“Damages and Injury: Smith v. Carbide and Chemicals Corporation and the Application of Kentucky Law Under the Price-Anderson Act”

Appearing in JNREL Vol. 22. No.2 this comment was written by former Articles Editor Cole Adams. The abstract was written by staff member John Hendricks.

The Price-Anderson Act was enacted in 1957 to encourage private sector development of nuclear power and provide insurance to private corporations in the event of a nuclear accident. The act also created a federal cause of action for accidents and injuries arising from the actions of nuclear power plants. While the federal courts have jurisdiction for actions under the Price-Anderson Act, these courts are required to adhere to state substantive law. In Smith v. Carbide and Chemicals Corporation, the Kentucky Supreme Court provides guidance on the applicable rules of intentional trespass and damages for an action under the Price-Anderson Act.

In 1988, the containments trichloroethylene and technetium-99 were found to be flowing from the groundwater of the Paducah Gaseous Diffusion Plant ("PDGP"). PDGP is located ten miles west of the town of Paducah, Kentucky and while contamination did not exceed regulatory levels, residents of the area were provided with new water sources. Contaminated groundwater was detected to be originating from PDGP again in 1990. Finally, in 1997 a lawsuit was filed in federal court seeking recovery for diminution in property values as a result of the contaminated ground water. On appeal of summary judgment for the defendant the Kentucky Supreme Court granted certification to answer questions of Kentucky law.

The Court first examined whether proof of actual harm was required to state a claim for intentional trespass. Relying on Ellison v. R & B Contracting, Inc. it was held that actual harm was not a required element to maintain a claim of intentional trespass. Secondly, the Court addressed whether proof of diminution in property values due to an intentional trespass gave rise to a right to recover. Acknowledging the common law principal that any encroachment on to the property of another was sufficient to support a finding of actual injury, the Court acknowledged more than nominal damages could be awarded. Finally, it was stated that the measure of damages should be the diminution in the fair market value of the property.

Smith, could have potential long term implications for environmental litigation in the state of Kentucky. The majority's opinion provides the possibility of increased litigation of environmental trespass cases. It appears that intentional trespass cases now have a stronger chance of surviving motions for summary judgment and reaching a jury. The author of the comment provides a more in-depth analysis of the case, as well as an excellent summary of the dissent in Smith and the case's potential impact on the Commonwealth.

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.,at416. 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.

The Endangered Species Act and the Conflict With Modern Economic and Development Interests

This note written by staff member Michael D. Russell appeared in JNREL Vol. 22 No.2. The abstract was written by staff member Ramsey Groves.

Congress enacted the Endangered Species Act (ESA) in 1973. The ESA was enacted because many people were concerned about several species and their diminishing populations. These species included the bald eagle, the American alligator, the wolf, and the grizzly bear. Accordingly, one of the main purposes of the ESA is to protect these and other species of fish, wildlife, and plants. Another purpose of the ESA is to protect the ecosystems of both endangered and threatened species. These ecosystems are termed "critical habitats." Disputes stemming from the ESA often concern the impact of an economic development on a habitat, which ultimately harms a species.

Two competing interests are generally involved in ESA conflicts. These are the interests of conservation and the interests of economic development. The ESA tends to place more value on conservation interests than economic development concerns. Due to these two clashing interests, this statute has produced a great deal of controversy. However, economic considerations also affect the conservation side of the dispute. For example, many citizens, such as fishermen, rely upon a species for their livelihood. If that particular species is not protected and ultimately eradicated, there will be grave economic consequences.

To ensure that specific species are protected, the ESA provides federal agencies with certain duties. Unless the agency has been granted an exemption, the ESA requires every federal agency to guarantee that its actions do not harm an endangered or threatened species. The agency in question is forced to find alternatives if it is determined that specific actions would violate the ESA. If no alternatives are available, a committee is formed to determine whether economic interests outweigh the interests of the ESA. This committee, which has become known as the "God Squad," may choose to allow agency action. This committee is essentially playing God because it determines if a species is sacrificed due to a stronger economic interest.

