2012 OSBA Convention; Animal Law Section on Animal Law Litigation, May 4, 2012

1. The 2012 OSBA Convention:
Animal Law CLE
A LITIGATOR’S GUIDE TO FITTING
ANIMALS INTO ENVIRONMENTAL
LAW
Mark J. Bamberger, Esq., Owner/Attorney at Law
THE MARK BAMBERGER CO., LLC*
www.bambergerlaw.com, mark@bambergerlaw.com
877-644-8181 (O), 937-405-1491 (F)
*Offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio

2. ABSTRACT
Ohio lags behind many other states in protecting the legal rights
of animals as individuals in and to themselves. Therefore, as
litigators we need to be creative in finding strategies and tactics.
Animal law litigators must continue having economic
discussions about preservation and conservation (what the
scientific community terms “enlightened anthropocentrism”)
and riding the tide of burgeoning environmental awareness
around the globe (and even in Ohio) until they are able to get a
“buy-in” to protect animals just because those animals should
have legal rights to and of themselves (aligned with a classic
view of “ecocentrism”).

3. GOALS OF THIS SESSION
 Provide a brief historical background on
litigation animal law cases in Ohio
 Provide a non-exhaustive list of cases for
further research
 Don’t worry folks, cases will NOT be examined in
detail
 Provide a brief overview of strategies and
tactics to be used by practitioners
venturing into animal law litigation

4. INTRODUCTION TO ANIMAL LAW
LITIGATION: Definitions
 “Animals” – non-human, therefore loathe to receive much legal
protection
– Growing sentiment for giving more legal protections to “non-
humans”
 Although as we will see, legal action far trails the passion for
change
 “Animal Law” – broadly defined as anything tied to animals,
including animal survivorship (see Gary Pincher lecture),
agricultural and dietary uses of animals, animal rights advocacy,
and animal law litigation (the primary subject of this discussion)

5. HISTORICAL DEVELOPMENT
 To know where to go, study where we have been…
 The classic dilemma in animal law is: “where do
animals fit in our legal process and jurisprudence”
– Emmanuel Kant
– St. Francis of Assisi
– Early American jurisprudence (e.g., Johnson v. M’Intosh
(1823), 21 U.S. 543)
– Theodore Roosevelt and Gifford Pinchot
– Rachel Carson (1962)
– Early EPA years

6. HISTORY, CONTINUED
– NEPA, CAA, CWA, SDWA (1968-1974)
 The Endangered Species Act of 1973 (16 U.S.C. §1531, et.
seq.), amendments of 1978 and 1988
– The Reagan ’80’s (cost benefit analysis)
– Modern environmental protection theories
– Modern ideals of protection for respect to the animals
themselves
 For those wanting to maximize legal rights to animals, what is
the strategy?
– We are getting there, but still a long way away
– The British common law did not grant animals legal rights;
per se, but saw them as “chattel” and tied to the
environmental legal tenant of “nuisance”

7. TIES TO CLASSICAL PROPERTY LAW
 Animals as chattel: Ohio jurisprudence; see published
outline for examples; NOT exhaustive list)
 A review of recent Ohio case law indicates precious little
animal rights law providing animals with legal standing;
even through their owners or environmental advocacy
groups
– As compared to California, Oregon, or the New England states
 Is animal legal standing proportional to political or
religious conservatism?
– Some of the strongest wildlife protection groups are
located in the Deep South (largely due to interest in
protecting fishing and hunting rights)
– Many Ohio animal-related cases tie to animal rendering
plants or nuisance law violations

8. TIES TO CLASSIC ENVIRONMENTAL
LAW AND LITIGATION
 A tough fit
– Legal standing?
 Sierra Club v. Morton (1972), 405 U.S. 727
– Established environmental groups’ rights to sue on
behalf of animals
– See also Stone, C. (1972), Should Trees Have
Standing? Toward Legal Rights for Natural Objects, Cal.
L. Rev. 450
– Can this be taken too far?
 Where do animal laws fit in the history of environmental protection?
– See Outline for a bullet-pointed summary from 1890 to
present(i)
(i) Bamberger, M.J., 1995, The Emerald Thread: Environmental Decision Making of the
American Presidents (1900-1945), Union Institute & University Press, Cincinnati, Ohio.

