate of Camille Howells, 1932 N.Y. Misc. LEXIS 1629, 1932
State v. Lipinske, 212 Wis. 421, 1933 Wisc. LEXIS 46, 1933
Maitland v. The People, 23 P. 2d 116, 1933 Colo. LEXIS 385, 1933
Young v. Blaum, 146 So. 168, 1933 La. App. LEXIS 89, 1933
Commonwealth v. Flynn, 188 N.E. 627, 1934 Mass. LEXIS 897, 1934
Jeane v. Johnson, 154 So. 757, 1934 La. App. LEXIS 724, 1934
State v. Lessard, 29 P. 2d 509, 1934 Ore. LEXIS 36, 1934
Young v. Wm. Estep, 178 Wash. 561, 1934 Wash. LEXIS 707 , 1934
William Smith v. William Steinrauf, 140 Kan. 407, 1934 Kan. LEXIS 76, 1934
Candler v. Smith, 50 Ga. App. 667, 1935 Ga. App. LEXIS 264, 1935
Fiske v. Boston Elevated Ry. Co, 194 N.E. 835, 1935 Mass. LEXIS 1058, 1935
Grace Lanna v. Sophie Konen, 17 8 A. 425, 1935 Conn. LEXIS 143, 1935
State v. Crappel, 181 La. 715, 1935 La. LEXIS 1526, 1935
In the Matter of the Estte of Anna M. Bradley v. John C. Graham, 59 P. 2d 1129, 1936 243
City of Birmingham v. West, 236 Ala. 434, 1938 Ala. LEXIS 347, 1938
E.W. H amilton v. King County, 195 Wash. 84, 1938 Wash. LEXIS 382, 1938
Pendleton Tate v. Lucy Ogg, 195 S.E. 496, 1938 Va. LEXIS 167, 1938
Commonwealth v. Worth, 313 Mass. 313, 1939 Mass. LEXIS 1096, 1939
Fowler v. Helck, 128 S.W. 2d 564, 1939 Ky. LEXIS 401, 1 939
Joseph Corren v. The State of New York, 1939 N.Y. Misc. LEXIS 1665, 1939
Yazoo & MVR R. Co. v. Gordon, 184 Miss. 885, 1939 Miss. LEXIS 65, 1939
Citizens State Bank of Marianna, Fla v. City of Jackson, 1940 Miss. LEXIS 63, 1940
Cunningham v. Neil Ho use Hotel, 33 N.E. 2d 859, 1940 Ohio App. LEXIS 1094, 1940
State v. Chambers, 194 La. 1042, 1940 La. LEXIS 1042, 1940
Beard v. Mossman, 144 Pa. Super. 508, 1941 Pa. Super. LEXIS 154, 1940
Emery and Minnie Belanger v. I.L. and Edith Howard, 1941 Ore. LEXIS 83, 1941
Winsor v. Massachusetts Mutual Life Insurance Company, 1941 Ala. App. LEXIS 35, 1941
Sandefur v. Jeansonne, 9 So. 2d 80, 1942 La. App. LEXIS 103, 1942
Scharfeld v. Richardson, 133 F.2d 340, 1942 U.S. App. Lexis 2503, 1942
Kroger Grocery & Baking Company v. Woods, 167 S.W. 2d 869, 1943 Ark. LEXIS 307, 1943
Mack, Executor v. Rittenhouse, 173 S.W. 2d 1002, 1943 Ark. LEXIS 107, 1943
Akers v. Sellers, 114 Ind. App. 660, 1944 Ind. App. LEXIS 112, 1944
Elijah Williams v. Milner Hotels. Co., 130 Conn. 507, 1944
Hayward v. Samuel, 354 Pa. 266, 1946 Pa. LEXIS 333, 1946
In re Goodwin’s Estate, 1946 N.Y. Misc. LEXIS 3146, 1946
People v. Dello, 71 N.Y.S.2d 145, 1947 N.Y. Misc LEXIS 2523, 1947
Atkinson v. City and County of Denver, 118 Colo. 322, 1948 Col o. LEXIS 257, 1948
Heidemann v. Wheaton, 72 S.D. 375, 1948 S.D. LEXIS 43, 1948 244
Renner Estate, 57 A. 2d 836, 1948 Pa. LEXIS 317,1948
Toomer v. Witsell, 334 U.S. 385, 1948 U.S. LEXIS 2082, 1948
Dennis Ray Baugh v. Clyde Beatty, 91 Cal. App. 2d 786, 1949 Cal. App. LEXIS 1301, 1949
Fred Lenk v. Victor Spezia, 213 P. 2d 47, 1949 Cal. App. LEXIS 1111, 1949
State v. Lee, 41 So. 2d 662, 1949 Fla. LEXIS 820, 1949
In re Estate of Searight v. Miller, 95 N.E. 2d 779, 1950 Ohio App. LEXIS 701, 1950
Richberg v. R obbins, 228 S.W. 2d 1019, 1950 Tenn. App. LEXIS 85, 1950
State of North Dakota v. Lloyd Hastings, 77 ND 146, 41 N.W. 2d 305, 1950
B.E. Sellers v. Harvey Morris, 64 S.E. 2d 662, 1951 N.C. LEXIS 334, 1951
Green v. Leckington, 192 Ore. 601, 1951 Ore. LEX IS 276, 1951
In re Mills Estate, 111 N.Y.S. 2d 622, 1952 N.Y. Misc. LEXIS 2549, 1952
In the Matter of Fisk, 120 N.Y.S. 2d 124, 1952 N.Y. Misc. LEXIS 2268, 1952
James Malone v. Ann Steinberg, 138 Conn. 718, 1952 Conn. LEXIS 149, 1952
White v. State, 24 9 S.W. 2d 877, 1952 Tenn. LEXIS 333, 1952
Hunt v. Hazen, 254 P. 2d 210, 1953 Ore. LEXIS 189, 1953
Richard Soucy v. John Wysocki, 96 A. 2d 225, 1953 Conn. LEXIS 175, 1953
State v. Missouri v. W.A. Getty, 273 S.W. 2d 170, 1954 Mo. LEXIS 796, 1954
B.M. S mith v. John Costello, 290 . 2d 742, 1955 Ida. LEXIS 337, 1955
Harrison v. Petroleum Surveys, 80 So. 2d 153, 1955 La. App. LEXIS 787, 1955
Mrs. Carlton K. Ebhardt v. Safeway, 227 F. 2d 379, 1955 U.S. App. LEXIS 3209, 1955
T. Curtis Andrews v. T.B. Andres, 242 N.C. 382, 1955 N.C. LEXIS 530, 1955
Clarence King v. Blue Mountain Forest Association, 1956 N.H. LEXIS 34, 1956
United States v. Dowden, 139 F. Supp. 781, 1956 U.S. Dist. LEXIS 3686, 1956 245
Ethel Tillery v. Laura Crook, 297 S.W. 2d 9, 1957 Mo. App. L EXIS 722, 1957
Food Fair Stores of Florida v. Forrest H. Macurda, 93 So. 2d 860, 1957 Fla. LEXIS 3372, 1957
Hahn v. Brooklyn, 153 N.E. 2d 359, 1958 Ohio Misc. LEXIS 360, 1958
State of Arizona v. Ben Stockton, 333 P. 2d 735, 1958 Ariz. LEXIS 171, 1958
Annie E. Marsh v. Harry M. Snyder, 113 So. 2d 5, 1959 La. App. LEXIS 1180, 1959
Florence Litzkohn v. Russell Clark, 85 Ariz. 355, 1959 Ariz. LEXIS 219, 1959
George Schultz v. Morgan Sash and Door Company, 1959 Okla. LEXIS 338, 1959
Louis Briley v. Leon M itchell, 238 La. 551, 1959 La. LEXIS 1112, 1959
Musgrove v. State, 236 Miss. 513, 1959 Miss. LEXIS 344, 1959
Elsie Smith v. City of Birmingham, 270 Ala. 681, 1960 Ala. LEXIS 386, 1960
Jessie Durham v. William Barnes, 124 So. 2d 792, 1960 La. App. LEXIS 1225, 1960
