Grand Canyon Mining Ban: Environmentalism v. Industrialism

By: Bradley Harn, Senior Staff Member

In January 2012 the Obama administration announced it had enacted a 20 year ban on new mining permits for approximately a one million acre area around the Grand Canyon.[1]  This reversed the Bush administration’s policy of opening up the area to new mining, and primarily affects the sizable uranium deposits in the area.[2]

Many have praised this policy since it protects the local tourism industry.  “A 2005 study by the University of Northern Arizona shows that Grand Canyon tourism generates $687 million in annual revenue and creates more than 12,000 full-time jobs.”[3]    Environmentalists have also pointed out that the ban would help protect drinking water for 25 million people.[4]  Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club stated, “Uranium mines are here today, gone tomorrow, but the pollution they leave behind is here for a very long time.”[5]

However, others have been critical of the ban.  Arizona’s Republican Governor Janice Brewer remarked that the ban “comes at the expense of hundreds of high-paying jobs and approximately $10 billion worth of activity for the Arizona economy.”[6]  The Institute for Energy Research issued a release stating, “"This latest power-grab by federal regulators is another example of the Obama administration's willingness to use ideologically driven energy policies as a means to control the U.S. economy."[7]  At the same time, however, the currently “approved mining operations could continue and new operations could be approved on valid existing mining claims. In addition, other Federal lands in Arizona and other parts of the country would remain open to hardrock mining claims.[8]  In other words, this ban does not altogether eliminate mining in the area. 

Do you feel the President Obama has achieved the correct balance between protecting the environment and creating jobs? What alternative regime would you propose?

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[1] Matthew Daly, USA Today, New 20-year Ban on Mining near Grand Canyon is Final, http://www.usatoday.com/money/industries/environment/story/2012-01-09/grand-canyon-mining-ban/52466224/1.

[2] Id.

[3] http://www.policymic.com/articles/3281/obama-rightly-sets-20-year-moratorium-on-uranium-mining-near-grand-canyon.

[4] Katarzyna Klimasinska and Amanda J. Crawford, Ban at U.S. Grand Canyon Pits Tourism Against Mining, http://www.bloomberg.com/news/2012-01-10/uranium-ban-at-u-s-grand-canyon-pits-tourism-against-mining.html.

[5] Daly, supra note 1.

[6] Klimasinska and Crawford, supra note 4.

[7] Deborah Zabarenko, Obama Ban Uranium Mining Around Grand Canyon, http://www.reuters.com/article/2012/01/09/us-usa-grandcanyon-uranium-idUSTRE8081NA20120109.

[8] U.S. Department of the Interior, http://www.blm.gov/az/st/en/prog/mining/timeout.html.

Implementing Stricter Exotic Pets Laws Will Avert Future Animal Tragedies

By: Ena Viteskic, Senior Staff Member

Dozens of lions, tigers, bears and monkeys roamed around the countryside on Tuesday, October 18, 2011.[1] The images of these exotic animals wandering among the general population almost depicted a scene from the “Wild West,” however, Zanesville, Ohio is a far cry from the “Wild West.” When the owner of a private zoo, Terry Thompson, released these animals by breaking the animals’ cages and fences, uproar ensued in the Ohio community.[2] In order to avert public chaos, law enforcement had no other choice but to kill many of these exotic animals.³

Although this horrific incident has attracted nationwide media attention, the perplexing issue of exotic pets is nothing new. In fact, states have struggled for years in regards to the appropriate mechanism for regulating the private ownership of exotic pets. Many states have established total or partial bans on private ownership of exotic pets while other states, including Ohio, do not have a direct ban on owing such animals.[4] Therefore, the question that emerges is whether a direct ban on private ownership could have saved these animals?