The ESA does provide for judicial review, but there is no express standard of review included in the statute. According to courts, the arbitrary and capricious standard is the appropriate standard of review under the ESA. Consequently, courts should generally defer to reasonable agency decisions. Courts may not weight interests because, in reality, agencies are better equipped to perform this balancing function.

There has been a great deal of controversy due to the ESA. For example, in the middle of a drought in the Klamath Basin, the government shut off irrigation water to provide sufficient water levels for a species of fish. Due to lack of access to water, farmers and ranchers were adversely affected. Additionally, people in Georgia have faced water shortages because the ESA required a certain amount of water to be released downstream to protect endangered species. These examples illustrate how the ESA forces judgment calls when important but competing interests clash. As a result, the ESA will certainly remain a hotly debated statute for years to come.

Animal Cruelty in Kentucky: Are Horses Provided Adequate Protection?

This post was written by staff member, Matt Cocanougher.

It is nearly impossible to imagine the state of Kentucky without the equine industry. From the Derby, to the Kentucky Horse Park, to our "unbridled spirit", horses are an integral part in creating the culture of the Bluegrass State. Because of their star stature and economic importance, one would assume that Kentucky's animal cruelty laws would be especially strict for those who abuse horses. Interestingly, however, Kentucky law on animal cruelty reserves its most severe punishment for animal fighting while designating other types of animal abuse as lesser offenses.

The Kentucky statute on animal fighting provides that the owner of an animal involved in fighting "for profit or pleasure" as well as the owner of the land where the fight occurred and "anyone who participates in the organization" of the fight are guilty of a Class D felony. Ky. Rev. Stat. Ann. § 525.125 (LexisNexis 2009). This crime carries a penalty of up to five years in prison as well as a fine of up to $10,000. Ky. Rev. Stat. Ann. § 532.020 (LexisNexis 2009); Ky. Rev. Stat. Ann. § 534.030 (LexisNexis 2009). On the other hand, Kentucky's more general statute on animal cruelty states that a party is guilty of animal cruelty in the second degree if they intentionally or wantonly: abandon the animal, are spectators or vendors at an animal fighting event, mutilate, beat or torture an animal other than a cat or dog, . . . or fail to provide adequate food, drink, space or health care for the animal. Ky. Rev. Stat. Ann. § 525.130(1)(a) (LexisNexis 2009). This crime is considered a Class A misdemeanor, and carries a punishment of up to 12 months in county jail along with a potential maximum fine of $500. Ky. Rev. Stat. Ann. § 532.020 (LexisNexis 2009); Ky. Rev. Stat. Ann. § 534.040 (LexisNexis 2009). Given the similarities in the means used to abuse the animals in these statutes, should these two crimes have such a disparity in punishment?

This question is illuminated by a recent Lexington Herald Leader article covering an incident of animal cruelty in Danville, Kentucky. See Danville Man to be Arraigned on Animal-Cruelty Charges, LEXINGTON HERALD LEADER, available at http://www.kentucky.com/latest_news/story/928474.html (last visited Sept. 17, 2009). James Lancaster was charged with animal cruelty after starving horses that were in his care. After an anonymous tip to authorities, the emaciated horses were found in a barn north of Danville. Id. At the time the horses were found, "The equine body condition scores of the 10 animals were 1 and 2, with the highest possible score being 10." Id. Fortunately, veterinarians were able to treat these horses and they were taken out of Mr. Lancaster's care. Id. While this story had a happy ending, Mr. Lancaster's actions raise several legal issues. Even though his possible sentence of a year in jail and a $500 fine is nothing to scoff about, it pales in comparison to what his penalty would have been if he had been involved in animal fighting. This begs the question, is starving or torturing an animal any less blameworthy than participation in animal fighting?

