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Great Apes and the Law
Maps of State Laws
DEALING DOGS: CAN WE STRENGTHEN WEAK LAWS IN THE DOG INDUSTRY?
Sandra K. Jones
7 Rutgers J. L. & Pub. Pol'y 442 (Spring, 2010)
Place of Publication:
Rutgers Journal of Law & Public Policy
DEALING DOGS: CAN WE STRENGTHEN WEAK LAWS IN THE DOG INDUSTRY?
Sandra K. Jones [FN1]
Copyright © 2010 by Rutgers University School of Law - Camden; Sandra K. Jones (reprinted with permission)
“Dogs are the most amazing creatures; they give unconditional love. For me, they are the role models for being alive.” -Gilda Radner
I. INTRODUCTION: DOGS AND THE LAW
We call them “man's best friend.” “The bond between humans and dogs can be traced to [dog skeletons] found in human graves dated 12,000 to 14,000 years ago.” [FN2]
Dogs are featured in paintings of great Americans, and nearly everyone has a story of that “greatest dog that ever lived.” [FN3]
Dogs are welcomed into our homes and our families; we give them love and attention and they faithfully and eagerly return the favor. Many people who love dogs and embrace them as family members do so because the dogs' traits echo some of the best human characteristics, and it is said that they lack the worst. They can give love, sincerity, patience, and devotion. This cannot be said of most other things that we consider property. When many of us think of our dogs, we do not think of them in the same way we would think of a shoe, a book, a computer, or a *443
car. Legally however, dogs are our property, and we have rights to their lives as such. [FN4]
Human interests are protected by constitutional and common law rights, one of which is the fundamental right to own property. Animals, on the other hand, have no true legal rights. [FN5]
When we attempt to challenge animal interests as compared to the interest of humans, the animal interest almost never prevails because of the system ingrained in all of us that requires us to juxtapose the interests of the human with those of the animal--the non-right holder. [FN6]
Gary L. Francione has compared institutionalized animal exploitation to American slavery. [FN7]
Francione writes that there were laws enacted to protect slaves from excessive beatings or unnecessary punishment, but the common law usually assumed that the owner was the best judge of how his property ought to be used and would act in a “self-interested way” with regard to his property. [FN8]
The same has become an institutionalized view of human ownership of animals. This institutionalized idea that property cannot have its own rights follows from the definitions of property. By one definition, property is “that which cannot have relations with other property or with persons.” [FN9]
“To the extent that the law recognizes animals as having an interest, those interests are recognized only to the extent that they facilitate the use of the animal as property” - a thing that possesses no interests of its own, and the interests it may have can be sacrificed for the best interests of the property owner, which are typically to make sure his right in the property is not disrupted. [FN10]
The world of animal advocacy itself is somewhat murky on the subject of animal “rights” as compared to animal “welfare.” [FN11]
On one side of the alleged spectrum, there is the sentiment that animals should be treated as humans and should no longer retain “property status.” [FN12]
On the other hand, there are those who feel that respect for animals is as good as it is going to get, and the utopian ideals of a non-property status for animals should be abandoned. While many organizations such as the American Anti-Vivisection Society (AAVS) maintain that the differences between animal rights and animal welfare are irrelevant and only compassion and respect for animals is important, other groups focus on a loose definition of animal rights. [FN13]
Groups such as People for the Ethical Treatment of Animals (PETA), which are considered to be on the “radical” end of the spectrum of animal activist organizations, have even stepped back from an animal rights view. [FN14]
Ingrid Newkirk, the current director of PETA, has maintained that an all-or-nothing position towards animal rights activism is not realistic, and that a stronger focus on animal welfare should be pursued. [FN15]
While animals themselves do not have rights, there are federal laws that concern animals. The Laboratory Animal Welfare Act, now known as the Animal Welfare Act (AWA), was created in 1966 in an attempt to regulate the use of certain animals in research in the United States. [FN16]
Today, it remains the only federal law designed to cover animals that are used by *445
breeders, dealers, exhibitors, and researchers. [FN17]
Dogs are covered under this act in the definition of “animal” which states: “[t]he term ‘animal’ means any live or dead dog, cat, monkey, guinea pig ... or such other warm-blooded animal, as the secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes.” [FN18]
“Legal standards that concern the ‘humane”’ treatment of animals ... [also] assume that the human hegemony over animals is legitimate.” [FN19]
The law has always assumed that animals are “things”, and that these “things” exist in our lives mainly to satisfy our needs and desires. [FN20]
The AWA has the potential to vastly improve conditions for animals, and responsibility for enforcing the Act lies with a division of the United States Department of Agriculture (USDA) known as the Animal and Plant Health Inspection Service (APHIS). [FN21]
