Backyard Slaughter: The New NIMBY?

Considering the state of industrial agriculture, there’s not much to dislike about the locavore food movement.  However, as Nicole Civita explained in her excellent post about regulating the sale of home-grown foods, the movement is not without its own legal and policy challenges.  Add animals to the mix, and things get even more complicated.  This is particularly so when animals are raised specifically for slaughter and consumption. 

The slaughter of animals for food has received much-deserved media attention lately, and we can expect to hear more about domestic horse slaughter and the handling and slaughter of downed livestock.  Here’s another term for your repertoire:  backyard slaughter.  Raising and slaughtering one’s own animals has officially reached hipster status, thanks in part to the popularity of backyard chickens (Oprah! Martha!) and Mark Zuckerberg’s year-long vow not to eat meat from animals he hasn’t personally slaughtered (a vow he allegedly kept, but that year's over).  Although backyard slaughter has been used to describe a range of animal-slaughter activities, its most appropriate application is to slaughter that is exempt from federal and/or state inspection programs.  This includes both smaller custom slaughter facilities and the do-it-yourself (DIY) animal owners.
 
For those of you unfamiliar with agricultural slaughter regulations, it helps to begin with the federal law’s distinction between meat derived from “livestock” (i.e., cattle, horses, hogs, goats, and sheep) and meat derived from “poultry” (i.e., chicken, geese, and ducks).  The Federal Meat Inspection Act (FMIA) and Poultry Products Inspection Act (PPIA), respectively, authorize the USDA to regulate slaughter and processing of livestock and poultry birds for use in food sold in interstate commerce.  These federally-inspected facilities (or "FI facilities") are subject to USDA Food Safety & Inspection Service (FSIS) programs and regulations, including on-site inspections.  The most relevant distinction between the FMIA and PPIA is that only the FMIA attempts to set a “humane” standard for slaughter.  Whereas the FMIA requires that livestock animals be “rendered insensible to pain” prior to slaughter (stunned), there is no such federal regulation for poultry slaughter. 

Slaughter and processing facilities operating only in intrastate commerce must comply with state regulations that are “at least equal to” federal regulations.  If the state doesn’t have its own meat inspection program (and only half of the states do), even intrastate-only facilities must pass USDA inspection for compliance with food safety and federal Hazard Analysis Critical Control Points (HACCP) guidelines.  In livestock slaughterhouses, this same inspector is expected to check for adherence to USDA humane slaughter regulations. 

That leaves the smaller “custom exempt” slaughter facilities, which are not required to maintain onsite inspection but are expected to comply with federal food safety regulations.  FMIA’s Custom Exemption applies to operations that either 1) slaughter animals exclusively for “household use”; or 2) slaughter animals who have already been purchased “on the hoof.”  In this latter arrangement, a customer purchases 1/4, 1/2, or an entire live animal from a processor who slaughters the animal for the customer at a fee.  In this “freezer meat” exemption, the live animal is never in the customer’s possession.  In both exemptions, federal regulations prohibit the meat from being resold, and require that it be labeled accordingly. 

Depending on their location, custom exempt facility operators may be entirely exempt from animal welfare laws, as well.  Some states have their own humane slaughter laws to mirror the federal law, but most of these laws exempt slaughter for “household use.”  The PPIA’s custom exemption guidelines for poultry slaughter and processing are less stringent.  However, only a small handful of states have humane slaughter laws that could be construed to apply to poultry birds.  (For a summary of these state laws and a review of various common slaughter methods, see Jeff Welty’s Humane Slaughter Laws).

Nearly all of the animals slaughtered for meat in the U.S. pass through FI facilities:  98% of the cattle, 99% of the hogs; nearly 100% of the poultry, and 88% of the lamb and sheep (2010 statistics).  Although there are far more non-FI slaughterhouses than FI slaughterhouses, a small handful of FI plants slaughter more than half the meat sold in the U.S.  To use livestock slaughter as an example, although there are approximately 800 FI facilities compared to 1,900 non-FI facilities, less than .02% of the FI facilities (~14) slaughter 55% of the total cattle slaughtered for food.  Similar percentages apply for hog, calf, and sheep slaughter.  

