Animal Carcass Disposal

Legal, Regulatory and Institutional Considerations

Fred Boadu, Ph.D; J.D.

Professor
Department of Agricultural Economics
Texas A&M University
College Station, Texas, 77843-2124
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).
 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
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)
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
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.
 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
property may 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.”
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.”
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)
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."
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

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. Code Sec. 161.047).

 The statute allows an “authorized agent” of TAHC to

conduct inspection of animals and animal products.
(Agric. Code Sec. 161.048)
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.
Issue 4 What 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?
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
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’
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.
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

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).
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.”
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.
THANK YOU.