Dairy Management & The Law: Fighting back against undercover animal rights investigations
By Attorney David L. Cook
From intellectual property issues and digester power line hook-ups to CAFO permitting, environmental issues and immigration, dairy issues are becoming more legally complex. This month, DairyBusiness introduces the inaugural “Dairy Management & the Law” column, by Attorney David L. Cook. Producers are invited to email questions and suggestions for future columns.
Animal rights activism targeting agriculture has significantly increased in the last year and will likely continue to do so. There have been at least 30 undercover operations reported in the last five years, and several of those have targeted the dairy industry. These operations use shock and sensationalism to gain media coverage and, ultimately, impact public opinion and disrupt markets. Top animal rights groups include the Humane Society of the United States, Mercy for Animals, People for the Ethical Treatment of Animals and Farm Sanctuary.
When a dairy farm becomes the victim of an undercover operation, the battle will be fought on three fronts: public opinion, economic and legal. These fronts are interrelated, and each is critical to weathering the storm. To succeed on all three fronts you must have a well-defined strategy.
Most state laws governing animal cruelty are enforced under criminal laws. The burden of proof is on the government to prove a criminal act has been committed, and requires both an intent to cause harm and actual harm. Sadly, most targeted dairy operations have failed to grasp these key principles, resulting in a public perception that the targeted dairy farm is at fault, because it has given into the demands of the activists or prosecution.
Generally, most dairy operations will be able to show they are following generally accepted farming practices and, as a result, there is no intent to cause harm. Further, the maintaining of accurate veterinary and animal health records is common practice and can be used to show that there is no actual injury caused by an intentional act of an employee.
If you become aware of an undercover operation, or there has been a media report, you should have your attorney interview all employees who have had any contact whatsoever with the undercover employee and/or may have been filmed or recorded. Immediately contact your vet and ensure that all your records are up to date and can be provided to law enforcement, if necessary. Do not wait for law enforcement to contact you. Establish a relationship with the district attorney (DA) through your lawyer, and advise the DA that you will cooperate with the investigation and be prepared to respond to media inquiries. By proactively dealing with law enforcement, you may be able to demonstrate that no violation of the animal cruelty laws has taken place, avoiding prosecution altogether.
Those farms that have aggressively dealt with these matters have been able to effectively stand their ground. Most recently the American Society for the Prevention of Cruelty to Animals (ASPCA) settled a lawsuit brought against them by Ringling Bros. Circus as a result of an undercover operation. The ASPCA paid $9.3 million to settle the action after it was discovered the key witness for the animal rights plaintiffs was paid by the plaintiffs and, therefore, not credible. The take-home point is that in the face of a crisis brought on by an undercover operation, do not panic and succumb to activist pressure. The standards for prosecution are high and may not be met.
Next month we will discuss defensive strategies to prevent these operations from getting a foot in the door.
• David L. Cook is an attorney with the law firm of LeClair/Ryan, with offices in seven states and Washington, D.C. The firm has represented large and small dairy operations for nearly 20 years. Contact him via phone 585-270-2114 or email David.Cook@leclairryan.com. Visit www.leclairryan.com.