All of this is to say that the number of animals slaughtered in “custom exempt,” or backyard slaughter facilities, pale in comparison overall.  However, as the USDA recognizes, demand for locally-sourced meat is on the rise.  So too is the popularity of DIY backyard slaughter, local “slaughter farms,” and mobile slaughter units (MSUs), which bring the slaughter to the animal owner.  Still, access to legal slaughter remains the bottleneck of the local meats industry.  Encouraged by inadequate state inspection efforts, enterprising outlaws (some allegedly linked to organized crime) have created a cottage industry for illegal animal slaughter. 

Southern and coastal Florida has been riddled with underground animal slaughter businesses operating outside of the food safety, environmental, labor, or animal welfare regulations.  Undercover videos have documented habitual, cruel animal treatment in black market slaughter farms in Tampa Bay and Hialeah, Florida (yes, that one, of the Church of Lukumi Babalu Aye v. City of Hialeah fame).  Although the USDA and local prosecutors have moved to close down some of these illegal operations, the Animal Legal Defense Fund (ALDF) is assisting some fed-up local residents in filing a public nuisance suit against one prominent slaughter farm owner who has eluded prosecution.  

ALDF defines these operations as backyard slaughter facilities, but I think it’s a mistake to group these criminal enterprises with boutique slaughter operations and DIY farmers, even the hipsters who lack sufficient attention span for basic animal husbandry.  Although the difference in animal suffering may be only one of scale, the remedies should account for the slaughters’ intent.  Neighbors Opposed to Backyard Slaughter, for example, urges that too many backyard practitioners lack the basic training to prevent unnecessary and prolonged suffering of animals they slaughter.  Yet this concern would seem to support training for DIY urban farmers, just as subsistence farmers have always had to learn proper animal husbandry skills. 

Not that I don’t think it’s a problem.  To wit, a California man was arrested for animal cruelty recently when he tried, unsuccessfully, to kill one of his hogs with a hammer to the head.  A woman who lived with him insisted that animal cruelty had nothing to do with it:  “We just didn't know how to kill the pig, that's all it was.”  California is one of the only states where that defense may not fly.  Of the few states with humane slaughter laws, most of them don’t apply to slaughter for “household” (non-retail) use.  And although every state has an animal cruelty law, most of these laws either exempt “standard agricultural practices” or fail to protect farmed animals altogether. 

This illustrates a point I repeat often in my animal law classes:  legal protections for animals are based solely on how or why humans interact with them, irrespective of an animal’s capabilities or emotional capacities.  In other words, you may not beat your dog with a hammer, but you might be permitted to beat your pig—so long as you’re doing it to facilitate dinner.

Other reasons offered for opposing backyard slaughter are more aesthetic:  it disturbs the neighbors and lowers property values.  Worse, writes James McWilliams, a history professor at Texas State University who has launched a one-man campaign against DIY animal slaughter, it desensitizes people to the suffering of other living beings.  Writing for The Atlantic, McWilliams asked:  “How can we comfortably support a movement toward the local slaughter of sentient animals when we nurture and love 78 million dogs, 86 million cats, four million birds, one million rabbits, and one million lizards as companion animals?”  This challenge conveniently disregards the 3 to 4 million unwanted dogs and cats we euthanize each year.  Many of these “sentient animals” are rendered for animal feed, an inconvenient truth documented by Jonathan Safran Foer in Eating Animals. 

Considering that industrial slaughter methods in the U.S. are indefensibly inhumane, isn’t nearly any alternative an improvement?  Perhaps.  To be candid, I’m still forming an opinion about the DIY slaughter movement.  However, I agree with McWilliams on this point:  too many urban and suburban animal farmers fail to adequately provide for their animals’ sizes and behavioral needs.  My neighbors demonstrate this point well.  Their hip new chicken coop has lovely nesting boxes and a cute little ramp for their 5 chickens to parade up and down.  Yet despite the expansive size of my neighbors’ fenced-in back yard, the coop’s “yard” can’t be more than 5 feet by 3 feet. 