Unfortunately, “budgetary constraints and strong opposition from animal breeders, pharmaceutical companies, exhibitors, and experimenters themselves--as well as an inadequate number of inspectors-- have resulted in poor enforcement of the AWA.” [FN22]
Looking at the numbers alone, it is evident that facilities governed by the Act are under-regulated. There are more than 4500 dealers of animals (apart from exhibitors, laboratories, and other animal facilities) in the United States that should be inspected each year. [FN23]
However, here are only three APHIS Sector Offices nationwide with a total of approximately 70 veterinary inspectors who are entrusted *446
with inspecting, unannounced, the various types of facilities covered by the Act. [FN24]
It is the very lack of legal regulation and recognition that leads to the exploitation of “man's best friend” as nothing more than human property. In July of 2008, in Berks County, Pennsylvania, eighty dogs were shot to death because the kennel owners feared that the deplorable conditions of their property would result in the closure of their kennel business. [FN25]
While dog lovers and animal rights and welfare activists throughout the country condemned this horrid act, under current Pennsylvania dog laws, it was entirely legal. [FN26]
The dogs, for the most part healthy, were killed because their owners saw them as nothing more than property - and in the eyes of the law, that is all that they are. Perhaps more appalling is a 1997 incident which resulted in charges against notorious animal dealer Chester C. Baird. [FN27]
Baird was a dog dealer who obtained and sold dogs to laboratories for use as research subjects. [FN28]
It was long suspected by animal-protection organizations that Baird was “stealing pet dogs and cats to supply his kennels.” [FN29]
Ultimately, the United States Department of Agriculture filed a complaint against Baird's kennel. [FN30]
The complaint included multiple allegations regarding failure to provide proper veterinary care to the animals and over 100 violations of minimum humane care standards, including “temperature and humidity extremes, *447
enclosures too small for the animals (inspectors found 30-inch tall dogs housed in 25-inch tall enclosures), dog food infested with insect larvae, and rat and mouse infestation in all pen areas.” [FN31]
Interestingly, over 72 hours of this activity was filmed by investigators from Last Chance for Animals, including video footage of dogs being shot to death. [FN32]
“Class B Dealers” like Baird, discussed later on in this note, often slip through the Animal Welfare Act regulations and remain in operation. [FN33]
It was not until Last Chance For Animals, an animal rights organization, put one of their own men inside one of Baird's kennels and documented the atrocities, theft, and overwhelming abuse that was subsequently presented to the government. [FN34]
Baird's kennel was raided at daybreak on August 27, 2003, nearly fifteen years after he began his business. [FN35]
As a result, Baird, the largest and most notorious USDA licensed Class B Dealer, was officially charged with hundreds of violations of the AWA including mistreatment of animals, inadequate veterinary care, and improper housing of animals. [FN36]
However, the federal charges against Baird were not for the animal abuse; because an animal abuse charge in the state of Arkansas is only a misdemeanor, the United States Attorney deliberately “went after Baird on federal charges to attempt a felony conviction” for money laundering and criminal *448
forfeiture of property. [FN37]
Baird's AWA violations were handled separately in a civil case in which Baird was found liable for over $260,000 in civil penalties, and all of his licenses were permanently revoked. [FN38]
Possibly the most well known examples of canine exploitation based on their property status, and the focus of this note, are puppy mills. There is no legal definition of a puppy mill, meaning most dogs purchased from pet stores who may come from a “puppy mill” are allowed to be sold as if “from a reputable breeder” without raising issues of fraud. [FN39]
The American Society for the Prevention of Cruelty to Animals, better known by its acronym ASPCA, defines a “puppy mill” as a large-scale commercial dog breeding operation where profits are given a higher priority than the well-being of the dogs kept there. [FN40]
The dogs' health is often disregarded in order to maintain low overhead costs and maximize the profits of the kennel owner. [FN41]
There is a very large number of Amish-owned puppy mills, and many of them are concentrated in Missouri in the midwestern United States, and in Pennsylvania in the east. [FN42]
Stories of puppy mill horrors are gruesome and numerous; breeding stock dogs are often kept in tiny wire-floored cages that are stacked on top of one another and typically live out their short lives in those cages, given minimal care and no *449
opportunity to exercise. [FN43]
Puppy mill owners often fail to comply with temperature regulations that result in dogs being housed outdoors and exposed to the elements year-round. [FN44]
Some of these breeding dogs are rescued when puppy mills are raided by rescuers, but usually these poor creatures will live their entire lives in a two-foot by two-foot wire cage.
