Lowering Meat Production is Just the Veganning: 60% of wildlife lost calls for intervention on a global scale

Lowering Meat Production is Just the Veganning: 60% of wildlife lost calls for intervention on a global scale

By: Kathryn Waller  

In college I studied abroad in India and was surprised at some of the lifestyle differences that Indians had adopted for environmental conservation. For example one night we went to dinner with our student group and our Indian professor. He ordered food for us and despite our pleas, he refused to order any meat options. He reasoned that we had meat last night for dinner. This made no sense to me, as I eat meat two to three times a day in America but this rationing of meat may be a necessary step to save civilization.

            A recent report by the World Wildlife Foundation found that “humanity has wiped out 60% of mammals, birds, fish and reptiles since 1970, leading the world’s foremost experts to warn that the annihilation of wildlife is now an emergency that threatens civilization.”[1] The decimation of the animal population is a result of the growing consumption of food and resources by the global population.[2] Mike Barrett, the executive director of science and conservation at WWF explains that, “This is far more than just being about losing the wonder of nature, desperately sad thought that is. This is actually now jeopardizing the future of people. Nature is not a ‘nice to have’- it is our life support system.”[3]

            This rapid shortening of the animal population is a result of natural habitats being destroyed to create farmland, the killing of animals for food, chemical pollution and the spread of invasive species and diseases as a result of global trade.[4] The most drastic killing of wildlife has occurred in South and Central America, with an 89% drop in vertebrate populations.[5]  Barrett explains that “It is a classic example of where the disappearance is the result of our own consumption, because deforestation is being driven by ever expanding agriculture producing soy, which is being exported to countries including the UK to feed pigs and chickens.”[6]

            While it would take 5-7 million years for the world’s wildlife to recover there are steps society can take to halt the destruction and start taking steps to recovery.[7] The best place to start is by eating less meat. Its been discovered that “meat and dairy production is responsible for 60 percent of agriculture’s greenhouse gas emissions, while the products themselves providing just 18 percent of calories and 37 percent of protein levels around the world.”[8] The lead scientist on the study, Joseph Poore suggested that the best thing society could do to save the environment is go vegan.

            Forcing all of humankind to give up meat, cold turkey is an impossible feat, a conservation effort would be more widely accepted. A notable effort that has had success is the tiger conservation, that has resulted in the first increase in the tiger population in 100 years.[9] This increase was a result of 13 countries coming together at a high level and setting goals and guidelines.[10] The mass extinction of the animal population is a global problem that would likely have to be addressed with a Multilateral Environmental Agreement. These agreements often take the form of treaties and follow a UN format.[11] This will likely occur at the UN’s Convention on Biological Diversity in 2020.[12] While it would be a more effective solution to begin rationing meat like my professor did in India, it is unlikely that cultures could shift that fast. A place to start would be to limit the amount of farmland that can be cleared each year as this destroys ecosystems that animals rely on and to reduce or limit the cattle industry as cattle require the most space and produce a substantial amount more greenhouse gasses than other livestock.[13] 


[1] Damian Carrington, Humanity has wiped out 60% of animal populations since 1970, report finds,The Guardian, (Oct 29,2018) https://www.theguardian.com/environment/2018/oct/30/humanity-wiped-out-animals-since-1970-major-report-finds.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Olivia Petter, Veganism is ‘Single Biggest Way’ to Reduce Our Environmental Impact on Planet, Study Finds, Independent, (June, 1 2018), https://www.independent.co.uk/life-style/health-and-families/veganism-environmental-impact-planet-reduced-plant-based-diet-humans-study-a8378631.html.

[9] Wild tiger population rising for first time in 100 years, CBS, (April 10, 2016) https://www.cbsnews.com/news/worlds-wild-tiger-population-rising-for-first-time-in-100-years/

[10] Id.

[11] International Environmental Agreements Database Project, University of Oregon https://iea.uoregon.edu/ (last visited Nov. 2, 2018).

[12] Damian Carrington, supra note 1.

[13] Damian Carrington, Avoiding meat and dairy is ‘single biggest way’ to reduce your impact on Earth, The Guardian, (May 31, 2018) https://www.theguardian.com/environment/2018/may/31/avoiding-meat-and-dairy-is-single-biggest-way-to-reduce-your-impact-on-earth.

“Snakes (Pigs, Squirrels, Dogs, Cats, Ducks, Peacocks, Hamsters, and Miniature Horses) on a Plane.”