I’m no chicken, but that doesn’t sound “free range” to me.  We can do better.

Indigenous Food & Agriculture Initiative at University of Arkansas

The University of Arkansas School of Law will launch the Indigenous Food and Agriculture Initiative on Tuesday, Jan. 15. It will be the nation’s first law school initiative focusing on tribal food systems, agriculture and community sustainability.

The initiative will draw on the nationally recognized expertise of LL.M. Alumna Janie Simms Hipp, who leaves her post as the senior adviser for tribal relations to USDA Secretary Thomas Vilsack and on that of Stacy Leeds, currently the only Native American law school dean in the country. Janie will serve as director of the initiative and as visiting professor of law.

“The National Congress of American Indians applauds the creation of this new initiative,” said Jefferson Keel, president of the organization, which is the oldest, largest and most representative American Indian and Alaska Native tribal government organization in the United States. “Ms. Hipp accomplished many important goals during her time as senior adviser at USDA, and Dean Leeds is a leader in tribal governance and land issues. The NCAI leadership has long recognized that growing and sustaining food and ag businesses is essential to stabilizing our communities, and this initiative is poised to provide leadership in this important area.”

Among its strategic plans, the initiative will provide educational and technical assistance to tribal governments, private entities and businesses engaging or entering the food sector. Other areas of research, service and education will include agriculture, health and nutrition law and policy development, professional training of government and corporate leaders, and the formation of pipeline programs to engage students at the community level and foster them through four-year higher education institutions, law and graduate opportunities.

“I am honored and thrilled to return to my alma mater and to Northwest Arkansas to assist the dean, the School of Law and the University of Arkansas in this important endeavor,” said Hipp, a citizen of the Chickasaw Nation. “The initiative we are embarking upon will support tribal governments and rural communities throughout our region and the nation in making investments in our nation’s food and energy security. When indigenous communities use their natural resources to create jobs and strengthen local communities, we all benefit.”

The Arkansas Newswire press release noted that Janie is "an attorney and graduate of the School of Law’s internationally renowned master of laws program in Agricultural and Food Law, the nation’s only advanced law degree program in agricultural and food law. She is the founder of the USDA’s Office of Tribal Relations in the Office of the Secretary and served two terms on the USDA Secretary’s Advisory Committee for Beginning Farmers and Ranchers. She also served on two delegations to the United Nations in the areas of women’s issues and indigenous issues."

“The Indigenous Food and Agriculture Initiative is very much in line with the University of Arkansas’s historic commitments to diverse communities and with our mission as a land grant institution,” said Sharon Gaber, provost and vice chancellor for academic affairs.

Leeds is one of five commissioners of the Secretarial Commission on Indian Trust Administration and Reform, established by Secretary Ken Salazar of the U.S. Department of Interior. The commission was created to conduct a comprehensive two year evaluation of the department’s management and administration of nearly $4 billion in American Indian trust assets and to offer recommendations on improvements in the future. She will be honored in February with the American Bar Association’s Spirit of Excellence Award for her contributions to enhancing diversity in the legal profession.

“This interdisciplinary initiative plays to the strengths of the university and the law school,” said Leeds, a citizen of the Cherokee Nation. “It will further enrich our highly acclaimed LL.M. program in Agricultural and Food Law, which has produced many of our nation’s most well-respected agriculture law and policy leaders, including Janie Hipp.”

The Land That Heals and a Challenge for Rural America

The Rodale Institute requested that some of the contributors to Agricultural Law serve as Guest Bloggers on their newly redesigned website and blog. The Rodale Institute is a nonprofit research farm in Kutztown, PA, and their a website features articles on organic and sustainable food and farming.  Their audience is described as being primarily made up of farmers (established and beginning), agricultural professionals, and “deep consumers.” I love that last category. It references people who "rather than going to the grocery story, visit local farms to buy for their families."  Looking at the website, I suspect there are quite a few other categories of visitors as well.  Theirs is a nationally-focused site with around 60,000-70,000 visits per month.