John G. Barrow v. Forace F. Holland, 125 So. 2d 749, 1960 Fla. LEXIS 2069, 1960
Lussan v. Grain Dealers Mutual Insurance Company, 1960 U.S. App. LEXIS 4238, 1960
Marie Abrevayna v. Palace Theatre, 197 N.Y.S. 2d , 1960 N.Y. Misc. LEXIS 3604, 19 60
Shelly v. Queen, 104 Ga. App. 837, 1961 Ga. App. LEXIS 819, 1961
B.L. Brown v. Ernest Crocker, 139 So. 2d 779, 1962 La. App. LEXIS 1785, 1962
City of Columbus v. Becher, 173 Ohio St. 197, 189 N.E. 2d 836, 1962 Ohio LEXIS 596, 1962
David Ray Collins v. Roy Otto, 149 Colo. 489, 1962 Colo. LEXIS 459, 1962
Virginia DeLuce v. Fort Wayne Hotel, 311 F.2d 853, 1962 U.S. App. LEXIS 3203, 1962
Associated Independents v. Phyllis La Porte, 1963 Fla. App. LEXIS 2969, 1963
Carruth v. Easterling, 247 Miss. 364, 1963 Miss LEXIS 310, 1963 Miss. LEXIS 310, 1963
Commonwealth v. Massini, 188 A.2d 816, 1963 Pa. Super. LEXIS 622, 1963
Dorothy Ferreira v. Charles D’Asaro, 152 So. 2d 736, 1963 Fla. App. LEXIS 3639, 1963 246
Richard Lock v. Allen Falkenstine, 380 P.2d 228, 1963 Okla. Crim. App. LEXIS 133, 1963
James Key and Ellis Holland v. State of Tennessee, 1964 Tenn. LEXIS 545, 1964
Luther Wertman v. Tipping, 166 So. 2d 666, 1964 Fla. App. LEXIS 4012, 1964
Phyllis La Porte v. Associated Independents, 163 So. 2d 267, 19 64 Fla. LEXIS 2940, 1964
Zoning Commission of Danbury v. Peter Grandieri, 1964 Conn. Cir. LEXIS 230, 1964
City of Oklahoma City v. Hudson, 405 P. 2d 178, 1965 Okla. LEXIS 375, 1965
Moloney v. City of Columbus, 208 NE 144, 1965 Ohio LEXIS 528, 1965
Aug ust Tamburello v. Andrew Jaeger, 249 La. 25, 1966 La. LEXIS 2476, 1966
Edna Smith v. Ervine Jalbert, 221 N.E. 2d 744, 1966 Mass. LEXIS 670, 1966
H.E. Butt Grocery v. Elsa Perez, 408 S.W. 2d 576, 1966 Tex. App. LEXIS 2122, 1966
Marvin Saunders v. Corneli us Regeer, 1966 N.Y. Misc. LEXIS 1790, 1966
Jimmy Lee Grover v. City of Manhattan, 198 Kan. 307, 1967 Kan. LEXIS 287, 1967
Rosiland Swain v. Elizabeth Tillett, 269 N.C. 46, 1967 N.C. LEXIS 1025, 1967
C.E. America v. Antinori, 210 So.2d 443, 1968 Fla. LEX IS 2255, 1968
Estate of Thelma Russell v. Chester Quinn, 70 Cal. Rptr 561, 1968 Cal. LEXIS 236, 1968
Orlo S. Maw v. Weber Basin Water Conservancy District, 1968 Utah LEXIS 683, 1968
Sprague -Dawley v. Moore, 37 Wis 2d 689, 1968 Wisc. LEXIS 953, 1968
The People v. Shirley Scher, 286 N.Y.S. 2d 770, 1968 N.Y. Misc. LEXIS 1828, 1968
The State of Montana v. The State Fish and Game Commission, Mont. LEXIS 411, 1968
Commonwealth v. Wilfred Proctor, 246 N.E. 2d 454, 1969 Mass. LEXIS 821, 1969
Irby D. Reddet t v. Jimmy R. Mosley, 45 Ala. App. 38, 1969 Ala. App. LEXIS 311, 1969
Jeanette Clotilde Clark v. Keith Brings, 1969 Minn. LEXIS 1021, 1969
New Mexico State Game Commission v. Udall, 1969 U.S. App. LEXIS 12387, 1969 247
A.E. Nettleton Company v. Henry Diamond , 264 N.E. 2d 118, 1970 N.Y. LEXIS 1039, 1970
Aikens v. Department of Conservation, 1970 Mich. App. LEXIS 1138, 1970
Chance v. Ringling Bros. Barnum & Bailey Combined Shows, 1970 Ore. LEXIS 280, 1970
Elephant Inc v. Hartford Accident, 239 So. 2d 692, 1 970 La. App. LEXIS 4970,1970
The City and County of Denver v. Denise Kennedy, 1970 Colo. App. LEXIS 643, 1970
Williams v. Pohlman, 257 N.E. 2d 329, 1970 Ind. App. LEXIS 461, 1970
In the Matter of the Estate of Elsa R. Erl, 491 P. 2d 105, 1971 Colo. App. LEXIS 819, 1971
William F. Julian v. Frank De Vincent, 155 W. Va. 320, 1971 W. Va. LEXIS 202, 1971
Williams v. Gibbs, 123 Ga. App. 677, 1971 Ga. App. LEXIS 1345, 1971
Clavance Granger v. United States Fidelity & Guaranty, 1972 La. App. LEXIS 6626, 1972
New York Life Insurance v. Jack Kick, 1972 N.Y. Misc. LEXIS 1592, 1972
Attie Lincecum v. Udell Smith 287 So. 2d 625, 1973 La. App. LEXIS 6773, 1973
State of Kansas v. Vernon Claiborne, 505 P.2d 732, 1973 Kan. LEXIS 388, 1973
George Williams v. Edith Go odwin, 41 Cal. App. 3d 496, 1974 Cal. App. LEXIS 806, 1974
John Posnien v. L. Earl Rogers, 533 P.2d 120, 1975 Utah LEXIS 657, 1975
Key v. Bagen, 221 S.E. 2d 234, 1975 Ga. App. LEXIS 1355, 1975
LeWayne F. Pigman v. Lester Nott, 233 N.W. 2d 287, 1975 Min n. LEXIS 1364, 1975
People v. McGregor, 238 N.W. 2d 183, 1975 Mich. App. LEXIS 1021, 1975
Sherry Whitmer v. Robert Schneble, 331 N.E. 2d 115, 1975 Ill. App. LEXIS 2494, 1975
The People of New York v. Stephen O’Rourke, 1975 N.Y. Misc. LEXIS 2872, 1975
Albert T. Cannady v. North Carolina Wildlife, 30 N.C. App. 247, 1976
Anne E. Eckis v. Sea World, 64 Cal. App. 3d 1, 1976 Cal. App. LEXIS 2043, 1976
Kleppe v. New Mexico, 426 U.S. 529, 1976 U.S. LEXIS 124, 1976 248
R.J. Wamser v. City of St. Petersburg, 339 S o. 2d 244, 1976 Fla. App. LEXIS 15920, 1976
Steven Braumer v. Howard Peterson, 557 P. 2d 359, 1976 Wash. App. LEXIS 1743, 1976
Phillis Gilbert v. Russell Christiansen, 259 N.W. 2d 896, 1977
The State v. Teater, 368 N.E. 2d 854, 1977 Ohio App. LEXIS 694 6, 1977
Willie Daniels v. State of Florida, 351 So. 2d 749, 1977 Fla. App. LEXIS 16715, 1977
Arnold Franken v. City of Sioux Center, 272, N.W. 2d 422, 1978 Iowa Sup. LEXIS 938, 1978
Baldwin v. Fish and Game Commission, 436 U.S. 371, 1978 U.S. LEXIS 27, 1978
