Animal Law

New Animal Disease Traceability Rule Announced by USDA

A new rule establishing general regulations for improving the traceability of U.S. livestock moving between states became final on December 20, 2012 and will become effective on March 11, 2013.  The USDA has established the animal disease traceability rule to help target when and where animal disease occurs and to facilitate a rapid response that should reduce the number of animals involved in a disease investigation.  According to USDA Secretary Tom Vilsack, “The United States now has a flexible, effective animal disease traceability system for livestock moving interstate, without undue burdens for ranchers and U.S. livestock businesses. The final rule meets the diverse needs of the countryside where states and tribes can develop systems for tracking animals that work best for them and their producers, while addressing any gaps in our overall disease response efforts.”

The animal disease traceability rule differs from the National Animal Identification System launched by the USDA in 2006 and later discontinued for lack of voluntary participation by producers.   An important guiding principle for the new rule is that it is state-driven. The traceability framework will be owned, led and administered by the States and Tribal Nations with federal support. The rule proposes to provide maximum flexibility for the States, Tribal Nations and producers to work together to find identification solutions that meet their local needs and to maintain traceability data at their discretion. The intent of the rule is to address only those animals moving interstate and to encourage the use of low-cost technology.

We will take a closer look at the rule in the next few months, but for now will share a few important notes about the rule:

  • Unless specifically exempted, livestock moved interstate must be officially identified and accompanied by an interstate certificate of veterinary inspection or other documentation, such as owner-shipper statements or brand certificates.
  • The use of brands, tattoos and brand registration will be accepted as official identification when accepted by the shipping and receiving States or Tribes.
  • Backtags remain an alternative to official eartags for cattle and bison moving directly to slaughter.
  • All livestock moved interstate to a custom slaughter facility are exempt from the regulations.
  • Chicks moved interstate from a hatchery are exempt from the official identification requirements.
  • Unless moved interstate for shows, exhibitions, rodeos, or recreational events, beef cattle under 18 months of age are exempt from the official identification requirement (traceability requirements for this group will be addressed in separate rulemaking)

USDA will work with states to implement the rule in the coming months.  For more information on the new rule, visit http://www.aphis.usda.gov/traceability/.

Legislature agrees on changes to Ohio Livestock Environmental Permitting Program

Bill establishes time limits for township and county infrastructure review

A bill approved by the Ohio General Assembly proposes limiting the amount of time county and township officials have for recommending local infrastructure needs for the operation or expansion of a Concentrated Animal Feeding Facility (CAFF).  Both the House and Senate have approved H.B. 22, sponsored by Rep. Buchy (R-77).  The bill now awaits action by Governor Kasich.

Recently introduced on May 17, 2011, H.B. 22 proposes a 75 day time limit for county commissioners and township trustees to provide final recommendations for improvements to local infrastructure that are needed to accomodate a CAFF.   Notification by the CAFF to the county and township is a required step in the Livestock Environmental Permitting Program (LEPP) permit application process.  Information on anticipated traffic routes and number and weights of vehicles must accompany the notification.  Under current law, the county and township must next provide initial recomendations to the CAFF for needed infrastructure improvements.  The CAFF may accept the recommendations or may propose an alternative, and the county and township must then render written final recommendations for infrastructure improvements.  The CAFF must submit the county and township’s final recommendations in its LEPP permit application.

Under the language agreed to by the legislature in H.B. 22, if the county or township fails to provide the written final recommendations in 75 days, the CAFF may proceed with the permit application by submiting an affidavit in lieu of the written final recommendations.  The affidavit must state that the CAFF provided the required notification but did not receive written final recommendations from the county or township within 75 days of giving the notification.

The legislature’s approval of H.B. 22 comes in the wake of a controversial denial of a LEPP permit application by Hi-Q for an egg laying facility in Union County.  ODA Director Zehringer denied Hi-Q’s application because it did not contain the required final infrastructure recommendations from county and township officials.  Hi-Q and Union County had reached an impasse on infrastructure issues, and Hi-Q submitted the permit without any final recommendations by the county.  (See our earlier post on the Director’s decision.)  Under H.B. 22′s language, Hi-Q could have submitted an affidavit instead of the written final recommendations because more than 75 days had passed since Hi-Q’s original notification to the county and township.    The Director thus would not have had to deny the permit application for lack of county and township written final recommendations for infrastructure improvements.