“Snakes (Pigs, Squirrels, Dogs, Cats, Ducks, Peacocks, Hamsters, and Miniature Horses) on a Plane.” 

By: Shannon Tubbs 

            In a world where pets have become as near and dear to people as human children, the desire to have them with us any and everywhere we go is no surprise. Chances are, if you have flown on an airplane in the past few years, you have noticed an increasing number of furry friends both at the airport and on your flight. A story that recently made headlines in the news and on social media gave the term “flying squirrel” a very literal meaning. Cindy Torok, a woman boarding a Frontier Airlines flight from Orlando to Cleveland earlier this month, attempted to bring along her “emotional support” squirrel, but was told she could not do so. [1] The woman refused to comply when airline staff asked her to leave the aircraft, which resulted in a number of other passengers having to deplane so authorities could remove the woman and her squirrel. [2] When asked about the incident, Frontier gave a statement saying that the woman had told the airline she would be bringing an emotional-support animal, but did not tell them it would be a squirrel.[3] The airline made no apologies for adhering to their policy that “[r]odents, including squirrels, are not allowed on Frontier flights.”[4] Cindy’s daughter, Monica Torok, is upset and angry about the incident and voiced that she is “going to call the ADA (Americans with Disabilities Act) and talk to them and see what they have to say about it,” because her mother’s rights should not have been taken away.[5] While the Torok’s have every right to voice their outrage and hurt feelings, it appears that there is a strong argument for narrowly defining what does and does not qualify as a service or emotional support animal.

            The ADA defines service animals “as dogs that are individually trained to do work or perform tasks for people with disabilities.”[6]  The ADA also revised the ADA regulations to include “miniature horses that have been individually trained to do work or perform tasks for people with disabilities.”[7] However, the Air Carrier Access Act (ACAA) is also in existence and expands the definition of a service animal, regarding those allowed on flights, to “any animal that assists persons with disabilities by providing emotional support.”[8] Airlines are allowed to exclude animals for a number of reasons, including animals that are too large or heavy to be accommodated in the cabin, pose a threat to the health or safety of others, cause a significant disruption, or are prohibited from entry into a foreign country.[9] Although a person may have proper documentation from a physician stating that the person has a need for a psychiatric support animal, the ACAA specifically notes that “[a]irlines are never required to accept snakes, reptiles, ferrets, rodents, sugar gliders, and spiders.”[10]

            The issue surrounding the use of service and/or emotional support animals is that people are abusing the system. Sharon Giovinazzo, president and chief executive of World Services for the Blind and an Army veteran who lost her sight from multiple sclerosis, explains that people are brining untrained animals “masquerading as a service animal in what advocates for people with disabilities said had become a growing problem in the last few years.”[11] “Passengers pass off their pets as support or service animals so they can remain in the cabin instead of the cargo hold,” which in turn “could displace legitimate ones because most airlines limit the number allowed in a cabin.”[12] Further, an animal who is only a pet and has not been trained is much more prone to growl, bite, and have accidents under the stress of the situation.[13]

            So how do we cut down on fraud and ensure those who truly need service and support animals are accommodated? Republican Senator, Richard Burr has proposed legislation “to have the definition of a service animal under the Air Carrier Access Act match the one in the Americans with Disabilities Act,” which “would bar from flights animals whose sole function was to provide comfort or emotional support and require federal agencies to establish a standard of behavior training for animals that would be working on planes.”[14] While this may seem harsh to some people, the reality is that it is necessary to prevent abuse that ultimately discredits the use of service animals by people who truly have disabilities. 


[1] Lindsey Bever, A woman brought her 'emotional support' squirrel on a plane. Frontier wouldn't let it fly. The Washington Post (2018), https://www.washingtonpost.com/transportation/2018/10/10/woman-brought-her-emotional-support-squirrel-plane-frontier-wouldnt-let-it-fly/?utm_term=.1690a2f32e18 (last visited Oct 21, 2018).

[2] Id.

[3] Id.

[4] Id.

[5] Woman speaks out after mom booted from flight over "emotional support" squirrel. CBS News (2018), https://www.cbsnews.com/news/emotional-support-squirrel-daughter-of-woman-escorted-off-plane-speaks-out-frontier-airlines-flight-incident-2018-10-11/ (last visited Oct 21, 2018).

[6] Service Animals, ADA Requirements: Service Animals, https://www.ada.gov/service_animals_2010.htm (last visited Oct 21, 2018).

[7] Id.