I did our first guest post for them, The Land That Heals, and it was published January 4, 2013 on the new Rodale website.  It addresses my reactions to the tragic events in Newtown, Connecticut.  I intended to just reprint it, but because I have continued to think about this difficult subject, I offer instead a revised post. The original post can still be found on the Rodale website as The Land that Heals.

A Challenge for Rural America

As our nation grieves the losses in Newtown, Connecticut, we struggle to understand. We see the faces of the children killed -  true pictures of innocence -  and wonder how something so terrible could have happened.

In his press briefing, President Obama announced the formation of a task force that would immediately begin to develop proposals to curb an "epidemic of gun violence." While much of the immediate press coverage has focused on limited gun control measures, the President described the problem as “complex” and called upon us to "look more closely at a culture that all-too-often glorifies guns and violence."

As always, I see a connection to agriculture and farm policy. I am reminded of a quote from Wendell Berry from his Commencement address at Lindsey Wilson College in 2005.

The line that connects the bombing of civilian populations to the mountain removed by strip mining ... to the tortured prisoner seems to run pretty straight. We're living, it seems, in the culmination of a long warfare — warfare against human beings, other creatures and the Earth itself.

I grew up on a family farm that was “sustainable” before we knew enough to use that term. There was a respect for nature, a respect for the animals that we raised, an appreciation of the miracle of growing food, and a deep sense of community. That was just the way it was. While past agricultural policies have tended to view this model of agriculture as outmoded and inefficient, its resurgence through the sustainable agricultural communities offers us hope for the future - for our food system as well as for our broader society.

Sustainable agriculture offers the perfect model to help our nation turn away from a culture that “glorifies guns and violence.”  At its core, sustainable agriculture advocates for integration and connection -  between farmers and the land, between farmers and consumers, between people and their food source. It stresses a harmony with nature and a recognition of our place within it.

But what about guns?  Again, I look to my rural upbringing. Yes, there were guns in my home on the farm. But, I was taught that they were weapons used only for specific purposes. Hunting was a sport, but a sport with a very practical purpose – food for our family. Killing was not entertainment. Assault weapons?  These were weapons of war, with no place or purpose on the farm.

The current debate on the violence in our society has already seemed to break down into the all-too familiar partisan divide, and it threatens as well to be reduced to an urban vs. rural battle.  I find the latter to be particularly tragic, as I love my rural community, and I worry about the changes I have seen.

The rural community that I grew up in was armed, but its weapons were shot guns, deer rifles, and 22 caliber rifles and pistols. My Dad signed me up for gun training, as he wanted me to both know how to use the guns we had in the house, but also to respect them.

My father and most others in our rural community would have considered people who wanted weapons like the assault weapon used to kill so many children in Newtown to be extreme and more than a little scary. Most people were proud of their guns, but they did not elevate them to a status symbol or focus on getting as many or as big a weapon as they could. Again, that would have seemed extreme and well, too violent.

Close knit communities generally knew who the people were that could not safely handle weapons, and their families, churches, schools, and yes, the government, helped to keep guns out of their hands.  There was no major movement saying that we all needed to have guns.

So what happened?  I don't know. But, I hope that we can ask that question and talk about it openly and honestly.  I hope that rural Americans will not just blindly heed the fear mongering that is being promoted by the gun manufacturers and their lead organization, the NRA. They have gotten rich by promoting fear.  I hope that rural Americans will have the courage and the wisdom to ask themselves why people want weapons that can fire 30 times in rapid succession. And why is their right to own one more important than the lives that might have been saved in Newtown without one?

I hope that it will be rural Americans that lead the country back to sensible gun ownership and away from the cult of violence that infects our country. Rural Americans, who I have always thought had a common sense about them, should just say, enough is enough.

Am I being totally unrealistic?  Well, it just might start with some of the members of the sustainable agriculture community.