H.B. 22 also proposes changing LEPP from a program to a Division of Livestock Environmental Permitting, and contains a number of other revisions to ODA programs and regulations.  See the analysis of H.B. 22 on the Ohio Legislature’s website.

Ohio Legislature revises law for livestock running loose

New law establishes clear standards for liability, adds alpacas, llamas and bison

Livestock owners and keepers in Ohio will soon have less risk of automatic liability when their animals escape enclosures and run loose on public roadways or the property of others.   The Ohio legislature has revised the “animals running at large” law to clarify two different standards for criminal and civil liability under the law.  

Criminal liability will occur only when proven that a livestock operator behaved “recklessly” in allowing the animals to run loose.  Under Ohio law, a person behaves recklessly when he or she perversely disregards a known risk of his or her conduct, with heedless indifference to the consequences of that conduct.   For example, a livestock owner who sees but intentionally ignores a downed fence where cattle graze near a roadway could be deemed “reckless.”  

The new law establishes a different standard of liability for a civil situation.  A person may recover damages against a livestock owner if harm resulted because the livestock owner’s “negligence” caused the animals to escape.  Under Ohio law, negligence is a substantial lapse of “due care” that results in a failure to perceive or avoid a risk.  For example, a livestock owner who has not checked the line fences in a grazing area for several years could be deemed “negligent.”

Additionally, the revised law states that an animal being at large creates an initial presumption of negligence by the owner.  The animal owner must then rebut the presumption by proving that he or she exercised due care.

The revised law should address a growing problem in Ohio, where livestock owners have been held automatically liable when their animals are found running at large–regardless of  the reason for the animals’ escape or any actions taken or not taken by the owner.  This problem has occurred most frequently with criminal prosecutions.  Owners of escaped animals have been assessed automatic criminal penalties, without having an opportunity to explain their management practices or present facts about the animals’ escape.  The new law remedies this problem by clarifying that criminal liability is not “automatic” simply because livestock are loose; there must be proof that the owner was reckless.

In addition to addressing the standards for liability, the revised animals at large law also:

  • Adds llamas, alpacas and bison to the list of animals addressed in the liability provisions, which already included horses, mules, cattle, sheep, goats, swine and geese.
  • Also adds llamas, alpacas and bison to the law’s provisions for taking, confinement and care of animals running at large.
  • Removes a separate liability provision for male breeding animals; male breeding animals will now fall under the same liability section of the law as other animals.
  • Revises a similar civil liability provision for livestock in Ohio’s line fence law to clarify that negligence is the requisite standard of liability under that law.

The governor signed H.B. 22 on June 21, 2011; the law takes effect on September 20, 2011.  View H.B. 22 here.

ODA Denies Egg Farm Permit as Legislation Proposes Change to Permit Program

Current bill in House would yield different outcome for Hi-Q CAFF permit

In a unique and controversial case, the Ohio Department of Agriculture (ODA) has denied an application under its Livestock Environmental Permitting Program for Hi-Q Egg Products, LLC to establish an egg laying facility in Union County.   In denying the application, ODA Director Zehringer followed the recommendations made in April 2011 by the ODA hearing officer who reviewed the permit application (see our earlier post).  The hearing officer had recommended denial on the basis of an incomplete application, because  Hi-Q’s application did not include a written statement from local officials certifying that final recommendations had been made for local infrastructure improvements and costs, as required by program regulations (OAC 901:10-1-02(A)(6)).  Hi-Q claimed that the county and township failed to provide the recommendations, while the county and township argued that there were no final recommendations because  Hi-Q refused to discuss an alternative transportation route.  In agreeing that the recommendations were not included in the application, Director Zehringer stated that there was “no other viable option but to deny the [permit] due to an incomplete application.” 

Ohio’s  Livestock Environmental Permitting Program (LEPP) regulates the installation and operation of  large Confined Animal Feeding Facilities (CAFFs).  Critics have long complained that the program fails to consider the potential impacts of CAFF development  upon the local community.  Those concerned about local impacts have used the public hearing process to voice opposition to CAFF permits, but have never successfully prevented approval of a permit.  Until now, the program’s obscure requirement for county and township approval of infrastructure improvements has gone unnoticed as a prevention mechanism by such opponents.   