So how is it possible that every day in America, the very same country where we sleep in the same bed with our faithful golden retriever, yellow lab, or cocker spaniel, dogs are being abused, stolen, sold, and killed? How is it that for fifteen years someone like C.C. Baird could run a business where animal abuse was a daily practice? [FN45]
II. CURRENT LEGAL STANDING FOR DOGS; THE ANIMAL WELFARE ACT
There are many federal laws that mention animals and address animal issues. Of these laws, the Animal Welfare Act [FN46]
is perhaps the most well-known and oft-cited statute. Congress enacted the AWA to regulate animals in interstate or foreign commerce. [FN47]
In doing so, Congress indicated that it is necessary to prevent and eliminate burdens upon commerce in order:
(1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment;
(2) to assure the humane treatment of animals during transportation in commerce; and
(3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen. [FN48]
The AWA also regulates, among other entities, dealers. A “dealer” is defined under the legislation as
[A]ny person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes .... [FN49]
The term “dealer” does not include retail pet stores unless they sell animals to researchers, other dealers, or exhibitors; nor does it include people who do not sell animals or make less than five hundred dollars per year from the sale of animals. [FN50]
Within the category of dealer, the Animal Welfare Act classifies dealers into various subcategories. There are three types of dealers that are relevant to the AWA: Class A dealers, Class B dealers, and Class C dealers. [FN51]
This Note will focus primarily on the Class A and Class B dealers. Class A dealers are breeders; under the Act, they must turn a gross profit of more than five-hundred dollars per calendar year in the sale of dogs to be classified as such. [FN52]
Class A encompasses the typical puppy mill kennel owners, but also includes more reputable breeders who sell pure-breed dogs. Class B dealers are people who broker dogs, meaning that they purchase them from Class A dealers or, *451
in the case of C.C. Baird, from dog bunchers and hoarders. [FN53]
These Class B dealers then sell these dogs as goods to other dealers (either Class A or B), to pet stores, or to research laboratories and facilities. Many Class B dealers may breed their own dogs as well, and then sell these dogs for profit directly to the pet stores or laboratories, thus eliminating the Class A middle-man and turning a greater profit. [FN54]
Dog bunchers, as mentioned previously, are not regulated specifically under the Act. Bunchers or “collectors” obtain dogs from shelters or watch newspaper ads for “Free to Good Home” animals. [FN55]
Finally, there are Class C dealers, who are the exhibitors. [FN56]
Exhibitors can be anyone from zoos and aquariums to pet collectors.
At the state level, dealers may be regulated by state laws and state departments of agriculture. However, problems such as the disgusting and deplorable conditions maintained by C.C. Baird and Class B dealers like him are facilitated by a general paucity of enforcement by the USDA and the state departments of agriculture. [FN57]
“There is a lack of funding for the inspectors, and according to PETA, budgetary constraints and strong opposition from animal breeders, pharmaceutical companies, exhibitors, and experimenters themselves--as well as an inadequate number of inspectors--have resulted in poor enforcement of the AWA.” [FN58]
*452 III. A LACK OF REGULATION
1. There is a Gaping Loophole in the AWA.
The federal AWA provides the primary basis for regulation of animal use in experiments and breeding, but does very little beyond that. The Act provides absolutely no limitations on what can be done to animals, or even how it can be done. [FN59]
As mentioned previously, the AWA does not impose licensure regulations on dog breeders who sell directly to the public. Facilities that breed dogs for commercial resale through pet stores are required to be licensed and inspected under the AWA, but thanks to the Act's loophole, puppy mills that sell directly to the public are exempt from any federal oversight whatsoever. Unregulated Internet sellers and other direct sales facilities can sell thousands of puppies and dogs each year to “unsuspecting customers” without having to answer to federal inspection. [FN60]
The 2003 case Doris Day Animal League v. Veneman
confirmed this lack of licensure regulations for these breeders, or “retail pet stores.” [FN61]
Doris Day Animal League, an animal rights group that was concerned about the mistreatment of dogs, brought an action challenging the Act's exemption of breeders who sell dogs directly to the public from federal oversight. [FN62]
The main question presented by the Animal League was about the legislative meaning of the term “retail pet store” in § 2132(f)(i) of the Animal Welfare Act and what Congress intended it to mean. [FN63]
In response, the Secretary of Agriculture *453
defined a “retail pet store” as “any outlet where only the following animals are sold or offered for sale, at retail for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets, domestic farm animals, birds, and cold-blooded species.” [FN64]
The Animal League, unsatisfied with this definition, asked the court to consider classifying home breeders and those who sold animals from their residences (including most puppy millers) as “retail pet stores.” [FN65]
In deciding the issue, the court determined that Congress had not spoken clearly on this matter during the Act's enactment. However, as Congress had already amended the AWA three separate times as of the date of the case, it did not alter the regulatory definition of “retail pet store” for a reason justified as legislative intent. [FN66]
