It is a nice summer evening in late June. You and your wife are sitting on your front veranda looking at a herd of cattle you own. A herd whose lineage you can proudly trace back to your great-grandfather. The next morning, you walk back onto your front veranda, coffee-in-hand and you stare in belief: Where is the herd I own? All of the cattle that were there last night are still there but you no longer own them. You have not sold your herd nor has your bank claimed them. No, but overnight, a new state law went into effect declaring that from now on you do not own your animals but, rather, you are their guardian. A new law that abrogates the long recognized law that domestic animals are property that can by owned be individuals and entities.
Is this some bizarre nightmare? Maybe not, as more local communities are declaring individuals are no longer owners of their animals but “guardians.” The first legal step on this road has been the use of the phrase “owner-guardian” only later to change the law leaving only “guardian.” One state already has “owner-guardian” as a part of its law. Various federal agencies are now using the word “guardian” in conjunction with “owner” whenever the latter appears in their regulations.
Advocates of animal guardianship suggest referring to the human-animal relationship as one of guardianship rather than ownership will lead to better animal care. Unfortunately, an abusive, bad and cruel animal owner will still be an abusive, bad and cruel “guardian.” Simply, as the American Kennel Club has found, the term “guardian” does nothing to promote more responsible treatment of animals.
Why could animal guardianship be such a big deal for Arkansas; after all Arkansas is not like those weird communities on the coasts or college towns that have done this. Nor are Arkansans generally known as a rabble of animal-rights activists. The reason why it could become a big deal for Arkansas is at least one Arkansas municipality, Sherwood, has adopted animal “guardianship” terminology in its ordinances. Many consider the genesis of the animal guardianship movement to have happened in Arkansas’ neighbor, Missouri, during a 1995 meeting in St. Louis of various animal advocate groups.
While local ordinances, to date, have generally applied only to dogs, cats and other companion animals (is a horse an agricultural or companion animal?), it might not be such a big-step to expand such laws to include all domestic animals (non-farm and farm). Then, having laid the ground-work at the local level, to move to the state-level to have the state do what many of its local governments have done or are doing.
“Ownership” and “guardianship” are two distinct legal terms with very different consequences. The first tends to be an expression of rights while the second an imposition of numerous legal duties and obligations. Today, as an animal owner, as long as you are not cruel, neglectful or abusive towards your animals you may decide what to do with them. What to feed them, where to house them, what other animals to breed them with, what veterinary care and the financial extent of such to provide, whether to sell them at auction or to another farmer, whether to sell them for slaughter or sell their fur or wool, whether to have them put-down, whether you can bequest them in your will, etc.
If the law changes and you no longer own your animals but become their guardian then you will always have to act in your animals’ best interest. As you can well imagine, there will be many times your animals’ best interests are not in your best interests. For instance, how would it be in your animals’ best interests to sell them for slaughter? Being prohibited from euthanizing an animal to avoid a substantial veterinary bill. If you no longer own your animals then your property damage/owners’ insurance policy may not cover any loss of animals on your farm. A successor-guardian could be appointed to sue you, on behalf of your animals, for not having properly taken care of them, for their injuries and even death. The list of legal repercussions that could befall Arkansas farmers and ranchers, should Arkansas law be changed from animal ownership to guardianship, is too extensive to be listed in this article. The impact for the government of Arkansas could be tremendous. If Arkansas law is changed to declare that Arkansans are guardians of animals and no longer owners, then a very expensive constitutional problem could arise for the State of Arkansas requiring it to pay all Arkansas animal owners just compensation for the taking of their animals; their property.
“Guardianship” of animals could be the least of your problems. There are now a growing number of individuals and entities advocating that animals should be considered “legal persons” and, as such, have constitutional and legal rights. In 2008, a committee of the Spanish parliament approved a bill that would extend legal rights to great apes. You're thinking, what do you expect from a European nation? Well, an American law school has already written a pretend appellate brief to the United States Supreme Court arguing that great apes should be considered legal persons and enjoy core constitutional rights.
Where are such things coming from? From many individuals, entities and groups ranging from animal humane to animal rights’ organizations. Also, from the boom in law schools offering animal law classes. Presently, well over 80 law schools offer animal law classes to their students. As one standard animal law textbook succinctly declares: “When and how legal rights for animals will be established is as yet unknown. We are only beginning to explore the legal theories that may be argued.”
What can you do to prevent this nightmare from becoming a reality? Make sure all farm, ranch or agricultural associations you belong to are aware of the animal guardianship and animals as legal persons movements. Keep a close eye on any proposed local government ordinance, regulation, proclamation, award, recognition or declaration (municipal or county) in your community that would in any way use the words “guardian” or “guardianship” when referring to domestic animals or considering them to be legal persons. Likewise, tell your Senators, House Representatives and Governor to watch for any proposed legislation, proclamation, award, recognition or declaration that would refer to the relationship between people and animals as one of “guardian” or “guardianship” or wording suggesting or implying that animals are to be considered “legal persons.”
Gregory M. Dennis is Legal Counsel for the Missouri and Kansas veterinary medical associations. He practices law at Kent T. Perry & Co., L.C., Overland Park, Kan.
