I am sitting in Assisi, Italy, as I write this, within a stone’s throw of the chapel that was home to Saint Francis of Assisi. The patron saint of Italy and namesake of the new pope, Francis is most well-known for two things: the kindness he showed to animals, and his call to the faithful to return to the basics: love, love for all of God’s creatures.


The new pope is Francis the First, and his choice of that name is important. It signals a return to a simpler faith. Often, the Catholic Church has a way of making the simple complicated. For example, the little chapel used by Francis and his monks is perhaps twelve feet high, and maybe twenty feet long. But the Church, wanting to honor a man known for simplicity, built an enormous and ornate basilica that surrounds and enshrines the little chapel. The metaphor is wonderful.


I admire Francis because he was unique, a kind man in a century of brutality, a man who believed in kindness by all, to all, without regards for species. The 13th Century was a time of incredible cruelty to those species – whether human or not – who happened to fall afoul of those more powerful. And it is that thought which leads me to the reason for this article.


If I could go back in time and do one thing, only one thing, that would change the world as we know it, I would go back about five or six thousand years and erase one verse from Genesis, verse 1:26. It reads:


“And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth.”


That verse, and in fact all of the Bible, was incorporated in large part in the English Common Law, and those laws were later codified, leading to the statutes and regulations that govern us today. This concept of dominion over all things has wormed its way into every part of western culture. Manifest Destiny stems from the divine rights bestowed upon our conquering forefathers by God, and not just any God, but the God of Abraham and Moses, Jesus, John and Paul. The English, the French, and the Spanish conquered their way around the world based upon this concept, that they had – literally – a God given right to take over the world, because God had given them dominion over all living things.


Thousands of years later, that concept is ingrained in our world view. Without it, life would be very different. The Navajo view animals as their partners, brought into this plane with them as equals. Even the lowly turkey brought gifts to the Navajo, and for that reason the turkey is not to be hunted. One of the ancestors of the Lakota Sioux was White Buffalo Woman who taught the People how to hunt, and how to give thanks each and every time they took a life, in appreciation that another had to die to help the People survive. Thus, not every culture believes in the unashamed slaughter of non-human species. We could have traveled another path.


Think of what this world would be like if that one phrase from Genesis never came into being, how the law itself would be different. People scoffed at the Sierra Club v. Morton case (405 U.S. 727 (1972), which sought to give trees standing, so that an old growth forest, here a thousand years before Jesus, could be protected against destruction. If Genesis were re-written, would the English Common Law have recognized that all species have a right to exist, without undue interference? The law in this country eventually evolved to catch up with the “trees have standing” concept, and the Endangered Species Act, the National Environmental Policy Act, and the Clean Water Act stepped into the obvious hole.


The holocaust brought on by what is haughtily called “resource development” has caused the extinction of so many species that we cannot keep up with the losses. The International Union of Conservation of Nature and Natural Resources’ latest Red List of endangered, threatened and extinct species reads like a summary of most of the planet’s inhabitants, with the coral reefs and amphibians at the greatest risk of dying out in the next fifty years ( Since the start of the last century (1900), we have forced the extinction of hundreds of species worldwide, with 232 lost in the United States alone. Thousands more are anticipated to be lost in the next 100 years. With global climate change, that number is expected to skyrocket. The situation in the Amazon is tragic; half a world away, we are losing polar bears at an alarming rate and all because mankind has a God-given right to dominion over all living things.


The use of living breathing creatures, “God’s creatures” to quote Saint Francis, as test subjects is a crime that continues to slaughter an estimated 27 million animals every year (25 million rats and mice, 65,000 dogs, 210,000 rabbits, 21,000 cats, 53,000 pigs and more). Ninety percent of the animals killed – including the mice and rats – are excluded from the Animal Welfare Act. It is state-sanctioned cruelty so heinous that even reading the Code of Federal Regulations will cause you to retch. The Code (9 CFR Parts 1 and 2) explains in painstaking and mind-numbing detail the proper way to torture an animal to death. Rabbits are discussed in 9 CFR 354. What the CFRs don’t explain is that rabbits have literally broken their own necks in an effort to escape from the experiments conducted upon them in restraints designed to prevent them from exercising their primary instinct: to run from danger. What happens to rats and mice is as bad, perhaps worse, and those species are not protected by law. But we were given dominion over all the creates that fly and crawl over the earth, so we are somehow entitled to continue this moral breakdown. If only I could re-write Genesis, just excise that one little phrase!