[8] Service Animals (Including Emotional Support Animals), US Department of Transportation (2017), https://www.transportation.gov/individuals/aviation-consumer-protection/service-animals-including-emotional-support-animals (last visited Oct 21, 2018).

[9] Id.

[10] Id.

[11] Christopher Mele, Is That Dog (or Pig) on Your Flight Really a Service Animal? The New York Times (2018), https://www.nytimes.com/2018/05/01/travel/service-animals-planes.html (last visited Oct 21, 2018).

[12] Id.

[13] Id.

[14] Id.

Coal Ash - Elephant in the Courtroom

Coal Ash - Elephant in the Courtroom

By: Andrew Skomorowsky

Just as cigarette ash is what remains after a cigarette is burned, coal ash is the residue from the burning of coal. Coal, it will surprise no Kentucky readers to learn, is used in the production of electrical energy. Coal ash is toxic – it contains arsenic, boron, lead and mercury – all known carcinogens and capable of causing organ damage in humans.[1] A recently published article in The New York Times reports that approximately 110 million tons (2 x 1011 pounds) of coal ash is produced each year. 

The politics of energy production notwithstanding, Kentucky is very much involved in this problem. According to the Kentuckians for the Commonwealth (KFTC) website, Kentucky power plants generate 8.6 million tons of coal ash.[2]  Of that, KFTC, says, 4,800 tons are toxic metals.

To create a sense of the scale of the problem, consider the following: the website of the Louisville, Kentucky Zoo states that each of their two adult African elephants weighs approximately 5 tons.[3] Imagine the outcry if 960 dangerous elephants (combined, weighing in at approximately 4,800 tons) were roaming the Kentucky countryside, poisoning local water supplies.

Of course this is a ludicrous analogy, but the matter at its core is still valid. Elephants are dangerous, heavy animals.[4] Now, mentally construct an elephant made of toxic metals and drop it in the water supply.  If that seems too silly, imagine a pile of toxic metals the size and shape of an adult elephant. Now, do it 959 more times. This is what KFTC alleges occurs on a yearly basis.[5]

Whimsical pachyderm models aside, the potential for real harm to real people brought about legislation in the Sixth Circuit court. In Ky. Waterways All. v. Ky. Utils. Co., Plaintiffs contended that the Respondent was polluting groundwater, which then goes on to pollute a nearby lake.[6] (Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238 (6th Cir. Sep. 24, 2018)).

Plaintiffs’ argument was two-pronged; they argued first that the Respondent’s actions were in violation of the Clean Water Act (CWA). [7] The CWA is noted for its authority in the area of water pollution. The CWA is limited however, in that it does not “extend liability to pollution that reaches surface waters via groundwater.”[8] Because the Plaintiffs’ arguments included this vector for contamination, the CWA prong failed.[9]

The second argument proffered by the Plaintiffs was that the actions by the Respondent violated the Resource Conservation and Recovery Act (RCRA).[10] It is this prong that successfully earned the Appellate Court’s attention: “Top of FormBut RCRA does govern this conduct, and because the plaintiffs have met the statutory rigors needed to bring such a claim, the district court must hear it.”[11]

But initially, the RCRA argument met a strange fate in the District Court: while the initial lawsuit was being prepared, the Commonwealth of Kentucky’s Energy and Environment Cabinet entered into an agreement with the plant operator to mitigate the harm addressed by the lawsuit.[12] Aware of this agreement, the District Court determined that the Plaintiffs lacked standing with regard to their RCRA argument, specifically because the court could not redress a claim already being remedied by the Commonwealth.[13]

Accordingly, the Respondent filed for summary judgment for dismissal, which motion was granted.  The story does not end there.  An appeal was filed with the Sixth Circuit, and the Appellate court had a slightly different opinion.

The Appellate Court affirmed the dismissal of the CWA argument, agreeing with the District Court’s findings.[14] The RCRA argument got a second chance in the Appellate Court, however. On appeal the court held that while it was not unreasonable for the District Court to make the finding they did, that they were in error to do so.[15]

The Appellate Court held that there was no lack of standing in the District Court, and that the federal courts do in fact have jurisdiction in this case:

For the foregoing reasons, we AFFIRM the district court's dismissal of Plaintiffs' CWA suit. The CWA does not impose liability on surface water pollution that comes by way of groundwater. However, we REVERSE the district court's dismissal of Plaintiffs' RCRA claim. Plaintiffs have met the statutory requirements to bring that suit, and the district court must entertain it. The case is REMANDED for further proceedings on that claim.

Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238, at 34 (6th Cir. Sep. 24, 2018)

The dissent and concurrence in this case (by the same judge) would have the court go even further:

Because the majority's conclusion is contrary to the plain text and history of the CWA, I respectfully dissent from the majority's conclusion that Plaintiffs' CWA claim was properly dismissed. Meanwhile, I concur in the majority's determination that the district court erred by dismissing Plaintiffs' claim under the Resource Conservation and Recovery Act ("RCRA").

Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238, at 34 (6th Cir. Sep. 24, 2018)

From an environmentally-friendly perspective, both the majority opinion and this dissent and concurrence is a win-win (albeit in part nonbinding).  In an age of increasing concern for humanity’s impact on the environment, having even a minority of a panel of judges expressing well-founded concerns for the environmental impact of American industry is, not to put too fine a point on it, a breath of fresh air. At the same time, it is also, of course, only a drop in the bucket.

[1] https://www.nytimes.com/2018/09/21/us/coal-ash-spill-dam-breach.html

[2] http://kftc.org/campaigns/coal-ash

[3] https://louisvillezoo.org/africa/harry-frazier-family-elephant-encounter/caring-for-10000-pound-elephants/

[4] https://www.theguardian.com/environment/2017/mar/06/can-elephants-and-humans-live-together

[5] http://kftc.org/campaigns/coal-ash

[6] Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238 (6th Cir. Sep. 24, 2018)

[7] 33 U.S.C.S. § 1251 (LexisNexis, Lexis Advance through PL 115-253, approved 10/3/18)

[8] Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238, at 2-3

[9] Id.

[10] 42 U.S.C.S. § 6901 (LexisNexis, Lexis Advance through PL 115-253, approved 10/3/18)

[11] Ky. Waterways All. v. Ky. Utils. Co., at 3

[12] Id. at 14

[13] Id.

[14] Id. at 29-30

[15] Id. at 32

Animal Abuser Registries Gain Traction but is it Enough?

Animal Abuser Registries Gain Traction but is it Enough?
By: Kelsey Noel
 

In a society greatly divided by political issues, one area of common ground for most people is the anger they feel when horrific animal abuse cases become mainstream news. Each day more cases of pets being abused or negligently killed at groomers, celebrities involved in dog fighting, or viral videos of people abusing animals has been spreading all over the internet.[1] These stories and videos have sparked emotions across all communities. Each new story of abuse highlights how current laws fail animals. With the rise in social media and news coverage of these stories, it does not come as a surprise that many areas of the United States have decided to create animal abuser registries. There needs to be a greater movement by legislatures to increase and nationalize animal abuser registries in the United States.

The only state to adopt a statewide animal abuser registry was Tennessee, which implemented its registry in 2015.[2] In places where there is a lack of statewide regulation, local counties have passed ordinances to track animal abusers within county lines while others lack any laws at all.[3] For example, in Syracuse, New York “[t]he animal abuse registry requires convicted abusers to stay on there for 15 years.”[4] In addition, “many states require counseling for convicted abusers.”[5] The benefit of Tennessee and smaller counties trailblazing animal abuser registries is that it not only shows implementing these systems is possible but also establishes a framework that can be easily adopted by other states. 

However, despite the progress many states have made towards protecting the rights of animals, there is still much to achieve. Currently, 35 states still allow people who have been convicted of animal abuse to own pets.[6] Additionally, “laws preventing known animal abusers from adopting animals exist in only 15 states.”[7] In many instances, judges are limited on how long they can prevent an animal abusers from adopting another animal.[8] This means pets have little to no protection from being adopted by an animal abuser who would mistreat them. The lack of consistency in laws and registries creates a legal loophole for animal abusers to access animals in other states and counties. 

Many people are pushing for a movement to make pet abusers register in the same manner as sex offenders.[9] Currently, there is no national registry tracking animal abusers in the United States. The best many places can do is “use a ‘Do not adopt’ list to check on animal abuse convictions.”[10] A more reasonable approach to prevent this legal loophole is to establish a registry similar to the National Sex Offender Public Website established in 2005.[11] This site “links public state, territorial, and tribal sex offender registries from one national search site.”[12] Having a similar system would allow Humane societies, animal shelters, pet breeders, or other animal sellers the ability to protect their animals from becoming victims of abuse.

As more momentum grows within each state, the possibility of statewide or national registries becomes more attainable.[13] If a national system cannot be implemented, at the bare minimum, all states should adopt a system and set of laws requiring animal abusers to register if they move in the same way sex offenders are required to do. Owning a pet should not be treated as a right but a privilege. Preventing animal abusers from adopting pets ensures animals are more likely to end up in healthy forever homes.

