1. Come check out hundreds of awesome coop pages (and a few that need suggestions) in our 2018 Coop Rating Project!

The Right to Grow and Raise Your Own Food

Discussion in 'Local Chicken Laws & Ordinances' started by MichAttorney, Sep 27, 2012.

  1. MichAttorney

    MichAttorney In the Brooder

    May 9, 2012
    I was reading the thread in this section on the challenge in Canada on the "Right to Food." Of course, being an attorney, I was intrigued by that thought and wondered what case law there might be in the United States on that concept (after all, the U.S. and Canada do share a common law tradition. Certainly, I knew of some of the fundamental rights that have been recognized by the Supreme Court, including the right to travel, the right to marry, the right to privacy, etc. I knew of some cases that I had studied a while back dealing with the rights to enjoy the common occupations of life. I had not really done a lot of research into the whole notion of - what about the right to food, or the right to grow your own food.

    The reason that I want to start looking into this is because in this part of the forum, the title of the forum appears to assume that the locality has the right to zone how it will. The focus is on changing the ordinance (which may not be a bad way to go about it).

    For the Michigan crowd, we have the Michigan Right to Farm Act which preempts all zoning ordinances that would seek to affect commercial farming operations, and the issue there is how do the citizens of the good state of Michigan enforce their rights under the Right to Farm Act.

    But, as I got to thinking about the issue, it is much more fundamental than that.

    The issue is not changing the ordinance. The real issue is challenging the whole notion that any level of state government can interfere with your fundamental right to provide yourself with the necessities of life. Can the state stop you from growing and raising food? Note, this is different than saying you have a "right to food." One has to be careful about how to frame the right. A "right to food" can be construed to mean a right to have food provided for you. To me, the right that is much more easier to defend is the right for any person to pursue, through his own efforts, the necessities and sustenance that he needs to live. Framed this way, the right you have is to use your own industry, on your own land, to raise and grow your own food. It's not a right to have things handed to you - it's a right to use your own hands to provide for yourself (a much easier concept for people to accept and agree with and one that is supported in the case law).

    Why is exploring this avenue important? Simply, I want people to start challenging zoning ordinances properly, and I think it can be done. But it requires proper argumentation and understanding what is, or is not, a right; what rights are fundamental; how can rights be affected by duly enacted laws; etc.

    One has to get away from the notion that they need to just sit back and have their rights trampled on. Don't sit back and just allow the city to tell you they have the right to zone you right out of your ability to use your land. I can tell you this, they cannot.

    So let's get started ...
    5 people like this.

  2. MichAttorney

    MichAttorney In the Brooder

    May 9, 2012
    The first issue in defending your right to raise animals is to understand a distinction in the law between different kinds of animals.

    The common law distinguishes between two classes of animals: (1) wild animals / game (ferae naturae), and (2) tame animals (domitae naturae).

    In the case of Geer v. Connecticut, 161 U.S. 519 (1896) the Supreme Court dealt with the issue of whether the state could control the taking of game (ferae naturae). The Supreme Court said yes. Wild animals are in the possession of nobody. In England, the wild animals belonged to the king, who could license the taking of game. Here, the people are the sovereign, and thus the state can control the taking of game.

    Interestingly, there are other interesting cases dealing with how one can lawfully acquire game and reduce it to their possession and control. For example, where one acquires game lawfully in one state (reducing the game to lawful possession), and transferring it to another state.

    One of the questions to ask is - if birds are game, does that mean that chickens are ferae naturae ...are chickens game? The short answer is no.

    "Turkeys, like chickens, are domestic poultry." Nelsen v. Harder Royal Breeders, Inc., 290 Minn. 302 (1971).

    State v. Lee, 41 So.2d 662 (Fla. 1949) (citing Wharton's Criminal Law for the proposition that "But all valuable domestic animals, as horses, and all animals domitae naturae, which serve for food, as swine, sheep, poultry, and the product of any of them, as eggs, milk from the cow while at pasture; and wool pulled from the sheep's back feloniously; may be the subjects of larceny.")

