The Convention on Animal Protection for Public Health, Well-Being, and the Environment
June 14, 2023
Qualifying Hunting and Fishing as the Preferred Means of Managing Wildlife: A Potentially Dangerous Ballot Initiative that Provides Little Protection to Hunters and Fisherman
April 24, 2024
Recognized as the official state reptile of Florida,[1] American alligators have long been harvested for their hides and meat. Restrictions on alligator hunting during the early part of the 1900s were almost nonexistent[2] and by the 1950s, demand for hides and uncontrolled hunting — among other contributing factors — almost led to their extinction.[3] As a result, the American alligator was added to the endangered species list in 1967.[4] Due to the resulting heightened restrictions on hunting, alligator populations recovered enough by 1987 to be downgraded from endangered to threatened.[5] Gaining global recognition and heightened regulatory oversight, the alligator hunting industry stands in contrast to the relatively overlooked farmed alligator industry, particularly regarding animal welfare.
The first commercial alligator farm in Florida was opened in the 1890s.[6] Despite the American alligators’ near-brush with modern-day extinction, demand for their hides and meat has persisted over the decades. Almost contemporaneous with the Endangered Species Act’s (ESA) rollback of protections was the inception of indoor controlled farming in the 1980s, which allowed separation from hunting where market-ready alligators could be grown in less than two years. Consequently, there was a “rapid expansion of the [alligator farming] industry.”[7] According to the Bureau of Seafood and Aquaculture Marketing, there are about 28 alligator farms operating in Florida today.[8] In 2021, Florida’s alligator farms produced over 37,000 alligator hides.[9]
Notwithstanding the industry’s growth and relative success, it has few controlling regulations concerning welfare protections for farmed alligators, both at the federal and state level.[10] Federal regulations like the Animal Welfare Act, Humane Methods of Slaughter Act (HMSA), and the Anti-Cruelty Act all omit protections concerning farmed alligators. Also, the Food and Drug Administration (FDA) does not expressly provide any safeguards even though it requires analysis of potential food safety hazards of aquatic animals (like alligators) “before, during, and after harvest,” which arguably could open a door for welfare considerations.[11]
Similarly, while Florida provides detailed regulations regarding farmed alligators that largely concern permitting, lawful “taking,” and accounting of inventories, such regulations make only scant mention of humane treatment. F.S. §§379.3751 and 379.3752 directly address requirements for licenses and tags, and the Florida Administrative Code (FAC) provides comprehensive alligator farm operations regulations.[12] The Florida Fish and Wildlife Conservation Commission (FWC) also provides various publications regarding suggested farming practices predicated on improving commercial efficiencies surrounding production and harvest.[13] Although not a chief concern of these regulations, FAC 68A-25.042 notably provides that alligator rearing tanks should ensure “humane confinement” and the FWC — faithful to a commercial justification — recommends that slaughter of aquatic animals, i.e., alligators, “be performed quickly and in a manner to limit the stress to the animal,” which helps to retain the commercial value of alligator hides and meat.[14]
Farmed Alligators and Animal Welfare
“[A]nimal welfare is the idea that…animals must be protected against abuse and ensured humane treatment….”[15] An oft cited driver of animal welfare laws is whether a particular animal exhibits traits of sentience.[16] Fundamentally, sentience “confers a capacity to consciously perceive negative and/or positive sensations, feelings, emotions, or other subjective experiences which matter to the animal.”[17] A broad spectrum of animals have been studied and shown to exhibit traits of sentience, ranging from chimpanzees[18] to rats.[19] However, “alligators…have received far less attention in the scientific literature than mammals, and knowledge of their cognitive and behavioral responses to stressors is still fairly limited…and neglected in the animal welfare…literature.”[20]
Nonetheless, alligators have been shown to express customary indicia of sentience readily observed through signs of distress in circumstances often associated with the farm lifecycle like slaughter and captivity.[21] Alligators have even demonstrated a capacity for play.[22] Notably, a number of countries’ laws recognize alligators’ capacity to feel fear, pain, and joy.[23] Among those is the United Kingdom’s Animal Welfare (Sentience) Bill, which requires animal sentience to be considered when developing governmental policies.[24]