And of course, there are the companion animals, the ones we feed, and walk, and sometimes dress in little clothes. The No Kill movement is working hard to change the way animal shelters are run, to maximize adoptions, reunite lost animals with their people, increase in-shelter medical care, and minimize euthanasia. In a twist that has no rational basis, some of the nation’s largest “animal welfare” organizations, including the Humane Society of the United States and People for the Ethical Treatment of Animals, have fought against No Kill Shelters. The No Kill Movement has diligently researched how to make shelters optimize saving animals and minimize killing. It is a combination of many factors: use of volunteers in shelters and foster parents outside of shelters to supplement cash-strapped municipalities; micro-chipping all adopted animals to make sure that lost animals get back to their people; establishing message boards and lost-and-found internet sites; spay and neuter outreach, especially in the poorer communities with less disposable income to pay for the surgery, with the aim to minimize births in the community; licensing as a tool both to keep revenue up and to increase education among pet owners. The No Kill-sponsored Companion Animal Protection Act is being brought to legislators across the country and is being passed by more and more public entities (see Once initiated, the Act serves as a template for No Kill, and it is working.


These are tried and true techniques. No Kill has been initiated in cities large and small. Austin, Texas, was killing 20,000 animals a year, with only a 45% save rate; shortly after initiating No Kill in 201, the save rate doubled, to 91%. Allegheny County, Maryland went from an 85% kill rate in 2010, to a 94% save rate in 2011, only one year after initiating the No Kill protocols. Shelbyville, Kentucky, a rural shelter, went from high kill to a 94% save rate for dogs and a 98.5% save rate for cats. The Seagoville, Texas, shelter, in the first year of No Kill, killed less animals in its first year, than it previously killed in a week. Reno, Nevada is a No Kill shelter. It went from filling 15 barrels per day with the dead with two full-time animal control officers dedicated only to killing, to a 94% save rate. This, in a city beset by the recession and a population that is highly transient (


Yet even with these impressive statistics, HSUS and PETA claim that No Kill is a myth, and continue to support high kill shelters. In fact, PETA kills almost 90% of the animals that it “rescues” (see John Homans, LA Times, Feb. 10, 2013). People, especially the members of HSUS and PETA, should recognize that companion animals have a right to live. It is difficult for me to comprehend how we as a species have a “right” to determine which other species can live and die. Whales may be far more intelligent than we are; they have complex social structures and language, just as we do. Blue whales send their songs through the oceans for thousands of miles, although the Scripps Institute is now reporting that those songs are diminishing. Recently, elephants in Zululand mourned the death of Lawrence Anthony, a human researcher. Anthony died on March 7th. On March 10th, two herds of elephants walked for 12 hours to his home. They stayed for two days, and then quietly left. Anthony was a great friend to the elephants, having spent his life on conservation of the African herds (his most recent book, The Elephant Whisperer, was an international best-seller). Recently released research indicate that the wolves of the northern states also have a very complex social structure, which is shattered by the killing of pack members in the name of preservation (see, e.g., “Wolf Family Values,” New Scientist Magazine, 12 June 2010).


So here we are, Francis. In our century, humankind has become very efficient at killing God’s creatures, through global climate change, habitat loss and destruction, animal experimentation, and relentless euthanasia. And I haven’t even touched on factory farming. We need a leader like you. But in the meantime, perhaps you could work a small miracle and delete that pesky phrase out of Genesis for me.


Kate Neiswender is a Ventura-based land use and environmental lawyer. She will be lecturing again this year at the July 13-14 No Kill Conference in Washington DC on “Legislating No Kill” and “Use of Public Records In Forcing Shelter Reform.”

What To Look For In A Contract

What To Look For In A Contract

Many times, I get phone calls from clients asking me to prepare a contract, based on a few basic facts: an agreement to buy a new product, set up a partnership, enter into a new lease.  The details are usually short and sweet, but the contract is not.  Why?

A contract is an agreement to set up an amicable and profitable arrangement between two parties, but also a document that is intended to protect the parties when things go wrong.  Really, a written contract is not even needed if things go well.  No, the reason a contract exists is because things may go wrong, the parties begin to argue, the deal does not go as planned.

What I need from you – what any lawyer needs – is for you to think long and hard about what could go wrong.  In a contract for the sale of goods, what happens if the merchandise is defective?  Is there a warranty?  In a lease, what happens if the leasing party wants out of the lease?  What happens if the leased premises isn’t what was promised?  Perhaps the most important question is who pays for the costs of a default: who pays to ship a defective product back to its source?  Who pays to restore the premises to its original condition?  Is there an attorneys’ fees clause, so that the defaulting party has to cover the other party’s costs and fees?

There are as many possible default scenarios as stars in the sky.   In a contract for machined parts, there could be issues over the suitability of the part; the failure of the ordering party to provide proper specifications; failure of design or materials; and countless other issues.  In a simple real estate lease, there could be questions over the suitability of the premises, the length of the lease, default due to failure of the business, default due to the economy, and many other problems.

Only you – as the expert in your business – can predict what might go wrong.  Your examination of the potential problems with your contract is more important that the details of the deal you are trying to memorialize.  Think about what you want from your new partner, and then spend as much time (or more!) thinking about what could go wrong.

Write these ideas down.  Your lawyer may not use all of your ideas, but this is critical information that could protect you if and when a lawsuit is filed.  Think of a good contract as an insurance policy.  You never want to use it, but it should protect you if and when things go wrong.