While the Hi-Q denial is a first, opponents of large livestock operations won’t have cause to celebrate the decision for long if a current legislative proposal meets with success.  H.B. 229, introduced May 17, 2011 by Rep. Buchy, will place a time limit on the county and township officials who must consider local infrastructure improvements needed for a CAFF permit application.  According to the proposal,  local officials would have 75 days after receiving notice of the proposed facility to render a written statement on local infrastructure improvements and costs.  After 75 days, the permit applicant may submit a notarized affidavit stating that it had provided local officials with notice but did not receive any written final recommendations from the local government within the required timeframe.  Under the law as proposed by H.B. 229, ODA could not deny a permit application that lacks the written statement from local officials as long as 75 days have passed after giving notice and the permit applicant submits the notarized affidavit rather than the written statement from local officials. 

H.B. 229 is currently before the House Agriculture and Natural Resources committee.  Visit this link to view H.B. 229 and here for Director Zehringer’s press release on the Hi-Q permit.

State Hearing Officer Recommends Denying CAFO Permit Application for Hi-Q

In a case of first impression for Ohio, a hearing officer for the Ohio Department of Agriculture (ODA) is recommending that the ODA Director deny a CAFO permit application because it does not contain final recommendations on infrastructure improvements from county and township officials.  The recommendation came as a result of a hearing on Hi-Q’s permit application that took place last December, after ODA’s previous Director, Robert Boggs, notified Hi-Q of his intent to deny the application for failure to include the local governments’ recommendations on infrastructure.

The ODA hearing officer reviewed the notice of intended denial and Hi-Q’s permit application and agreed that the application was not complete.  Ohio’s Livestock Environmental Permitting Program requires Hi-Q to attach to its application for a permit to install and permit to operate a facility the ”written statements from the board of county commissioners of the county and the board of township trustees of the township in which the facility will be located, certifying that, in accordance with those sections, the applicant has provided the boards with the required written notification and that final recommendations, if any, regarding improvements and costs of improvements have been made by the boards.”  OAC 901:10-1-02(A)(6).  According to the hearing officer, Hi-Q’s application did not include the county and township recommendations.

Hi-Q’s attorneys argued that the proposed poultry facility’s permit was complete and that the Union County and York Township officials had failed to abide by the permitting program requirements by refusing to give recommendations.  The apparent point of disagreement between the two sides relates to the fact that Hi-Q changed its transportation route after receiving written recommendations and requirements from the county and township on Hi-Q’s original proposed transportation route.  The county and township recommended that Hi-Q complete over $7 million in road improvements and pay $132,000 annually for maintenance of the original route.  Hi-Q then proposed a new transportation route; the county and township never made final recommendations for improvements necessary for the new route.  Both sides claim that the other side refused to discuss or agree upon recommendations for the new route.

In reaching its recommendation to deny the permit application on the basis of incompleteness, the ODA hearing officer stated that “[t]his matter garnered widespread media attention and polarized emotional support and opposition.  The facts material to this recommendation are, however, essentially undisputed.”

The hearing officer’s recommendation will be forwarded to James Zehringer, the new Director of ODA appointed by Governor Kasich.  Zehringer has the authority to make the final decision on whether to grant Hi-Q’s application.  If the Director denies Hi-Q’s permit for failure to contain the local governments’ recommendations, it will be the first time that local reaction to a proposed facility has negatively impacted a facility permit application in Ohio.  Local opponents to CAFOs have unsuccessfully fought permit applications in many instances, but had no legal basis for denial.  According to Ohio law, the ODA must approve a permit application if the applicant meets all of the requirements of the Livestock Environmental Permitting Program (LEPP); the only requirement involving the local community is the infrastructure recommendation provision that is at issue in the Hi-Q application. 

A change to LEPP’s local government provision may occur, however, if the ODA follows recommendations recently passed by the agency’s Concentrated Animal Feeding Facilities Advisory Committee.  The committee recently approved a proposal in March that recommends giving local government officials a 75-day limit to file their responses to a permit application.  The application could proceed through the approval process if the local governments don’t respond within the 75-day window.  The 75-day recommendation by the committee would require legislative action by the Ohio General Assembly.

