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U.S. v. Park (9th Cir. - Aug. 11, 2008)

By Shaun Martin

Hmmm. At first, Judge McKeown had me totally convinced she was right. But then I thought: "Wait a minute, I'm not so sure." And that's still where I am.

Let me first just totally agree with Judge McKeown on the central point. Or at least on the point as Justice McKeown articulates it. Defendants have some property along the Clearwater River in Idaho an easement of which allows them to engage in "livestock farming." So clearly they can raise chickens, which surely are livestock. But what about dogs? Which is a relevant question, since that's what defendants are now doing (and what the United States files suit to enjoin).

Judge McKeown frames the question as follows: "In this appeal, we are asked to determine the unusual question whether dogs are 'livestock.'" And while the district court said that they weren't, and hence granted summary judgment to the United States, Judge McKeown disagrees. She holds: "Despite a gut inclination that the answer might be ?no,? resolution of the issue is not so clear, thus precluding summary judgment at this stage of the proceeding. As it turns out, the term ?livestock? is ambiguous at best and much broader than the traditional categories of horses, cattle, sheep, and pigs."

On that point, I agree with her. Especially after reading the opinion. Maybe dogs aren't livestock. But maybe they are. Context and intent are important. So I agree with her that summary judgment would not be proper on the ground that dogs categorically don't count as "livestock".

So that's where I was after I first finished reading the opinion. Totally, totally in agreement. With an opinion, quite frankly, that I thought (and still think) is incredibly well-written.

But then, for whatever reason, I read it again. Because, I think, in the back of my mind, something about it just didn't seem right. Even though, intellecually, I was (again) completely on board.

And then figured out what my problem was. A problem that I couldn't initially even articulate, but which I think my subconscious grasped well before my conscious brain was actually aware of the problem.

Here's the scoop. I agree with Judge McKeown that dogs might potentially be livestock. So the defendants are, in my view, potentially (though not certainly) entitled to raise them. Maybe that's indeed included within the scope of the easement for "livestock farming".

But, as I reread the case, I suddenly realized: that's not what the defendants are doing. And is potentially why the district court was correct to grant summary judgment.

Defendants aren't dog breeders; in other words, they're not raising dogs like you'd raise sheep or chickens or whatnot to sell. Rather, they're running a kennel (and an associated dog training service). Now, it may well be that dogs count as livestock. But the easement only allows "livestock farming". That may potentially cover a dog breeder, who raises and sells animals, but now that I look at it, I don't see how a dog kennel counts. That's not the raising and selling of livestock. It's not doing to animals what we do, on a regular farm, to plants. It's instead the taking care of animals. So even if those animals are livestock, that's still not livestock farming.

Take, for example, a veterinarian. They take care of animals too. But surely a veterinarian isn't engaged in "livestock farming", right? Even if they only work on cows; i.e., livestock.

So I think the appropriate focus is not only the one centrally addressed by Judge McKeown, which involves the word "livestock," but rather should focus on the whole phrase. Because the former point is one on which I think she's clearly correct. But the only thing that Judge McKeown says in the entire opinion with respect to the additional caveat that the plaintiffs must be engaged in lifestock farming is the following: "The word ?farming,? which follows ?livestock,? is unhelpful because ?to farm? is simply defined as ?to engage in raising
crops or animals.? But that seems wrong. Yes, it doesn't help us decide whether dogs count as livestock. But it does tell us whether the district court correctly granted summary judgment on the ground that defendants aren't engaged in livestock farming, right?

Admittedly, I haven't read the district court's opinion, so don't know whether it really (or clearly) focused on the phrase "livestock farming" as a whole rather than on the single word "livestock". But, at a minimum, I think that the "farming" limitation (1) is more significant than Judge McKeown's opinion first led me to believe, (2) may well provide, at worst, an alternative basis upon which the district court's grant of summary judgment could (and perhaps should) be affirmed, and (3) perhaps requires at least brief additional discourse, especially since one leaves Judge McKeown's opinion (or at least I did) with the belief that the case at this point gets to go to trial. But I don't think that's in fact the case. It may well be -- or at least I've persuaded myself -- that the district court's grant of summary judgment should probably be affirmed, albeit potentially (if the district court's opinion only relied on the word "livestock") on alternate grounds. Or, at a bare minimum, that the opinion should clearly state that it doesn't reach the issue of whether defendants were engaged in "livestock farming" as a whole, an opinion that's instead left for remand.

Those are my (extended) thoughts, anyway.

Full post as published by California Appellate Report on August 18, 2008 (boomark / email).