JOURNAL OF ANIMAL & NATURAL RESOURCE LAW Michigan State University College of Law MAY 2018 VOLUME XIV The Journal of Animal & Natural Resource Law is published annually by law students at Michigan State University College of Law. JOURNAL OF ANIMAL & The Journal of Animal & Natural Resource Law received generous support from NATURAL RESOURCE LAW the Animal Legal Defense Fund and the Michigan State University College of Law. Without their generous support, the Journal would not have been able to publish and VOL. XIV 2018 host its annual symposium. The Journal also is funded by subscription revenues. Subscription requests and article submissions may be sent to: Professor David Favre, Journal of Animal & Natural Resource Law, Michigan State University College of EDITORIAL BOARD Law, 368 Law College Building, East Lansing MI 48824, or by email to msujanrl@ gmail.com. 2017-2018 Current yearly subscription rates are $27.00 in the U.S. and current yearly Internet Editor-in-Chief subscription rates are $27.00. Subscriptions are renewed automatically unless a request AYLOR ATERS for discontinuance is received. T W Back issues may be obtained from: William S. Hein & Co., Inc., 1285 Main Street, Executive Editor & Notes Editor Buffalo, NY 14209. JENNIFER SMITH The Journal of Animal & Natural Resource Law welcomes the submission of articles, book reviews, and notes & comments. Each manuscript must be double spaced, in Managing Editor & Business Editor 12 point, Times New Roman; footnotes must be single spaced, 10 point, Times New INDSAY EISS Roman. Submissions should be sent to [email protected] using Microsoft Word or L W PDF format. Submissions should conform closely to the 19th edition of The Bluebook: A Uniform System of Citation. Article Editors HARLOTTE C RAY All articles contain a 2018 author copyright unless otherwise noted at beginning of C M C article. Copyright © 2018 by the Journal of Animal & Natural Resource Law, Michigan CASSEE LAYNE State University College of Law. Associate Editors RACHEL BOWMA KAITLIN BRAUNSCHWEIG DELANEY CALLAHAN NICHOLAS CASTRO DANIELLE CHIRDON ELAINA CIPCIC ZACHARY CRONKHITE BRITTNEY ELLIS MAXSON FREDERICK ANDREW HEAD KATHERINE HENDRICKS JACLYN IGNATOWITZ ALISON KIMBLE NICOLE NELSON LEANNE PREGIZER MICHAEL RICCHI PHILIP ROBERTS JESSICA RUNDLE BRIANNA VENTURO Faculty Advisor DAVID FAVRE JOURNAL OF ANIMAL & NATURAL RESOURCE LAW VOL. XIV 2018 PEER REVIEW COMMITTEE 2017-2018 TAIMIE L. BRYANT DAVID CASSUTO DAVID FAVRE, CHAIR REBECCA J. HUSS PETER SANKOFF STEVEN M. WISE JOURNAL OF ANIMAL & NATURAL RESOURCE LAW VOL. XIV 2018 PEER REVIEW COMMITTEE Taimie L. Bryant is a Professor of Law at UCLA School of Law where she teaches Property and Nonprofit Organizations in addition to teaching different courses on animal law. Prior to receiving her J.D. from Harvard Law School, Professor Bryant earned a Ph.D. in anthropology from UCLA. Since 1995, she has turned her attention to animal rights, focusing both on the theoretical issues of conceptualizing such rights and on legislative and other legal regulations of human treatment of animals. Recent publications include Similarity or Difference as a Basis for Justice: Must Animals be Like Humans to be Legally Protected from Humans?, False Conflicts between Animal Species, and Transgenic Bioart, Animals and the Law. David Cassuto is a Professor of Law at Pace University School of Law where he teaches Animal Law, Environmental Law, Property Law, and Professional Responsibility. Professor Cassuto has published and lectured widely on issues in legal and environmental studies, including animal law. He is also the Director of the Brazil-American Institute for Law & Environment. He holds a B.A. from Wesleyan University, an M.A. & Ph.D. from Indiana University, and a J.D. from the University of California, Berkeley, Boalt Hall School of Law. David Favre is a Professor of Law at Michigan State University College of Law. He is Faculty Advisor to the Journal of Animal Law and Chair of the Peer Review Committee of the Journal. As Editor-in-Chief of the Animal Legal and Historical Web Center, he has published several books on animal issues. Professor Favre teaches Animal Law, Wildlife Law, and International Environmental Law. PEER REVIEW COMMITTEE CONTINUED JOURNAL OF ANIMAL & Rebecca J. Huss is a Professor of Law at Valparaiso University School NATURAL RESOURCE LAW of Law in Valparaiso, Indiana. She has a LL.M. in International and Comparative Law from the University of Iowa School of Law and VOL. XIV 2018 Graduated magna cum laude from University of Richmond School of Law. Recent publications include Companion Animals and Housing TABLE OF CONTENTS in Animal Law and the Courts: A Reader; Rescue Me: Legislating Cooperation between Animal Control Authorities and Rescue