Humane Treatment at Slaughter
After The Jungle[25] novel was published in 1905, depicting conditions in slaughterhouses, the ensuing public outcry led to the passage of the Pure Food and Drug Act of 1906 and the Federal Meat Inspection Act.[26] Later, the HMSA was enacted to ensure federal compliance with animal welfare for the humane slaughter of livestock.[27]
Passed in 1961, Florida’s Humane Slaughter Act (FLHSA)[28] requires “that the slaughter of all livestock and the handling of livestock in connection with slaughter be carried out only by humane methods….”[29] Humane slaughter is defined by Florida statute as “a method whereby the animal is rapidly and effectively rendered insensitive to pain by electrical or chemical means or by a penetrating captive bolt or gunshot with appropriate caliber and placement.”[30] Among others, FLHSA finds that the “use of humane methods in the killing of livestock prevents needless suffering….”[31] The FLHSA establishes basic humane slaughter standards that must not be less restrictive than those established by its federal counterpart and can help to ensure humane slaughter for animals not otherwise protected by the HMSA, e.g., “animals not under federal jurisdiction, such as those killed on the farm by the farm owner/operator, or by a mobile custom slaughterer.”[32] However, like the HMSA, aquatic species do not qualify as livestock under the FLHSA, which thereby excludes alligators from humane slaughter protections.[33]
As noted above, the FWC recommends, but does not require, that alligator culling be “performed quickly and in a manner” that limits stress.[34] The FWC specifically recommends killing methods that include wrapping the snout tightly with electrical or duct tape, and then using a knife to sever the spinal cord by cutting across the body between the back of the head and first vertebra.[35] The FWC further recommends ensuring the alligator is dead by “insert[ing] a metal shaft into the brain cavity to pith and destroy the brain.”[36] Studies show that spinal cord severance followed by pithing of the brain and application of a penetrating or nonpenetrating captive bolt appeared to be humane techniques for inducing death in alligators.[37]
But from what can readily be understood about how alligators are customarily slaughtered on Florida farms, mostly from anecdotal stories or limited investigations, methods include gunshots to the head, “canned hunts” held on alligator farms,[38] and sadly, cruel, drawn-out methods that clearly violate even basic humane standards. The Sun Sentinel reported on one particular farm that “harvests alligators methodically, first lassoing the gator around the neck, then carrying the 80-pound animal outside to a concrete slab, where [the farmer] shoots it in the head with a. 22-caliber rifle.”[39] In an investigation into alligator slaughter on a Florida farm by the People for the Ethical Treatment of Animals (PETA), it was reported that a
person stood on the animal’s mouth, and one stood on the tail, while a third attempted to chisel through the spinal column with a pointed instrument and hammer. It took many blows for the chisel to break through the vertebrae, and even then, the spinal cord wasn’t completely severed. It can take around two hours for an animal slaughtered this way to die. Another common slaughter method is beating alligators to death with baseball bats.[40]
While Florida statutes make killing, possessing, or capturing alligators without a license a felony of the third degree,[41] Florida’s Regulations Governing the Operation of Alligator Farms[42] do not address inhumane treatment or slaughter on farms. As mentioned earlier, the omission of alligators as a qualifying animal under FLHSA and HMSA leaves Florida’s farmed alligators vulnerable to inhumane slaughter methods. Accordingly, adding alligators to the FLHSA would represent an important step toward recognizing that farmed alligators should be protected by humane slaughter standards, while a bolster to the FWC’s own recommendations. Moreover, according to a review of over 300 records requested from the FWC concerning farmed alligator inspections during the last five years, no single record addressed farm operators’ slaughter methods or standards.[43] The FWC do not ensure slaughter methods are an important focal point of inspections to enforce compliance, even by the current standards.
Humane Confinement
Except for limited standards that apply to USDA-certified organically farmed animals requiring year-round access to the outdoors, shelter, and exercise,[44] no single federal law governs the treatment of agricultural animals while on farms.[45] Accordingly, for the vast majority of farmed animals, their welfare is left to state regulation.