Read the Hi Q ODA Hearing Officer Recommendation or visit the Ohio Livestock Environmental Permitting Program.

Update on Ohio Livestock Care Standards

Board nears completion of standards for farm animal care

The Ohio Livestock Care Standards Board accepted an enormous task nearly a year ago when charged with the responsibility of developing rules for the care and well-being of livestock in Ohio.  Since that time, the board has proposed numerous standards on topics ranging from euthanasia to housing.  To date, two sets of the board’s standards have completed the rulemaking process and are now effective.  Several others await either final approval by the board or review by the Ohio legislature’s Joint Committee on Agency Rule Review (JCARR).  The following summarizes the board’s progress.

1.  Livestock care standards developed by the board that became effective on January 20, 2011 include:

  • Euthanasia.  The standard outlines acceptable euthanasia methods for each species of livestock, and provides guidelines for use of each method of euthanasia.  See the final regulation in the Ohio Administrative Code, Section 901:12-1.
  • Civil penalties.  The rule establishes penalties and a notification procedure for violations of the livestock care standards.  Violations rnage from minor–punishable by a penalty of up to $500 for a first offense and $1,000 for subsequent offenses within 60 months of the first–to major–punished by a civil penalty of $1,000 to $5,000 for a first offense, and $5,000 to $10,000 for each subsequent offense within 60 months of the first.  A major violation is one that imperils the animal’s life or causes protracted “disfigurement,” “health impairment,” or “loss or impairment of the function of a limb or bodily organ.”  See the final rule at OAC Section 901:12-2.

2.  Livestock care standards submitted by the board and awaiting final review by JCARR:

  • General considerations for the care and welfare of livestock.  Establishes general management requirements for all livestock, including  feed and water, management, health and transportation.  Key provisions in this standard:
    • Housing, equipment and handling facilities must minimize bruises and injuries.
    • Restraints must be minimal. 
    • Handling devices must be humane.  Electric prods are permissible if hand held, battery powered and 50 volts or less, but may not be used on poultry, equine, alpacas, llamas, calves weighing less than 200 pounds, pigs weighing less than 35 pounds, on sensitive areas or on non-ambulatory disabled animals.    
    • Malicious or reckless throwing, dragging or dropping of an animal is prohibited, but minimal dragging  of a disabled animal may occur in certain circumstances. 
    • Picking up or carrying an animal by its ears or tail is prohibited, as is pulling an animal’s legs in positions or directions that cause distress to the animal.
    • Animals must be monitored regularly and steps must be taken when evidence of disease, injury, or parasites is present. 
    • A “Veterinary-Client-Patient-Relationship” is necessary to obtain and administer prescriptive drugs to livestock. 
    • Health and medical practices must be performed humanely. 
  • Disabled and Distressed Livestock.  The proposed rule sets forth standards of care for distressed and disabled livestock, including disabled “downer” livestock, which the rule refers to as “non-ambulatory disabled” animals.  Action must be taken to address an animal’s situation, either by caring for, monitoring, treating, transporting, slaughtering or euthanizing the animal.  The rule prohibits loading a disabled, non-ambulatory animal for transport to a non-terminal market or collection facility.  If a disabled or distressed animal is at a non-terminal market or collection facility and there is no option for immediate sale, standards of care must be provided or the animal must be released or euthanized.  The owner must keep records of treatments, medications and withdrawal times. 

3.  Standards in draft form and currently open to public comment include:

  • Standards for Individual Species.   In addition to the general consideration standards for all livestock, the board has proposed individual standards for goats, sheep, turkeys, poultry, swine, beef, dairy, veal, equine, alpacas and llamas.  The individual standards address unique needs and issues regarding feed and water, management and transportation for each specie.  Key issues addressed in the individual standards include:
    • Providing newborns with colustrum or colustrum replacement within the first 24 hours.
    • Standards for pen sizes, housing materials, lighting, air circulation, breeding and birthing pens and outdoor pens.  Of interest in these standards:
      • Restrictions on the use of gestation crates for swine after December 31, 2025.
      • For new farms not in existence on the rule’s effective date, prohibition of conventional poultry battery cages that do not provide areas for nesting, scratching, perching or bathing.
    • Management of groups of animals.
    • Standards for tethering, dehorning, castrating, shearing, induced molting, tail docking and treatment of tusks, beaks, teeth, hooves and toes.  Of particular interest in these standards:
      • Restrictions on tethering and requirements for group housing of veal calves after December 31, 2017.
      • Beginning January 1, 2018, tail docking of dairy cattle may occur only if medically necessary and performed by a licensed veterinarian.

