New Jersey law requires "humane" treatment of farm animals, and the court found some of the regulations could fail to meet that standard.Â
A New Jersey law, Section 4:22-16.1, effective January 5, 1996, required the State Board of Agriculture and Department of Agriculture to draft and adopt humane standards for the "raising, keeping, care and treatment, marketing, and sale of domestic livestock".
The Board and Department were also charged with issuing regulations for the enforcement of these standards.
The regulations were finally effective in 2004, l36 N.J.R. 2637-715
Farm Sanctuary, the HumaneÂ Society of the United States, ASPCA, New Jersey SPCA and a coalition of other animal welfare organizations brought a lawsuit challenging the regulations, claiming they are not "humane" and do not have enforceable standards as required by law. The plaintiffs were represented by the public interest law firms Meyer Glitzenstein & Crystal, Washington, D.C., and Egert & Trakinski, Hackensack, N.J.
In an opinion handed down last week the New Jersey Supreme Court found that some of the standards issued by the Board and Department could not be said to be "humane".Â The court struck down broad exceptions, called "safe harbor" provisions, for anything called a "routine husbandry practice" that is "generally acceptable".
"Routine husbandry practices" means "those techniques commonly taught by veterinary schools, land grant colleges, and agricultural extension agents for the benefit of animals, the livestock industry, animal handlers and the public health and which are employed to raise, keep, care, treat, market and transport livestock, including, but not limited to, techniques involved with physical restraint; animal handling; animal identification; animal training; manure management; restricted feeding; restricted watering; restricted exercising; animal housing techniques; reproductive techniques; implantation; vaccination; and use of fencing materials, as long as all other State and Federal laws governing these practices are followed." Â N.J.A.C. 2:8-1.2.
Justice Hoens who wrote the opinion for the New Jersey Supreme Court,Â observed, "To suggest… that the Legislature meant "routine" when it said "humane" would â€˜abuse the interpretive process and . . . frustrate the announced will of the people.’ …The wholesale adoption, as the equivalent of â€˜humane,’ of â€˜routine husbandry practices,’ however, does precisely that.
"Second, in light of the direct mandate to the Department to adopt regulations that establish practices that are humane, the decision by that agency to authorize an exemption, and therefore to embrace wholesale any technique as long as it is "commonly taught" at any of these institutions, …[tells us], the Department [acted] in favor of …private interests."
The court also struck down a number of practices allowed if they are performed in a "sanitary manner" by "knowledgeable persons" who are required to "minimize pain". The challenged practices include: tail docking of cattle, N.J.A.C. 2:8-2.6(f); use of crates or tethering of swine, see N.J.A.C. 2:8-7.4(b)(2), cattle, see N.J.A.C. 2:8-2.4(g), and veal calves, see N.J.A.C. 2:8-2.4(h); castration (without required anesthesia) of cattle, see N.J.A.C. 2:8-2.6(f), horses, see N.J.A.C. 2:8-3.6(f), and swine, see N.J.A.C. 2:8-7.6(d); de-beaking of poultry, see N.J.A.C. 2:8-4.7(e); toe-trimming of turkeys (without required anesthesia), N.J.A.C. 2:8-4.7(f); and transporting sick and downed cattle to slaughter, see N.J.A.C. 2:8-2.2(b)(4)(iv).
The court found phrases like "sanitary manner", "knowledgeable persons", "minimize pain", were undefined and open to broad interpretation. The court said that, in fact, "without any standard as to what the regulation means in terms of minimizing pain, there is no standard at all." Â
The court went on, "Rather than creating a series of regulations that permit or disallow practices in accordance with whether they are humane, and rather than permitting practices only if performed in a specified manner, the agency instead authorized the practices in general and defined them as being humane by implicitly redefining humane itself. That is, the agency authorized the practices if performed by a knowledgeable person so as to minimize pain and equated that otherwise undefined person’s choices with humane. This, however, has resulted in a regulation that is entirely circular in its logic, for it bases the definition of humane solely on the identity of the person performing the task, while creating the definition of that identity by using an undefined category of individuals of no discernable skill or experience."
The court did otherwise, however, uphold the regulations including the worst factory farm practices, keeping pregnant pigs in gestation crates, tying veal calves in tiny crates or enclosures and transporting sick and downed cows to slaughter.
But Farm Sanctuary is confident this opinion paves the way to end Â those practices: "[T]he Court ruled that factory farming practices cannot be considered humane simply because they are widely used, setting a legal precedent for further actions to end the most egregious abuses on factory farms throughout the U.S…. The plaintiffs will push the agency vigorously to phase out these cruel and inhumane practices when the regulations are revised."
Humane Society of the United States representatives agreed, "This decision will protect thousands of animals in New Jersey, and also calls into question some of the worst factory farm abuses practiced throughout the country," said Jonathan Lovvorn, vice president of animal protection litigation for The Humane Society of the United States. "All animals deserve humane treatment, including animals raised for food."
It’s not clear the court sees its opinion that way. Justice Hoens called for a balancing of interests, "The dispute has nothing to do with anyone’s love for animals, or with the way in which any of us treats our pets; rather, it requires a balancing of the interests of people and organizations who would zealously safeguard the well-being of all animals, including those born and bred for eventual slaughter, with the equally significant interests of those who make their living in animal husbandry and who contribute, through their effort, to our food supply."