During the typical lifecycle of a Florida farmed alligator, most may be kept in near or total darkness for the entirety of their lives except at feeding and cleaning times.[46] By regulation, an enclosure for one alligator must be “of sufficient size to permit moving and turning both on a dry area and in a pool of water, the water being of sufficient depth to permit submersion.”[47] For pens with additional alligators, “the combined area covered by all their bodies shall not exceed 50 percent of [the] enclosure area.”[48] In practice, however, pens can be almost any size,[49] the floors of the pens slope down to allow access to an only inches-deep pool,[50] and the grow-out buildings that house the pens rarely contain windows.[51] Further, according to the FWC’s own inspection records, there are no sanitation standards applicable to alligator farms, which creates a potential health hazard to both alligators and humans.[52]
The confinement conditions that many farmed alligators experience starkly differ from their natural habitat and behaviors. In the wild, alligators are shy, reclusive, and do not normally congregate together except during breeding.[53] Alligators inhabit aquatic habitats like marshes, swamps, creeks, rivers, lakes, and ponds.[54] Males move around extensively and prefer to establish in open water.[55] Females typically prefer heavily vegetated, marsh-type habitats.[56] Alligators are also cold-blooded and bask in the sun to keep warm and they can live for more than 50 years.
Notwithstanding the FAC’s requirement of “humane confinement,” conditions imposed upon alligators in typical farming operations are inherently unnatural and stressful.[57] Signs of stress, and thereby sentience, include piling-up, reduced feeding, fighting, and stargazing.[58] Moreover, such conditions increase the frequency of aggressive incidents and injurious fighting between alligators that are usually quite placid toward members of their species.[59]
Recognizing the importance of an animal’s welfare during confinement, Florida has outlawed abusive agricultural practices like the intensive confinement of pregnant pigs,[60] going so far as to amend its constitution to “provide specifically for the humane treatment of pregnant pigs. . . [ensuring that their confinement areas are] large enough for them to turn around freely.”[61] Given the significant stress alligators exhibit in crowded, dark, and unnatural confinements, farmed alligators would benefit from confinement standards that provide more space, access to light, improved sanitary conditions, and access to enclosures that more closely resemble their natural habitats. Ethics aside, the Florida’s Aquaculture Best Management Practices note, “[s]uccessful aquatic animal husbandry demands that animals be held in optimal environments” because implementing humane confinement standards increases the commercial value of the product.[62]
Conclusion
The American alligator is closely inventoried under Florida’s population management program but largely overlooked across its farms, particularly related to animal welfare concerns. Slaughter and captivity, two prominent stages occurring along the lifecycle of any farmed animal, are often focal points for the implementation of animal welfare standards. As sentient beings, alligators express feelings of fear, distress, anxiety, and joy and should receive the same protections as other farmed animals. Recognizing alligators under the FLHSA, increasing focus and enforcement of humane slaughter methods during FWC alligator farm inspections, and requiring improved confinement conditions are all important steps to ensuring humane safeguards of these iconic Floridian residents.
[1] Fla. Stat. §15.0385 (2022).
[2] John K. Powell, Alligator Harvesting: Hunting as a Regulatory Tool for Species Management, 91 Fla. B. J. 22 (Feb. 2017), available at https://www.floridabar.org/the-florida-bar-journal/alligator-harvesting-hunting-as-a-regulatory-tool-for-species-management/.
[3] Elahe Izade, We Saved the Alligators from Extinction — Then Moved into Their Territory, The Washington Post, June 17, 2016, available at https://www.washingtonpost.com/news/animalia/wp/2016/06/17/we-saved-the-alligators-from-extinction-then-moved-into-their-territory/; see also Powell, Alligator Harvesting (other factors like loss of habitat contributed to population decline of alligators).
[4] The American alligator was added to the endangered species list under the Endangered Species Preservation Act of 1966 (ESPA), a predecessor to the Endangered Species Act of 1973, as amended (16 U.S.C. 1531, et seq.). See Native Fish and Wildlife: Endangered Species, 32 Fed. Reg. 4001 (Mar. 11, 1967).
