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January 27, 2021

Tipping the Scales: How Law and Policy Fail Aquatic Animals

In this blog, Clinical Professor Kathy Hessler and Fellow, Amy P. Wilson, of our Aquatic Animal Law Initiative address some of the ways regulatory regimes fail aquatic animals, and do not provide them with the protection they deserve.

In Part I of this three-part blog series, we shared our insights as to why aquatic animals are ignored and provided some examples of how we as individuals, and society more broadly, treat them poorly and differently than other terrestrial animals. In this second installment, we address some of the ways regulatory regimes fail aquatic animals, and do not provide them with the protection they deserve.

The law provides a useful lens regarding the unequal treatment aquatic animals face. When we refer to aquatic animals, we mean finfish, amphibians, marine mammals, crustaceans, reptiles, mollusks, aquatic birds, aquatic insects, and even animals like starfish, sponges, and coral. We focus mainly on finfish below in order to simplify the conversation, as different laws will apply depending on the category, type, or species of aquatic animal involved in a particular context. We also focus on the laws of the United States, although some of our observations apply to global trends regarding how aquatic animals are treated in other legal systems.

Broadly speaking, aquatic animals are often excluded from protections that are offered to their terrestrial counterparts. These exclusions can be explicit or implicit, and the manner and form of the exclusion can vary widely. Different treatment of these animals from other terrestrial animals, or from one another, can be based on their species, their context of use (pet, food, entertainment, etc.), the jurisdiction in which they find themselves, the value or worth we place on them and for a multitude of other reasons.

The Law Typically Fails to Include Aquatic Animals Within the Definition of “Animal”

Perhaps one of the most telling examples of how our legal system fails aquatic animals is that, in many instances, they are not even included in the definition of “animal” used in legislation. This is either because they are not mentioned (i.e. they were not even considered for inclusion in the drafting of such definitions), or they are explicitly excluded (excluded by category or not included in a narrow enumerated list of included animals).

Why is this important? First, on a psychological level, it indicates that legislators do not even think about including these animals, or that they do consider including them, and decide against it. This results in either an intentional or unintentional unwillingness to acknowledge that these animals are in fact animals—despite that scientific and biological certainty. Second, on a more practical level, it means that any protective provisions of the relevant law that do apply to animals, would not apply to aquatic animals, and thus these laws cannot be used in their favor. A better approach would be to acknowledge that aquatic animals are in fact animals, and then determine explicitly which provisions or protections ought to apply to them.

In the U.S., the most significant general federal legislation regulating animals, the Animal Welfare Act, was initially designed to protect a limited category of animals used in laboratory research and focused on warm-blooded mammals. The definition of animal under the statute has expanded somewhat over time and has coverage for marine mammals, but continues to exclude most aquatic animals who are categorized as cold-blooded and invertebrates. Given that this statute is designed to offer only very basic welfare protections for animals used in research, exhibition and breeding, there is no rational reason to exclude any animals from its purview. Aquatic animals, similar to the animals covered by the act, can suffer without proper care—including access to proper nutrition, housing, veterinary care and general handling. Accordingly, they too should be included in the mandates to provide these minimum welfare measures, where we have decided to use these animals for our own purposes.

Unfortunately, these exclusions occur at a state level as well. A number of states explicitly exclude fish from the definition of “animal” in their anti-cruelty statutes (such as Alaska, Arizona, Arkansas, Delaware, Georgia, Iowa, North Carolina, Virgin Islands). Other states do not specifically mention fish or other aquatic animals, or don’t define the term “animal.” This results in one of two potential outcomes. It could mean that these animals are arguably included because they haven’t been explicitly excluded and thus should receive the protections offered in such laws. However, the second, and more likely outcome is that because they are not explicitly included, there is no evidence that the legislature meant to protect them and they are therefore excluded. Notably, there are only two states that explicitly include fish in their statutory definition of animal—Oregon and Oklahoma.

These definitional limitations mean that advocates for aquatic animals have a significant challenge in finding any statutory protections that might apply, simply because these animals haven’t been explicitly included in the category of animals covered by the statutes.

The Law Typically Fails to Protect Aquatic Animals Based on Common Usage

If one is able to overcome that challenge, the next significant problem is that many statutes exclude most aquatic animals from protection based on their usage. The Animal Welfare Act, for example, specifically excludes from protections all animals “intended for use as food or fiber.” Thus, all food and fiber animals—whether aquatic or terrestrial—are not covered by the Act. In this way, most aquatic animals (and accordingly most of the animals utilized by humans for food) are “doubly” excluded from the most wide-reaching federal animal protection statute: first because they are not included within the definition of animal, and second all those used for food or fiber are excluded on that basis as well.

At a state level, animal issues are generally regulated by anti-cruelty laws or other protective statutes which seek to prevent harm, abuse, and neglect of animals and may also mandate minimum welfare standards. In defining what harm, abuse, or neglect might be, most of these laws provide exemptions for animals used in research or for food, hunting or fishing, as well as for “generally accepted animal husbandry practices”. These laws are commonly interpreted to mean that such exempt actions or practices would not constitute cruelty no matter how egregious the behavior might be. An example of this statutory language from Alabama states that: “For purposes of this section…the terms torture and cruelty do not include … conduct which is otherwise permitted under the agricultural or animal husbandry laws” (emphasis added).