9. RECENT DEVELOPMENTS IN THE
RIGHTS OF ANIMALS
 Examples of case law (far from exhaustive)
– Animal cruelty in agriculture and food production
 National Case Law
 Recent Ohio Case Law
– Animal and Domestic Abuse
 National Case Law
 Recent Ohio Case Law
– Animals in Research
 National Case Law
 Recent Ohio Case Law

10. RECENT DEVELOPMENTS IN THE
RIGHTS OF ANIMALS
– Constitutional Issues
 National Case Law
 Recent Ohio Case Law
– Endangered Species
 National Case Law
 Recent Ohio Case Law
– Ownership of “Exotic” Animals
 National Case Law
 Recent Ohio Case Law

11. RECENT TRENDS
 Riding the tide of burgeoning environmental awareness
– Listen to your kids!
– Growing awareness of the damage humans have done, and continue to
do, on the environment
 Federal and state agencies often protect the “cuddly” and the
“noble”
– Endangered species
 Can have massive economic impacts (e.g., “snowy owl”)
 But their plight can be used to our advantage
– Wolves
 E.g., Yellowstone and other national park re-introduction programs
 Generally excellent results, with some caveats
 Evidence of the need for environmental balance in natural
environments
 This is a personal passion of the speaker*

12. Yukon and Me
at Wolf Creek Wolf Rescue and Habitat, Brookville, Indiana

13. RECENT TRENDS
 Polar Bears
– Whether they prefer Coke or Pepsi
– The idea of cuddly bears starving to death in the Arctic is a haunting image
– That can be used to our advantage
 Pit Bulls
– In Ohio, soon not classified as “vicious and dangerous”
– And thus strict liability
 Wild Animals
– The recent disaster in eastern Ohio
– What were the authorities to do?
– The state of regulation of wild animal purchase and acquisition in Ohio is
shameful
– Many other states are more aware of the problems and risks [e.g., Wisc.
(R.C. §169)
– Federal leadership [e.g., H.R. 80 (Captive Primate Safety Act)]

14. OHIO: WHERE DO WE STAND?
 Ohio is generally behind the east and west
coast in animal law
– Some positive signs of change
 Passion remains high for change
 Franklin County’s Environmental Court (Judge Hale,
presiding)
 Special prosecutors in this field (e.g., Kyle Silvers,
Esq., Toledo)

15. OHIO: WHERE DO WE STAND?
 Statutory treatment
– O.R.C. Title 9 (Agriculture, Animals, and
Fences)
 §945: Human Slaughter of Livestock
 §953: Rendering Plants
 §955: dogs
 §959: Offenses Relating to Domestic Animals
– Bottom Line: Very little serious protection for
animals as sentient beings; only in terms of the
impact on humans

16. EXPECTED FUTURE GROWTH IN THIS
LAW PRACTICEi
 Environmental or “green” law is considered a “growth” area in the
coming decade.
– Somewhere in that is a subset of “animal law”
 Steps from here?
– Political action leading to changes in the law
 Which in turn would render animal law cases more salient
– Which in turn would start to change Ohio’s perception of what
animal law protections should include
[i] Refer to revised version herein of Bamberger, M.J., 2008, Fitting Animals into
Environmental Law.

17. JURISPRUDENCE
 How far can this go?
– American legal jurisprudence will always favor
the human over the non-human animals
 Historically consistent with anthropocentrism
– But possibly also consistent with what is termed
“enlightened anthropocentrism”
– e.g., progressive conservatism of the early 1900s

18. “PRESSURE POINTS” TO SUCCESS
 Cuddly animals (Look into her eyes!)
 Dietary issues (Vegetarianism and veganism are healthier)
 General Health concerns (Puberty rates in children due to
diet)
 Land resource issues (Meat-based diets demand huge
resource allocations)
 Fishing and hunting rights
– They are some of the strongest conservationists
– Ask not why they protect, just that they do
 Religion (“Stewards of the planet”)
 Enlightened Anthropocentrism (Protect animals for our own
good)

19. WHY NOT PROTECT THESE GUYS?
Wolf Creek Rescue and Habitat, Inc.

20. CLOSING THOUGHTS
 Environmentalists have always been a little
tone death when it comes to valuating
environmental resources
– Including the value of preserving heads of
animals
– They have to continue having economic
discussions about preservation and
conservation until they are able to get a “buy-in”
to protect animals just because those animals
should have legal rights to and of themselves.

21. CONTACT
Mark J. Bamberger, Ph.D., J.D.
Northern Officei and Mailing Address:
8 S. 3rd Street - Tipp City, Ohio 45371
(O) 877-644-8181 - (F) 937-405-1491
(WS) www.bambergerlaw.comii
(E) mark@bambergerlaw.com
i Offices also in West Chester, Enon, and Spring Valley, Ohio
ii Social Media: Skype (mbamberger), Twitter (@georockwolf),
Facebook (The Mark Bamberger Co., LLC)