"Property rights"

Efficient Compensation of Class Members Suffering from the BP Oil Spill

By: Ashley Addo, Staff Member

On April20, 2010, our country experienced a devastating tragedy, the BP oil spill. This catastrophic event affected thousands of fishermen, business owners, real estate workers, property owners, shareholders, and more. The spill was a result of an explosion and fire at the Deepwater Horizon oil rig, which was located 130 miles southeast of New Orleans and approximately 50 miles from the Mississippi Delta.[1]The burning lasted for approximately two days before the oil rig tipped into the sea. The leak was finally capped on July 15, 2010, but the overwhelming damages remained.[2]Eleven platform workers were killed during the drilling process, and aquatic life was substantially affected. Consequently, these damages induced hundreds of class action lawsuits against BP and Transocean, the company that owned the oil rig.[3]

While the various classes assert different claims against BP and Transocean, one common claim exists amongst the class action complaints: BP was negligent in the design, maintenance, manufacture, and operation of the oil rig.[4]Accordingly, the plaintiffs in these classes desire recovery from the aforementioned defendants. The question is: with hundreds of class action suits pending against these companies, how quickly will these class members be compensated?

Rule 23of the Federal Rules of Civil Procedure governs the different ways in which a class can be certified.[5]One reason a class can be certified is if predominant issues preside amongst the class as a whole.[6]Once a class is certified, Rule 23(a)(5) permits the creation of subclasses amongst a larger class if needed.[7]In the recent Randleman v. Fidelity National Title Insurance Co. case, the court addressed a circuit split regarding bifurcation and the creation of subclasses in order to remedy a lack of predominance amongst a class.[8]The 4th, 5th, and 11th circuit’s state that a class should not be certified with subclasses if predominant issues do not exist amongst the class.[9]Conversely, the 2nd and 9th Circuits hold that subclasses are permissible, despite a lack of predominant issues amongst the class.[10]

If all of the circuits accepted the minority viewpoint towards class certification,the lawsuits against BP could be substantially expedited. There are hundreds of class action lawsuits pending against BP and Transocean and, although the classes are pleading distinct issues, the overarching commonality is BP’s negligence.[11]Several of these classes could be joined together, and multiple subclasses could be created amongst the class. For example, a class of BP shareholders,property owners, and real estate owners could be certified as one class, with multiple subclasses created amongst the class for the disparate claims.

In response to the oil spill, BP implemented many programs to avoid reoccurrence of the oil spill. Specifically, BP has acknowledged that they“ regret the damage caused to the environment and the livelihood of those in the communities affected” and that they are “putting in place measures to help ensure it does not happen again.”[12] While these strides are critical, BP’s ultimate goal should be compensation of the thousands of injured parties. The livelihood of these class members was radically altered by the oil spill; these individuals relied on the preservation of the Gulf of Mexico as a means of survival. BP has discussed its efforts in compensating individual claims,however, the Company has not publicly addressed how it will handle the hundreds of class action suits.[13]Consolidation of classes and the use of subclasses could reduce the amount of pleadings, hearings, discovery review, and trials that would accompany each suit. Additionally, this approach could reduce potential inconsistent judgments and appeals.

[1] Complaint at §2, Cajun Maid, LLC v. B.P., No.1:10-CV-176 HS0-JMR, (S.D.Miss. May 6, 2010).

[2] Id.

[3] Id.

[4] Id.

[5] fed. r.civ. 23.

[6] fed.r. civ. 23(b)(3).

[7] fed. r.civ. 23(a)(5).

[8] Randlemanv. Fidelty, 646 F.3d 347 (6th Cir. 2011).

[9] Id.at 356

[10] Id.

[11] Complaint, supra note 1, at §73

[12] Deepwater Horizon Accident, bp, http://www.bp.com/sectiongenericarticle800.do?categoryId=9036575&contentId=7067541

[13] Compensating the people and communitiesaffected, bp, http://www.bp.com/sectiongenericarticle800.do?categoryId=9036584&contentId=7067605

Abandoned horses, whose property?

