Animal Carcass Disposal Legal, Regulatory and Institutional Considerations

1. Animal Carcass DisposalLegal, Regulatory and Institutional Considerations Fred Boadu, Ph.D; J.D. Professor Department of Agricultural Economics Texas A&M University College Station, Texas, 77843-2124

2. Introduction • Texas Agriculture and Biosecurity • GAO and House Research Organization Estimates • Importance of laws, regulations, and Institutions • Correcting for Market Failure and Minimizing Transaction Costs • Public Entities • Private choice decisions • Institutional Deepening “we must calibrate an approach to security that incorporates prevention and protection into our lives in a way that respects our liberty and our privacy, and fosters our prosperity” (Secretary Chertoff, Address at New York University, 04/26/2005).

3. Selected Legal and Regulatory Issues – TAHC & U.K. • Legal and Liability Issues under FEAD (TAHC) • 1. Appropriate response levels to protestor and producer issues. • 2. Closing borders (international and interstate). • 3. Closing feed lots. • 5. Depopulating certain livestock, poultry, wildlife, and companion animals in proximity of the disease outbreak. • 6. Determination of whether an “emergency” or “disaster” declaration/proclamation is appropriate and at what level(s) [i.e., gubernatorial, secretarial (USDA), or presidential (FEMA)] • 7. Liability for responders, either killed or injured • 8. Obtaining authorization to enter or over fly private property (below FAA limits) • 9. Quarantines • 10. Restricting movement of animals, products, and people

4. Legal and Regulatory summary – U.K. • Legal and Regulatory Issues arising from the FMD outbreak in the U.K. • 1.MAFF/DEFRA, the lead response agency exceeded the limits of legislation current during the outbreak and undertook actions for which there was little or no legal power granted. • 2.Need to review “existing statutory provisions in consultation with all those bodies whose functions are involved to ensure that an unequivocally clear and properly stocked arsenal is in place to legitimise that response.” • 3. The Devon inquiry concluded that the agency had limited powers to slaughter animals on contiguous farms, the “contiguous cull” policy. • 4. The absence of informed consent in relation to disposal activities by MAFF. Also, some questioned the powers of MAFF to take of blood samples from farms. • 5. The unlawful construction of the Ash Moor pits without planning permission and insufficient consultation with the local planning authority. • 6. Liability for environmental damage in those circumstances where operations were conducted on behalf of a governmental entity such as the Ministry of Defense. • 7. It was also concluded that the agency (MAFF) breached its own guidelines in actions such as the temporary storage of carcasses on farms and at pyre sites, liable to cause pollution of surface and ground water (the role of the Environment Agency in these actions was questioned by one witness)

5. Approach • Focus on selected critical LRI Issues • Discuss relevant statutes and regulations • Discuss relevant precedent if applicable • Note in the U.S. ‘LAW’ consists of both statutes and cases • Commentary and Summary a. Laws written prior to era of terrorism b. Carcass disposal is a post-event issue c. However pre-event issues very critical

6. ISSUE 1 ◘ Powers of Biosecurity Agencies ◙ Federal (National Response Plan, DHS 204) “Incident of National Significance” ◙ State – Texas Animal Health Commission (TAHC) House Bill (H.B) 3061 78th Regular Legislative Session “TCEQ may not adopt a rule related to the disposal of livestock carcasses unless the rule is developed in cooperation with and approved by TAHC” ◙ Local Agric. Code Sec. 161.003 – County Commissioner’s Court.

8. Challenges • Constitutional • Taking – 5th Amendment U.S. Constitution “.. nor shall private property be taken without just compensation at law” Bolling v. TAHC (1986) Armstrong v. Whitten (1930) Affonso Brothers et. Al. v. Brock (1938) “It has been held that even drastic measures for the elimination of such diseases in human beings, in cattle or in farm crops are not affected by constitutional provisions of the state or of the nation. In the exercise of police power, in emergencies of that sort, private propertymay be summarily destroyed without compensation and without previous notice or hearing, provided a remedy exists by means of which the owner may be paid for willful, wrongful or illegal destruction of the animals which were not in fact diseased.”

9. Challenges, cntd. • Due Process – 14th Amendment U.S. Constitution • Equal Protection – 14th Amendment U.S. Constitution “.. nor shall any State deprive any person of life, liberty, property, without due process; nor deny to any person within its jurisdiction the equal protection of the laws.” Johansson v. Board of Animal Health (1985). Nunley v. Texas Animal Health Commission (1971) “in the area of economic regulation, classifications (in this case diseased versus healthy animals) which have a rational relationship to some legitimate state interest will not be invalidated under the equal protection clause.”