From a policy perspective, this situation also raises the issue of whether this result is tenable from the perspective of the horse industry as many horse owners must trust others to care for their animals. Those in care of the animals, like Mr. Lancaster, have a special responsibility to the horses and their owners. A punishment for animal abuses on par with that of animal fighting may provide a clear example of this special duty to those who are supposed to be caring for the animals.

Land and Home in the American Mind

Written by Will Sarvis this article appears in JNREL Vol. 22. No.2. This abstract was written by staff member Anthony Cash.

The American feelings towards property and home ownership have gone through drastic changes since the first settlers arrived in the United States. The early settlers were primarily informed by English common law, Christianity, and Enlightment philosophy, especially John Locke. These ideas have combined with Native American feelings of closeness to the land to produce a distinctly American way of viewing property and home ownership. This unique bond between Americans and the land they live upon has always informed their reactions to land use restrictions, government takings, and property law generally.

However, the industrialization of the United States and the current post industrial age have made previous affections with land ownership less functional ways of interacting with property. The United States is experiencing many of the same problems which have long plagued Europe. Central to these is a growing population that puts ever greater demands on limited space available. Of course these increased demands lead to a need for increased regulation and progressive zoning laws. These needs often conflict with the almost spiritual connection many Americans feel for their home and property. By examining the history and development of American feelings towards land and land ownership, we can hopefully understand a way forward that takes this bond into account, while advancing responsible land use restrictions.

“State Regulation of Complementary and Alternative Veterinary Therapies: Defining the Practice of Veterinary Medicine in the 21st Century”

Appearing in KJEANRL Vol. 1 No. 1 this article was written by Milton Toby. The abstract was written by staff member John Hendricks.

State regulations of complementary and alternative veterinary therapies ("CAVT") are in a state of upheaval and change. Part of the difficulty of regulating CVAT is defining CAVT under existing statutes. While the American Veterinary Medical Association ("AVMA") has drafted a Model Veterinary Practice Act ("MVPA"), few states have adopted the definition of CAVT provided in the MVPA or language similar to the MVPA. However, thirteen states have adopted a statutory definition of CVAT. Language contained in state statutes regulating CAVT such as "including but not limited to" likely satisfies the requirements of certainty and provides a method for regulating CAVT not specifically mentioned in a particular statutory definition of CAVT.

Even states that lack references to CAVT in their statutes may still regulate CAVT. The legal reasoning used in People v. Amber, would likely be applicable to veterinary statutes which do not specifically reference CVAT. In that case the court reasoned that "[w]hether actions constitute the practice of medicine is dependent upon the facts and not the name of the procedure, its origins or legislative lack of clairvoyance." If applied to most states veterinary statutes this reasoning would mean that the statute may regulate CAVT without specifically mentioning them and that the failure to mention CAVT would not allow non-veterinarian practitioners to operate unregulated within a state.

While states that do not mention CAVT practices may be able to still regulate the procedures, "Hybrid States", which are states that define veterinary medicine in a broad enough way to include some CAVT practices, may have a more difficult time regulating all CAVT practices. These "hybrid states" raise issues of statutory interpretation which have been examined by few state courts. States that have only included specific enumerated CAVT practices in the definition of "veterinary medicine" have created an inference that non-enumerated CAVT practices do not constitute veterinary medicine.

Six states have also provided specific exemptions from state veterinary regulations for CVAT practices. Many other states provide non-specific exemptions under which CVAT practices may be included. However, the language of these statutes does not make it clear that CVAT practices are exempted. The lack of uniformity and conflicting language among state regulations and the need for uniform guidelines are demonstrated by the confusing and vague exemptions that CVAT practices may fall under.

Ultimately, there is a need for a harm-based system of state regulation of CAVT. In comparing the harm-based system to State v. Norene, the harm that state regulators should attempt to prevent should not be a generalized fear of public harm but a well defined risk. The use of CAVT treatment should not be limited to only licensed veterinarians. Instead licensing and supervision could allow adequately trained individuals to provide CAVT treatments through a uniform and defined statutory scheme. Several methods exist for creating a more reasonable and balanced regulation of CVAT procedures including gaining the animal owners consent, the use of liability insurance, and guaranteeing that licensed individuals are under the direct or indirect supervision of a licensed veterinarian.