Kimberly Whitefield v. Larry Stewart, 577 P. 2d 1295, 1978 Okla. LEXIS 377, 1978
Jack McGuire v. Sheldon Yanke, 99 Idaho 829, 1978 Ida. LEXIS 336, 1978
Safford Animal Hospital v. Kenneth Blain, 580 P. 2d 757, 1978 Ariz. App. LEXIS 506, 1978
State of North Carolina v. Paden Cole, 294 N.C. 304, 1978 N.C. LEXIS 1236, 1978
Julie Carlson v. State of Alaska, 598 P. 2d 969, 1979 Alas. LEXIS 663, 1979
Kay Corso v. Crawford Dog and Cat Hospital, 1979 N.Y. Misc. LEXIS 1988, 1979
Hughes v. Oklahoma, 441 U. S. 322, 99 S.Ct. 1727, 1979 U.S. LEXIS 35, 1979
John Mallard v. L.W. Zink and Mrs. L.W. Zink his wife, 1979 N.M. App. LEXIS 719, 1979
Robert Peloquin v. Calcasieu Parish Police, 1979 La. App. LEXIS 3932, 1979
State of Hawaii v. Alexander Kaneakua, 597 P. 2d 590, 1979 Haw. LEXIS 145, 1979
Benton Smith v. State Farm, 381 So. 2d 913, 1980 La. App. LEXIS 3611, 1980
C.B. Wiley v. Tommy Baker, 597 S.W.2d 3, 1980 Tex. App. LEXIS 3038, 1980
Junelle Brousseau v. Benjamin Rosenthal, 1980 N.Y. Misc. LEXIS 2972, 19 80
People v. Iehl, 299 N.W. 2d 46, 1980 Mich. App. LEXIS 2945, 1980
Robert Alan Blake v. Dunn Farms Inc, 413 N.E. 2d 560, 1980 Ind. LEXIS 823, 1980
Robert Giles v. State, 431 N.Y.S. 2d 781, 1980 N.Y. Misc. LEXIS 2687, 1980 249
State of Hawaii v. Kenneth Va sseur, 1980 Haw. App. LEXIS 106, 1980
State of North Carolina v. James Wallace, 1980 N.C. App. LEXIS 3420, 1980
The People v. Beverly Joan Brian, 168 Cal. Rprt. 105, 1980 Cal. App. LEXIS 2276, 1980
Timothy Wilson v. City of Eagan, 297 N.W. 2d 146, 1980 Minn. LEXIS 1585, 1980
Albert C. Arrington v. Ruby D. Arrington, 1981 Tex. App. LEXIS 3451, 1981
Charles Knox v. Massachusetts SPCA, 425 N.E. 2d 393, 1981 Mass. App. LEXIS 1189, 1981
Pamula Campbell v. Animal Quarantine, 632 P.2d 1066, 1981 Haw. LEXIS 13 5, 1981
US v. Janet Leslie Cooper Byrnes, 644 F.2d 107, 1981 U.S. App. LEXIS 19164, 1981
Arthuer Brady v. Margaret Skinner, 132 Ariz 425, 1982 Ariz. App. LEXIS 444, 1982
Carl Miles v. City Council of Augusta, 1982 U.S. Dist. LEXIS 15801, 1982
John C. Scott v. E.J. Dunn, 419 So. 2d 1340, 1982 Ala. LEXIS 3294, 1982
Lon Strong v. John Bostick, 420 So. 2d 1356, 1982 Miss. LEXIS 2170, 1982
Darci Lynn Mills v. Ray O. Smith, 673 P. 2d 117, 1983 Kan. App. 201, 1983
Edward Taub v. State of Maryland, 463 A. 2d 819, 1983 Md. LEXIS 263, 1983
Matthew Blanchard v. City of Bridgeport, 190 Conn. 798, 1983 Conn. LEXIS 568, 1983
In Re the Marriage of Stewart and Wilson, 1984 Iowa App. LEXIS 1696, 1984 Jordon v. State of Alaska, 681 P. 2d 346, 1984 Alas. App. LEXIS 244, 1984
Milton Pharr v. State of Mississippi, 465 So. 2d 294, 1984 Miss. LEXIS 2033, 1984
The People v. Robert Sadowski, 155 Cal. App. 3d 332, 1984 Cal. App. LEXIS 1984, 1984
The State of Ohio v. Kirchner, 483 N.E. 2d 497, 1984 Ohio Misc. LEXIS 203, 1984
Richard Gill v. Morris Brown, 695 P.2d 1276, 1985 Ida. App. LEXIS 570, 1985 250
David Kent v. Polk County Board of Supervisors, 1986 Iowa Sup. LEXIS 1235, 1986
Jean Jett v. The People, 177 Cal. App. 3d 664, 1986 Cal. App. LEXIS 2583, 1986
Maine v. Taylor , 477 U.S. 131, 1986 U.S. LEXIS 111, 1986
Rogers v. State, 491 So. 2d 987, 1986 Ala. Crim. App. LEXIS 5863, 1986
Steven Katsaris v. Melvin Cook, 180 Cal. App. 3d 256, 1986
The City of Rolling Meadows v. Audry Kyle, 1986 Ill. App. LEXIS 2462, 1986
Unit ed States v. David Leroy Sproed, 628 F. Supp. 1234, 1986 U.S. Dist. LEXIS 30827, 1986
James Burns v. M.A. Gleason, 819 F.2d 555, 1987 U.S. App. LEXIS 7733, 1987
Tennessee Conservation League v. Michael Cody, 1987 Tenn. LEXIS 974, 1987
Garcia ... and Duk e City Pit Bull Club v. Village of Tijaras, 767 P.2d 355, 1988
State of North Carolina v. Grace Rohrer, 322 N.C. 522, 1988 N.C. LEXIS 468, 1988
American Dog Owners Association v. City of Yakima, 1989 Wash. LEXIS 99, 1989
David Brunelle v. Anthony Signore , 1989 Cal. App. LEXIS 1097, 1989
Lillian Callois Boyer v. Lanette Seal, 553 So. 2d 827, 1989 La. LEXIS 2964, 1989
McKinnon v. Streetman, 385 S.E. 2d 691, 1989 Ga. App. LEXIS 1116, 1989
Whittier Terrace Associates v. Hampshire Masschusetts, 532 N.E. 2d 712, 1989
James Dycus v. Lena Sillers, 557 So. 2d 486, 1990
Michael Annunziata v. Harry Millar, 574 A.2d 1021, 1990 N.J. Super. LEXIS 162, 1990
Zuniga v. County of San Mateo, 218 Cal. App. 3d 1521, 1990 Cal. App. LEXIS 299, 1990
American Dog Owners v. R esponsible Dog Owners, 1991 Iowa Sup. LEXIS 192, 1991
State of Florida v. Butler, 587 So. 2d 1391, 1991
State of Illinois v. Thomas Fabing, 143 Ill. 2d 48, 570 N.E.2d 329, 1991 Ill. LEXIS 17, 1991
Thomas Hudson v. Janesville Conservation Club, 1992 Wisc. LEXIS 304, 1992 251
Citizens v. New England Aquarium, 836 F. Supp. 45, 1993 U.S. Dist. LEXIS 15187, 1993
Church of the Lukumi Babalu Aye v. City of Hialeah, 1993 U.S. LEXIS 4022, 1993
Leonard Gallide v. Bruce Barto, 828 F. Supp. 1175, 1993 U.S. Dist. LEXI S 11069, 1993
Robin Moerman v. The State of California, 1993 Cal. App. LEXIS 768, 1993
The People v. Charles Dunn, 610 N.Y.S. 2d 121, 1993 N.Y. Misc. LEXIS 593, 1993
Andrew Gluckman v. American Airlines, 1994 U.S. Dist. LEXIS 1351, 1994
