in the court of appeals of the justice, an ......17355 sw boones ferry rd. ste. a lake oswego, or...

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

JUSTICE, an American Quarter )

Horse, by and through his )

Guardian, Kim Mosiman, ) Washington County Circuit Court

) Case No. 18CV17601

Plaintiff-Appellant )

) CA No. A169933

v. )

)

GWENDOLYN VERCHER, )

)

Defendant-Respondent )

AMICI CURIAE BRIEF OF THE OREGON FARM BUREAU

FEDERATION, OREGON CATTLEMEN’S ASSOCIATION AND

OREGON DAIRY FARMERS ASSOCIATION

Appeal from the Order of the

Circuit Court for Washington County

December 26, 2018

The Honorable John S. Knowles

Pro Tem Circuit Court Judge

(Identification of Counsel on Following Page)

NOVEMBER 2019

November 7, 2019 01:27 PM

Samantha J. Bayer

Oregon Bar No. 185220

Mary Anne Cooper


Oregon Farm Bureau Federation

1320 Capitol St. NE Ste 200

Salem, Oregon 97301

Main No.: 503-399-1701

Facsimile: 813-229-8712

Email: [email protected]


Counsel for Amici Curiae Oregon Farm

Bureau Federation

T. Beau Ellis


Vial Fotheringham LLP

17355 SW Boones Ferry Rd. Ste. A

Lake Oswego, OR 97035

Main No.: 503-684-4111

Direct No.: 503-594-8116

Facsimile: 503-598-7758


Counsel for Amici Curiae Oregon Cattlemen’s

Association and Oregon Dairy Farmers Association

i

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

TABLE OF AUTHORITIES ................................................................................... iii

INTRODUCTION ..................................................................................................... 1

DESCRIPTION OF AMICI CURIAE ....................................................................... 3

ARGUMENT ............................................................................................................. 4

I. THE TRIAL COURT DID NOT ERR IN DISMISSING THE

COMPLAINT BECAUSE ANIMALS DO NOT HAVE LEGAL

STANDING TO BRING A CIVIL ACTION. ............................................. 5

A. Oregon’s statutory animal welfare scheme does not elevate

animals to “persons” authorized to bring a civil action. ....................... 6

B. Abused animals do not need to seek economic damages on behalf

of themselves because the animal welfare statutes expressly

provide for restitution to those who care for abused or neglected

animals. ................................................................................................11

C. Under Oregon law, animals are personal property

notwithstanding protections under the animal welfare statutes. .........13

D. Under the Oregon Constitution’s social compact theory, the

Court cannot grant legal standing to animals because animals

cannot accept legal responsibility for societal obligations and

duties....................................................................................................17

II. UNDER OREGON LAW, A HORSE CANNOT BEAR THE

EXPENSE OF ITS CARE BECAUSE ANIMALS DO NOT BEAR

FINANCIAL RESPONSIBLITY. ..............................................................20

III. GRANTING ANIMALS LIMITED PERSONHOOD WILL OPEN

THE FLOODGATES OF LITIGATION AND UPEND THE

FABRIC OF SOCIETY. .............................................................................21

CONCLUSION ........................................................................................................24

ii

CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE

SIZE REQUIREMENTS .........................................................................................25

CERTIFICATE OF FILING AND SERVICE ........................................................26

iii

TABLE OF AUTHORITIES

Cases

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 US 388

(1971) ...................................................................................................................22

Bowden v. Davis, 205 Or 421, 289 P2d 1100 (1955) ..............................................15

Cetacean Community v. Bush, 386 F3d 1169 (9th Cir 2004) ..............................9, 10

Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium,

836 F Supp 45 (D Mass 1993) .............................................................................10

Hawkins v. Toombs, 194 Or 478, 242 P2d 194 (1952) ............................................22

Kellas v. Dep’t of Corr., 341 Or 471, 145 P3d 139 (2006) ....................................... 5

Lewis v. Burger King, 344 Fed Appx 470 (10th Cir 2009, cert. denied 558 US 1125,

130 S Ct 1083, 175 LEd2d 907 (2010) .................................................................. 9

Local No. 290 v. Dept. of Environ. Quality, 323 Or 559, 919 P2d 1168 (1996) ....... 5

Matter of Nonhuman Rights Project Inc. v. Stanley, 16 NYS3d 898, 49 Misc 3d 746

(Sup Ct 2015) .......................................................................................................19

McGarrah v. State Acci. Ins. Fund Corp., 296 Or 145, 675 P2d 159 (1983) .........22

Moore v. Ganim, 233 Conn 557, 660 A2d 742 (1995) ............................................18

Neb. Press Ass'n v. Stuart, 427 US 539 (1976) .......................................................22

Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., 192 Conn App

36, 2019 WL 3886852 (August 20, 2019) .................................................... 18, 19

iv

People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 998 NYS2d 248, 124 AD3d

148 (2014) ................................................................................................. 9, 18, 19

State v. Crow, 249 Or App 88, (2018) ....................................................................... 7

State v. Fessenden, 355 Or 759, 333 P3d 278 (2014) ............................. 7, 13, 14, 16

State v. Hershey, 286 Or App 824, 401 P3d 256 (2017) ........................................... 7

State v. Lewallen, 262 Or App 51, 324 P3d 530 (2014) ..........................................22

