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Know the West

Conservationists join animal rights groups to challenge Idaho ag gag law


Idaho’s sweeping new ag gag law, enacted in February, raises so many red flags that the Animal Legal Defense Fund has filed a lawsuit against it, only the second suit of its kind in the nation. But this time, in a new twist on ag gag litigation, the animal rights non-profit is joined by conservation groups, too.

That’s because this new statute – designed to prevent people from documenting what goes on in factory farms, like all of the now seven total ag gag laws in the U.S. – is alarmingly broad, according to senior ALDF attorney Matthew Liebman, affecting “virtually any place where there’s any interaction between humans and animals and plants.” The law defines an agricultural facility as “any structure or land, whether privately or publicly owned, leased or operated, that is being used for agricultural production” (emphasis added), and makes it a crime for virtually anyone to film or photograph in such places without express consent. But with such a broad definition, the law could potentially apply not only to factory farms and slaughterhouses like ag gag laws in other states, but also to public parks, restaurants, nursing homes, grocery stores, pet stores, and virtually every public establishment and private residence in Idaho, according to the lawsuit.

The law’s definition of “agricultural production” is also a catch-all, referring to any activity related to the production of food, fiber and fuel, including everything from construction, maintenance, pesticide or herbicide handling, planting, irrigating, harvesting plants, raising or producing, animals, and processing or packaging any agricultural product – and more. Dan Steenson, an attorney for the Idaho Dairymen’s Association (IDA) and author of the statute, is quoted in court documents as saying that the law could even apply to an employee who photographs a non-animal related violation – a blocked fire exit, for example.

But according to Bob Naerebout, executive director of the IDA, "The bill protects farmers and their families from misrepresentation, lies and deceit by individuals that intended to damage what they have worked a lifetime to build.”  The law, he said, does not punish people for reporting illegal, unsafe or unethical activities – a direct contradiction to how ALDF and its 11 co-plaintiffs interpret the statute.

For the conservation group Western Watersheds Project (WWP), a co-plaintiff in the lawsuit, the all-encompassing law means the group's staffers could be charged with a crime for doing their normal work. This includes using photos, videos and other methods to monitor the impact of grazing on Western public lands, and sharing the information with land management agencies so they can address violations.  WWP director Travis Bruner said that the land management agencies they work with often don’t have the resources to do this monitoring themselves; other times, land managers turn a blind eye to violations because they have personal relationships local grazers, Bruner said. While there are instances of well-managed public lands ranching, WWP says it is a primary cause of native species endangerment, desertification and non-point source water pollution (or pollution from diffuse sources) in the West, with a particularly severe effect on riparian areas.

This sort of degradation on BLM land, resulting from the placement of a temporary corral, is typical of what WWP documents. The corral has just been removed, its outline is the entire dirt area pictured here. Photo courtesy of Travis Bruner.

This lawsuit marks the first time WWP has partnered with an animal rights group in court, or that ALDF has partnered with a conservation group – an indication of how different this particular ag gag law is from others on the books in other states. Bruner said in a statement that the law clearly targets whistleblowers and journalists exposing the harms of factory farming operations, criminalizing the planning, assistance and carrying out of undercover investigative activities, which gives the agriculture industry “a virtual monopoly” over information vital to public wellbeing.

The impact on conservation work isn’t the only troublesome issue with the law. In Idaho as in Utah, where the other ag gag lawsuit is underway, ALDF says the law’s broad terms threaten First Amendment freedoms. “Intentionally or not,” the lawsuit reads, “the law chills and criminalizes a plethora of protected speech that is not even related to animal welfare, including worker safety, food safety, labor laws, and other types of agricultural industry misconduct” – much more of a “chilling effect” (the effect of discouraging free speech with the threat of punishment) than constitutional law permits. The lawsuit also points out that, to a greater degree than in Utah, the Idaho statute seems designed to “discriminate on the basis of animus” toward animal rights activists in particular: Proponents of the bill in the Idaho legislature compared animal activists to “marauding invaders,” equating undercover investigations to “terrorism” and “vigilante tactics” designed to hurt the dairy industry and destroy the nation’s ability to produce food, the lawsuit notes.

Invasive weeds, which have grown in place of native plants that were removed by over-grazing near an old corral on public lands in Idaho. Photo courtesy of Travis Bruner.

And no other Idaho law targets such a specific type of whistleblowing or investigative journalism, according to the lawsuit. In the medicine and finance industries for example, whistleblowing isn’t considered a crime. Yet whistleblowing and undercover investigations in agriculture have had tremendously positive impacts on public welfare: In the past decade, “animal protection advocates have conducted more than 80 undercover investigations at factory farms,” all of which have led to either food safety recalls, citations, closures, criminal convictions or litigation, according to the lawsuit.

As if that weren’t enough, Liebman said that with the new law, “The state ends up punishing those who expose animal cruelty more seriously than those who commit it.” Conviction under the ag gag statute can bring up to one year in jail, and fines can range as high as $5,000 – longer and more expensive penalties than many of the crimes that would potentially be documented.

Meanwhile down in Utah, the other ag gag lawsuit drags on: The hearing originally scheduled for February is now delayed until August, when the state is expected to refute the charges.  With so much swept into the purview of the Idaho ag gag law, Liebman is confident the lawsuit has a strong chance of succeeding in overturning it. Naerebout said the IDA will seek intervener status to join the state of Idaho as a defendant against the charges.

Christi Turner is an editorial intern at High Country News. She tweets @christi_mada.