[1]Dog groomer facing second animal cruelty charge after new allegations, Fox5 (Last visited Oct. 6, 2018, 7:40 PM), http://www.fox5atlanta.com/news/dog-groomer-facing-second-animal-cruelty-charge-after-new-allegations; Rene Rodriguez, Former NFL Quarterback Michael Vick sells Davie home –to another football player, Miami Herald (2018), https://www.miamiherald.com/news/business/real-estate-news/article218930310.html; Samantha Forester, Update: Second arrest of a juvenile girl in animal cruelty case, News Channel 6 (Last visited Oct. 6, 2018, 7:54 PM), http://www.newschannel6now.com/story/38206956/update-more-details-about-viral-cruelty-to-animal-video/.

[2]Animal Abuser Registries, National Anti-Vivisection Society (Last visited Oct. 6, 2018, 7:58 PM), https://www.navs.org/what-we-do/keep-you-informed/legal-arena/companion-animal-issues/animal-abuser-registries/.

[3]See Animal Abuser Registry, Onondaga County Sheriffs Office (Last visited Oct. 4, 2018, 5:30 PM), http://sheriff.ongov.net/animal-abuser-registry/

[4] Stephanie Stanavich, Syracuse fugitive wanted for failing to register for animal abuse, CNYCentral.com (2018), https://cnycentral.com/news/local/first-person-wanted-in-onondaga-county-animal-abuse-registry; See also Ononaga County, N.Y., Local Law No. 5-2017 (2017).

[5] WTH?! Convicted Animal Abusers Can Still Adopt Pets in 35 States  - Let’s Change This, One Green Planet (2018), https://www.onegreenplanet.org/news/convicted-animal-abusers-can-still-adopt-pets/; See Generally Animal Neglect, The Humane Society of the United States (Last visited Oct. 6, 2018), http://www.humanesociety.org/issues/abuse_neglect/qa/neglect_faq.html.

[6] Id.

[7] Id.

[8] Id.

[9] WFTX, CNN, Animal abuse registry gains momentum in Florida, ABC Action News (2018), https://www.abcactionnews.com/news/national/animal-abuse-registry-gains-momentum-in-florida.

[10] Id.

[11] About NSOPW, The U.S. Department of Justice NSOPW (Last visited Oct. 6, 2018 8:18 PM), https://www.nsopw.gov/en/home/about/; See also Sex Offender Registry Websites, FBI (Last visited Oct. 6, 2018 8:20 PM), https://www.fbi.gov/scams-and-safety/sex-offender-registry.

[12] Id.

[13] See note 9.

Forecastle

The Forecastle Festival celebrated another successful three-day weekend of music, art and activism on Waterfront Park in Louisville, KY. Here at The Forecastle Foundation, which rounds out the ‘activism’ arm of the Festival, we once again established a strong presence on festival grounds to communicate our environmental mission, encourage meaningful dialogue about sustainability, and discuss environmentally conscious ways festival-goers can help support our mission of “protecting and connecting the world’s natural awesome.” In addition to Foundation board members and volunteers, also present throughout the weekend were our naturally awesome conservation partners from Kentucky Natural Lands Trust, The Nature Conservancy of Kentucky, and Future Fund, to talk about local projects that we help fund and bring awareness to. Our friends from Tito’s Handmade Vodka also set up shop in the activation area to serve specialty cocktails featuring Guayaki Yerba Mate tea, with proceeds from each drink going toward critical conservation efforts made by Future Fund to preserve Floyds Fork. Speaking of beverages, we partnered with Sierra Nevada Brewing Company again and sold out of the custom crafted Chantey IPA, with proceeds from sales also benefitting The Forecastle Foundation. To top it all off, our infamous giant art wall created by incredibly talented local artists highlighted some of the ways festival goers can “sip ‘n support” the Foundation, and we sold all eight panels to lucky patrons. And of course, a festival activation wouldn’t be complete without a little bit of merch. This year we offered custom t-shirts, as well as ‘buff’ style bandanas, sold from an ice cold cooler to beat the July afternoon heat! (If you’re interested in a t-shirt or buff, email lauren@forecastlefoundation.org and we’ll be happy to make arrangements.)

Pet Trusts: Planning for Leaving Your Estate to Your Heirs…and the Dog.

Planning for Leaving Your Estate to Your Heirs…and the Dog.