State v. Newcomb, 359 Or 756, 375 P3d 434 (2016) ................................................. 7

State v. Nix, 355 Or 777, 334 P3d 437 (2014), vac’d on procedural grounds, 356 Or

768, 345 P3d 416 (2015) ......................................................................... 7, 8, 9, 13

Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World Parks

& Entertainment, Inc., 842 FSupp2d 1259 (SD Cal 2012) ................................... 9

Westberry v. Blackwell, 282 Or 129 (1978) .............................................................21

Statutes

ORS 161.067 .............................................................................................................. 7

ORS 167.305 ............................................................................................................14

ORS 167.305 to ORS 167.390 ................................................................................... 6

ORS 167.310 ..................................................................................................... 13, 14

ORS 167.312 ............................................................................................... 13, 14, 15

ORS 167.330 ............................................................................................................14

ORS 167.348 ............................................................................................................14

v

ORS 167.350 .................................................................................................... passim

ORS 31.360 ..............................................................................................................21

ORS 599.620 ............................................................................................................14

ORS 603.010 to 603.995 ..........................................................................................14

ORS 607.345 ............................................................................................................13

ORS 608.015 ............................................................................................................13

ORS 609.125 ............................................................................................................13

Other Authorities

Animal Legal Defense Fund, Focus Areas: Farmed Animals,

https://aldf.org/focus_area/farmed-animals/ ........................................................23

J. Locke, ‘Two Treatises of Government,’ book II (Hafner Library of Classics Ed.

1961) ....................................................................................................................18

Richard L. Cupp Jr., A Dubious Grail: Seeking Tort Law Expansion and Limited

Personhood as Stepping Stones Toward Abolishing Animals' Property Status, 60

SMU L. Rev. 3 (2007) .........................................................................................18

Constitutional Provisions

Conn Const Art I, § 1 ...............................................................................................19

Or Const Art I, § 1 ...................................................................................................17

1

INTRODUCTION

The Oregon Farm Bureau Federation, Oregon Cattlemen’s Association, and

the Oregon Dairy Farmers Association (collectively “Amici”) appear as amici

curiae in this case because the correct interpretation of Oregon’s animal welfare

scheme is of the upmost importance to the Amici organizations. Granting animals

legal personhood would have a detrimental impact to the agricultural community

and other industries that rely on working animals.

Amici strongly oppose the abuse or neglect of animals. The facts of this case

are abhorrent, and Amici do not condone the actions of Respondent. Amici and

their members are practitioners of the highest standards of animal welfare and

good animal husbandry practices, and believe that anyone abusing or neglecting

animals should be, consistent with the law, held criminally liable for abuse and

neglect. To this end, Amici participated in the crafting of Oregon’s animal welfare

statutes to make it easier to prosecute those who abuse and neglect animals, while

still protecting the rights of those who effectively care for and rely on livestock for

their livelihood. Amici offers this brief in order to help the Court ensure that

Oregon law is interpreted correctly, as a misinterpretation could drastically impact

the survival of Oregon’s farms, ranches, and dairies.

Oregon has one of the most progressive statutory animal welfare schemes in

the country; however, the Oregon Legislature has never granted animals legal

2

personhood or standing to sue in court. Instead, the Oregon Legislature has

continually stated that animals are personal property under the law, not legal

persons. The distinction between personhood and property is a foundational

principle in our society. This principle is core to the existence of the livestock

industry, permits humans to command working and service animals, and is central

to state management of fish and wildlife populations. This principle also

underscores the responsibilities humans bear to enact reasonable animal welfare

statutes, wildlife conservation laws, and is what ultimately leads to humans’ role as

the protector of animals, as we have been for the past several millennia.

Oregon’s animal welfare laws create a comprehensive scheme to deter and

punish the abuse or neglect of animals. However, the Legislature has never

extended to animals rights of personhood or standing. Moreover, the Legislature is

unable to grant animals legal personhood as animals plainly lack the ability to

accept legal responsibility and duty, which is a foundational principle under the

Oregon Constitution’s social compact theory.

Despite its recognized status as a sentient being, a horse – or any other

animal – does not have legal standing to sue its owner in a court of law. A horse is

the personal property of its owner, inherently without the legal status and

qualifications necessary to assert legal rights and duties. What should be evident to

this Court is that granting a horse even limited standing to sue is not for the

3

purpose of ensuring the well-being of the horse, but rather is an effort to

circumvent the Legislature and to seek full legal personhood for animals. This

Court should not take such a leap, because at minimum, this would cause chaos

within the livestock industry, jeopardize the status of service animals for disability,

police, and military work, and inject uncertainty into our state’s wildlife

management. The trial court correctly held that a horse does not have legal

standing to sue, and this Court should affirm that decision.

DESCRIPTION OF AMICI CURIAE

The Oregon Farm Bureau Federation (“OFBF”) is Oregon’s largest

grassroots agriculture association, representing nearly 7,000 farming and ranching

families across the state. OFBF’s mission is to promote educational improvement,

economic opportunity, and social advancement for its members and the farming,

ranching, and natural resources industry as a whole.