Ohio has always been considered the “Wild West” of exotic animals because of its lack of regulation on private ownership of such animals.[5] This tragedy stunned the national community, including Kentucky Wildlife officials. Steven Dobey, a wildlife biologist with the Kentucky Department of Fish and Wildlife Resources stated: “[t]hat was unbelievable, awful and an extremely dangerous situation.”[6] The incident triggered lawmakers across the country to evaluate their existing laws in regards to exotic pet ownership. Pacelle, CEO of the Humane Society of the United States, proclaimed that the “[states] will seek statutory authority. Changes must be made in the law.”[7] The governor of Ohio has also publicly stated that such legal changes will be addressed by the legislature in its next session.[8] In order to implement these changes, states should look to the Kentucky regulation as a model for new laws. According to 301 Ky. Admin. Regs. 2:082, no person may possess inherently dangerous exotic animals.[9] The regulation further explains that “inherently dangerous exotic animals include, but are not limited to tigers, lions, non-human primates, dangerous reptiles, bears, etc.”[10] Of course, the regulation carves out an exception for ownership of exotic animals for educational and research purposes.[11] Based on this regulation, it is clear that private ownership of exotic pets will not be tolerated in Kentucky. 

In exotic pet cases, the government has a compelling interest to prohibit the private ownership of such pets. The unregulated ownership of these animals poses a large risk to public safety. Not only are these animals dangerous because of their size and ability to physically harm humans, they are also dangerous because of the potential diseases they carry.  Besides protecting the public at large, these laws will most importantly protect the exotic animals. Such animals require more care and resources than one’s dog, cat, or hamster and it is difficult for states to control the treatment of these animals. As a result, every state in the United States should make it a mission to implement stricter laws in regards to private ownership of exotic pets.  Banning private ownership will allow these animals to live in their natural habitat and not be subject to future tragedies. 

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[1] Andrew Welsh-Huggins and John Seewer, Zanesville, Ohio Animal Owner Reportedly Traded Guns for Tiger, Monkey, Huff Post Green (Oct. 21, 2011, 09:47PM), http://www.huffingtonpost.com/2011/10/21/zanesville-ohio-exotic-animals-escape-killed_n_1026064.html.

[2] Id.

[3] Id.

[4] Tommy Garret, Wildlife Massacre in Ohio, An Animal Tragedy, Canyon News (Oct 23, 2011, 09:55PM), http://www.canyon-news.com/artman2/publish/National_News_1182/Wildlife_Massacre_In_Ohio_An_Animal_Tragedy.php.

[5] Id.

[6] Gary Garth, Kentucky regs strict on exotics, Courier-Journal.com (Oct 23, 2011, 12:33AM), http://www.courierjournal.com/article/20111022/SPORTS09/310220107/1002/Outdoors-Notebook-Kentucky-regs-strict-exotics?odyssey=mod%7Cnewswell%7Ctext%7CHome%7Cs.

[7] Ohio governor signs executive order on dangerous animals, CNN (Oct 21, 2011), http://articles.cnn.com/2011-10-21/us/us_ohio-animals_1_dangerous-animals-john-kasich-wayne-pacelle?_s=PM:US.

[8] Id.

[9] See 301 Ky. Admin. Regs. 2:082.

[10] Id.; see also Kentucky State Laws Governing Private Possession of Exotic Animals, Born Free USA, http://www.bornfreeusa.org/b4a2_exotic_animals_state.php?s=ky.

[11] See 301 Ky. Admin. Regs. 2:082

Could the threat of preemption herald a state crackdown on horse trainers who don't follow the rules?