To review the standards and the status of the work by the Ohio Livestock Care Standards Board, visit this website.

Ohio Governor Issues Emergency Rule on Ownership of Wild Animals

In an attempt to satisfy the animal welfare agreement negotiated last year with the Humane Society of the United States and various agricultural interests, Governor Strickland yesterday authorized an emergency rule that restricts the possession, sale and transfer of certain wild animals in Ohio.  The controversial animal welfare agreement, designed to prevent another Ohio ballot initiative on farm animal welfare,  provided that “[t]he Ohio Department of Agriculture and the Ohio Department of Natural Resources will coordinate and take action on wild and dangerous animals including the prohibition of the sale and/or possession of big cates, bears, primates, large constricting and venomous snakes and alligators and crocodiles.  Existing owners will be grandfathered in, but they could not breed or obtain new animals.”  The Governor’s action, however, is a week shy of the December 31, 2010 deadline included in the agreement, which stated that failure to implement the wild and dangerous animals provision by such date could void  the agreement. 

 ”This action fulfills my responsibilities within the agreement that will keep Ohio’s vital agriculture industry profitable while appropriately updating animal care standards,” said Governor Strickland.  The Governor also cited public safety reasons for the new regulation, stating that ”[t]his rule will help protect Ohioans from deaths and serious injuries caused by attacks from dangerous wild animals held in private ownership.”

The Governor’s Executive Order suspended the regular rulemaking process and allowed the immediate adoption of Rule 1501:31-19-05 by the Department of Natural Resources Divison of Wildlife.  The new rule, which became effective January 6, 2011, does the following:

  • Prohibits the possession, sale and transport of “restricted species,”  which includes coyotes, timber and gray wolves, lions, tigers, jaguars, panthers, leopards, cheetahs, bobcats, lunx, cougars, pumas, mountain lions, bears, all primates except humans, alligators, crocodiles, caimans, gharials and numerous snake species, including pythons, cobras and rattlesnakes.
  • Creates an exception from the regulation for persons who possessed a restricted species prior to January 6, 2011, if the person meets all of the following criteria:
    • Does not acquire any new restricted species through purchase, gift, trade, barter, donation or breeding;
    • Has not been convicted of animal abuse or neglect;
    • Has not had any type of animal license or permit revoked or suspended;
    • Registers the animal by May 1, 2011 with the Ohio Department of Natural Resources and maintains the registration annually;
    • Does not allow the public to come into physical contact with the animal;
    • Does not sell or transfer the animal to anyone other than an accredited zoo or institution, a wildlife sanctuary, a family member approved by the division chief, or an out-of-state facility (until January 1, 2016) and notifies the division chief of the new recipient of the animal at least 72 hours prior to transfer.
    • Maintains a permanent transponder implant on the animal.
  • Creates an exception from the rule for certain facilities and organizations:
    • Institutions accredited by the association of zoos and aquariums and facilities under active contract for a species survival plan under the Endangered Species Act;
    • Circuses licensed by the U.S. Department of Agriculture that are in the state less than 45 days per year and do not allow the public to come into physical contact with the restricted species;
    • Institutions operating a mascot program licensed by the U.S. Department of Agriculture;
    • Non-profit wildlife sanctuaries that do not use restricted species for commercial or entertainment purposes, do not allow the public to come into contacted with the species, and do not breed the species.
    • Wildlife rehabilitation facilities engaged in the rehabilitation and reintroduction of native species and permitted by the division chief;
    • Education, research and scientific institutions or projects permitted by the division chief;
    • A person transporting a legally owned restricted animal through the state for less than 48 hours who does not exhibit the animal, keeps the animal enclosed and does not allow public contact with the animal.
  • Requires a person who possesses a restricted species to notify the division of wildlife if the animal escapes, in addition to complying with other reporting requirements in ORC 2927.21.