    The important point here is that domestic animals are considered
    personal property. This standing is important for numerous reasons. For example, due process rights apply in depriving one of a property right.

    Furthermore, one can defend his personal property (domitae naturae) against wild animals (ferae naturae). In the case of Aldrich v. Wright, 53 N.H. 398 (1873) the owner of geese was allowed to defend them by shooting several minx approaching and harboring bad intentions.

    So - you have chickens, they are domestic animals (not wild), and they are personal property. Furthermore, you even have a right to defend them against attack from wild animals.
    4 people like this.
  3. hillbillyfarmer

    hillbillyfarmer In the Brooder

    Jul 9, 2010
    GREAT thread! You definitely have my attention!
  4. chickortreat

    chickortreat Songster

    May 26, 2009
    A quote from Open Range......"Man's got a right to protect his property and his life, and we ain't lettin' no rancher or his lawman take either."

    Not trying to take away from the OP's perspective, but I feel that much of the situation now being faced by American citizens could have been avoided altogether if folks had not hung their heads and tucked their tails years ago when all this crap got started. Who first thought up the idea of telling someone else what they could or could not do on their own property? And why didn't they receive a timely drubbing to remove such nonsense from their mind?

    And yes, I agree, my livestock belongs to me, and I will defend them against ALL threats.....foreign or domestic.
  5. DaikaijuTorira

    DaikaijuTorira In the Brooder

    Sep 12, 2012
    Bradenton, Florida
    I agree completely. This is exactly what we've been thinking every time we've heard the concern that poultry would have a negative effect on property values. Where is the value of property if not in the ability for the owner to provide for themselves and their family the basic necessities of life? I tried checking for Florida's RTF act (didn't even know we had one) and I have a question: "Except as otherwise provided for in this section and s. 487.051(2), and notwithstanding any other provision of law, a local government may not adopt any ordinance, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461, ...." (Full Text) Would this be translated to mean our version of the act does not provide protection for land already outside the agricultural zones within Florida? MichAttorney, Hello and :welcome and thank you for providing this great information, I still plan on researching more to see if there is some way to make it work for here, but for now my layman brain can't take anymore legalese. :/ You wouldn't happen to have a partner/friend in the Tampa Bay area, would you? :D
  6. olefarmersdaughter

    olefarmersdaughter Songster

    Jun 15, 2008
    Omaha, Nebraska
    I would like to know when it changed from the government looking to us to provided food vs. us looking to government to provide food.
  7. chickortreat

    chickortreat Songster

    May 26, 2009
    Around 1861....
    Last edited: Oct 2, 2012

  8. TXchickmum

    TXchickmum Songster

    Apr 21, 2012
    North Texas
    -superb thread!! History and law - love it! -have my attention on this one.......!
  9. jak2002003

    jak2002003 Crowing

    Oct 24, 2009
    We have to remember we are not living in isolation form other people and we have to do what is right for our society. So I don't think people should have the 'right' to raise food animals. It depends of the situation and area. What if people wanted to start raising pigs or cows in apartment buildings in the city centre?

    Its fine to raise animals in an urban or farm environment, or if you have a large garden. Also laws need to be in place to make sure the way the animals are reared in clean and humane.
  10. chickortreat

    chickortreat Songster

    May 26, 2009
    I both agree and disagree....how much land should one have to own before "earning" the "right" to raise food animals? And is there not a vast difference in raising a few chickens and raising a couple of hogs?

    As to doing what is right for our society, well that's a highly debatable topic in itself, as what's "best" depends almost entirely on who you ask.

    And your last sentence is most humorous. You say "laws need to be in place to make sure the way the animals are reared is clean and humane." So you expect to make a law to "make" me treat my chickens humanely, (which I have no problem with, BTW), and then make a law that says I have to stand by and watch a hawk kill my chickens while telling me I can do nothing to the hawk (which, BTW, I DO have a problem with).

    I live out in the country....I can't see myself living anywhere else. And living out here has its advantages. No nosy neighbors, no stray dogs.....what's not to like? (Oh, and I have the right to grow my own food, too!)

BackYard Chickens is proudly sponsored by