The Oregon Cattlemen’s Association (“OCA”) advocates the interest of over

13,000 cattle producers in the state. OCA fulfills its mission by promoting

environmentally and socially sound industry practices; seeking to improve the

economic outlook of the industry; representing OCA member interests to the

public, before state and federal agencies, and the Oregon legislature; and working

to protect industry communities and private property rights.

4

The Oregon Dairy Farmers Association (“ODFA”) represents Oregon’s 212

multi-generation dairy farming families. ODFA works to create an atmosphere

conducive for Oregon’s dairy producers by proactively addressing industry issues

and concerns, working with regulatory agencies, and supporting the youth of the

dairy industry.

Amici’s members rely on animals for their livelihood, both in the livestock

industry and the working animals that help manage livestock. Amici and their

members have been deeply engaged in crafting legislation related to animal

husbandry, veterinary medicine, and the animal welfare statutes in question. The

outcome of this case will unquestionably impact Amici’s members, many of whom

rely on livestock and working animals as part of their farming and ranching

operations.

ARGUMENT

A horse does not have legal standing to bring a civil action. Animals do not

have the legal status and qualifications necessary to assert legal rights and duties to

function as members of society, and enjoy no right to seek redress in a court of

law. While the Oregon Legislature has determined that those who abuse and

neglect animals should be prosecuted for their actions, those criminal

consequences do not confer upon animals the ability to seek civil redress, nor do

5

those protections grant humans the ability to assert those rights on behalf of

animals, in a representative capacity or otherwise.

The Oregon Legislature has conclusively determined that animals are

personal property under the law. The Legislature has never conferred legal

standing on animals or declared animals to enjoy legal personhood. Moreover, the

Legislature is not able to grant animals legal personhood as animals plainly do not

have the ability to accept legal responsibility and duty, which is a foundational

principle under the Oregon Constitution.

I. THE TRIAL COURT DID NOT ERR IN DISMISSING THE

COMPLAINT BECAUSE ANIMALS DO NOT HAVE LEGAL

STANDING TO BRING A CIVIL ACTION.

“Standing” is a legal term that identifies “whether a party to a legal

proceeding possesses a status or qualification necessary for the assertion,

enforcement, or adjudication of legal rights or duties.” Kellas v. Dep’t of Corr.,

341 Or 471, 476-77, 145 P3d 139, 142 (2006). To determine standing, the court

looks to the statute in question “because standing is not a matter of common law

but is, instead, conferred by the legislature.’” Id. at 477 (quoting Local No. 290 v.

Dept. of Environ. Quality, 323 Or 559, 566, 919 P2d 1168 (1996)).

In this case, attorneys purporting to represent a horse have brought a claim

under the common law theory of negligence per se. Appellant-counsel admit there

is no express statutory authorization for this claim. Appellant’s Opening Brief at

6

12. Instead, the negligence claim is premised on the concept that horses are within

the class of “persons” protected by Oregon animal welfare laws, and that Oregon’s

animal welfare scheme provide some implied authorization for this claim.

Appellant’s Opening Brief at 11-12. The claim must fail. The Oregon Legislature

has not granted animals legal personhood or standing to sue in a court of law. The

court should not endeavor to grant standing here.

A. Oregon’s statutory animal welfare scheme does not elevate animals to

“persons” authorized to bring a civil action.

Despite authorizing criminal charges against persons who abuse or neglect

animals, the Oregon Legislature has not elevated animals to the status of legal

persons with procedural standing to sue in their own name. As an initial matter,

Oregon’s animal welfare laws do not express any authorization for an animal to

bring a civil action. See ORS 167.305 to ORS 167.390. Appellant-counsel do not

point to any provision of Oregon’s animal welfare statutes – or any Oregon statutes

– that authorize legal standing for animals to sue. No such Oregon statute exists.

Put plainly, Oregon law does not permit animals to bring a private right of action.

Instead, Oregon law treats animals as personal property and vests any claims for

damages to animals in their owners.

Appellant-counsel concludes that if the owner of an animal is convicted of

animal abuse under criminal law, that the “victim” animal then has rights under

7

civil law without any legitimate, reasonable, or supportable inference from either

statute or case law in Oregon, or elsewhere. There is no legal authority in Oregon

even inferring that animals have standing to sue in their own name under statutes

that criminalize the abuse of animals.

To overcome the lack of express authorization under Oregon law, Appellant-

counsel relies heavily on the Oregon Supreme Court’s determination in State v.

Nix, 355 Or 777, 779, 334 P3d 437, 438 (2014), vac’d on procedural grounds, 356

Or 768, 345 P3d 416 (2015),1 that animals are considered “victims” for purposes of

the “anti-merger”2 statute as a means to posit a form of implied authorization for

their claims. Nix concluded that each animal abused in a case is a separate

“victim” for purposes of Oregon’s anti-merger statute. Id. at 798. In reaching this

conclusion, the Court determined that it was only logical that the “victim” of

animal neglect, for purposes of merger, is the animal and not the owner of the

animal, who is often the person who caused the abuse or neglect. Id. at 797.3 The

1 While vacated, the underlying reasoning of Nix has been adhered to by this Court

in recent decisions. See State v. Crow, 249 Or App 88, 91-96 (2018). 2 The anti-merger statute provides that when the same conduct violates only one

statute, but involves more than one “victim,” there are as many separate offenses as

there are victims. See ORS 161.067. 3 Subsequent Courts have also acknowledged the ability of officers to take

warrantless actions to protect abused or neglected animals in emergency

circumstances. See, e.g. State v. Fessenden, 355 Or 759, 774, 333 P3d 278, 287

(2014); State v. Hershey, 286 Or App 824, 832, 401 P3d 256, 261 (2017); State v.