By: W. Seth Todd

Everyone is told they are supposed to have some form of estate planning done before they pass to take care of their family. What if I told you that you could do that for your pet? That is right, you can now set up a pet trust in all fifty states for little Fido. According to a survey, 44% of pet owners have already made plans for their pets if they die or become disabled. [1] That same 44% has also arranged funding for that care.[2] It is kind of reassuring in a way knowing that if something was to happen to you, your pet wouldn’t be shipped off to a shelter or just given to an unloving family.

Pet trusts are actually not a new concept. One of the first cases every recorded was actually done so right here in Kentucky in 1923. In the case a woman gave a life estate to her sister, and after her sister died it would pass to her heirs, except for $1,000.00 given to a local church to take care of her dog. The heirs fought for the thousand dollars saying the bequest was indefinite and uncertain. However, the court held that the trust was valid. The court said that the trust would not be allowed to fail because of want for a trustee, since the purpose the trust sought to accomplish was a humane one. [3]

The old way of structuring pet trusts was made from the 1935 Restatement(Second) of Trusts. The way the drafters intended the trust to be set up was more of an honorary trust than a pet trust. Essentially you would carefully word the trust to where you would assign a certain amount of money to a party to take care of the pet, and if they failed to take care of the pet then the money would return to the grantor’s estate and the pet would pass to the normal heirs.[4] You also had to be very particular about how long the trust would last, you had to set it for a time where the money would out live the pet, but shorter as to not violate the rule of perpetuities.[5]

Major headway was managed for pet trusts in 1990 when the Uniform Probate Commission created a pet trust that was removed from other noncharitable trusts.[6] In 1993, the UPC revised the pet trust statute to remove the rule against perpetuities all together from pet trusts. However, they then limited the animal owners ability to plan ahead, and said that pet trusts could not be used to care for the offspring of the pets in the future. [7] With the adoption of the Uniform Trust Code in the 2000s that allowed for pet trusts, many states The most famous case of a pet trust was millionaire Leona Helmsley’s dog. Leona cut off her grandchildren, and left her children with $5 million dollars a piece.[9] The remaining $12 million went to her little Maltese, Trouble. A judge eventually lowered that inheritance to $2 million. Trouble was then flown to Florida where he lived a life of luxury, with expenses totaling around $100,000 dollars a year to care for the dog. Trouble finally passed away at the old age of 12 in 2011. [10]

Luckily for those of you looking to set up a multi-million dollar trust fund for your pet, Kentucky adopted the Uniform Trust Code in 2012, and along with it came a trust for the care of animal provision. The statute reads, ”  

(1)  A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates on the death of the animal or, if the trust was created to provide for the care of more than one (1) animal alive during the settlor’s lifetime, on the death of the last surviving animal.

(2)  A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

(3)  Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use shall be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.[11]

With that statute in mind, you now have all it takes to set up a pet trust for little Fido. Just remember that the highest threshold allowed was $2 million in the previously discussed case of Leona Helmsley and Trouble. While pet trusts are not likely to become a mainstay of the estate planning world, be aware they are out there. You can plan for everything in your life through estate planning, and now, you can even plan for your pets as well.

[1] Pet Heirs Providing for a Pet’s Future, Securian Financial Group https://mms.businesswire.com/media/20141224005009/en/446602/5/PetHeirsInfographic-FINAL-F82121_prf6%5B1%5D.jpg?download=1.  

[2] Id.

[3] Willett v. Willett, 247 S.W. 739 (1923)

[4] Gerry Beyer, PET ANIMALS: WHAT HAPPENS WHEN THEIR HUMANS DIE?, 40 Santa Clara L. Rev. 617 (2000).

[5] Id.

[6] Id.

[7] Id.

[8] Breahn Vokolek, America Gets What it Wants: Pet Trusts and a Future for its Companion Animals, 76 UMKC L. Rev. 1109 (2008).  

[9] Susan James, Leona Helmsley's Little Rich Dog Trouble Dies in Luxury, ABC News, (June 10, 2011) http://abcnews.go.com/US/leona-helmsleys-dog-trouble-richest-world-dies-12/story?id=13810168.  

[10] Id.

