Cascading Opportunities for Propertied Wildlife

Dennis Papadopoulos

Cascading Opportunities for Propertied Wildlife

Wildlife as Property Owners: A New Conception of Animal Rights

by Karen Bradshaw

Chicago: University of Chicago Press, 2020

In the face of looming ecological catastrophe and dystopian lack of political will, new ways to raise legal challenges and intervene on behalf of animals and ecosystems might offer light amid growing despair. Karen Bradshaw’s Wildlife as Property Owners: A New Conception of Animal Rights offers just such a non-ideal conception from which a host of questions and new opportunities cascade. Her central idea is that animals already have implicitly recognized property rights over territory and more specific resources. Making these rights explicit will provide new legal tools to protect implicit entitlements.

The existing implicit recognition manifests itself in the setting aside of land for wildlife preservation. The most obvious instances occur in public land management, where public agencies restrict access and use of this land partly for the sake of wildlife. Another instance can be found in public-private partnerships through incentives like tax easements for private land owners who agree not to develop wilderness, where such easements explicitly protect wildlife.[1] There are also more specific rights to access certain resources, such as the fera naturae doctrine that grants wildlife rights to move, graze, and use water in private lands.[2] In some cases, resources apply to specific species, such as wild horses being given priority for grazing on public land, the dams of beavers being protected even in urban spaces, or resources set aside to better support endangered species.[3] Even in their current form, these protections provide ground for legal action where activists might challenge agencies that control land on behalf of wildlife for not adequately following their mandates to protect and prioritize wildlife.[4]

Bradshaw’s novel normative argument is that we should make these property rights explicit so they can be better protected. She suggests that trusts could make land management decisions for non-human animals; humans can already establish trusts for animals by setting aside resources in a will for continued animal care after death. This proposal has three benefits over existing regulatory bodies: it comes from an established body of law applying to private and public sectors, mitigates a certain sort of mismatch between land parcels reserved for biodiversity and the needs of ecosystems, and finally, it is a framework that can include diverse stakeholders. Each of these benefits poses a novel set of questions for further exploration.

Extending the established body of trust law to wildlife opens up new ways to hold those with mandates for animal protection to account. However, it leaves us with questions about how to determine whose interests count, as the wild animals occupying a territory held in trust might change and have competing interests. Bradshaw suggests biodiversity interests ought to be prioritized, conceding this could mean that the ecosystem as a whole, rather than specific communities of animals, might be the property owner.[5] This position allows us to reimagine debates over conservation priorities as debates over property rights and access rights to land, water, and resources.

Trusts might better mitigate competition for resources between various public agencies, private actors, wildlife, and ecological communities. This possibility is especially exciting because it goes beyond earlier frameworks of animal property rights, insisting property rights for animals might be good for humans as well.[6] Unlike existing agents, trusts might exchange small land parcels of high development value for larger ones of lower value or effect other kinds of exchange to secure mutually beneficial boundaries for the trust’s clients and the other interested parties. In addition, trusts might negotiate for shared access to certain resources, seasonal variation, etc. Such an improved matching of property rights might contribute to securing biodiversity.[7] In addition to a host of ecological questions about how land might be better distributed, the proposal also raises social science questions about how we might motivate landowners to deploy effective ways of protecting wildlife on and around their land.[8]

Finally, a trust system allows for dynamic stakeholder collaboration—instead of cost-benefit analyses—where diverse and marginalized voices, like Indigenous communities, can be actively involved in deciding how, where, and when to prioritize wildlife access.[9] Focusing on intercommunity collaboration builds solidarity between animal ethics and decolonial projects. Ecosystems, animals, rivers, and plants are often considered agents and protected by Indigenous law, sometimes in terms of rights like personhood.[10] Empowering Indigenous communities and learning from Indigenous legal traditions might change the imaginary of wildlife ethics. Instead of narrowly focusing on the Western idea of respect for the rights of individual animals, we might imagine a pluralist and decolonial negotiation about sharing resources in interspecies communities.

DENNIS PAPADOPOULOS is a postdoctoral researcher in the FWF (Austrian Science Fund) Morality in Animals project (P31466-G32) at the Messerli Research Institute, University of Veterinary Medicine, Vienna. He holds a Ph.D. in Philosophy from York University, Toronto.

dePICTions volume 3 (2023): Critical Ecologies

[1] Karen Bradshaw, Wildlife as Property Owners: A New Conception of Animal Rights. Chicago: Chicago University Press, 2020, 89.

[2] Bradshaw, Wildlife as Property Owners, 57.

[3] Bradshaw, Wildlife as Property Owners, 57-59.

[4] Bradshaw, Wildlife as Property Owners, 84.

[5] Bradshaw, Wildlife as Property Owners, 75.

[6] See Karen Bradshaw, “Animal Property Rights,” University of Colorado Law Review, 89 (2018): 809-861; John Hadley, Animal Property Rights: A Theory of Habitat Rights for Wild Animals,London: Lexington Books, 2015.

[7] Challie Facemire and Karen Bradshaw, “Biodiversity Loss, Viewed through the Lens of Mismatched Property Rights,” International Journal of the Commons, 14.1 (2020): 650-661.

[8] Zachary Hurst and Urs Kreuter, “Place-based Identities of Landowners: Implications for Wildlife Conservation,” Society & Natural Resources 34.5 (2021): 659-680.

[9] Karen Bradshaw, “Stakeholder Collaboration as an Alternative to Cost-benefit Analysis,” BYU Law Review, 2019.3 (2020): 655-723.

[10] Erin O’Donnell, Anne Poelina, Alessandro Pelizzon, and Cristy Clark, “Stop Burying the Lede: The Essential Role of Indigenous Law(s) in Creating Rights of Nature,” Transnational Environmental Law, 9.3 (2020): 403-427.