Newcomb, 359 Or 756, 767, 375 P3d 434, 441 (2016) (citing Fessenden and noting

8

Nix court specifically noted that it was only speaking to the anti-merger statute, as

other criminal statutes, including the right of a victim to appear in court, to obtain

restitution, and to be heard at sentencing “would be difficult to apply were

‘victims’ to include non-human animals.” Id. at 787. The Nix analysis indicates a

clear intention to limit application of its decision to Oregon’s anti-merger statute.

Notwithstanding the clearly demarcated boundaries within the Nix decision,

Appellant-counsel relies on Nix to argue that animals have an implied right to bring

civil actions, including the negligence per se claim at issue in this case.

Appellant’s Opening Brief at 11. However, in reaching this conclusion, counsel

stretches Nix well beyond its breaking point. Nothing in the legislative history of

Oregon’s animal welfare statutes or Nix supports the consequential leap

Appellant-counsel asks this Court to make from identifying each animal subjected

to abuse as a separate criminal act to granting animals the full panoply of rights

and legal standing to sue in civil court, generally associated with legal personhood.

The Nix decision cannot be read to support Appellant-counsel’s argument.

First, in concluding that animals are victims for the purposes of Oregon’s anti-

that “the protection given to animals under Oregon law does not place them on a

par with humans.”) In each of these cases, the focus of the Court was on the

prevention and prosecution of the crime of animal neglect or abuse, and the Courts

never found animals to be legal persons for purposes of the warrant analysis. In

fact, no Oregon case has ever stated an intent to allow animals an individual cause

of action for their former owner’s criminal abuse or neglect.

9

merger statute, the Oregon Supreme Court emphasized that its decision was not

one of policy about how animals should be treated under the law, as that was left to

the Legislature. Nix, 355 Or at 777. Instead, the Nix court succinctly held that

animals are victims such that the abuse of each individual animal can be counted as

a separate “offense” under the animal welfare statutes. Id. at 797. Second, as

discussed in Nix, the focus of the Oregon Legislature has been on the development

of a comprehensive criminal scheme to deter abusers and protect animals from

abuse and neglect. Id. at 777. There has never been an intention to grant animals

legal rights to sue in civil court or to do anything more than to deter and punish

those who abuse or neglect animals.

“Not surprisingly, animals have never been considered persons [ … ], nor

have they been explicitly considered as persons or entities capable of asserting

rights for the purpose of state or federal law[.]” People ex rel. Nonhuman Rights

Project, Inc. v. Lavery, 998 NYS2d 248, 249–50, 124 AD3d 148, 150 (2014)

(citing Lewis v. Burger King, 344 Fed Appx 470, 472 (10th Cir 2009), cert. denied

558 US 1125, 130 S Ct 1083, 175 LEd2d 907 (2010); Cetacean Community v.

Bush, 386 F3d 1169, 1178 (9th Cir 2004); Tilikum ex rel. People for the Ethical

Treatment of Animals, Inc. v. Sea World Parks & Entertainment, Inc., 842

FSupp2d 1259, 1263 (SD Cal 2012); Citizens to End Animal Suffering &

Exploitation, Inc. v. New England Aquarium, 836 F Supp 45, 49-50 (D Mass

10

1993)). While not binding precedent on this Court, these cases are helpful and

instructive – and in each case – the general theory advanced by Appellant-counsel

here was rejected.

The Ninth Circuit Court of Appeals has taken up this very issue and held

against granting animals standing. In Cetacean Community, the court was tasked

with determining whether the Cetacean Community (name chosen by the

Cetaceans’ self-appointed attorney purporting to represent all of the world’s

whales, porpoises, and dolphins) had standing to bring suit in their own name

under the Endangered Species Act, the Marine Mammal Protection Act, the

National Environmental Protection Act, and the Administrative Procedure Act. See

Cetacean Cmty., 386 F3d at 1171. The Ninth Circuit held that the Cetacean

Community did not have standing to bring a private cause of action. Id. In reaching

this conclusion, the court noted that in some instances, criminal statutes punish

those who violate statutory duties that protect animals, and in other instances,

humans are granted standing to bring civil suits to enforce statutory duties that

protect these animals. Id. at 1175. Notably, the court stated that, “[i]t is obvious

that an animal cannot function as a plaintiff in the same manner as a judicially

competent human being[.]” Id. at 1176. The court examined whether Congress

granted standing to the Cetaceans under the Endangered Species Act, the Marine

Mammal Protection Act, the National Environmental Protection Act, and

11

the Administrative Procedure Act. Ultimately, the Ninth Circuit determined that

under each statute, Congress had not authorized animals to sue.

An obvious and fair reading of the Oregon animal welfare statutes reveals

both from the scheme of the statute, as well as from the statute's explicit definitions

of its terms, that animals are the protected rather than the protectors. These statutes

cannot be reasonably read to even so much as suggest that an animal may bring a

civil action against its owner – regardless of whether the animal suffered abuse at

the hand of that owner.