U.S. Control Over Extraterritorial Water Pollution: The Interplay Between International and Domestic Law

This comment written by staff member Kathryn Martin appeared in JNREL Vol. 22 No.2. The abstract was written by staff member Meghan Jackson.

As a result of today's ever-growing global economy, lawmakers are faced with the challenge of effectively regulating the activities of international businesses and adequately enforcing international laws without overstepping their respective jurisdictional boundaries. In an effort to ensure compliance with the International Convention for the Prevention of Pollution from Ships and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships (collectively MARPOL), the United States established the Act to Prevent Pollution from Ships (the APPS). The APPS requires ships entering U.S. territories to keep accurate oil record books, which are subject to inspection by U.S. authorities upon entering a U.S. port.

In United States v. Ionia Mgmt. S.A., 498 F.Supp.2d 477 (D.Conn. 2007), the United States District Court for the District of Connecticut upheld the authority of the United States to impose criminal penalties for violating the APPS. The defendant argued that according to the "law of the flag" doctrine, the United States was without jurisdictional authority to impose such penalties as the defendant flew a Greek flag. However, the court determined that since the violations (presenting false oil record books) occurred in a U.S. port, the United States had the jurisdictional authority to prosecute them regardless of where the actual oil discharges took place.

Ionia Mgmt. is an important decision as it impacts both environmental law and international law. First, it illustrates a growing trend among U.S. courts to view U.S. law and international law as working with each other, not against each other. In addition, it sends the message that U.S. courts are serious about enforcing the APPS and preventing environmental harm.

Horse Slaughter in America, an increasing practice?

This post was written by staff member Katie Shoultz.

Horse slaughtering remains a heated issue in the equine industry with bills constantly being introduced to the members of federal and state House and Senate Committees. In 2007, the three remaining horse slaughterhouses ceased operation after Illinois legislation banned horse slaughter within the state and was upheld under Cavel Intern., Inc. v. Madigan, 500 F.3d 551 (2007) along with the Fifth Circuit Court of Appeals upholding a Texas state law that prohibited the sale of horsemeat for human consumption. Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326 (5th Cir.2007). Last year, in 2008, no horse processing facilities were in operation within the United States but horses continued to be exported to Mexico and Canada and the landscape continues to change.

In Montana, after Gov. Brian Schweitzer allowed H.B. 418 to lapse into law by taking no action, private horse slaughter/processing plant development is now permissible within the state. Pat Raia, Montana Horse Slaughter Bill Becomes Law, The Horse, available at http://www.thehorse.com/ViewArticle.aspx?ID=14098. The bill was introduced by state Representative Ed Butcher. Id. Schweitzer vetoed the bill in April 2009 with an amended version for review by the legislators. Id. However, the bill was sent back to Schweitzer in its original format. Id. This second time, Schweitzer neither vetoed nor signed the bill that has now become law.

H.B. 418 not only allows for horse processing plant development, but it also affords protection from legal challenges. If an action is filed in district court challenging the issuance of a license or permit, the plaintiff must post 20 percent of the horse processing plant's construction or operation costs as a surety bond. Id. It also disallows the issuance of an injunction that would stop or delay construction " . . . based on legal challenges or appeals of a permit, license, certificate, or other approval issued in conjunction with environmental laws." H.B. 418, 2009 Leg., 61st Sess. (Mt. 2009).