Organizations; Valuation in Veterinary Malpractice; and Separation, ARTICLES Custody, and Estate Planning Issues Relating to Companion Animals. Professor Huss’s primary focus in research and writing is on the TO PROTECT ANIMALS, FIRST WE MUST PROTECT LAW changing nature of the relationship between humans and their companion ENFORCEMENT OFFICERS animals and whether the law adequately reflects the importance of that Dawn Rault, Stacy Nowicki, Cindy Adams, Melanie Rock ...................1 relationship. On August 10, 2012, Peace Officer Rodney Lazenby was killed Peter Sankoff is an Associate Professor at the University of Western in the line of duty while enforcing a local dog control bylaw in the Ontario Faculty of Law who specializes in animal law, criminal law, Canadian province of Alberta. Two years later, a police officer and the law of evidence. He is the author or editor of five books, includ- and two peace officers were assaulted and threatened while ing Animal Law in Australasia: A New Dialogue, the first book ever investigating a hoarding situation, also in Alberta. While these published in the southern hemisphere to focus exclusively on animal two cases share some similarities in terms of facts and related law issues.Peter lectures and publishes on a variety of animal law top- legislation, they teach us different lessons about the occupational ics. Professor Sankoff taught animal law at the University of Auckland health and safety of officers who enforce animal-related laws. from 2006-2010, and also as a Visiting Professor at Haifa University in This article explores officer risks and safety measures that can Israel, and the University of Melbourne Australia. He has also taught an be taken in enforcing animal laws in Canada and beyond. advanced animal law course entitled Comparative Concepts in Animal Protection Law at Lewis and Clark College of Law PROPERTY OR “PENUMBRAL” PERSONS? AN EXAMINATION OF TWO JURISPRUDENTIAL APPROACHES TO THE NONHUMAN Steven M. Wise is President of the Center for the Expansion of RIGHTS PROJECT LITIGATION Fundamental Rights, Inc. and author of Rattling the Cage—Toward Legal Rights for Animals (2000); Drawing the Line—Science and Ashleigh P. A. Best ..............................................................................33 The Case for Animal Rights (2002), Though the Heavens May Fall— In 2013, the Nonhuman Rights Project (NhRP) filed three writs of The Landmark Trial That Led to the End of Human Slavery (2005), habeas corpus in the New York Supreme Court on behalf of four as well as numerous law review articles. He has taught Animal Rights captive chimpanzees. This article undertakes a jurisprudential Law at Vermont Law School since 1990, and at Harvard Law School, investigation of the arguments advanced by the petitioner in the John Marshall Law School, and will begin teaching at St. Thomas Law litigation and the reasoning applied by the courts in their determi- School. Mr. Wise has practiced animal protection law for over twenty- nation of the claims. Specifically, the article considers the legal five years treatment of personhood throughout the proceedings. The article makes two analytical claims and one critically evaluative claim. First, the article characterizes the approach of the New York judiciary to the litigation as an incarnation of Frederick Schauer’s formalism. Secondly, the article applies tenets of Hart’s theory of legal indeterminacy to the arguments advanced by the NhRP, i TABLE OF CONTENTS CONTINUED demonstrating how a court reflecting his jurisprudence would ESTABLISHING AND ENFORCING ANIMAL WELFARE LABELING be more amenable to the claims. Thirdly, the article argues that CLAIMS: IMPROVING TRANSPARENCY AND ENSURING Hart’s theory represents a normatively superior framework with ACCOUNTABILITY which a court should approach a claim to legal personhood for the purpose of habeas corpus relief by nonhuman chimpanzees. Nicole E. Negowetti ..........................................................................131 The article establishes that although the formalist New York Consumers are becoming more aware of the ways in which judiciary rejects the petitions, they may succeed in a court their food is produced, and as a result, are demanding better reflecting Hart’s theory of legal indeterminacy, representing the production practices. Surveys consistently reveal consumers’ preferable jurisprudence by which a court should determine a eagerness to purchase meat, dairy, and eggs produced humanely, claim to legal personhood for chimpanzee along with their willingness to pay a premium for those products. Although consumers are most influenced by taste, price, and HENDRY COUNTY’S BEST KEPT SECRET: POSSIBLE LEGAL convenience when making purchasing decisions, animal