B. Abused animals do not need to seek economic damages on behalf of

themselves because the animal welfare statutes expressly provide for

restitution to those who care for abused or neglected animals.

Instead of seeking legal personhood for animals, individuals who choose to

rescue neglected or abused animals should seek restitution under the existing

provisions in Oregon’s animal welfare statutes for cost recovery.

In Oregon, the Legislature has created a pathway for restitution to those who

provide care to neglected or abused animals. See ORS 167.350. Specifically, a

court may require a defendant convicted under Oregon’s animal welfare statutes to

“[…] repay the reasonable costs incurred by a government agency, a humane

investigation agency or its agent or a person prior to judgment in caring for each

animal associated with the criminal proceeding.” ORS 167.350(1). Moreover, a

court “may order the owner or person having custody of an animal to repay any

12

reasonable costs incurred by a government agency, a humane investigation agency

or its agent or a person in providing minimum care to the animal that are not

included in a repayment order under subsection (1) of this section.” ORS

167.350(3).

Despite being “victims” for purposes of the state prosecuting their owners,

animals were clearly not intended to themselves receive restitution under Oregon

law, as they are not identified as a potential recipient of a restitution award under

ORS 167.350. The Legislature expressly listed “a government agency, a humane

investigation agency or its agent or a person” in its list of parties that may be

reimbursed or receive payment for the expense of caring for an abused or neglected

animal. As previously discussed, animals are not “persons” and cannot be

“persons” under Oregon law. As such, under the statutory construction maxim of

expressio unius est exclusio alterius, the Legislature clearly did not intend to

include animals as being able to seek repayment for expenses associated with care

of the animal.

Instead, Kim Mosiman or her organization, Sound Equine Options, should

personally have sought restitution for the cost of care in this case.4 Restitution

4 Kim Mosiman, through her organization, Sound Equine Options, has already been

awarded restitution under ORS 167.350, as part of the criminal judgment entered

against Respondent. Appellant’s Opening Brief at 7.

13

under ORS 167.350 is the sole vehicle the Legislature intended to provide for the

expenses associated with care of abused or neglected animals, and is sufficient to

address the expenses incurred by Kim Mosiman and her organization.

C. Under Oregon law, animals are personal property notwithstanding

protections under the animal welfare statutes.

The conclusion mandated by Oregon’s animal welfare laws and the Nix case

is consistent with long-standing Oregon jurisprudence recognizing animals as

personal property under the law. A horse is not a legal person capable of

vindicating its own legal rights, but instead is personal property under Oregon law.

Fessenden, 355 Or at 767 (“Oregon law still considers animals to be property.”).

Notwithstanding the progressiveness of Oregon’s animal welfare scheme,

the Oregon Legislature has continued to pass legislation describing animals as

property of either humans or the state, and separate and distinct from human

beings. See ORS 167.310(2) (describing domestic animals as “owned or possessed

by a person”); ORS 167.310(9) (describing minimum care that must be provided

by the owner of an animal); ORS 167.312 (providing for damages payable to the

owner of an animal for interference with research). The Oregon Legislature has

also continually treated horses specifically as property. See ORS 609.125

(describing horses as “livestock” maintained commercially by human beings);

ORS 607.345 (prohibiting sale of freshly branded horses); ORS 608.015

14

(describing civil liability for a human being who allows their horse to trespass on

another human being’s property); ORS 599.620 (allowing the State to regulate the

sale of horses at livestock auctions).

Further, the text and context of Oregon’s statutory animal welfare scheme

unmistakably does not treat animals as “persons.” See ORS 167.310(3) (“‘Animal’

means any nonhuman mammal, bird, reptile, amphibian or fish.”); ORS 167.310(4)

(“‘Domestic animal’ means an animal, other than livestock or equines, that is

owned or possessed by a person.”); ORS 167.312(5) (award of damages for

interference available to the owner of the animal used in research); ORS 167.330

(describing animals as in a “person’s” custody or control);) ORS 167.348

(describing the animal as being the property of an owner); ORS 167.350

(describing forfeiture of ownership of an abused animal and restitution for care of

animal prior to conviction judgment). Beyond the obvious ownership distinction,

Oregon law also permits people to treat animals differently from human beings.

“Although the Oregon legislature has found that ‘[a]nimals are sentient beings

capable of experiencing pain, stress and fear,’ ORS 167.305(1), Oregon law

nevertheless permits humans to treat animals in ways that humans may not treat

other humans.” Fessenden, 355 Or at 768 (citing ORS 603.010 to 603.995 (setting

out procedures for lawful animal slaughter); ORS 167.310(6) (defining “good

animal husbandry” as including “the dehorning of cattle, the docking of horses,

15

sheep or swine, and the castration or neutering of livestock, according to accepted

practices of veterinary medicine or animal husbandry”); ORS 167.312 (prohibiting

interference with animal research)).