10. Challenges, contd. • Commerce Clause The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” (U.S. Constitution Article 1 Section 8)

11. Commerce Clause examples Railroad Co. v. Husen, (1878). No Texas, Mexican or Indian cattle shall be driven or otherwise conveyed into or remain in any county in this State, between the first day of March and the first day of November in each year by any person or persons whatsoever. St. Louis Southwestern Railway Company v. W. P. Smith (1899) The Texas Live Stock Commission has reason to believe that charbon or anthrax has or is liable to break out in the State of Louisiana, from this time forth until the 15th day of November, 1897, no cattle, mules or horses are to be transported or driven into the State of Texas from the State of Louisiana. Rasmussen v. Idaho, (1900): "Whenever the governor of the State of Idaho has reason to believe that scab or any other infectious disease of sheep has become epidemic in certain localities in any other State or Territory or that conditions exist that render sheep likely to convey disease, he must thereupon, by proclamation, designate such localities and prohibit the importation from them of any sheep into the State, except under such restrictions as, after consultation with the state sheep inspector, he may deem proper."

12. Issue 2 - Statutes • How is emergency response coordinated in Texas? • Agriculture Code Sections 161.051-053 • Memorandum of Agreement: • Department of Public Safety • Local Authorities • Interstate • Departments Sample inter-local Agreement

13. Issue 2 contd. • Texas statutes allow only an “employee” of TAHC to enter the premises of an animal owner. If a search of premises is to be conducted, TAHC must obtain a search warrant from the local court. (Agric. CodeSec. 161.047). • The statute allows an “authorized agent” of TAHC to conduct inspection of animals and animal products.(Agric. Code Sec. 161.048)

14. Issue 3 Carcass Disposal Options • What carcass disposal options are permissible? • Current animal disease emergency laws allow only two methods of disposal of diseased carcasses. (Agric Code Sec. 161.004). (1) burial (2) incineration.

15. Issue 4What are the quarantine powers of government? • The Statute allows TAHC to “establish quarantine against all or the portion of the state, territory, or country in which the disease exists(emphasis mine). (Agric Code Sec. 161.061) • Does TAHC have authority to declare a statewide quarantine?

16. Issue 5 – Compensation and Valuation • General Rule: Federal (Title 9 C.F.R. Part 53.3) State laws (Texas Agriculture Code Section 61.058). “fair market value based on local market price.” Texas rules cover: a. Tuberculosis b. Brucellosis Only Federal covers FMD Payment delays – need to define time limits

17. Compensation and Valuation contd. • May a person recover indemnity from the State when their animals are killed due to mistake of public officials? • Lertora v. Riley (California, 1936) • “the weight of authority in other jurisdictions, involving the construction of similar laws, is that the destruction of sound or healthy cattle under color of police regulation, or for the benefit of public health, is without authority of law and cannot form the basis of a claim or action against the state.” • Note implication for ‘welfare slaughter’

18. Issue 6 - What is the potential liability of first responders? • Persons and volunteers acting in a homeland security situation under the direction of a state agency or an official of the state. (Government Code § 421.061) • Individuals acting on their own in response to a homeland security event.- not covered • Personal liability rules under Chapter 79, Sections 79.001 and 79.002 (Civil Procedure and Remedies Code) protect persons volunteering in hazardous or dangerous situations but do not cover insurance coverage for persons injured in those situations.

19. Issue 7 – Other disposal possibilities • What are the options for ocean disposal of animal carcasses? • Under current law ocean dumping cannot be an option. (MPRSA & London Convention of 1972) • Section Sec. 227.5 (b) of Title 40 of the CFR, “materials in whatever form (including without limitation, solids, liquids, semi-liquids, gases or organisms) produced or used for radiological, chemical or biological warfare” may not be disposed of in the ocean. • Transaction costs – see Map

21. Issue 8: A potpourri of Private Actions • May a party move an animal during a quarantine? – TAHC OR USDA permit (Smith v. State, 1940). • Is a party liable if their animal drifts into a quarantine area? – ‘must be established beyond a reasonable doubt’ (Keils v. State, 1934). • What is the liability of a transportation agent in bringing a diseased animal to a disease-free area? (San Antonio, U. & G. R. Co. v. Johnson & Weathersbee , 1927).

22. Private Actions, contd. • What happens when a diseased animal enters on to the land of another and infects healthy animals? Common law rule reversed in Texas. The Clarendon Land Investment and Agency Company (Limited) v. McClelland Bros. 1896). (Fence-out rule) • May animals be sold when such animals are under quarantine? (Youmans, et al., v. Corpora, (1977)) “although the moving and transportation of quarantined animals is prohibited by Article 7014f-1, the statute does not declare the sale of such animals to be illegal.”

23. Private Actions, contd. • Whose animals are these anyway? • Section 23A(17) of the Texas Brucellosis Control Act “requires owners, part owners and caretakers of cattle located in such area to submit their cattle for testing”. R. F. Gluck, v. Texas Animal Health Commission, (1973) Gluck refused to answer questions about his ownership of the cattle invoking his constitutional right against self-incrimination.

24. THANK YOU.