By Elizabeth Rives, Staff Member

In May 2008, Pat Dawson of Time.com wrote an article entitled “An Epidemic of Abandoned Horses.” The problem discussed in this article is still around over two years later. According to Dawson, two main factors contribute to the rise in abandoned horses: “rising grain and gas prices” and “the closure of American slaughterhouses.” Pat Dawson, An Epidemic of Abandoned Horse, Time.com, May 28,2008, available at http://www.time.com/time/nation/article/0,8599,1809950,00.html.

Volunteer horse rescue groups are attempting to alleviate the problem but the cost of caring for horses is too great for some to maintain. Carol Holmes, owner and operator of White Cloud Ranch in Malibu, California, spent roughly $2,500 every three weeks on food alone after having 27 horses abandoned on her property. Stephanie Bertholdo, Bad economy causing horses to be abandoned at an alarming level, Thousand Oaks Acorn, January 7, 2010, available at http://www.toacorn.com/news/2010-01-07/Front_Page/Bad_economy_causing_horses_to_be_abandoned_at_an_a.html. Although the cost of keeping and caring for the horses is high, many of the horse rescue groups are weary of giving the horses away because of the possibility that the horses will then be sold to slaughterhouses outside of the U.S. Id.

Most recently in the news, two abandoned horses were rescued in a field in New Mexico. Lee Ross, Two Abandoned Horses Rescued, ABOJournal.com, October 1, 2010, available at http://www.abqjournal.com/abqnews/abqnewseeker-mainmenu-39/24307-two-abandoned-horses-rescued.html. A local horse rescue organization, Walkin’ N Circles Ranch, found the horses in an open field with no available water. Id. Eleanor, one of the horses, was unable to graze because she was missing teeth. Id. Walkin’ N Circles Ranch, is currently nursing the two horses back to health. Id.

The question then becomes, who owns these horses and who is responsible for paying for them? According to Rachel McCart, an equine attorney, this is not always a simple question. Rachel McCart, Abandoned Horses: Finders, Keepers?, Equine Legal Solutions Horse Law Blog (September 15, 2008) http://www.equinelegalsolutions.com/2008/09/abandoned-horses-finders-keepers.html. In most cases, you do not gain title to the horse regardless of if there is a boarder relationship or the horse simply ended up on your property and should contact local authorities to determine the appropriate action to take. Id. The answer to financial responsibility is more difficult. The caregiver might have a hard time getting reimbursed for care or may choose not to fight it because of the legal costs associated with such a battle. Id.
In order to alleviate this problem, there needs to be definitive measures available for people to take who choose to care for abandoned horses.

“You Don’t Own Me:” Horses as Wards, Not Property

This post was written by staff member Tanner James.

Equine ownership plays a fundamental role in Kentucky's economy. Racing, training, breeding, and auctioning—all are decisions made by owners to utilize their horses—their property—for profit. But, what would happen if this paradigm shifted? What would happen if horses were no longer property? What would happen if horse "owners" were, instead, horse "guardians?"

The idea seems outrageous on its face. Horses, like other domesticated animals, have long been understood to be property, subject to their owner's control. This control is generally limited only by anti-cruelty statutes. Currently, in Kentucky, horses are defined as "livestock" and may be owned and/or leased. Ky. Rev. Stat. Ann. § 257.010(9) (a) (2009). However, some believe that the idea of horses becoming something more than just property is not only feasible, but also forthcoming.

In Defense of Animals (IDA), a non-profit organization based in San Rafael, California, has established The Guardian Campaign in an effort to change statutory language referring to animal "owners." Embrace Guardianship, The Guardian Campaign, http://www.guardiancampaign.com/promise.html (last visited Oct. 22, 2009). The proposed language would replace "owner" with "guardian," in an effort to "[promote] a more compassionate relationship between person and animal" and to "elevate a community's consciousness and way of thinking about non-human animals." Id. According to the IDA website, Boulder, Beverly Hills, and St. Louis are among several cities that have already adopted this change. Do You Live in a Guardian Community?, The Guardian Campaign, http://www.guardiancampaign.com/guardiancity.html (last visited Oct. 22, 2009). While IDA concedes that the change in terminology does not impact legal standing at this point in time, they imply (or hope) that the semantic change may inspire an attitudinal shift among people and potentially have legal significance in the future.