Carl Bueckner v . Anthony Hamel, 886 S.W. 2d 368, 1994 Tex. App. LEXIS 2168, 1994
County of Pasco v. Chris and Wendy Riehl, 635 So.2d 17, 1994 Fla. LEXIS 489, 1994
Betty Pichelman v. Sylvia Barfknecht, 1995 Wisc. App. LEXIS 994, 1995
Darron Arroyo v. The State of California, 1995 Cal. App. LEXIS 406, 1995
Dottie Cathey v. Dennis Guenther, 47 F. 3d 162, 1995 U.S. App. LEXIS 4807, 1995
Fereydoon Boushehry v. State of Indiana, 1995 Ind. App. LEXIS 227, 1995
James T. Robinson III v. Don Gantt, 673 So. 2d 441, 1995 Ala. Civ. App. LEXIS 450, 1995
Lester Surface v. Ozark Ostrich Farms, 1995 Mo. App. LEXIS 1840, 1995
Massachusetts SPC v. Division of Fisheries, 1995 Mass. LEXIS 292, 1995
Ronald Bennett v. Kathryn Bennet t, 655 So. 2d 109, 1995 Fla. App. LEXIS 192, 1995
State of Connecticut v. Susan Defrancesco, 668 A.2d 348, 1995 Conn. LEXIS 393, 1995
The State of Washington v. John Paul Mierz, 901 P. 2d 286, 1995 Wash. LEXIS 199, 1995
Carroll v. R ock, 469 S.E. 2d 391, 1996 Ga. App. LEXIS 159, 1996
John Nichols v. Sukaro Kennels, 555 N.W. 2d 689, 1996 Iowa Sup. LEXIS 448, 1996
Nancy Sakach v. City of Pittsburgh, 687 A. 2d 34, 1996 Pa. Commw. LEXIS 546, 1996
Tracy Price v. Nan cy Brown VMD, 545 Pa. 216, 1996 Pa. LEXIS 1516, 1996
Vernon Crowder v. Yukio Kitagawa, 81 F.3d 1480, 1996 U.S. App. LEXIS 9941, 1996 252
Warren County v. Kurt Rittenhouse, 117 Ohio App. 3d 97, 1997 Ohio App. LEXIS 144, 1997
Heather Hylan d v. Gregory Borras, 719 A. 2d 662, 1998 N.J. Super. LEXIS 422, 1998
Claire Bilida v. Andrew McCleod, 41 F. Supp. 2d 142, 1999 U.S. Dist. LEXIS 585, 1999
Clayton Peterson v. Wyoming Game and Fish, 989 P. 2d 113, 1999 Wyo. LEXIS 166, 1999
Commonwealth of Pennsylvania v. Sandra Comella, 1999 Pa. Commw. LEXIS 596, 1999
State of New Mexico v. Charles Cleve, 127 N.M. 240, 1999 N.M LEXIS 86, 1999
State of Vermont v. Scott Mobbs, 740 A. 2d 1288, 1999 Vt. LEXIS 307, 1999
Susan Raymond v. Suzanne Lachmann, 1999 N.Y. App. Div. LEXIS 8779, 1999
Arielle Pullan v. Jane Steinmetz, 16 P. 3d 1245, 2000 Utah LEXIS 175, 2000
Dolores Liddle v. Denise Scholze, 768 A. 2d 1183, 2000 Pa. Super. LEXIS 199, 2000
State of Washington v. Willis Eugine Long, 991 P. 2d 102, 2000 Wash. App. LEXIS 25, 2000
Jennifer Mitchell v. Susan Tuccio Heinrichs, 27 P. 3d 309, 2001 Alas. LEXIS 88, 2001
Julie Rabideau v. City of Racine, 627 N.W. 2d 795, 2001 Wisc. L EXIS 396, 2001
Lisa Burgess v. Judy Taylor, 44 S.W. 3d 806, 2001 Ky. App. 26, 2001
State of Idaho v. Laura Thompson, 33 P. 3d 213, 2001 Ida. App. LEXIS 21, 2001
Bernard McCaster v. Madeline Jackson, 833 So. 2d 36, 2002
Harp er v. Robinson, 589 S.E. 2d 295, 2003 Ga. App. LEXIS 1301, 2003
Ridgewood Homeowners Association v. David Mignacca, 2003 R.I LEXIS 8, 2003
The State of Washington v. Vern Zawistowski, 82 P.3d 698, 4 Wash. App. LEXIS 24, 2004
Nichol s v. Lowes Home Center, 407 F. Supp. 2d 979, 2006 253
ENDANGERED SPECIES CASES (CHRONOLOGICALLY)
Cappaert v. United States, 426 U.S. 128, 1976
Tennessee Valley Authority v. Hill, 437 U.S 153, 1978 U.S. LEXIS 33, 1978
United States v. Dion, 476 U.S. 734, 1986 U.S. LEXIS 53, 1986
Japan Whaling Association v. American Cetacean Society, 1986 U.S. LEXIS 124, 1986
Richard P. Christy v. Manuel Lujan, 490 U.S. 1114, 1989 U.S. LEXIS 2858, 1989
F. Dale Robertson v. Seattle Audubon Society, 503 U.S . 429, 1991
Manuel Lujan v. Defenders of Wildlife, 504 U.S. 555, 1992 U.S. LEXIS 3543, 1992
Bruce Babbitt v. Sweet Home 515 U.S. 687, 1995
Brad Bennett v. Michael Spear, 520 U.S. 154, 1997 U.S. LEXIS 1921, 1997
United States v. Ray Kepler, 531 F. 2d 796, 1976 U.S. App. LEXIS 12343, 1976
National Wildife Fed v. Coleman, 529 F. 2d 359, 1976 U.S. App. LEXIS 12197, 1976
Animal Welfare Institute v. Juanita Kreps, 1977 U.S. App. LEXIS 12286, 1977
United States v. Jerry Mitchell, 553 F. 2d 996, 1977 U.S. App. LEXIS 12970, 1977
Jacob Adams v. Cyrus Vance, , 570 F. 2d 950, 1977 U.S. App. LEXIS 11072, 1978
United States v. Henry A Molt, 599 F.2d 1217, 1979 U.S. App. LEXIS 14380, 1979
Defenders Wildlife v. Cecil Andrus, 627 F. 2d 1238, 1980 U.S. App. LEXI S 20824, 1980
Harry Hoover v. The US Department of the Interior, 1980 U.S. App. LEXIS 20417, 1980
North Slope Borough v. Cecil Andrus, 642 F. 2d 589, 1980 U.S. App. LEXIS 13250,1980
Carlos Romero -Barcelo v. Brown, 643 F. 2d 835, 1981 U.S. App. LEXIS 2 0682, 1981
Defenders v. Endangered Species Science Authority, 1981 U.S. App. LEXIS 20477, 1981
Palila v. Hawaii Department of Land Natural Resources, 1981 U.S. App. LEXIS 20354, 1981
United States v. Janete Leslie Cooper Byrnes, 1981 U.S. App. LEX IS 19164, 1981 254
Pacific Legal Foundation v. Cecil Andrus, 1981 U.S. App. LEXIS 18388, 1981
Glover River Organization v. US Dept Interior, 1982 U.S. App. LEXIS 20239, 1982
Cabinet Mountains Grizzly Bears v. R. Max Peterson. Forest Service, 685 F. 2d 678 , 1982
United States v. Fifty -Three (53) Eclectus Parrots, 1982 U.S. App. LEXIS 26026, 1982
H.J. Justin & Sons v. George Deukmejian, 1983 U.S. App. LEXIS 29749, 1983
Man Hing Ivory and Imports v. George Deukmejian, 702 F. 2d 760, 1983