Emergency rules remain in effect in Ohio for 90 days, which should provide the agency sufficient time to extend the life of the rule through the regular rulemaking process.  Given the upcoming change of leadership in Ohio,  it will be interesting to see if the new administration follows Governor Strickland’s lead and makes the new regulation permanent.

View the Governor’s Executive Order and the new rule.

Ohio Livestock Care Standards Board Proposes Civil Penalty Provisions

The Ohio Livestock Care Standards Board has proposed civil penalty provisions for violations of the livestock care standards currently under development by the Board.  The proposal addresses notification procedures for the Ohio Department of Agriculture (ODA), the agency responsible for enforcing the standards, and establishes two types of violations of the livestock care standards:  minor violations and major violations.

 A minor violation is one which violates the standards due to neglect or unintentional acts of substandard practices, but which does not place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function.  For a minor violation, the ODA may fine the offender up to $500 for a first offense and up to $1,000 for a subsequent offense committed within 60 days of a previous offense. 

A major violation is one which does place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function, or a violation that results in unjustifiable infliction of pain due to reckless or intentional acts.   The ODA may issue a penalty between $1,000 and $5,000 for a first major violation and between $5,000 and $10,000 for repeat violations committed within 60 days of a prior offense.    For major violations, the department may assist with the provision of care services for the animals and may assess the violator for the costs of providing proper care to the animals.

For both minor and major violations, the department may also seek recovery costs for investigations that result in penalties, including salary costs for employees directly involved in the investigation.  The rule also states that a violation affecting more than one animal may be considered one offense of the standards.

The Director of the Ohio Department of Agriculture has posted the proposed civil penalty provisions for public comment on ODA’s website.  The comment period runs until November 2.

Ohio Livestock Care Standards Board Proposes First Set of Standards

Proposed rule addresses standards for farm animal euthanasia

The Ohio Livestock Care Standards Board has developed its first set of proposed standards regarding farm animal welfare, pursuant to the constitutional amendment passed last year by Ohio voters as Issue 2 (see our earlier posts on Issue 2).  The Livestock Care Standards Board unanimously approved standards regarding euthanasia of farm animals on October 5, 2010.   The ODA will now carry the Board’s proposed standards through the administrative rulemaking process.

The proposed standards define acceptable methods of euthanasia, which includes inhalant agents, injectable agents, captive bolt guns, blunt force, gunshot, cervical dislocation, decapitation, electrocution, foam hypoxia, maceration and exsanguination.  The proposal establishes different acceptable methods and guidelines for different species, which includes equine, poultry, swine, cattle, goats, sheep, alpaca and llamas.  Provisions also address general considerations for performing euthansia, such as euthanization of animals unlikely to recover from illness or injury, determination of death, unsuccessful euthanasia, disposal of animals and mass euthanasia.  The rule references a civil penalty provision for violations, but the actual civil penalty provision is still under development by the Board.

Interesting to note is how the proposed euthanasia rule relates to the animal welfare agreement entered into last June by the State of Ohio, Humane Society of the United States, Ohio Farm Bureau and several other agricultural organizations.  Regarding euthanasia, the animal welfare agreement states:

“Recommendations will be made to The Ohio Livestock Care Standards Board (OLCSB) to take action on issues related to downer cattle and humane euthanasia using language consistent with the proposed ballot initiative.”

The proposed ballot initiative referred to in the animal welfare agreement is the HSUS-led initiative that could have been on the upcoming November ballot, but was pulled as part of HSUS’s compromise in the animal welfare agreement.  The ballot initiative proposed amending the Ohio Constitution to include this language on euthanasia:

“Require a farm owner or operator to  ensure that all on-farm killing of cows or pigs be performed in a humane manner using methods explicitly deemed “Acceptable” by the American Veterinary Medical  Association.  This standard shall also include a prohibition on strangulation of cows and pigs as a form of euthanasia.”