However, it is certainly only a matter of time before the constitutionality of this law is challenged. It also raises issues regarding food safety compliance. Any meat processing plant operating within the U.S. is subject to USDA inspections and must comply with USDA regulations. USDA, http://www.fsis.usda.gov/HELP/FAQs_Hotline_Inspection/index.asp (last visited September 14, 2009). As such, any horse slaughter/processing plant that may become operational within Montana is subject to USDA regulations and inspections. In 2005, the USDA lost federal funding to inspect horse-processing plants via the Ensign-Byrd Amendment to Fiscal Year 2006 Agriculture Appropriations Bill. The Humane Society of the United States, Congress Addressing Horse Slaughter Cruelty in Federal Legislation, Jan. 15, 2009, http://www.hsus.org/press_and_publications/press_releases/congress_introduces_horse_slaughter_bill_011509.html. The question then becomes: where will the meat go and how will it be sold?

Exactly how "organic" does organic food have to be?

This post was written by staff member Derek Leslie.

As one peruses the local grocery store, or spends a Saturday morning at their local farmer’s market, it quickly becomes apparent that foods labeled natural or organic have really taken off. Grocery store chains devoted to the once-niche organic food market have expanded rapidly in the past decade. Indeed, it is hard to grab a bite these days at all without hearing the buzz words associated with this bona fide food phenomenon. And while its success as a brand and a marketing tool seems clear, the word organic may not be as straightforward as you might have hoped.

In 1990 Congress enacted the Organic Foods Production Act (OFPA) in order to provide consistent national standards for producing and marketing organically produced agricultural products. Organic Foods Production Act (OFPA), 7 U.S.C.A. §6501 (West 2009). OFPA requires the Department of Agriculture to promulgate regulations to effectuate its purpose. These regulations, then, provide the legal standard for the certification of foods as “organic”. Specifically, to be sold as organic, a food must “be produced and handled without the use of synthetic substances, such as pesticides, and in accordance with an organic plan agreed to by an accredited certifying agent and the producer and handler of the product.” Harvey v. Veneman, 396 F.3d 28, 32 (1st Cir. 2005) (citing 7 U.S.C. § 6504). An organic plan refers simply to an agreed upon procedure to follow in the care of the agricultural product in order to ensure it meets the standards set forth in the OFPA and the associated regulations. Organic Production and Handling System Plan, 7. C.F.R. 205.201 (2009). This includes plans to make certain synthetic substances as well as products exposed to synthetic substances do not come into contact with the organic product. Id. This, however, is just the beginning of the process.

Surprisingly, all organic foods are not created equal. Labeling and certification are, therefore, not quite as simple as “organic” or “not organic.” Actually, it consists of a four-tier labeling system based upon the percentage of organic ingredients the food contains: products containing 100% organic ingredients may be labeled “100 percent organic,” products containing 94 to 100% organic ingredients may be labeled “organic,” products made from 70 to 94 % organic ingredients may be labeled “made with organic (specified ingredients or food groups),” and finally, foods that contain less than 70% organic ingredients may identify organic ingredients used on its label as “organic.” Product Composition, 7 C.F.R. § 205.301 (2009).

Moreover, products in the first two tiers of the labeling categories may bear both a United States Department of Agriculture seal and the seal of a private certifying agent. 7 C.F.R. §§ 205.303(b)(4)-(5)(2009). Products in the third tier, those made from 70 to 94% organic ingredients, may bear the seal of a private certifying agent, and products in the final tier, those containing less than 70% organic ingredients, may not bear a USDA seal nor that of a private certifier. 7 C.F.R. § 205.304 (2009); 7 C.F.R. § 205.305(b) (2009).

This, still, is not the end of the process. OFPA requires the Secretary of Agriculture to establish a National Organic Standards Board to create a list of synthetic substances recommended as exceptions to OFPA’s general prohibition against their use in the production of organic products. Another series of guidelines within OFPA exists for these exceptions. 7 U.S.C. 6517(a) (West 2009).

With the growth of the organic food industry, these regulations are having a significant impact on the lives of average American citizens, who remain largely oblivious to their operation. If we are to become savvy organic food consumers, it is necessary to familiarize ourselves with the labels and certifications that come with the territory. Only then will we be equipped to truly know what we are eating.