Roosevelt Campo bello v. US EPA, 684 F. 2d 1041, 1983 U.S. App. LEXIS 29750, 1982
United States v. State of Oregon, 718 F. 2d 299, 1983 U.S. App. LEXIS 16124, 1983
Defenders v. Endangered Species Scientific Authority, 1984 U.S. App. LEXIS 26588, 1984
Carson -Truckee Wa ter v. William Clark, 741 F. 2d 257, 1984 U.S. App. LEXIS 19322, 1984
Village of False Pass v. William Clark, 733 F. 2d 605, 1984 U.S. App. LEXIS 24617, 1984
Harold Thomas v. R. Max Peterson, 753 F. 2d 754, 1985 U.S. App. LEXIS 28711, 1985
Riverside Ir rigation District v. Andrews, 758 F. 2d 508, 1985 U.S. App. LEXIS 30037, 1985
Sierra Club v. William Clark, 755 F. 2d 608, 1985 U.S. App. LEXIS 29364, 1985
Friends of Endangered Species v. Robert Jantzen, 1985 U.S. App. LEXIS 31162, 1985
United States v . James Doyle, 786 F. 2d 1440, 1986 U.S. App. LEXIS 24357, 1986
National Audubon Society v. F. Eugene Hester, 1986 U.S. App. LEXIS 29208, 1986
Tim Jones et al v. William Gordon, 792 F. 2d 821, 1986 U.S. App. LEXIS 26197, 1986
Environmental Coalition v. Myers, 831 F. 2d 984, 1987 U.S. App. LEXIS 14596, 1987
Sierra Club v. John O. Marsh, 816 F. 2d 1376, 1987 U.S. App. LEXIS 5892, 1987
Bob Marshall Alliance v. Donald Hodel, 852 F. 2d 1223, 1988 U.S. App. LEXIS 10126, 1988
James Conner v. Robert Burford, 836 F. 2d 1521, 1988 U.S. App. LEXIS 19542, 1988
US v. City of Rancho Palos Verdes, 841 F. 2d 329, 1988 U.S. App. LEXIS 2921, 1988 255
Palila v. Hawaii, 852 F. 2d 1106, 1988 U.S. App. LEXIS 9919, 1988
State of Louisiana v. C. William Verity, 853 F. 2d 322, 1988 U.S. App. LEXIS 11816, 1988
Richard Christy v. Donald Hodel, 857 F. 2d 1324, 1988 U.S. App. LEXIS 12810, 1988
Defender of Wildlife v. EPA, 882 F. 2d 1294, 1989 U.S. App. LEXIS 12232, 1989
Pyramid Lake Paiute Tribe v. US Navy, 898 F. 2d 1410, 19 90 U.S. App. LEXIS 3874, 1990
United States v. Oanh Vu Nguyen, 916 F. 2d 1016, 1990 U.S. App. LEXIS 19133, 1990
Sierra Club v. Clayton Yeutter, 926 F. 2d 429, 1991 U.S. App. LEXIS 3522, 1991
United States v. Jack Ivey, 949 F. 2d 759, 1991 U.S. App. LE XIS 29446, 1991
Seattle Audubon Society v. John Evans, 952 F. 2d 297, 1991 U.S. App. LEXIS 29610, 1991
Mt. Graham Red Squirrel v. Edward Madigan, 1992 U.S. App. LEXIS 6316, 1992
United States v. Hung Van Tran, 955 F. 2d 288, 1992 U.S. App. LEXIS 2652, 1 992
Lane County Audubon v. Cy Jamison, 958 F. 2d 290, 1992 U.S. App. LEXIS 3366, 1992
US v. One Afghan Urial Ovis Orientalis Blanfordi, 1992 U.S. App. LEXIS 14858, 1992
Marina Beck v. US Commerce, 982 F. 2d 1332, 1992 U.S. App. LEXIS 33482, 1992
Gree npeace Action v. Barbara Franklin, 14 F. 3d 1342, 1992 U.S. App. LEXIS 38073, 1992
US v. Glenn -Colusa Irrigation District, 788 F. Supp. 1126, 1992 U.S. Dist. LEXIS 4601, 1992
Portland Audubon v. Endangered Species Committee, 1993 U.S. App. LEXIS 6678, 1 993
United States v. David Tannehill Clark, 986 F. 2d 65, 1993 U.S. App. LEXIS 2169, 1993
United States v. Paul Parker, 991 F. 2d 1493, 1993 U.S. App. LEXIS 8349, 1993
Region 8 Forest Service Council v. John Alcock, 1993 U.S. App. LEXIS 14762, 1993
Ear th Island Institute v. Warren Christopher, 6 F. 3d 648, 1993 U.S. App. LEXIS 25009, 1993
United States v. Richard Stubbs, 11 F. 3d 632, 1993 U.S. App. LEXIS 32258, 1993
Pacific Rivers Council v. Jack Ward Thomas, 1994 U.S. App. LEXIS 16706, 1994 256
Nationa l Wildlife v. Burlington Northern Railroad, 1994 U.S. App. LEXIS 9881, 1994
Pacific Northwest Cooperative v. Ronald Brown, 1994 U.S. App. LEXIS 27054, 1994
Resources Limited v. F. Dale Robertson, 35 F. 3d 1300, 1994 U.S. App. LEXIS 17121, 1994
Alabama -Tombigbee Rivers Coalition v. Dept Interior, 1994 U.S. App. LEXIS 19205, 1994
United States v. David Hayashi, 22 F. 3d 859, 1993 U.S. App. LEXIS 37772, 1994
Forest Conservation Council v. Mike Espy, 1994 U.S. App. LEXIS 40897,1994
Janicki Logging Co. v. Bruce Mateer, 42 F.3d 561, 1994 U.S. App. LEXIS 34712, 1994
The Humane Society v. Babbitt, 46 F.3d 93, 1995 U.S. App. LEXIS 2749, 1994
Douglas County v. Bruce Babbitt, 48 F. 3d 1495, 1995 U.S. App. LEXIS 3532, 1995
Forest Conservation Council v. Rosbor o Lumber, 1995 U.S. App. LEXIS 5974, 1995
United States v. Robert Waites Guthrie, 50 F. 3d 936, 1995 U.S. App. LEXIS 9442, 1995
Idaho Farm Bureau Federation v. Bruce Babbitt, 1995 U.S. App. LEXIS 15983, 1995
Sierra Club v. Dan Glickman, 67 F.3d 90, 19 95 U.S. App. LEXIS 29789, 1995
Environmental Defense v. Bruce Babbitt, 73 F. 3d 867, 1995 U.S. App. LEXIS 35043, 1995
Catron County Board v. US Fish and Wildlife Service, 1996 U.S. App. LEXIS 1479, 1996
The Fund for Animals v. Terry Rice, 85 F. 3d 535, 1996 U.S. App. LEXIS 14292, 1996
United States v. Victor Bernal, 90 F. 3d 465, 1996 U.S. App. LEXIS 19496, 1996
James Ramsey v. Mickey Kantor, 96 F. 3d 434, 1996 U.S. App. LEXIS 24674, 1996
United States v. Gail Winnie, 97 F. 3d 975, 1996 U.S. App. LEXI S 26326, 1996
Coalition of Arizona / New Mexico Counties v. Interior, 1996 U.S. App. LEXIS 29647, 1996
Oregon Natural Resources Council v. Michael Kantor, 1996 U.S. App. LEXIS 28121, 1996
The Audubon Society v. United States Forest Service, 19 97 U.S. App. LEXIS 150, 1997