Note that the animal welfare agreement does not require the adoption of the ballot initiative language in the euthanasia standards; it states only that “recommendations will be made” to the Board to take action using language consistent with the proposed ballot language.  A review of the record available on the Board’s website does not indicate whether any party to the animal welfare agreement made such recommendations to the Board.  The Board had already begun working on the euthanasia standards prior to the announcement of the animal welfare agreement in June.  A review of the Board’s proposal, however, indicates that the euthanasia standards do not precisely duplicate the HSUS’s proposed ballot language.  The standards don’t include a specific prohibition against strangulation of cows and pigs.  Instead, the standards do not list strangulation as an acceptable method of euthanasia.  Nor do the standards specifically reference the American Veterinary Medical Association (AVMA) acceptable standards; but many of the Board’s acceptable standards are similar to AVMA acceptable standards.  Whether or not recommendations were made to the Board as promised in the animal welfare agreement, the Board’s proposed euthanasia standards do appear to be “consistent with” the ballot initiative language on euthanasia.

ODA announced the Board’s proposed euthanasia standards today and will accept comments on the standards until October 20, 2010.  Following review of comments, ODA will submit the package to the joint legislative committee that oversees the administrative rulemaking process.  To view the proposed euthanasia standards, visit the ODA website, here.

Undercover Videos on the Farm: Legal Issues

Ohio livetock farms have been a target of animal welfare organizations, evidenced by recent releases of undercover videos taken at  Buckeye Veal Services and Conklin Dairy Farm and the broadcast of the ”Death on a Factory Farm” documentary.   The strategy is to gain employment or access to the farm, videotape without the knowledge or permission of the farm owner, and later release video suggesting that the farm mistreats its livestock.   This approach has heightened the visibility of farm animal welfare issues in Ohio, but the strategy and its impacts raise many legal issues.  A presentation I recently prepared for the Ohio Agricultural Law Symposium highlights research we’re conducting at OSU to identify the legal issues and implications of the undercover video approach.  Below is synopsis of a few of the more controversial legal issues.

  • Ohio’s penalty structure for animal cruelty.    At least one animal welfare organization claims that it has targeted Ohio for undercover investigations because Ohio is one of the few remaining states that limits animal cruelty punishment to misdemeanor penalties (with the exception of a repeated offense against “companion animals,” which is a fifth degree felony).   Most states have adopted a felony penalty structure for acts of animal cruelty, which results in more severe punishment.  Ohio legislators have made nearly a dozen attempts to increase penalties for animal cruelty, most recently with H.B. 55 (see our earlier post).    The proposals always fail, allegedly due to an effective lobbying effort from groups who argue that penalties for cruelty to animals in Ohio should not be higher than those for abuse of humans.  While undercover video releases don’t appear to be moving felony penalty legislation forward currently, they could be garnering public support for a future proposal.  Should Ohio adopt a felony penalty, and if it does, will undercover investigations find a new state target?
  • Duty to report animal abuse.   The videographer of the Conklin Dairy Farm video witnessed acts of mistreatment against animals by an employee for approximately one month before the organization released the videos.  Many argue that the videographer should have reported the abuse right away, but neither Ohio or any other state has a law requiring an ordinary person to report animal cruelty.  Fifteen states have laws mandating that veterinarians report suspected animal cruelty: Ohio does not.  Another 13 states have “voluntary” reporting laws for veterinarians, which grant a veterinarian immunity and a waiver of client confidentiality upon reporting abuse, but not Ohio.  Ohio does have several mechanisms a person could use to initiate an investigation of suspected animal cruelty through local law enforcement or the county humane society.  In a similar vein, should livestock farms have an employment policy requiring employees to report incidents of animal mismanagement and abuse by other employees?
  • Who’s committing the crime?   The person committing the act against an animal is the obvious offender, but what about the videographer and the employer?  Circumstances may exist such that the videographer was a legal “accomplice” to the crime.  Under Ohio law, a person can be prosecuted as an accomplice  if the person solicited another to commit a criminal offense; aided, abetted or conspired with another in committing the offense;  or caused an innocent or irresponsible person to commit the offense, and also shared in the intent to commit the crime.    Likewise, it may be possible to prove that a videographer acted with “recklessness” by observing and taping the crime or by encouraging and interacting with the offender; recklessness is the required mental state for an animal cruelty violation.  As for the employer, Ohio’s humane society law clarifies that a conviction of an employee for animal cruelty does not prevent the prosecution of the employer for “allowing a state of facts to exist which will induce cruelty to animals” by the employee. 

These are only a few of the issues surfacing from the undercover video strategy.  Given the current climate of continued attempts to “out” livestock farmers and push the farm animal welfare issue in Ohio, perhaps it’s time we begin finding solutions to the issues.