[5] Endangered and Threatened Wildlife and Plants; Regulations Pertaining to the American Alligator (Alligator mississippiensis), 86 Fed. Reg. 5112 (proposed Jan. 19, 2021) (to be codified at 50 C.F.R. 17) (“However, [the American alligator] was reclassified under the [ESA] as ‘threatened due to similarity of appearance’ throughout its range…based on its resemblance to the American crocodile and other threatened crocodilian species.”); see also Florida Department of Agriculture and Consumer Services, Florida Alligator Marketing and Education, The Florida Alligator Industry, https://www.florida-alligator.com/General-Information/The-Florida-Alligator-Industry.
[6] Michael P. Masser, Alligator Production: An Introduction, Southern Regional Aquaculture Center (May 1993), available at http://fisheries.tamu.edu/files/2013/09/SRAC-Publication-No.-230-Alligator-Production-An-Introduction.pdf.
[7] Id.
[8] See FDACS, The Florida Alligator Industry, Alligator Farms.
[9] Florida Fish and Wildlife Conservation Commission, Farm Alligator Harvest (Table 2. Estimated producer value of alligator harvests on Florida farms during 1977-2021), available at https://myfwc.com/media/1712/alligator-farm-value.pdf.
[10] The authors note that the scope of review of state regulations is limited here to Florida.
[11] 21 C.F.R. §123.6(a).
[12] Fla. Admin. Code R. 68A-25.004.
[13] Florida Fish and Wildlife Conservation Commission, Alligator Farming, https://myfwc.com/wildlifehabitats/wildlife/alligator/farming/.
[14] FDACS, Division of Agriculture, Aquaculture Best Management Practices Manual 72 (June 2022), available at https://www.fdacs.gov/content/download/64045/file/BMP_Rule_and_Manual_FINAL.pdf; Treatment of Live Poultry Before Slaughter, 70 Fed. Reg. 56,624, 56,624 (Sept. 28, 2005), https://www.federalregister.gov/documents/2005/09/28/05-19378/treatment-of-live-poultry-before-slaughter (“The Food Safety and Inspection Service (FSIS) is reminding all poultry slaughter establishments that, under the Poultry Products Inspection Act (PPIA) and Agency regulations, live poultry must be handled in a manner that is consistent with good commercial practices, which means they should be treated humanely. Although there is no specific federal humane handling and slaughter statute for poultry, under the PPIA, poultry products are more likely to be adulterated if, among other circumstances, they are produced from birds that have not been treated humanely….”).
[15] Ralph A. DeMeo, Defining Animal Rights and Animal Welfare: A Lawyer’s Guide, 91 Fla. B. J. 43 (July/Aug. 2017), available at https://www.floridabar.org/the-florida-bar-journal/defining-animal-rights-and-animal-welfare-a-lawyers-guide/.
[16] Helen S. Proctor, et al., Searching for Animal Sentience: A Systematic Review of the Scientific Literature, 3 Animals 882 (2013), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4494450/.
[17] Mark James Learmonth, The Matter of Non-Avian Reptile Sentience, and Why It “Matters” to Them: A Conceptual, Ethical and Scientific Review, 10 Animals 901 (2020), available at https://www.mdpi.com/2076-2615/10/5/901/htm.
[18] Proposed Brief for Philosophers as Amici Curiae Supporting Petitioner-Appellant, In re Nonhuman Rights Project, Inc. v. Lavery, et al., No. 162358/15 & 150149/16 (N.Y. 2018), available at https://www.nonhumanrights.org/content/uploads/In-re-Nonhuman-Rights-v.-Lavery-Proposed-Brief-by-PHILOSOPHERS-74435.pdf.
[19] Ingrid L. Taylor, D.V.M., Animal Sentience and Emotions: The Argument for Universal Acceptance, PETA 2-4 (2021), https://www.peta.org/wp-content/uploads/2021/01/Report-on-Animal-Sentience_Ingrid-Taylor_2021_NE.pdf.
[20] Casey Riordan, Jennifer Jacquet & Becca Franks, Investigating the Welfare and Conservation Implications of Alligator Wrestling for American Alligators (Alligator mississippiensis), PLOS ONE 14 (Nov. 13, 2020), available at https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0242106&type=printable.
[21] Id. at 3.
[22] See generally Vladimir Dinets, Play Behavior in Crocodilians, 2 Animal Behav. and Cognition 49 (Feb. 2015), available at https://www.animalbehaviorandcognition.org/uploads/journals/5/04.Dinets_FINAL.pdf.
