Developing Ohio's Livestock Care Standards~Lessons from New Jersey?
The recent passage of Issue 2 in Ohio (see earlier posts) will eventually lead to the establishment of an Ohio Livestock Care Standards Board, which will have the responsibility to develop standards for the care and well-being of livestock. While the process is new for Ohio, we're not the first state to develop farm animal care standards.
In 1995, the New Jersey legislature directed its Department of Agriculture to develop "standards for the humane raising, keeping, care, treatment, marketing, and sale of domestic livestock; and rules and regulations governing the enforcement of those standards." Nine years later, the agency finalized its regulations for the "Humane Treatment of Domestic Livestock." The regulatory program defines acceptable and prohibited practices for feeding, watering, keeping, marketing, sale, care and treament of cattle, horses, poultry, rabbits, small ruminants, and swine. The program establishes an investigation and enforcement process that includes a complaint procedure and investigation by Certified Livestock Inspectors.
Soon after final publication of the New Jersey regulations, a group of animal welfare organizations, consumers and farmers filed a lawsuit challenging the rules. The group included the Humane Society of the United States, Farm Sanctuary, the American Society for the Prevention of Cruelty to Animals and the Center for Food Safety.
The lawsuit attacked the regulations from several directions. The regulations allowed the use of "routine husbandry practices," defined as "techniques commonly taught by veterinary schools, land grant colleges, and agricultural extension agentsfor the benefit of animals, the livestock industry, animal handlers and the public health and which are employed to raise, keep, care, treat, market and transport livestock, including, but not limited to, techniques involved with physical restraint; animal handling; animal identification; animal training; manure management; restricted feeding; restricted watering; restricted exercising; animal housing techniques; reproductive techniques; implantation; vaccination; and use of fencing materials, as long as all other State and Federal laws governing these practices are followed." The lawsuit claimed this definition to be impermissibly broad and an improper delegation of the agency's authority.
The lawsuit also challenged specific practices permitted by the rules, including tail docking of cattle; castration, de-beaking, and toe-trimming without anesthesia; crating; tethering; and transporting sick cattle to slaughter. The plaintiffs claimed that the practices are not supported by sound science and are not "humane," as required by the New Jersey legislature's original directive.
The New Jersey Superior Court heard the case and upheld the agency's regulations. The animal welfare groups filed for a review by the New Jersey Supreme Court, and the court issued a decision in July, 2008.
Neither side won a complete victory. While the Supreme Court of New Jersey refused to reject the entire body of regulations, it did strike down the definition of "routine husbandry practices" for being overly broad, not based on a careful determination of the practices being taught by schools and colleges, and not based on a determination of whether the practices are "humane." The court also invalidated the regulation's endorsement of tail docking for cattle, questioning whether the practice itself is humane but concluding that the agency could not provide support for the necessity of the practice. In its examination of castration, de-beaking and toe-trimming, the court noted that scientific evidence would support the agency's acceptance of the practices, but the agency's reference within the rules that the practices should only be "performed in a sanitary manner by a knowledgeable individual and in such a way as to minimize pain" was vague and could not ensure that the practices would be "humane." In regards to the rule's allowance of crating, tethering and transporting of sick cattle, the court upheld the rules by concluding that the agency had relied upon its own techical expertise as well as a wide array of scientific studies before determining that the practices are beneficial and humane.
The Supreme Court sent the regulations back to the New Jersey Department of Agriculture for revisions consistent with the court's opinion. Rumour suggests that the department does not currently have appropriate funding to conduct a review and revision of the regulations. Because the rules were to expire in June of 2009, the governor of New Jersey exercised his authority to extend the expiration date to December of 2010 to give the agency adequate time to revise the rules. In the meantime, the regulations remain in effect except for those specific provisions struck down by the Supreme Court.
The New Jersey situation provides a few lessons for Ohio as we embark upon creating the Ohio Livestock Care Standards Board and a livestock care regulatory program, as authorized by Issue 2. Undoubtedly, interests similar to those who filed the New Jersey lawsuit will be watching, commenting upon, and possibly challenging any regulations proposed by the board and the Ohio Department of Agriculture (ODA). While Issue 2 did not include New Jersey's "humane" language, it does create a similar benchmark by calling for the establishment of "standards governing the care and well-being of livestock and poultry." A standard developed by the board thus must be consistent with an animal's "well-being" and be based upon evidence or expertise supporting a relationship to "well-being." Issue 2 does not legally define "well-being," a void the legislature may want to consider in its implementing legislation for Issue 2. As for specifying acceptable practices such as de-beaking or tail-docking, the New Jersey analysis illustrates a basic premise of administrative law--that a court will defer to an agency that can demonstrate technical expertise and a sound basis for its decision.
New Jersey's experience also teaches us that a court may not support adoption of customary livestock management practices taught in our universities and educational programs without a comprehensive review of the practices and an inquiry into whether the practices support an animal's "well-being." Such a stipulation might also apply to adoption of accepted industry or association standards. Likewise, a regulatory scheme that aims to ensure well-being by deferring generally to a livestock handler's knowledge level or handling practices may not survive a legal challenge. The New Jersey court voided such regulations for failing to contain detailed definitions and objective criteria against which to determine whether a person or his handling practices were sufficient. This presents Ohio with a question to ponder: should Ohio's standards include a training or certification program for livestock operators?
Ohio probably didn't expect to draw upon New Jersey's experience on this issue, but the New Jersey Supreme Court has aptly described the challenge now before Ohio:
"In part, the issues before this Court require us to evaluate the very methodology utilized by the Department in its creation of the challenged regulations; in part, the issues before us raise questions and debates arising from deeply held notions concerning the welfare of animals generally. Nonetheless, the dispute before this Court has nothing to do with anyone’s love for animals, or with the way in which any of us treats our pets; rather, it requires a balancing of the interests of people and organizations who would zealously safeguard the well-being of all animals, including those born and bred for eventual slaughter, with the equally significant interests of those who make their living in animal husbandry and who contribute, through their effort, to our food supply."
The New Jersey rules on the Humane Treatment of Domestic Livestock are in Title 2, Chapter 8 of the New Jersey Administrative Code, available at http://www.lexisnexis.com/njoal. The New Jersey Supreme Court's opinion in New Jersey Society for the Prevention of Cruelty to Animals v. New Jersey Dept. of Agriculture, 196 N.J. 366 (2008) is available at http://lawlibrary.rutgers.edu/courts/supreme/a-27-07.doc.html.