By: Peter Rottgers, Senior Staff Member

Thoroughbred racing is a lot like Ozzy Osbourne. They both did their best work before 1985, in their post prime years both have maintained small but loyal followings, and they both have a tendency to engender conversations about drug use (whether or not that ought to be the case). It’s the later similarity that has garnered the most attention lately. While criticism over performance enhancing drugs and race-day medication has been ongoing for decades, outrage from both the industry and the general public reached its zenith in the aftermath of the Eight Bells tragedy at the 2008 Kentucky Derby. [1] Everyone agreed that something must be done to clean up the sport, but because thoroughbred racing has no central authority to mandate industry wide change, progress has not been as swift enough for some.[2]

To be fair, the states, which promulgate and enforce their own drug and medication rules, have made some progress in reforming the industry.[3] The use of anabolic steroids, blood doping agents like EPO, and “milkshakes” (a mixture of baking soda, sugar and electrolytes usually force fed to a horse via feeding tube [4]) have been effectively eliminated through new regulations and stricter testing.[5] However, even though the states have made some headway on drug and medication reform, the hard issues to be resolved still loom large. While the states should be commended for banning a practice as reprehensible as “milkshaking”, the issue seems to be a relative softball when compared to medications like Lasix. Lasix, a diuretic used to prevent pulmonary bleeding caused by the extreme exertion of a race, is legal in every thoroughbred-racing jurisdiction in North America.[6] Lasix also has performance enhancing qualities and is reputed to mask the presence of other performance enhancing drugs.[7] Yet, swift and uniform change by the states on hard cases like Lasix is probably nothing more than wishful thinking.

The states have also failed to create an effective system of penalizing violators of banned substance rules. As of October 2010, only two of racing’s top 20 trainers by purses won had never committed a drug or medication violation.[8] At least five of those 20 trainers had in excess of 20 drug or medication violations, yet all were still actively training at the time.[9] When compared to the three strike rules in other major American sports [10], thoroughbred racing’s rule enforcement seems laughable.

Two individuals who are not chuckling are Kentucky Representative Edward Whitfield and New Mexico Senator Tom Udall. In May of 2011, Whitfield and Udall presented legislation that called for a federal cleanup of the horse racing industry.[11] The bill seeks to expand Congressional authority over horse racing through amendments to the Interstate Horse Wagering Act of 1978, which gave Congress the power to regulate interstate via phone or other electronic devise.[12] If the Whitfield-Udall bill is anything, it’s bold. It calls for zero tolerance policies for most drugs on race days, and institutes a nationwide three strikes program.[13] The program has received a fair amount of criticism,[14] but the prospect of federal preemption may be just the push the states need to get serious about rule enforcement.

The last thing states want is for the federal government to amend the Interstate Horse Wagering Act. If Congress adopts rules and enforcement procedures, it could also adopt new taxes on the interstate wagers they regulate to pay for rule enforcement, which could explain Rick Dutrow Jr.’s recent headlines. Dutrow, trainer of 2008 Kentucky Derby winner Big Brown, has racked up over 60 drug or medication violations in his career.[15] He is also one of the most successful trainers in the thoroughbred racing industry.[16] Earlier this year, the Kentucky Racing Commission finally revoked Dutrow’s trainer’s license.[17] Last week, the New York Racing and Wagering Board fined Dutrow $50,000 and revoked his trainer license for 10 years [18]. After years of rule breaking, Dutrow is now out of business in two of the country’s most prestigious thoroughbred racing states. This might become the trend with drug and medication rule violators. In order to show Congress that the states are capable of handling horse racing on their own, we could see a crack down on violators in the near future. Maybe federal preemption isn’t the answer, but the threat of federal preemption might prove to be catalyst that gets racing back on track.

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[1] Posting of Steve Zorn to The Rail: The New York Times Horse Racing Blogg, http://therail.blogs.nytimes.com/2011/05/14/racings-drug-problem-more-complicated-than-it-looks/ (May 14, 2011, 9:23 EST).

[2] Id.

[3] Id.

[4] Joe Drape, At Breeders’ Cup, a Volatile Mix of Speed and Drugs, N.Y. Times, Nov. 3, 2010, at B16, available at http://www.nytimes.com/2010/11/04/sports/04racing.html.

[5] Zorn, supra note 1.

[6] Id.

[7] Id.

