“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.

Challenging the Government’s Management of Wild Horses in our Western States in The Fund for Animals v. U.S. Bureau of Land Management

Appearing in JNREL Vol. 22 No. 2 this comment was written by staff member Melanie Price. The abstract was written by staff member Derek Leslie.

This Comment analyzes the legal avenues available to activist individuals or groups who seek to prevent a government agency from implementing an environmental plan. The Fund for Animals v. U.S. Bureau of Land Management, 460 F.3d 13 (D.C. Cir. 2006), provides an instructive lesson for potential plaintiffs in this area.

The Plaintiff in this case, The Fund for Animals, attempted to stop the U.S. Bureau of Land Management (hereinafter "BLM") from implementing a plan that would reduce the population of wild horses and burros. The BLM's plan was promulgated in order to address increasing concerns about overpopulation of wild horses and its effect on the ecological balance. In fact, the BLM was specifically tasked with maintaining appropriate management levels of these populations in order to achieve this balance under the Wild and Free-Roaming Horses and Burros Act (hereinafter "WHBA") enacted by Congress. The challenged plan was proposed to Congress pursuant to the Act, passed, and BLM field offices had begun implementing the plan at the time of litigation.

The Fund sought to enjoin the BLM from implementing this plan. They argued that the BLM violated the National Environmental Policy Act (hereinafter "NEPA"), because it did not prepare an environmental impact statement before implementing the plan. Recognizing that 5 U.S.C. §702 mandates that the federal courts are not to review agency policy in the abstract and that the WHBA and NEPA both lacked provisions providing standing, the Fund's claim was based on a cause of action under the Administrative Procedure Act (hereinafter "APA"). Under the APA there is a cause of action to "a person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action." Importantly, the APA states that courts may only intervene when a specific final agency action has an actual or immediately threatened effect.

The district court dismissed the parts of the Fund's injunction request concerning the removal strategy because the BLM's plan, in their view, was not a final agency action. The Fund's objections to specific gathers, where the plan had already been implemented, the court suggested were moot. The Court of Appeals, affirmed suggesting that a Budget Request to Congress was too tenuous to the removal of the animals to constitute reviewable specific implementation of a broader agency policy. Moreover, they found that an expired internal memorandum to BLM field offices with guidance on implementing the plan within the allotted time did not represent "final agency action" and because of its expiration date, it was moot. As to the seven gathers where the plan had already been implemented, the Court of Appeals, agreed with the district court that this part of the claim was also moot.

This case demonstrates the narrow way courts will approach review of agency action under the APA. Potential plaintiffs have only a minute actionable window in which to bring a claim satisfying justiciability without raising issues of mootness. Plaintiffs must be keenly aware of this narrow opportunity if they have any hope of getting an injunction against agency action. Groups like The Fund for Animals, would do well to be vigilant as budget proposals come to Congress, in hopes of finding politicians, and votes, sympathetic to their point of view. Sympathy, as this case shows, is not the courts main concern when asked to intervene in agency action.