Beyond the specifics of domestic animals, horses, or livestock, in a broader

context, the Oregon Supreme Court has even noted that the “ownership right of the

state in wild animals forms the basis of our fish and game laws.” Bowden v. Davis,

205 Or 421, 441, 289 P2d 1100, 1109 (1955) (discussing the constitutionality of a

statute permitting the taking by the state of unbranded and unlicensed horses

running at large). Bowden centered on the question of whether the horses at issue

were “wild horses” and, therefore, property of the state or domestic horses and,

therefore, personal property of the owner. Id. Although the Bowden court

ultimately held that the statute was unconstitutional because of interference with

rights to private property, without due process of law, the Bowden court made clear

in its decision that, “[l]ike all other wild animals, [wild horses] are recognized as

being the property of the state, and the state can dispose of them as it sees fit.” Id.

The foregoing authorities clearly demonstrate Oregon law is premised on the

foundational principle that animals, including horses, are personal property and not

legal persons. Moreover, Oregon law consistently allows for animals to be treated

differently under the law than human beings because of their property status. This

16

is an outcome which exists notwithstanding the Legislative recognition that a horse

is an intelligent animal capable of experiencing pain.

To be clear, Amici makes this argument not to minimize the importance

animals have in our lives. As the Fessenden court recognized, some animals

occupy a unique place in our hearts. Fessenden, 355 Or at 769. Amici do not

dispute that principle. In fact, one would be hard pressed to find a farmer or

rancher in the State of Oregon who does not have a beloved ranch dog, a trusted

horse assisting them in their daily operations, or a favorite cow in their herd.

Animal welfare and good animal husbandry practices are of the upmost importance

to any livestock operator – to do otherwise would run counter to common sense,

the law, and basic business principles; a ranch or farm is only as successful as the

health and wellbeing of its animals.

Animals are property under the law, and this principle must not be eroded. It

is an inescapable fact that humans are allowed to own, buy, sell, and even kill and

eat animals in our society. A decision to the contrary of this long-held principle

would upend society, and put every livestock producer, dairy owner, grocery store,

restaurant, chef, and even homeowner with a backyard chickencoop, out of

business or at risk of a lawsuit. It would jeopardize people’s ability to utilize

service animals, military, police, and other working dogs or horses, hawks to

manage invasive bird populations, and countless other working animals. The

17

outcome sought by Appellant-counsel would drastically change foundational

principles in our society and daily lives. As such, this Court should not depart from

the principle that animals are personal property without legal standing to bring a

civil action.

D. Under the Oregon Constitution’s social compact theory, the Court

cannot grant legal standing to animals because animals cannot accept

legal responsibility for societal obligations and duties.

Animals cannot be legally considered a person under Oregon law because

animals do not have the ability to accept legal responsibility and duty. The ability

to accept legal responsibility is inherent in the distinction between man and beast,

and is a foundational principle of the Oregon Constitution. The Oregon

Constitution provides:

We declare that all men, when they form a social compact are equal in

right: that all power is inherent in the people, and all free governments

are founded on their authority, and instituted for their peace, safety, and

happiness; and they have at all times a right to alter, reform, or abolish

the government in such manner as they may think proper.

Or Const Art I, § 1.

The concept of duty and responsibility being inherent to legal personhood is

far from “unfounded” as proffered by Appellant-counsel. Appellant’s Opening

Brief at 18. The concept of legal responsibility dates back to the very beginning of

our system of governance in the form of the “social compact theory.” Political

scientists often describe our governance as built upon a “social compact” between

18

natural persons and their government; in exchange for being assured rights and

protection, humans agree to sacrifice some freedoms and to take on responsibilities

to their community and government. Richard L. Cupp Jr., A Dubious Grail:

Seeking Tort Law Expansion and Limited Personhood as Stepping Stones Toward

Abolishing Animals' Property Status, 60 SMU L. Rev. 3, 28 (2007). “The social

compact theory posits that all individuals are born with certain natural rights and

that people, in freely consenting to be governed, enter a social compact with their

government by virtue of which they relinquish certain individual liberties in

exchange ‘for the mutual preservation of their lives, liberties, and estates.’ J.

Locke, ‘Two Treatises of Government,’ book II (Hafner Library of Classics Ed.

1961) ¶ 123, p. 184[.]” Nonhuman Rights Project, Inc. v. R.W. Commerford &

Sons, Inc., 192 Conn App 36, 45, 2019 WL 3886852 at *5 (August 20, 2019)

(citing Moore v. Ganim, 233 Conn 557, 598, 660 A2d 742 (1995)).

While the Oregon courts have yet to resolve this question, both Connecticut

and New York have rejected the concept of legal standing for animals because

animals cannot bear societal obligations. Commerford 192 Conn App at 45, 2019

WL 3886852 at *5 (deciding that elephants, or any nonhuman animal, is incapable

of bearing duties and social responsibilities required by such social compact)

(citing People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 998 NYS2d 248,

250, 124 AD3d 148, 151 (App Div 2014) (deciding that Chimpanzees cannot bear

19

any legal duties or submit to societal responsibilities); Matter of Nonhuman Rights

Project Inc. v. Stanley, 16 NYS3d 898, 914, 49 Misc 3d 746, 768 (Sup Ct 2015)

(relying on Lavery). The Commerford court found a constitutional bar to legal

actions brought on behalf of animals and relied on Connecticut’s own social

compact clause to do so. Connecticut’s social compact clause provides, “[a]ll men

when they form a social compact, are equal in rights; and no man or set of men are

entitled to exclusive public emoluments or privileges from the community.” Conn

Const Art I, § 1. The Commerford court reasoned the legal rights sought could not

be afforded to any nonhuman which is incapable of bearing duties and social

responsibilities implicit in the social compact clause of the Connecticut

Constitution. Specifically, the Commerford court noted:

There are profound implications for a court to conclude that an

elephant, or any nonhuman animal for that matter, is entitled to assert a

claim in a court of law. In the present case, we have little difficulty

concluding that the elephants — who are incapable of bearing legal

duties, submitting to societal responsibilities, or being held legally

accountable for failing to uphold those duties and responsibilities — do

not have standing to file a petition for a writ of habeas corpus because

they have no legally protected interest that possibly can be adversely

affected.