Sierra Club v. City of San Antonio, 112 F. 3d 789, 1997 U.S. App. LEXIS 9346, 1997 257
United States v. David Grigsby, 111 F. 3d 806, 1997 U.S. App. LEXIS 9603, 1997
Natural Resources Defense v. US Dept of the Interior, 19 97 U.S. App. LEXIS 11844, 1997
Hawksbill Sea Turtle, v. FEMA, 126 F. 3d 461, 1997 U.S. App. LEXIS 26096, 1997
Jeffery Mausolf v. Bruce Babbitt, 125 F. 3d 661, 1997 U.S. App. LEXIS 26105, 1997
Richard Max Strahan v. Trudy Coxe, 127 F. 3d 155, 1997
The F und for Animals v. Jack Ward Thomas, 1997 U.S. App. LEXIS 28770,1997
National Association of Homebuilders v Babbitt, 1997 U.S. App. LEXIS 34143, 1997
Reservation Ranch v. The United States, 39 Fed. Cl. 696, 1997 U.S. Claims LEXIS 238, 1997
United States v. Paul Clavette, 135 F. 3d 1308, 1998 U.S. App. LEXIS 1663, 1998
United States v. Chad Kirch McKittrick, 142 F. 3d 1170, 1998 U.S. App. LEXIS 8096, 1998
Southwest Center v. US Bof Reclamation, 143 F. 3d 515, 1998 U.S. App. LEXIS 8551, 1998
United Stat es v. Kei Tomono, 143 F. 3d 1401, 1998 U.S. App. LEXIS 12660, 1998
Natural Resources Defense Council v. David Houston, 1998 U.S. App. LEXIS 13463, 1998
Biodiversity Legal Foundation v. Babbitt, 1998 U.S. App. LEXIS 13851, 1998
Loggerhead Turtle, v. Vol usia County, 148 F. 3d 1231, 1998 U.S. App. LEXIS 17754, 1998
Sierra Club v. Dan Glickman, 156 F. 3d 606, 1998 U.S. App. LEXIS 23988, 1998
Building Industry v. Babbitt, 161 F. 3d 740, 1998 U.S. App. LEXIS 29822, 1998
Forest Guardians v. Babbitt, 174 F. 3d 1178, 1998 U.S. App. LEXIS 37992, 1998
United States v. Tim Eaton, 179 F. 3d 1328, 1999 U.S. App. LEXIS 15037, 1999
Defenders of Wildlife v. Mike Bernal, 204 F. 3d 920, 1999 U.S. App. LEXIS 31404, 1999
Charles Gibbs v. Babbitt, 214 F. 3d 483, 2000 U .S. App. LEXIS 12280, 2000
Jack Metcalf v. William Daley, 214 F. 3d 1135, 20000 U.S. App. LEXIS 12837, 2000
Southwest Center v. Babbitt, 215 F. 3d 58, 2000 U.S. App. LEXIS 14059, 2000 258
Wyoming Farm Bureau v. Bruce Babbitt, 199 F. 3d 1224, 2000 U.S. App. LEXIS 428, 2000:
National Wildlife Federation v. William Coleman, 1975 U.S. Dist. LEXIS 16720, 1975
United States v. Fully Mounted Leopard,, 1975 U.S. Dist. LEXIS 15015, 1975
Defenders of Wildlife v. Cecil Andrus, 428 F. Supp. 167, 1977 U.S. Dist. LEXI S 16939, 1977
United States v. Jerry Mitchell, 553 F. 2d 996, 1977 U.S. App. LEXIS 12970, 1977
Chester Connor v. Cecil Andrus, 453 F. Supp. 1037, 1978 U.S. Dist. LEXIS 17356, 1978
United States v. Four Coats, 1978 U.S. Dist. LEXIS 14116, 1978
United St ates v. One Margay Fur Hat, 1978 U.S. Dist. LEXIS 16916, 1978
Cayman Turtle Farm v. Cecil Andrus, 478 F. Supp. 125, 1979 U.S. Dist. LEXIS 12100, 1979
Eben Hopson v. Juanita Kreps, 462 F. Supp. 1374, 1979 U.S. Dist. LEXIS 15136, 1979
People of Togiak v. United States, 470 F. Supp. 423, 1979 U.S. Dist. LEXIS 13274, 1979
The Fouke Company v. Edmund Brown, 1979 U.S. Dist. LEXIS 15079, 1979
Keith Carpenter v. Cecil Andrus, 485 F. Supp. 320, 1980 U.S. Dist. LEXIS 10081, 1980
Defenders of Wildlife v. Jam es Watt, 1981 U.S. Dist. LEXIS 18548, 1981
United States v. Jose Abeyta v. 632 F. Supp. 1301, 1986 U.S. Dist. LEXIS 26988, 1986
US v. 3,210Crusted Sides of Caiman Crocodilus Yacare, 1986 U.S. Dist. LEXIS 24920, 1986
Federation of Japan Salmon Fisheries v. Baldridge, 1987 U.S. Dist. LEXIS 12958, 1987
National Wildlife Federation v. National Park Service, 1987 U.S. Dist. LEXIS 13845, 1987
American Littoral Society v. Col. Robert Herndon, 1988 U.S. Dist. LEXIS 17139, 1988
Northern Spotted Owl v. Donald H odel, 1988 U.S. Dist. LEXIS 16609, 1988
United States v. 2,507 Live Canary Winged Parakeets, 1988 U.S. Dist. LEXIS 5738, 1988
United States v. Calvin Paul St. Onge, 676 F. Supp. 1044, 1988 U.S. Dist. LEXIS 336, 1988
World Wildlife Fund v. Donald Hodel, 1988 U.S. Dist. LEXIS 19409, 1988 259
City of Las Vegas v. Manuel Lujan, 891 F. 2d 927, 1989 U.S. App. LEXIS 19287, 1989
Defenders of Wildlife v. Donald Hodel, 1989 U.S. Dist. LEXIS 2450, 1989
Portland Audubon v. Manuel Lujan, 712 F. Supp. 1456, 1989 U.S. D ist. LEXIS 5551, 1989
Protect our Eagles Trees v. City Lawrence, 1989 U.S. Dist. LEXIS 2285, 1989
United States v. Billy Darst, 726 F. Supp. 286, 1989 U.S. Dist. LEXIS 14553, 1989
Kermit George v. United States, 735 F. Supp. 1524, 1990 U.S. Dist. LEXIS 5181, 1990
United States v. Daniel Kaneholani, 773 F. Supp. 1393, 1990 U.S. Dist. LEXIS 19272, 1990
Hawaiian Crow v. Manuel Lujan, 906 F. Supp. 549, 1991 U.S. Dist. LEXIS 21628, 1991
Northern Spotted Owl v. Manual Lujan, 758 F. Supp. 621, 1991 U.S. Dist . LEXIS 2228, 1991
Southern Timber Purchasers Council v. John Alcock, 1991 U.S. Dist. LEXIS 17477, 1991
The Fund for Animals v. John Turner, 1991 U.S. Dist. LEXIS 13426, 1991
US v. 1000 Raw Skins of Caiman Crocodilus Yacare, 1991 U.S. Dist. LEXIS 3535, 1991
Animal Protection Institute v. Robert Mosbacher, 1992 U.S. Dist. LEXIS 11436, 1992
Colorado Wildlife Federation v. John Turner, 1992 U.S. Dist. LEXIS 22046, 1992
Joy Morrill v. Manuel Lujan, 802 F. Supp. 424, 1992 U.S. Dist. LEXIS 15110, 1992