[11] KRS 386B.4-080

THE FUTURE OF THE ANTIQUITIES ACT AND BEARS EARS

The Future of the Antiquities Act and Bears Ears- Part III

Author: Seth Todd, 3L Member

Supporting President Trump’s Actions Involving Bears Ears

The Bears Ears battle rages on. I have previously covered the conflict surrounding President Trump’s reduction of Bears Ears and the arguments that the opposition has made trying to get the order over turned. In this final blog of the three-part series, I will cover the arguments supporting the President’s decision to reduce Bears Ears. The President claimed the reason behind his actions were to reduce federal overreach, and give the land back to the people. Pundits focus on three points when arguing in favor of the President’s decision. The first point is that President Obama created Bears Ears through the use of an Executive Order, and therefore Trump has the power to override it. The second is the literal text of the Antiquities Act. The third and final argument is that since it is not expressly granted, that it is an implied power. I will take each in turn.

The first argument is that Presidents can overturn executive orders issued by past Presidents. President Obama issued the executive order protecting Bears Ears and set the parameters of that protection. The executive order satisfied the Antiquities Act as a proclamation, which created the federal protection of the land. [1] Executive orders are commonly overturned by future Presidents. [2] This would seem to give President Trump the inherent authority to overturn President Obama’s executive order, therefore removing the protection of Bears Ears by the federal government. However, the sticky issue arises in the text of the Antiquities Act. Nowhere in the act does it stake that a President has the power to overturn protection of land, even if the protection arises from an executive order. [3] Since there is no previous cases on such an action, this will be an issue of first impression for the courts. President Trump does have the power to revoke the executive order, but will the protection of the land still be left in place?

Proponents of President’s Trump actions actually point to the text of the Antiquities Act in support of the reduction. The act states “The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected”.[4] Past presidents have used this clause to reduce federal lands, such as President Kennedy when reducing the Bandelier National Monument by nearly 4,000 acres. [5] An Attorney General opinion from 1938 actual supports the reduction of monuments to “the smallest area possible” even though they may not have the right to abolish the monument. [6]The opinion states,

While the President from time to time has diminished the area of national monuments

established under the Antiquities Act by removing or excluding lands therefrom, under

that part of the act which provides that the limits of the monuments “in all cases shall be

confined to the smallest area compatible with the proper care and management of the

objects to be protected,” it does not follow from his power so to confine that area that he has the power to abolish a monument entirely.”[7]

While the question remains on whether he may abolish the monument, it seems President Trump does have some authority on his side toward at least a reduction.

Secretary of Interior Zinke has given support to the reduction stating the President has the authority because “qualifying objects within the monument can be identified and reasonably segregated”. [8] Since the objects can be targeted, then a reduction to the smallest area possible would be within the bounds of the text of the Antiquities Act. If the Trump administration has legitimate proof backing up that the size should be reduced, then this is their strongest argument and could withstand a judicial challenge.

The last and what I believe to be the weakest argument is that since the power to reduce or abolish monuments is not mentioned, then the president has the inherent authority. Since there seems to be no evidence that Congress expressly attempted to withhold the power to revoke national monuments, then the President should have the authority to do so. [9] The notion behind this is simple, where the executive can use a discretionary power to create something, they can also use that discretionary power to take it away, unless otherwise stated. [10] Since this is a matter of first impression, we will not know if this type of thinking can withstand a judicial challenge. It all depends on the interpretation of the courts and how they see the delegation of power to the executive through the Antiquities Act.

President Trump has three arguments going forward to try and persuade the judicial branch that his reduction of Bears Ears was within his power. We may guess at which is the strongest vs. the weakest, however we will not know until the issue has been presented to the courts. I hope you have enjoyed this mini-series on the reduction of Bears Ears, and the coverage of both sides of the arguments going forward. This will be something to watch going forward, as it will set the precedent for future presidents. If Trump is allowed to use the Antiquities Act, then this may become a tool to reduce the size of monuments and therefore reduce spending on federal maintenance of lands. If the judicial process rules against the Trump Administration, then those in favor of more conservation may use this as a way to protect lands they see as vulnerable prior to different political parties taking office. Only time will tell.

[1]Proclamation No. 9558, 3 C.F.R § 9558 (Dec. 28, 2016).  

[2] Vivian Chu and Todd Garvey, Cong. Research Serv., CRS Report for Congress, Executive Orders: Issuance, Modificiation, and Revocation, (April 16, 2014), available at https://fas.org/sgp/crs/misc/RS20846.pdf.

[3] 54 U.S. Code § 320301

[4] Id.

[5] Proclamation No. 3539, 77 Stat. 1006 (May 27, 1963).

[6]  39 Op. Atty. Gen. 185 (1938)

[7] Id.

[8]Nick Bryner, Nationals Monuments Update, LegalPlanet (June 13, 2017), http://legal-planet.org/2017/06/13/national-monuments-update/.