Id. at 48 (2019).

Given the similarity of the Connecticut and Oregon social compact clauses

in each respective constitution, the Court here should find a constitutional bar to

animals seeking judicial relief because animals are incapable of bearing legal

20

responsibility under the law. Animals are incapable of understanding the law and

following its principles and, therefore, do not possess the capacity to enter into our

social compact as provided under the Oregon Constitution. As such, the Oregon

Constitution bars a horse, and any nonhuman animal, of the right to pursue a civil

action in the Oregon courts.

II. UNDER OREGON LAW, A HORSE CANNOT BEAR THE EXPENSE

OF ITS CARE BECAUSE ANIMALS DO NOT BEAR FINANCIAL

RESPONSIBLITY.

Horses, like all animals, do not personally bear the expense of their care.

Instead, the owner of the horse is responsible for the expense of the care.

Appellant-counsel argues that forcing a victim of animal cruelty to bear the costs

of their injuries violates the primary purpose of the tort system. Appellant’s

Opening Brief at 21. However, Appellant-counsel’s argument is not compelling.

As outlined above, the Oregon Legislature has already created a statutory method

for persons to recover the expenses of caring for neglected and abused animals. See

ORS 167.350. Restitution was awarded to Kim Mosiman’s organization, Sound

Equine Options, as part of the criminal judgment entered against Respondent in the

criminal case. Appellant’s Opening Brief at 7.

Further, it is plain that animals are never held responsible for the costs of

their care or injuries, regardless of whether those injuries are caused by abuse or

neglect. Horses don’t take themselves to the vet, have private insurance, or pay

21

out-of-pocket for veterinary care expenses. There is no way to hold a horse

financially responsible for its care. A horse, like every other animal, has no title to

money, is without the capacity to understand money, and would never be held

financially responsible to another under the law. In fact, the converse is true; under

Oregon law, the owner of a dog is liable for the injuries caused by that dog.

Westberry v. Blackwell, 282 Or 129, 133 (1978); see also ORS 31.360 (identifying

required proof for economic damages caused by dog bite). To determine that

animals bear the cost of their injuries or the injuries they cause runs counter to law,

reason, and societal construct.

III. GRANTING ANIMALS LIMITED PERSONHOOD WILL OPEN THE

FLOODGATES OF LITIGATION AND UPEND THE FABRIC OF

SOCIETY.

This is not the first time animal rights activists have sought legal personhood

for animals, and it unlikely to be the last. Sensing this inevitable reality, the trial

court noted the floodgates of litigation would open if this case were permitted to

move forward. Opinion Letter at 1 (ER 15). Contrary to Appellant-counsel’s

argument, Appellant’s Opening Brief at 26, the “floodgates” concern is legally

relevant and entirely practical.

The United States Supreme Court has consistently considered the

“floodgates of litigation” concern when balancing the equities of a case. See Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 US 388, 410

22

(1971) (Justice Harlan describing strain on judicial resources as a substantial policy

concern in concurrence); Neb. Press Ass'n v. Stuart, 427 US 539, 608 (1976)

(Justice Brennan discussing “practical concerns” such as the “floodgates of

litigation” and “drain on judicial resources” as a basis for denial in concurrence).

The Oregon Supreme Court has measured this concern too. See Hawkins v.

Toombs, 194 Or 478, 488, 242 P2d 194, 199 (1952) (discussing how interpreting a

statement would open a floodgate of claims); McGarrah v. State Acci. Ins. Fund

Corp., 296 Or 145, 162, 675 P2d 159, 169 (1983) (discussing how interpreting a

worker’s compensation statute my open a floodgate of estate claims). Moreover,

this Court has even granted credence to a trial court’s fear about the floodgates of

litigation opening. See State v. Lewallen, 262 Or App 51, 57, 324 P3d 530, 534

(2014) (deciding that a trial court expressed appropriate concerns about finality,

including opening the “floodgates”).

Even so much as cracking open the door to Appellant-counsel’s view of the

world would have an irreversible effect on agriculture and other professions reliant

on animals nationwide. Given that these cases have continually been filed, despite

stare decisis clearly indicating they should not, it is not unrealistic to forecast a

torrent of lawsuits from human-backed interest groups, such as the Nonhuman

Rights Project or the Animal Legal Defense Fund, under the guise of animals

seeking justice (no pun intended), restitution, and attorney’s fees.

