Animal Crackers

If your professional activities bring you in contact with what the politically correct folks are pleased to call “animal rights,” you know that there is no limit to the ingenuity and wackiness that can be aired in court concerning animals and their “rights.” There is even a case captioned Arizona Grey Squirrel v. Somebodyorother which, truth to tell, we stopped reading after the caption because it demonstrated to us that when courts take up the causes of squirrels as plaintiffs, (a) things can really go loony-tunes in court, and (b) federal judges have no sense of humor, because if it had been your faithful servant presiding over that one, we’d have ordered that the named plaintiff appear in court personally and testify. After all, if according to Justice William O. Douglas, trees can have standing, why not squirrels? If nothing else, it should be easier for counsel to communicate with a squirrel to ascertain his client’s intent, than communicating with a tree — a famously frustrating effort immortalized in the hit song that goes “I talk to the trees, but they don’t listen to me. . .” Tricky business that, because for all we know a redwood tree may be pining to become an outdoor picnic table. Who knows for sure?

Anyway, you just can’t escape that stuff. In the Del Monte Dunes case, a regulatory inverse condemnation case  in which we were involved, and in which SCOTUS affirmed a seven-figure judgment against the city of Monterey, California, for its regulatory taking of the plaintiffs’ land (after subjecting them to lengthy regulatory harassment consisting of five development applications and 19 plot plans, all required by the city and all turned down seriatim). The city refused permission to build anything on any part of the subject property. Perfectly normal in California, asserted the bland-faced lawyer for the city — an assertion that, to put it mildly, produced an incensed responses from the Justices.

But how does that involve critters, you ask. One factor proffered by the city as cause for its behavior was its tender regard for endangered species. Even though a certain blue butterfly had never been seen on the subject property, thought the city, it might want to live on it should it come across it and take it into its little head  to do so.

And how can we overlook the California Moerman case (17 Cal.App.4th 452) in which the state trucked over a herd of Tule Elk, turned them loose next to Moerman’s land (where they — big critters that they are — proceeded to walk right through Moerman’s fences and wreak havoc on his crops). California courts — who else? — held that this was no taking of the crops or anything else.* And who can forget Christy v. Hodel, 857 F.2d 1424, holding that a sheepherder could not use lerthal force to protect his flock from marauding grizzly bears that evidently viewed his livestock as food. The court left it unclear how one would go about diossuading a grizzly from munching on one’s sheep without the use of force. Then there is a New York case (State v. Sour Mt. Realty, Inc., 714 N.Y.S.2d 78) in which the hapless property owner built a snake-proof fence to keep timber rattlesnakes, off his land, only to be ordered by a New York court to tear it down because it might inconvenience the aforementioned snakes that enjoyed protected status.

But it turns out that this is no big deal compared to some of the stuff that is going on. At least the above cases involved endangered species. But now we are seeing similar stuff involving animals that are not endangered — like deer, for instance. It turns out that Bambi may look cute, but is a lethal menace in thousands of car collisions, and engages in widespread destruction of ornamental and agricultural flora. In that connection, we recommend that you read an article by Jim Sterba, America Gone Wild, Wall St. Jour., November 2, 2012. Click here. You will learn from it that there is a kind of low-level war going on out there, compleat with casualties. Some folks demand that they and their homes be protected from predatory wild creatures like cougars and coyotes, that are intruding into humn habitats, and are fond of muching on dogs, cats, sheep, and even people (cougars and bears have evidently been losing their fear of man, and — in Mark Steyn’s immortal phrasing — increasingly see human beings as “a tasty Jello pudding on legs.”)

It all goes over the edge when one group of animal lovers demands protection from four-legged predators, while others demand that the predators be protected from people, and if that causes harm to crops, lifestock, pets and even humans, too bad. Ths is serious stuff because there have been cases in which wildlife protectors were killed and consumed by the very animals they insisted on protecting by being nice to them — see Mark Steyn, AFTER AMERICA (Regnery Publishing 2011) at pp. 259-262.

So far, there have been no major cases (at least none known to us) in which courts have entered the fray in the absence of endangered species. But at this rate, they are bound to come along. Stay tuned.

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* In an earlier California case involving flooding by a government  project, the court said by way of analogy that the “common enemy” rule that governs protection of one’s land from flooding, was like a case of a cougar roaming the mountains – a case of “every man for himself.” But that, added the court, does not mean that one can capture the wild beast and turn it loose in a city park. Sounds right to us, but evidently, California courts have different rules for Tule Elk than for cougars, and see  nothing wrong with capturing the former and turning them loose on someone’s agricultural land.


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