[23] See note 17.
[24] Gov.uk press release, Animals to be Formally Recognised as Sentient Beings in Domestic Law, (May 13, 2021), available at https://www.gov.uk/government/news/animals-to-be-formally-recognised-as-sentient-beings-in-domestic-law.
[25] Upton Sinclair, The Jungle (1905).
[26] Marne Coit & Theodore A. Feitshans, Food Systems Law: An Introduction for Non-Lawyers 22 (2020).
[27] Humane Methods of Slaughter Act, 7 U.S.C. §§1901-1906 (1958).
[28] Humane Slaughter Act, Fla. Stat. §§828.22-828.26 (effective July 7, 2009).
[29] Fla. Stat. §828.22(2)(b).
[30] Fla. Stat. §828.23(6).
[31] Fla. Stat. §828.22(2)(a).
[32] Animal Welfare Institute, Legal Protections for Farm Animals at Slaughter 8 (2019), available at https://awionline.org/sites/default/files/uploads/documents/fa-legalprotectionsatslaughter-12262013.pdf.
[33] Fla. Stat. §828.23(5); Kathy Hessler & Amy P. Wilson, Tipping the Scales: How Law and Policy Fail Aquatic Animals, Lewis & Clark Law School: Center for Animal Law Stud. (Jan. 27, 2021), https://law.lclark.edu/live/news/45101-tipping-the-scales-how-law-and-policy-fail-aquatic#:~:text=Both%20the%20Humane%20Methods%20of,animals%20from%20coverage%20or%20consideration.
[34] See note 14.
[35] Florida Fish and Wildlife Conservation Commission, Methods for Harvesting an Alligator, https://myfwc.com/wildlifehabitats/wildlife/alligator/harvest/hunt-guide/harvest-methods/.
[36] Id. (Open the tab “How do I humanely kill an alligator?” under “Frequently Asked Questions”).
[37] Javier G. Nevarez, George M. Strain, Anderson F. da Cunha, & Hugues Beaufrère, Evaluation of Four Methods for Inducing Death During Slaughter of American Alligators (Alligator mississippiensis), 75 Am. J. Veterinary Res. 536, 542 (2014), available at https://avmajournals.avma.org/view/journals/ajvr/75/6/ajvr.75.6.536.xml?tab_body=pdf.
[38] Florida Fish and Wildlife Conservation Commission (Over 300 records were reviewed as the result of the following request to the FWC under Florida’s Sunshine Law — “1: All violations of laws, regulations, statutes, best management practices, codes, policies, guidelines, and any other controlling rules that were committed by/on or alleged to have been committed by/on alligator farms from 2018 through 2022.” & “2: Dates of inspections of alligator farms from 2018 through 2022, as well as the names and addresses of which alligator farms were inspected. All documents from inspections of alligator farms from 2018 through 2022.”); see e.g., Report Number ISR048702 (01) (Captive Wildlife Report labeled by FWC as “Incident_Report (99).pdf”) (“He plans to keep and maintain adult alligators within a fenced in area for the purpose [of] selling them to other AFL license holders for paid hunts. This allows AFL license holders who also have guide services the ability to offer year round ‘canned hunts’ and charge clients to kill an alligator in a fenced in pond. This Alligator Farm practice has been approved through the Alligator Farm Management Program.”).
[39] Jim Hagy, Gator Farming Farmers Have a Tough Time Sinking Their Teeth into the Low Profits of Raising Alligators, Sun Sentinel (Apr. 26, 1987), available at https://www.sun-sentinel.com/news/fl-xpm-1987-04-26-8701260229-story.html.
[40] Michelle Sherrow, Alligator Farmers Don’t Like Getting Cut, PETA (Mar. 15, 2011), https://www.peta.org/blog/alligator-farmers-don-t-like-getting-cut/.
[41] Fla. Stat. §379.401 (2022).
[42] Fla. Admin. Code R. 68A-25.004.
[43] See generally note 38.