Cen ter for Marine Conservation v. Ronald Brown, 1993 U.S. Dist. LEXIS 3801, 1993
Citizens to End Suffering v. New England Aquarium, 1993 U.S. Dist. LEXIS 15187, 1993
Idaho Farm v. Babbitt, 1993, 1993 U.S. Dist. LEXIS 17699, rev’d 58 F. 3d 1392 (9 th Cir. 199 5)
Northwest Resource Information Center v. National Marine Service, 1993 U.S. Dist. LEXIS 19549, 1993
Pacific Rivers Council v. F. Dale Robertson v. 854 F. Supp. 713, 1993 U.S. Dist. LEXIS 20039, 1993
People for the Ethical Treatment of Animals v. Bruc e Babbitt, 1993 U.S. Dist. LEXIS 13768, 1993
The Bays Legal Fund v. Carol Browner, 828 F. Supp. 102, 1993 260
Trinity County Concerned Citizens v. Bruce Babbitt, 1993 U.S. Dist. LEXIS 21378, 1993
Dr. Robin Silver v. Bruce Babbitt, 1994 U.S. Dist. LEXIS 1602 8, 1994
Earth Island Institute v. Ronald Brown, 865 F. Supp. 1364, 1994 U.S. Dist. LEXIS 15320, 1994
Endangered Species Committee of the Building Industry v. Bruce Babbitt, 852 F. Supp. 32, 1994 U.S. Dist. LEXIS 8280, 1994
Florida Key Deer v. Wallace St ickney, 864 F. Supp. 1222, 1994 U.S. Dist. LEXIS 13430, 1994
Four Points Utility Joint Venture v. United States, 1994 U.S. Dist. LEXIS 20915, 1994
Friends of the Coast Fork v. United States, 1994 U.S. Dist. LEXIS 21675, 1994
Idaho Department of Fish and Game v. National Marine Fisheries Service, 850 F. Supp 886, 1994 U.S. Dist. LEXIS 5089, 1994
United States v. One Handbag of Crocodilus Species, 856 F. Supp. 128, 1994 U.S. Dist. LEXIS 8775, 1994
Williamson County Commissioners v. Bruce Babbitt, 1994 U. S. Dist. LEXIS 20908, 1994
Dr. Robin Silver v. Bruce Babbitt, 1995 U.S. Dist. LEXIS 20784, 1995
Dr. Robin Silver v. Bruce Babbitt, 1995 U.S. Dist. LEXIS 20782, 1995
Kentucky Heartwood v. United States Forest Service, 906 F. Supp. 410, 1995 U.S. Dist. LEXIS 17737 1995
Loggerhead Turtle, Green Turtle v. The County Council of Volusia, 896 F. Supp. 1170, 1995 U.S. Dist. LEXIS 11465, 1995
Richard Max Strahan v. Rear Admiral John Linnon, 967 F. Supp. 581, 1995 U.S. Dist. LEXIS 21512, 1995
Schuyler Van Sco y v. Shell Oil, 1995 U.S. Dist. LEXIS 5430, 1995
The Fund for Animals v. Bruce Babbitt, 903 F. Supp. 96, 1995 U.S. Dist. LEXIS 14742, 1995
The Fund for Animals v. Bruce Babbitt, 1995 U.S. Dist. LEXIS 22389, 1995
United States v. John Hill, 896 F. Supp. 1057, 1995 U.S. Dist. LEXIS 12292, 1995
Biodiversity Legal Foundation v. Bruce Babbitt, 943 F. Supp. 23, 1996 U.S. Dist. LEXIS 15322, 1996 261
Friends of the Wild Swan v. United States Fish and Wildlife Service, 945 F. Supp. 1388, 1996 U.S. Dist. LEXIS 17111 , 1996
Greater Yellowstone Coalition v. Bruce Babbitt, 952 F. Supp. 1435, 1996 U.S. Dist. LEXIS 21033, 1996
Marbled Murrelet v. Bruce Babbitt, 918 F. Supp. 318, 1996 U.S. Dist. LEXIS 3634, 1996
National Association of Home Builders v. Bruce Babbitt, 949 F. Supp. 1, 1996 U.S. Dist. LEXIS 18435, 1996
Richard Max Strahan v. Trudy Coxe, 939 F. Supp. 963, 1996 U.S. Dist. LEXIS 17151, 1996
Sierra Club v. Bruce Babbitt, 948 F. Supp. 56, 1996 U.S. Dist. LEXIS 20451, 1996
Southwest Center v. Bruce Babbitt, 939 F. Supp. 49, 1996 U.S. Dist. LEXIS 14692, 1996
Southwest Center v. Bruce Babbitt, 926 F. Supp. 920, 1996 U.S. Dist. LEXIS 6976, 1996
Southwest Center v. John Rogers, 950 F. Supp. 278, 1996 U.S. Dist. LEXIS 19913, 1996
The Hawksbill Sea Turtle v. FEM A, 939 F. Supp. 1195, 1996 U.S. Dist. LEXIS 14667, 1996
American Rivers v. National Marine Fisheries Service, 1997 U.S. Dist. LEXIS 22849, 1997
Bensman v. US Forest Service, 984 F. Supp. 1242, 1997 U.S. Dist. LEXIS 18449, 1997
Biodiversity Legal Founda tion v. Bruce Babbitt, 1997 U.S. Dist. LEXIS 23007, 1997
Building Industry Association v. Bruce Babbitt, 979 F. Supp. 893, 1997 U.S. Dist. LEXIS 14768, 1997
Defenders of Wildlife v. Bruce Babbitt, 958 F. Supp. 670, 1997 U.S. Dist. LEXIS 5022, 1997
Orlea ns Audubon Society v. Bruce Babbitt, 1997 U.S. Dist. LEXIS 23909, 1997
Richard Max Strahan v. Rear Admiral John Linnon, 1997 U.S. Dist. LEXIS 8547, 967 F. Supp. 581, 1997, aff’d 187 F. 3d 623, 1998
Save Our Springs v. Bruce Babbitt, 27 F. Supp. 2d 739, 1997 U.S. Dist. LEXIS 23264, 1997
Southwest Center v. Bruce Babbitt, 1997 U.S. Dist. LEXIS 23925, 1997
Southwest Center v. Bruce Babbitt, 1997 U.S. Dist. LEXIS 17792, 1997 262
Wyoming Farm Bureau Federation v. Bruce Babbitt, 987 F. Supp. 1349, 1997 U.S. Di st. LEXIS 20332, 1997
Arizona Cattle Growers Association v. U.S. Fish and Wildlife Service, 1998 U.S. Dist. LEXIS 22160, 1998
Charles Gibbs v. Bruce Babbitt, 31 F. Supp. 2d 531, 1998 U.S. Dist. LEXIS 20325, 1998
Coalition of Arizona / New Mexico Count ies v. Department of the Interior, 1998 U.S. Dist. LEXIS 22019, 1998
John Shuler v. Bruce Babbitt, 49 F. Supp. 2d 1165, 1998 U.S. Dist. LEXIS 22003, 1998
Oregon Natural Resources Council v. William Daley, 6 F. Supp. 2d 1139, 1998 U.S. Dist. LEXIS 13522, 1998
Sierra Club v Bruce Babbitt, 15 F. Supp. 2d 1274, 1998 U.S. Dist. LEXIS 12664, 1998
The Hawksbill Sea Turtle v. FEMA, 11 F. Supp. 2d 529, 1998
United States v. Town of Plymouth, 6 F. Supp. 2d 81, 1998 U.S. Dist. LEXIS 7523, 1998