Consider the Farmer Veteran Coalition.  This amazing coalition seeks “to create healthy and viable futures for America’s veterans by enlisting their help in building our green economy, rebuilding our rural communities, and securing a safe and healthy food supply for all.”  I don't know what their position is on all of this, but after the violence of war, veterans find purpose in connecting with the land and producing food sustainably.  Consider the Rodale Institute that had the courage to post my blog. There have to be others out there in rural America that are as uncomfortable with what has happened to us as I am.

In any case, I'd like to offer a special thanks to my father -  who taught me to respect guns and to work against violence.

Jim Chen Selected in 25 Most Influential

National Jurist just released its list of the Twenty-five Most Influential People in Legal Education, and the founder of Agricultural Law and the Jurisdynamics Network, Jim Chen, is one of those 25 people.  As National Jurist notes, Jim has "written extensively on legal education, including a look at student debt and what students can afford, and most recently on merit scholarship."

Congratulations, Jim, for this recognition of your efforts to challenge and improve legal education.

Thoughts on the Regulation of Genetically Engineered Food Products

Last night, Agricultural Law founder, Jim Chen, got my attention with a tweet and a link to the NY Times article that reported on Mark Lynas, the one-time foe of GMO use in agriculture and his startling endorsement of GM technologies.   New Shade of Green: Stark Shift for Onetime Foe of Genetic Engineering in Crops.

Reading the article caused me to reflect on my own thoughts on GM crops. I find that typically, we tend to divide the world into two opposing camps, those for and against genetic engineering. The most reasonable path, however, may be somewhere in between.

Here are my primary concerns about genetic engineering as it is currently regulated in the United States.

• U.S. laws allowing the patenting of life forms may have gone too far. The ownership of the genetic material in seed leads to property rights that spread beyond the original product through plant reproduction to the next generation by planting, volunteer germination, or drift, whether intentional or unintentional. That is a dramatic extension of the rights of the patent holder.  And, when the object of the patent is a food source, that is of particular concern. When the patent holders are multinational corporations in an intensely consolidated industry, it is even more concerning. A similar issue is currently before the Supreme Court, although few expect a significant change in intellectual property law.  See, Supreme Court to Rule on Patents for Self-Replicating Products.

• Our most prevalent agricultural experience with GM crops provided some short terms successes with serious long term repercussions. Round-up Ready (RR) corn and soybeans have promoted more intense farming, less crop rotation, and the overuse and resulting premature loss of one of our best pesticides. Resistant "super weeds" are devastating some crops and causing farmers to use increasingly more toxic pesticides at higher levels. See, e.g.,  Study: US farmers Using More Pesticides on 'Superweeds'.  One can hardly imagine a less sustainable scenario.

• If GM technology is going to be critical to global food security and the development of drought-resistant crops in a planet facing serious climate change, should its development be guided by corporations that are, by their very structure, dedicated to profitability? 

• While the processess we use for genetic engineering are no longer new, the potential uses are each unique. Even if one favors genetic engineering as an important tool in our scientific toolkit, certainly not all modifications are advisable. When we have an intellectual property system that can be used to effectively preclude the objective review of patented GM products, we cannot adequately catch and prevent potential problems. See, Crop Scientists Say Biotechnology Seed Companies are Thwarting Research. 

• As with the introduction of an invasive species, any man-made large-scale alteration of the environment should have a method of containment. The government has failed to place any realistic restrictions on the use of GM products that will drift onto others' property, contaminating both wild and farmed seed sources. Secretary Vilsack attempted, but failed in his attempts to implement a policy of coexistence between GM and non-GM production during the debate on GM alfalfa. 

• Just as ingredients are listed on food products, the use of technology to alter the genetic make- up of the product that is sold should be disclosed to consumers. While the FDA and USDA attempt to argue that the product is "the same."  It is not. It really is different, and that's why it was developed - to be different, and at least in the eyes of the patent holder, better. Consumers are neither too stupid nor too ignorant to make their own choices about the food they eat. The more that they are deceived or told that they don't need to know, the more suspicious they will become.  

So, I submit that the GM debate is not simply one of science, nor is it one of the clear and obvious lines that are sometimes drawn. The failings of our legal system are a major part of the problem.