Even laws that are explicitly designed to offer protections to farmed animals exclude aquatic animals. Both the Humane Methods of Slaughter Act (regulating the slaughter of animals), and the 28 Hour Transport Law (regulating the transportation of animals) completely exclude aquatic animals from coverage or consideration. Furthermore, while in some states, legislative efforts have been made to ban the cruelest forms of confinement of terrestrial animals - such as gestation crates or battery cages - no similar actions have been taken for aquatic animals used for food.

This is even more concerning, because aquatic animals utilized for food account for the highest number of animals killed on earth each year. They are caught from the wild or they are farmed in aquaculture operations. They are then either fed directly to humans, fed to other animals (even other aquatic animals) so that they can be fed to humans (or even other animals), or used for other industrial and commercial purposes. Feeding animals to other animals to feed humans is a problematic and inefficient system. Agricultural industries, particularly aquaculture, are not sufficiently regulated to protect the welfare of animals, the environment, or humans, nor to deal with their negative impacts, and this has dire consequences for everyone.

In addition to animals farmed for food, another common use-based exemption that we see in animal legislation relates to animals used in laboratories [and for purposes of scientific research]. Zebrafish are becoming one of the most frequently used animals in research laboratories, and aquatic animals are in some instances outpacing even the numbers of heavily used rats and mice. Furthermore, cephalopods (including octopuses, squids and cuttlefish) are now increasingly being used in research and animal science. Yet these animals are not protected under the Animal Welfare Act.

Still another use-based restriction involves companion animals. Although people’s pets typically receive heightened protections because of their companion status, aquatic animals kept as companions or pets, are generally not covered. A good example is a recent case where a man abandoned his pet fish and was charged with neglect. Those charges were dropped because fish are not defined as “animals” in the relevant state law.

Basic animal welfare protection laws are tools to prevent harm, abuse and neglect, or to provide minimum welfare standards. It is unconscionable that these basic protections are denied to entire categories of animals who have the same needs as those animals receiving these protections.

As a result of these exclusions, there are many instances in which there is literally no regulation protecting aquatic animals. Accordingly, the animals who are used, neglected, or even abused, are the most (along with insects) excluded types of animals from many, if not all, available animal welfare protections.

Laws That Do Provide Protection to Aquatic Animals Usually Protect Only Certain Categories

Notably, some aquatic animals do receive significant protection. In the U.S., the Marine Mammal Protection Act (MMPA) offers coverage for at least certain aquatic animals—such as polar bears, dolphins and whales—among others. The Endangered Species Act also offers protection to certain species of aquatic animals based on their status—if they are threatened or endangered. There are also state and federal statutes designed to protect salmon, whales, dolphins, turtles, sharks, and other aquatic animals in the wild, for either conservation purposes, or to ensure a population sufficient to sustain commercial uses. Broadly, these acts may restrict certain actions with respect to the animals included in their ambit—referred to as the “take” of these animals—which includes among other things: killing, harassment, harm, and other actions.

However, conservation goals, or biological class alone, are not sufficient to guarantee protection—even among these statutes, there are inequalities, inconsistencies, as well as failures. This becomes particularly true when these protections interfere with human interests. A notable example here in Oregon is the relationship between the sea lions and salmon. While both sea lions and certain species of salmon were covered by the Endangered Species Act, sea lions were also covered by the MMPA. In 1994, the MMPA was amended to allow States to apply for limited lethal removal authority under a narrow set of circumstances (for example - dwindling numbers of salmon, eaten by both sea lions and humans.) This issue has a long and controversial history, which continues to be heavily debated among different groups. But recently, sea lions were de-listed from the MMPA, allowing the use of deadly force against these animals and removing some previously required steps designed to reduce conflict between the species. This was done in order to make sure there were enough salmon—principally for human use.

This is just one example of conflicting relationships and complex interspecies relationships that complicate efforts to protect aquatic animals as well as human and environmental interests, and reminds us that there are no easy answers. Even when on the face of it laws appear protective of aquatic animals, competing interests and practical enforcement issues complicate the landscape. These are some of the many challenges we face at AALI in our legal advocacy work for animals.

In our next and final installment—Part III, we will dive into some of AALI’s important work that tackles some of these legal issues and how those interested might get involved in efforts to advocate for aquatic animals.

Kathy Hessler is Director of the Animal Law Clinic (launched in 2008) and the Aquatic Animal Law Initiative (launched in 2016). She has written numerous law review and other articles and teaches and lectures widely across the U.S. and internationally. This summer, she will teach Aquatic Animal Law as part of CALS Animal Law Summer School.

 

Amy P. Wilson received her Animal Law LLM from Lewis & Clark Law School in 2018 as the first South African attorney to receive a masters degree in animal law. In 2019, she became a Fellow for the Aquatic Animal Law Initiative, where she works closely with Professor Hessler on aquatic animal issues, as well as the Animal Law Clinic. She is Co-Founder and Director of the first organization dedicated to animal law in South Africa—Animal Law Reform South Africa.

 

The Center for Animal Law Studies (CALS) was founded in 2008 with a mission to educate the next generation of animal law attorneys and advance animal protection through the law. With vision and bold risk-taking, CALS has since developed into a world-renowned animal law epicenter, with the most comprehensive animal law curriculum offered anywhere. In addition, CALS is the only program that offers an advanced legal degree in animal law and three specialty Animal Law Clinics, including the Aquatic Animal Law Initiative. CALS is a fully self-funded nonprofit organization operating under the Lewis & Clark College 501(c)(3) tax-exempt status, and is only able to provide these educational opportunities through donations and grants.