(This article is not written by an attorney and in no way offers legal advice. Always consult licensed legal counsel)
The term animal has always had mixed legal and legislative concepts. We need to fully understand the foundations of what an animal is historically in law before we can grapple with the new regulations coming into play. An animal can have a precise biologic meaning, a *fuzzy* common meaning, or a mixed legislative meaning. Over time the courts have found an animal to mean:
1. Those endowed with the power of voluntary motion
2. Every living brute creature
3. Sentient beings other than man
4. All irrational beings
Traditionally only organisms to small to be seen by the naked eye were a controversy as to whether they fit in the classification of animals. With the advent of GMO we now need to add a technical factor to our statutory definitions as the distinction between plant and animal blurs.
While it is true that an man fits in the animal category, legally speaking the context has historically referred to an animal as ‘non-human animal’. Hawaii maintains that an animal is defined as all living creatures. Being born in captivity does not constitute being a domestic animal.
As refine our strategy to deal with the wild beast of NAIS it is important to note why it is so important for us to continue to engage in our Constitutional political process for if a legislature considers, classifies, and “defines a term within a statue than neither judge nor jury may change or expand the definition.” Commonwealth v. Massini, 200 Pa Super. 257, 188 A2d 818 (1963)
The primary legal distinction of animals is always whether they are wild or domestic. Different rules apply to different categories. An owner of a domestic animal has more protection and statutory rights than the possessor of wild animals. This is an important concept to think about as you grapple with potential local, state and federal environmental legislation or regulations. Of course with those rights of ownership come responsibilities as determined by the animals status. This distinction between wild and domestic has arisen for two reasons: to reward and promote beneficial activities and to respond to perceived threats to human safety. Historically animals who are an economic utility to society have a higher status than others in the hierarchy. Owners of cattle, horses, goats and such were provided full access for civil and criminal remedies for any third party who dared interfere with their right in property. In past years interestingly owners of pets and companion animals were not afforded the same status in the legal system. Of course, with those rights of ownership come responsibilities.
Your county may be looking at adopting the new fad of dangerous or vicious dogs. Please keep your eyes open for this subtle regulation. Courts even today use the term “naturally ferocious, unpredictable, dangerous, mischievous” to describe wild animals. Giles v. State, 431, N.Y.S. 2d 781 (1980) Wolves for example might lead a highly disciplined life posing no threat to human safety while a classified dangerous dog could possibly be more stringently by regulation.
Another traditional perception is that domestic animals are safer and less of a threat to humans than wild animals. These days that perception is changing. It occurred after the law was adjusted to afford pet owners protection under the law, upgrading the legal status of animals. Since then we have witnessed a snowball of animal rights. To be classified domestic an animal must prove it not wild. Let’s walk through the process:
1. Assume an animal is wild until proven domestic.
2. Is the species as a whole domestic?
3. In our society has the species been under dominion and control of humans?
4. By habit or training does the species live with man?
5. Is the animal useful to man providing food or clothing?
6. Does this species live near humans?
7. Is this species harmless?
Courts will look upon these questions to determine their historical analysis. This would then determine who had to establish the burden of proof. Mere possession of an animal is not proof that the animal is domestic. In order to fully ensure that the animal is domestic it must fit two criteria:
1. The animal (each) must be personal property with a person who claims title and full ownership rights.
2. The owner and or keeper must exercise training and control over the animal to be considered tame.
Proof of tameness is necessary because of society’s concern for the safety of its members. A domestic animal may only be considered tame if has lost the disposition to escape and inclination towards its wild characteristics, and importantly to note is no longer a threat to humans or their property.
Courts will look at whether an individual animal is domestic but the Restatement of Torts suggests once a species determination has been made, there can be no exception for an individual animal Restatement (Second) of Torts 506 (1977)
Dog Lovers
For al you dog lovers everywhere-dogs have always held a special legal status because of their unique character. This is true even though they could potential cause harm. Watch out though because since 1930 the legal trend is to eliminate the special status of the dog. Make sure when checking you regulations to see the cases from about the 1960′s to current for changes in dog legal dog status.
Bees
Are bees wild or domestic? I just did an interesting study on bees recently in lieu of the disappearing bee populations. From the time of Justinian through Blackstone bees were considered wild by nature. But as they are an integral part of agriculture and fit much of the domestic criteria they fall on the borderline between domestic and wild.
What is a pet?
A pet is determined by the following:
1. The animal receives the personal attention of the owner.
2. The animal is treated with affection by the owner.
3. the animal is kept in close proximity to the owner.
4. The animal is part of the owner’s daily life.
Most pets are non-commercial but may have economic value.
The concept that pets should be elevated in legal status stems from the courts should “attempt to preserve decent and reasonable rules by which mankind and animals may live together in harmony”. New York Life Ins. Co. v. Dick, 71 Misc.2d 52, 335 N.Y.S. 2d 802, 811 (1972) It is conceivable that the courts may someday totally reverse all historical status of pets and domestic animals and form some new creative criteria for distinction of animals. That process is probably well under way.
What is a beast?
The term beasts originates from the past. It refers to anything not human but having intrinsic value, ie.e.-commercial value. The confusion comes in that the legislature did not carefully examine their legislation and based their law on an imprecise language.
Wildlife
Wild life falls in various categories but it is not the intent of this article to examine the very rapidly changing arena of the legal status of wildlife. (That would take a library)
As one can quickly determine taming the beast, by definition and law, is not as simple as one might think. We can quickly see the alarming implications with current trends in our legislative and judicial processes. Stay active and informed.
From the trenches,
Celeste