[8] Drape, supra note 4.

[9] Id.

[10] Deborah Charles and Paul Grant, Factbook: Rules About Steroid Use in U.S. Sport, http://www.reuters.com/article/2008/01/11/us-steroids-rules-idUSN0433166620080111 (last visited Oct. 25, 2011).

[11] Zorn, supra note 1.

[12] Id.

[13] Id.

[14] Id.

[15] Joe Drape, 3 Years After Triple Crown Bid, Trainer Is Given a 10-Year Ban, N.Y. Times, Oct. 12 2011, at A1, available at http://www.nytimes.com/2011/10/13/sports/dutrow-barred-from-training-horses-in-new-york-for-10-years.html?pagewanted=all.

[16] Drape, supra note 4.

[17] Zorn, supra note 1.

[18] 2 Drape, supra note 15.

Interstate Racing and Wagering and Compact: Can 6 be Uniform?

By: Ashley Payne, Senior Staff Member

Kentucky Governor, Steve Beshear, “ceremonially signed into law the Interstate Racing and Wagering Compact” on May 2, 2011.[1] The act purports to “enable member states to act jointly and cooperatively to create more uniform, effective, and efficient practices, programs, rules, and regulations, and to facilitate the health and growth of the industry by simplifying the process of participating in live horse and greyhound racing and pari-mutuel wagering.”[2] The compact was proposed in response to threats of federal intervention.[3] The goal of the Compact is to make the laws of racing and wagering in each individual state uniform, which, in turn, would make it much easier on persons racing horses in those states to comply with the law. As one proponent put it, “even most casual football fans know that holding is a 10-yard penalty. So imagine the confusion there would be if holding was penalized at 15 yards in a game played in one state, five yards in another state, and not a penalty at all if played in a third state.”[4] While this example is extreme, it is exactly the type of situation the Compact is intended to prevent.

The Compact will allow those member states to “act jointly and cooperatively to create a more equitable and uniform” regulatory framework and the rules adopted will “have the force and effect of state rules or regulations.”[5] Should a member State not comply with the provisions of the Compact, another member state “may initiate legal action, in any state or federal Court,”[6] or may bring a legal action in the United States District Court to enforce compliance with the compact.[7]

This sounds great, right? While such a Compact is great in theory, in practice it may not work so well. As the Kentucky adoption of the Compact indicates, “this compact shall come into force when enacted by any (6) eligible states.”[8] There are currently 38 states that offer pari-mutuel wagering and racing.[9] It is difficult to fathom how the compact will provide the necessary uniformity to remedy the current problems when only six of those 38 states have to ratify the Compact. Clearly more than six states may ratify the compact, but if the Compact does not receive the anticipated support, it will not meet its ultimate goal of uniform rulemaking.

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[1] Kentucky Governor’s Message, (May 2, 2011), (Available at http://governor.ky.gov/pressrelease.htm?PostingGUID={1ECEE2F0-9296-4BFB-822E-7B6D39DAB83C})

[2] Ky. Rev. Stat. Ann. §230.3761(I)(A-B) (West 2011)

[3] Tom LaMarra, State Legislators Told Compact Viable Option, Bloodhorse.com (July 29, 2010 8:21 AM), http://www.bloodhorse.com/horse-racing/articles/58101/state-legislators-told-compact-viable-option

[4] Denis Blake, Efforts to Create an Interstate Racing and Wagering Compact Underway, The Horsemen’s Journal, (Spring 2010), http://www.hbpa.org/HorsemensJournalDisplay.asp?section=3&key1=12739.

[5] Ky. Rev. Stat. Ann. §230.3761

[6] Ky. Rev. Stat. Ann. §230.3761(XI)(B)

[7] Ky. Rev. Stat. Ann. §230.3761 (XI)(A)

[8] Ky. Rev. Stat. Ann. §230.3761 (III)(A)

[9] Beshear, Supra note 1