Some critics have taken notice of this implication and have expressed concerns. Kansas attorney Gregory M. Dennis, JD, notes that "'[o]wnership' and 'guardianship' are two distinct legal terms," and warns that if legal significance were assigned to the proposed-language change, there would be grave consequences. Gregory M. Dennis, Commentary: Animal Guardianship and Horses, http://www.thehorse.com/ViewArticle.aspx?ID=15021 (last visited Oct. 22, 2009).

First and foremost, one would "always have to act in the horse's best interest." Id. Additionally, a guardian, as opposed to an owner, would no longer be able to sell his or her horse because the horse would not be his or her property. Id. Financial consequences would also arise, potentially affecting insurance policies and tax benefits that are "predicated upon horses being property and assets belonging to their owners." Id.

How much of a threat is this terminology modification, though? Is there any indication that states will be making this shift any time soon? Not really. In fact, only one state has adopted the "guardian" language for animal owners. Rhode Island does, indeed, utilize the term "guardian" in its General Laws; however, the usage is purely semantic, and is the statute clarifies that a "guardian" has the "same rights and responsibilities of an owner," and that "both terms shall be used interchangeably." R.I. Gen. Laws § 4-1-1(a) (4) (2009).

Upon first learning about IDA's campaign, it is quite easy to be taken aback by the litany of potential consequences of such a change in legal designation. But one must temper those concerns with the current reality: after nearly a decade of advocating for this change, only a handful of cities and one state have jumped aboard; and, even they have only made a semantic change to their statutes. It is safe to assume that Kentucky (and the rest of the nation) will be slow to make this change, if they ever do.

Horse-owners, breathe a sigh a relief.

Washington Court backs Department of Fish and Wildlife

This post was written by staff member Andrew S. Leung.

Down by the docks in the state of Washington, the natives grow restless. In the perpetual war between environmental interests and the interests of commercial fishermen, Mother Nature has won the latest battle. Thurston County Superior Court recently denied the petition of a group of commercial fishermen seeking a restraining order against the enforcement of Washington Department of Fish and Wildlife ("WDFW") regulations limiting the amount of Dungeness crab harvested per week. Jeremy Pawloski, Court upholds state's limits on crab catch, THE OLMPIAN, available at http://www.thenewstribune.com/news/local/story/869631.html.

At first glance, the WDFW restrictions do not seem unreasonable, as the current allotment of 4500 pounds per week is nearly double the initial allotment of 2500 pounds per week. Id. Nonetheless, Washington's commercial crab fishermen are disgruntled, claiming that their property rights were violated. Id. Plaintiffs' attorney alluded to an upcoming civil suit in which he planned to sue for economic compensation. Id.

Any suit based on the private citizen's right to the fisheries of a state seems doomed from the onset. Following the time tested doctrine of ratione soli, the Thurston County Superior Court based its decision on the premise that the Dungeness crabs belonged to the state, thus foreclosing the possibility of any property rights to said crabs vested in the private citizen. Washington courts have long held that "...fishermen do not have a 'vested' or 'natural' property [r]ight to fish [or] to take fish...." Puget Sound Gillnetters Ass'n v. Moos, 92 Wash.2d 939 at 947, 603 P.2d 819 at 824 (Wash. 1979). The court also warned that "...we must remember that the state, in its sovereign capacity, owns the fish in the waters of the state... [and] [f]ishermen have no private property rights in taking [fish]." Washington Kelpers Ass'n v. State, 81 Wash.2d 410 at 415, 502 P.2d 1170 at 1172 (Wash. 1972).

Furthermore the Washington Kelpers court found that "...the state owns the fish in its sovereign capacity as the representative of and for the benefit of all people in common." Id., at 416. In the present case, WDFW based the new restrictions on the finding that more than 50% of the crab catch was soft-shelled. See supra Pawloski. A Dungeness crab is soft only period immediate following its molt, but before it spawns for the season.

Despite the probable adverse economic effect upon the class of commercial crab fishermen, the court has reached an appropriate conclusion. The WDFW's finding essentially suggests that approximately half of the adult crabs harvested annually in the state of Washington have not yet had the opportunity to add progeny to state waters. The Washington Kelpers decision provides, "...if you don't regulate to reduce the total catch along the line, then your spawning escapement will suffer and your subsequent production will go down." Id., at 419. For now, Washington's commercial crab fishermen will have to tighten their belts so that future generations of crab fishermen will have something to wrap theirs around.