[44] National Organic Program (NOP); Organic Livestock and Poultry Standards, 87 Fed. Reg. 48,562 (Aug. 9, 2022) (to be codified at 7 C.F.R. pt. 205), available at https://www.federalregister.gov/documents/2022/08/09/2022-16980/national-organic-program-nop-organic-livestock-and-poultry-standards; see also U.S. Department of Agriculture, Organic Livestock and Poultry Standards, https://www.ams.usda.gov/rules-regulations/organic-livestock-and-poultry-standards.
[45] Animal Welfare Institute, Legal Protections for Animals on Farms 1 (Oct. 2018), available at https://awionline.org/sites/default/files/uploads/documents/FA-AWI-LegalProtections-AnimalsonFarms-110714.pdf. The Federal Animal Welfare Act does not provide any protections for farmed animals, only regulating the treatment of animals in research, teaching, testing, exhibition, transport, and by dealers — and even those categories are riddled with exceptions. Id.
[46] Michael P. Masser, Alligator Production Grow-out and Harvest, Southern Regional Aquaculture Ctr. 1 (1993), available at https://myfwc.com/media/1684/alligator-232fs.pdf.
[47] See generally Florida Fish and Wildlife Conservation Commission, Alligator Regulations and Associated Statutes (referencing FWC inspections), https://myfwc.com/media/1744/alligator-rules-booklet.pdf.
[48] Fla. Admin. Code R. 68A-6.01214.
[49] See note 46.
[50] Thomas J. Lane, D.V.M. & F. Wayne King, Alligator Production in Florida, UF Coop. Extension Service (1996), available at https://myfwc.com/media/1727/alligator-ifasvm52.pdf.
[51] See note 46.
[52] See, e.g., note 38, Report Number ISR077450 (01) (Captive Wildlife Report labeled by FWC as “Incident_Report (85).pdf”) (“When I entered the grow-out building, I observed large swarms of American Cockroaches on every surface. I was unable to continue with the inspection and I exited the building. I…thought there was a possibility that the alligator die off might be related to the infestation of disease carrying roaches…Alligator farms do not have a set of sanitary standards….”).
[53] Id.
[54] Michael P. Masser, Alligator Production, Southern Regional Aquaculture Ctr. (May 1993), available at https://myfwc.com/media/1682/alligator-230fs.pdf.
[55] Id.
[56] Id.
[57] See note 46.
[58] Id. (“Stargazing is…a position the alligator assumes by rising up on its front feet, arching its back and neck, and pointing its snout into the air…[and] has been related to a vitamin B deficiency and sign of stress.”); see also note 20.
[59] Learmonth, The Matter of Non-Avian Reptile Sentience, and Why It “Matters” to Them at 901, 916.
[60] Kelly Levenda, Science-Based Farmed Animal Welfare Laws for the U.S., 13 J. Animal & Nat. Res. L. 93, 100 (2017).
[61] DeMeo, Defining Animal Rights and Animal Welfare.
[62] See note 14, FDACS, Division of Agriculture.
Scott Guarcello is a member of the Bar’s Animal Law Section currently serving as secretary to its executive council and chair to its Farmed Animal Committee. He focuses his practice on electronic discovery issues in complex litigation, particularly securities class actions on behalf of investors, and has been awarded Best Lawyers Ones to Watch! 2023, Palm Beach Illustrated Top Attorney 2020-2022, Super Lawyers Rising Star 2020, and the Florida Trend Legal Elite Award 2017-2018. Guarcello earned a B.S. from Stetson University and received a J.D. from Florida International University.
Leigh Cremer Markowitz works as a clinical fellow at Nova Law School’s Disability Inclusion and Advocacy Law Clinic. She graduated from Duke University School of Law in 2019, where she spent three years as president of Duke’s student chapter of the Animal Legal Defense Fund, during which time she organized and hosted two successful animal law conferences, which brought in speakers from across the country. She is also teaching animal law at Nova this summer.
Julia Williams is an experienced litigator and veteran of the U.S. Air Force. She graduated from Florida International University College of Law in 2016. While serving in the JAG Corps, she prosecuted military offenders in courts-martial and civilian offenders as a Special Assistant United States Attorney. To increase agricultural animal welfare and decrease environmental impacts from agriculture, she is now pursuing an LL.M. in Food and Agriculture Law and Policy at Vermont Law and Graduate School.