23

From a larger policy perspective, if animals were granted legal standing to

sue, there would undoubtedly be an overwhelming number of unsubstantiated

claims against the agricultural industry. As stated by the Animal Legal Defense

Fund’s own website:

There’s an estimated 9 billion land animals raised and killed for food

every year in the United States. […] The Animal Legal Defense Fund

is working to change this. Farmed animals are every bit as capable of

feeling pain, and pleasure, as the animals who live inside our homes

with us. We are fighting for stronger laws to protect farmed animals,

and better enforcement of those laws.5

If this court were to grant animals legal standing, Oregon would become

ground-zero for baseless and frivolous litigation against the owners of those

animals. As stated earlier, animals are personal property under the law, and this

principle cannot be eroded in even the slightest degree. To do otherwise would put

every farmer, livestock producer, dairy owner, and anyone tangentially involved in

agriculture out of business or at risk of a lawsuit. It would impact countless other

professions. It would drastically upend foundational principles in our society, and

negatively impact our economy. Simply put, this Court cannot endow animals with

legal personhood.

5 Animal Legal Defense Fund, Focus Areas: Farmed Animals,

https://aldf.org/focus_area/farmed-animals/

24

CONCLUSION

For the foregoing reasons, the Court should affirm the decision of the trial

court.

Dated this 7th day of November, 2019

OREGON FARM BUREAU FEDERATION

/s/ Samantha J. Bayer_

Samantha J. Bayer, OSB # 185220

Mary Anne Cooper, OSB # 104586


Salem, Oregon 97301

T: 503-399-1701

F: 503-399-8082

E: [email protected]


Attorneys for Amici Curiae


VIAL FOTHERINGHAM LLP

/s/ T. Beau Ellis________

T. Beau Ellis, OSB #093437

17355 SW Boones Ferry Road, Ste A


T: (503) 684- 4111

F: (503) 598-7758



Oregon Cattlemen’s Association &

Oregon Dairy Farmers Association

25

CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE

SIZE REQUIREMENTS

I HEREBY CERTIFY that this brief complies with the word-count

limitation in ORAP 5.05(2)(a), and that the word count of this brief is 5,566.

I HEREBY CERTIFY that the size of the type in this brief is not smaller

than 14 point for both the test of the brief and footnotes as required by ORAP

5.05(4)(f).

DATED this 7th day of November, 2019.






Salem, Oregon 97301

T: 503-399-1701

F: 503-399-8082










T: (503) 684- 4111

F: (503) 598-7758





26

CERTIFICATE OF FILING AND SERVICE

I HEREBY CERTIFY that on this day, I served the foregoing Amici Curiae

Brief of the Oregon Farm Bureau Federation, Oregon Cattlemen’s Association and

Oregon Dairy Farmers Association by first class mail and the court’s electronic

service on:

Margaret H. Leek Leiberan, OSB

#770468

JENSEN & LEIBERAN

10300 SW Greenberg Road, Suite 300

Portland, OR 97223

T: 503-641-7990

[email protected]

Attorney for Plaintiff-Appellant Justice,

an American Quarter Horse

Matthew Liebman (pro hac vice)

Christopher A. Berry (pro hac vice)

AMERICAN LEGAL DEFENSE

FUND

525 E. Cotati Avenue

Cotati, CA 94931

T: 707-795-2533

[email protected]

Attorneys for Plaintiff-Appellant

Justice, an American Quarter Horse

Matthew Hamity (pro hac vice)

LAW OFFICE OF MATTHEW

HAMITY

537 Kains Avenue

Albany, CA 94706

T: 847-721-9802

[email protected]

Attorney for Plaintiff-Appellant Justice,

an American Quarter Horse

Sarah Hanneken, OSB #165104

2906 NE 57th Avenue

Portland, OR 97213

T: 414-405-0538

[email protected]

Attorney for Plaintiff-Appellant

Justice, an American Quarter Horse

Georgie Duckler, OSB #873780

GEORGIE DUCKLER PC

9397 SW Locust Street

Tigard, OR 97223

T: 503-546-8052

[email protected]

Attorney for Defendant-Respondent

Gwendolyn Vercher

Lindsey Stallings, OSB #180224

Conway Law, PLLC

1014 Franklin St., Suite 306-B

Vancouver, WA 98660

T: 360-906-1007

[email protected]

Attorney for Amicus Curiae Animal

Law Processors

mailto:[email protected]





27

Julia Markley, OSB #000791

Sasha A. Petrova, OSB #154008

1120 NW Couch Street, 10th Floor

Portland, OR 97209

T: 503-727-2000

[email protected]

[email protected]

Attorneys for Amici Curiae Robin L. Foster,

Ph.D., CAAB; Antonia J. Z. Henderson, Ph.D.;

Tammy M. Donaldson, MC, Ph.D., CAAB; Nina

Ekholm Fry, MSSC; Katherine Houpt, VMD,

Ph.D., DACVB; Shawna Karrasch; Sharon

Madere, CHNC; and Andrew McLean, Ph.D.

I HEREBY CERTIFY that I filed this brief with the Appellate Court

Administrator on this date by e-filing to:

Appellate Court Records Section

Appellate Court Administrator

Supreme Court Building

1163 State Street

Salem, OR 97301-2563

DATED this 7th day of November, 2019.






Salem, Oregon 97301

T: 503-399-1701

F: 503-399-8082










T: (503) 684- 4111

F: (503) 598-7758







in the court of appeals of the justice, an ......17355 sw boones ferry rd. ste. a lake oswego, or...

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