Arizona Cattle Growers Association v. United States Fish and Wildlife Service, 1999 U.S. Dist. LEXIS 23236, 1999
Defenders of Wildlife v. Babbitt, 1999 U.S. Dist. LEXIS 10366, 1999
Greenpeace v. National Marine Fisheries Service, 55 F. Supp. 2d 1248, 1999 U.S. Dist. LE XIS 16418, 1999
Defenders of Wildlife v. Lt. General Joe Ballard, 32 F. Supp. 2d 1094, 1999 U.S. Dist. LEXIS 20751, 1999
Humane Society v. Dan Glickman, 1999 U.S. Dist. LEXIS 19759, 1999
Jumping Frog Research Institute v. Bruce Babbitt, 1999 U.S. Dist. LEXIS 23175, 1999
New Mexico Cattle Growers Association v. US Fish and Wildlife Service, 81 F. Supp. 2d 1141, 1999 U.S. Dist. LEXIS 20735, 1999
Leatherback Sea Turtle v. National Marine Fisheries Service, 1999 U.S. Dist. LEXIS 23317, 1999
New Mexico Cat tle Growers Association v. US Fish Wildlife Service, 1999 U.S. Dist. LEXIS 19096, 1999
Southwest Center v. Jamie Rappaport Clark, 90 F. Supp. 2d 1300, 1999 U.S. Dist. LEXIS 21957, 263
1999
Bernstein/Glazer v. Bruce Babbitt, 2000 U.S. Dist. LEXIS 3813, 2000
Center for Biological Diversity v. Anne Badgley, 2000 U.S. Dist. LEXIS 15155, 2000
Federation of Fly Fishers v. William Daley, 2000 U.S. Dist. LEXIS 20450, 2000
Greenpeace v. National Marine Fisheries Service, 2000 U.S. Dist. LEXIS 776, 2000
Greenpeace Foundation v. Norman Mineta, 2000 U.S. Dist. LEXIS 18165, 2000
John Shield v. Bruce Babbitt, 2000 U.S. Dist. LEXIS 22215, 2000
Loggerhead Turtle v. The County Council of Volusia County, 2000 U.S. Dist. LEXIS 4283, 2000
Loggerhead Turtle v. The County Council of Volusia County, 2000 U.S. Dist. LEXIS 20085, 2000
National Wildlife Federation v. Bruce Babbitt, 2000 U.S. Dist. LEXIS 19543, 2000
San Luis & Delta -Mendota Water Authority v. Anne Badgley, 2000 U.S. Dist. LEXIS 17779, 2000
United States v. West Coast Forest Resources, 2000 U.S. Dist. LEXIS 19099, 2000
OTHER CASES
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), accessed at web.lexis - nexis.com.
Defenders of Wildlife v. Babbitt, 958 F. Supp. 670 (D.D.C. 1997), accessed a t web.lexis - nexis.com, 1997 U.S. Dist. LEXIS 5022.
Center for Biological Diversity v. U.S. Fish and Wildlife Service, Order No. C 04 -04324 WHA, United States District Court for the Northern District of California, August 18, 2005
National Wildlife Federa tion v. Norton, File No. 1:03 -CV -340, Opinion and Order, United States District Court for the District of Vermont, August 19, 2005.
Western Watersheds Project v. Foss, Memorandum Decision and Order, Case No. CV 04 -168 - MHW, United States District Court for the District of Idaho, August 19, 2005. 264
APPENDIX C, BOOKS
# TITLE AUTHOR # SOLD, 1/01 Lowrey 14.9 M 1 The Poky Little Puppy (1942) Potter 9.3 M 2 The Tale of Peter Rabbit (1902) Crampton 8.5 M 3 Tootle (1945) Dr. Seuss 8.1 M 4 Green Eggs and Ham (1960) Rowling 7.9 M 5 Harry Potter and the Goblet of Fire (2000) Kunhardt 7.6 M 6 Pat the Bunny (1940) Jackson 7.5 M 7 Saggy Baggy Elephant (1947) Crampton 7.4 M 8 Scuffy the Tugboat (1955) Dr. Seuss 7.2 M 9 The Cat in the Hat (1957) Rowling 6.3 M 10 Harry Potter and Chamber of Secrets Rowling 6.3 M 11 Harry Potter and Prisoner of Azkaban Silverstein 6.2 M 12 Where the Sidewalk Ends (1975) Dr. Seuss 6.1 M 13 One Fish, Two Fish, Red Fish, Blue Fish Silverstein 5.6 M 14 The Gi ving Tree 1964) Tazawell 5.5 M 15 The Littlest Angel (1946) Dr. Seuss 5.4 M 16 Hop on Pop (1963) Dr. Seuss 5.3 M 17 Oh the Places You’ll Go! (1990) Dr. Seuss 5.2 M 18 Dr. Seuss’s ABC (1960) Rowling 5.1 M 19 Harry Potter and Sorcerer’s St one (1998) Carle 4.8 M 20 The Very Hungry Caterpillar (1969) 4.3 M 21 The Children’s Bible (1965) Silverstein 4.3 M 22 A Light in the Attic (1981) Potter 4.2 M 23 The Tale of Benjamin Bunny (1904) Eastman 4.1 M 24 Are You My Mother? (1960) Pfister 4.1 M 265
25 The Rainbow Fish (1992) Dr. Seuss 4 M 26 The Cat in the Hat Comes Back (1958) Scarry 4 M 27 Richard Scarry’s Best Word Book (1963) Korman 3.9 M 28 Disneys the Lion King (1994) Potter 3.8 M 29 The Tale of Jemina Puddle -Duck (1908) Piper 3.7 M 30 The Little Engine that Could (1930) Dr. Seuss 3.7 M 31 Fox in Socks (1965) Brown 3.6 M 32 Goodnight Moon, Board Book (1991) Wright 3.6 M 33 The Real Mother Goose (1916) Eastman 3.5 M 34 Go, Dog, Go! (1961) Dr. Seuss 3.5 M 35 How the Grinch Stole Christmas (1964) Potter 3.1 M 36 The Tale of Squirrel Nutkin (1907) Potter 3.1 M 37 The Tale of Tom Kitten (1907) Levy ed. 3 M 38 Macmillian Dictionary for Children (1975) Mi lne 3 M 39 Winnie -the -Pooh (1926) Dr. Seuss 3 M 40 My Book About Me (1969) Hanford 2.9 M 41 Wheres Waldo? (1987) Lyrick 2.9 M 42 Just Imagine (1992) Handford 2.8 M 43 The Great Waldo Search (1989) Allsburg 2.7 M 44 The Polar Express (1985) Handford 2.7 M 45 Find Waldo Now (1989) Johnson 2.6 M 46 Cats Cradle (1993) Eastman 2.5 M 47 The Cat in the Hat Dictionary (1964) Brown 2.4 M 48 Goodnight Moon (1947) Disney 2.4 M 49 Walt Disneys Storyland (1962) Keene 2.3 M 50 The Secret of Shadow Ranch (1931) 12/17/02 Publishers Weekly, http//home.Comcast.net/ top50child.html, accessed 12/22/2005 266
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