[9] John Yoo and Todd Gaziano, Presidential Authority to Revoke or Reduce National Monuments, American Enterprise Institute, (March 2017), https://www.aei.org/wp-content/uploads/2017/03/Presidential-Authority-to-Revoke-or-Reduce-National-Monument-Designations.pdf.

[10] Id.

The Future of the Antiquities Act and Bears Ears

The Future of the Antiquities Act and Bears Ears- Part II

Author: Seth Todd, 3L Member

In 1906 the world saw the first featured film, the forward pass legalized in football, and the signing of the Antiquities Act. All three have stood the test of time, and are still current staples in society today. This blog is the first part of a three-part series concerning the recent actions taken by President Trump to reduce the size of the Bears Ears Monument in Utah. This first blog will lay the foundation for what the Antiquities Act is, followed by blogs showing the standing for those for and against the President’s reduction of Bears Ears.

The Antiquities Act was signed by President Roosevelt in 1906 to prevent the destruction and looting of ancient Indian artifacts.[1] The Antiquities Act states,

“That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected”[2]

16 Presidents have created 157 national monuments using the Antiquities Act, such as the Grand Canyon and the Statute of Liberty.[3] There is no formal way for the President to create a national monument, the statute simply references a “public proclamation” made by the President.  The authority for the President’s discretional designation of the monuments comes from the delegation powers granted to Congress. While the original purpose may be to protect Indian artifacts, in Cappaert v. United States the court held that the Antiquities Act could be used to protect ecosystems and scenic vistas. [4]

While past presidents use of the Antiquities Act has been challenged in the courts, if the question is whether the president abused his discretion then the court can typically only look at whether the President’s power under the Antiquities Act was indeed used. [5] The court is not allowed to go any further in establishing whether the President abused such his discretion. [6] Several other aspects of the Antiquities Act may be challenged, but I bring up the President’s use of discretion because it may come into play in ongoing litigation over Bears Ears.

The President’s use of discretion may arise if it is deemed that the President does have the power to withdraw lands from federal protection, which is the case for Bears Ears. The Antiquities Act only speaks of the President’s ability to create national monuments, it never touches upon if he can remove them. This will be examined in greater detail in the following blogs, as there are two camps regarding whether or not the President can remove land from federal protection without an act of Congress. Those for the President being able to remove land site the ability of the President to overturn/withdraw previous president’s executive orders, proclamations, etc. [7] Those opposing President Trump’s actions point directly to the statute, where no mention of the diminishing a national monument is mentioned. Opposition also points to the Federal Land Policy and Management Act of 1976, which places limits on the modification of national monuments. [8] These issues will be addressed in further detail in blogs to come, but it is important to recognize these arguments at the outset to set the stage.

While the Bears Ears issue is important in its own right, the impending judicial review may set the stage for future presidents to come, or push Congress to revise the Antiquities Act all together. Congress could amend the Antiquities Act to allow for the removal of land from federal management by the act of the President, or repeal the Antiquities Act all together to allow for full Congressional control over the designation of federal lands.

Be on the lookout for the next blog, where I will discuss the opposition’s arguments to Bears Ears, and why many people think the President overstepped his bounds when diminishing the size of the national monument created by President Obama.

[1] Tatiana Schlossberg, What Is the Antiquities Act and Why Does President Trump Want to Change It?, The New York Times, April 26, 2017,  https://www.nytimes.com/2017/04/26/climate/antiquities-act-federal-lands-donald-trump.html.

[2] 16 U.S.C. §§ 431-433 (1906)

[3] National Parks Conservation Association, Monuments Protected Under the Antiquities Act, https://www.npca.org/resources/2658-monuments-protected-under-the-antiquities-act (last visited Feb. 19, 2018)

[4] Cappaert v. United States, 426 U.S. 128 (1976).

[5] Utah Ass'n of Counties v. Bush, 316 F. Supp. 2d 1172 (D. Utah 2004).

[6] Id.

[7] Pamela Baldwin, Cong. Research Serv., CRS Report for Congress, Authority of a President to Modify or Eliminate a National Monument (2000), available at http://congressionalresearch.com/RS20647/document.php?study=Authority+of+a+President+to+Modify+or+Eliminate+a+National+Monument.  

[8] John Hudak, President Trump has the power to shrink national monuments, Brookings (Dec. 7, 2017), https://www.brookings.edu/blog/fixgov/2017/12/07/president-trump-has-the-power-to-shrink-national-monuments/ (last visited Feb. 19, 2018).