The court deferred to the government's reasonable statutory interpretation and applied the Secretary of Agriculture's definition, relying on his expertise and judgment about the degree of need for federal regulation of the larger, already defined Class A and Class B dealers. [FN67]
The Secretary declined to amend the definition to meet the Animal League's desired meaning on the ground that the “best interest of animal welfare is supported by allowing the Department [of Agriculture] to concentrate [its] resources on those facilities that present the greatest risk of noncompliance with the regulations.” [FN68]
The Department of Agriculture chose to “focus on wholesale dealers where its resources are likely to yield the greatest benefit,” and the court here deferred to the Department's chosen strategy of implementing the AWA. [FN69]
As a result of its decision, the court effectively exempted breeders who sell dogs from their residences from licensure *454
requirements and other regulations under the Animal Welfare Act. In doing this, the court and the Department of Agriculture created a gaping loophole in the law. The repercussions of this decision and the creation of this loophole are horrifying for animals and those who care about them. Puppy mills and puppy millers, as detailed previously, are the number one beneficiary of this loophole. Every time purchasers “go out to the country” to pick up a puppy, they are potentially purchasing from these puppy mill owners. [FN70]
If the puppy millers are selling directly to the public, they are considered retail sellers, and do not become full Class A dealers requiring licensure under the Act. Puppy millers often maintain roadside stands or sell their puppies at the entryways to their larger kennels so that purchasers do not see the horrors of stacked cages and mistreated animals in the background as they purchase the adorable puppies born to dog parents who are kept in shockingly unsanitary conditions.
In a troubling development, more puppy millers are selling puppies directly to the public through Internet websites. [FN71]
Most purchasers who believe they are getting their dogs from a small reputable breeder are paying large sums of money for dogs that actually come from puppy mills. The dogs are shipped through the airlines, so no consumers see the kennel facilities. Increasing use of the internet to easily obtain cheap puppies has correspondingly spurred a jump in the number of puppy mills. These puppy mill kennels remain unchecked because under the Act, they are exempt from the regulations imposed on other dealers. When the Act was first imposed in 1966, the legislators could not have foreseen the internet becoming a literal breeding ground for fraud, scams, and the exploitation of animals. [FN72]
In addition to puppy mills, their customers--the actual “retail pet stores,”-- benefit greatly from this loophole. As the demand for cute, young puppies continues to grow at a steady rate, there is no shortage of eager and willing customers for the *455
pet stores. [FN73]
Most of the pet stores purchase their dogs from puppy mills, “facilities” that they pass off as breeders to their naive consumers. Customers who do not know any better purchase dogs from the retail pet stores, and in doing so, contribute to the steady stream of profits for the puppy millers and pet stores. For every dog purchased from a pet store, there needs to be another dog sent to the pet store by a puppy mill to take its place in the inventory. In turn, for every dog sent to the pet store, another breeding dog must give birth to yet another litter. The disturbing cycle of forced breeding, cheap sales, and easy profits continues to revolve because the retail pet stores, like internet sellers, are not regulated under the AWA.
To recap, it may be best to redefine this proposed cycle of profit. The AWA exhibits a loophole in which “retail pet stores,” or people who sell dogs directly to the public, like Internet sellers, are not subjected to licensure or regulations under the Act. [FN74]
This in turn leads to puppy millers producing more dogs in order to meet the demand of consumers looking for cute, “purebred,” yet reasonably priced puppies. Consumers can also purchase either directly from the millers through roadside stands or on internet websites. If consumers choose to visit a retail pet store, they may be purchasing puppies that they believe came from a reputable breeder, but actually came from a puppy mill. At the end of the cycle, the puppy millers have turned large profits and the breeding stock dogs continue to suffer in inhumane conditions.
As a result of this lack of licensure, other laws that set standards for veterinary care, food provisions, sufficient clean water, ventilation, heating/cooling, and sanitation are often disregarded by the breeders and unenforced by the USDA. Veterinary care, proper nutrition, socialization, integrity of the breed and breed standards, and most importantly sanitation at puppy mills are substandard in comparison to other responsible breeders. “Illness, diseases, fearful behavior[s], and lack of socialization with humans and other animals are not uncommon *456
characteristics of dogs from puppy mills.” [FN75]
“Breeding is performed without consideration for [the] maintenance of genetic quality/breed standards, resulting in the passage of hereditary conditions and diseases from generation to generation” of puppy mill dogs. [FN76]
While it can be argued that “purebred” dogs are dogs that are bred with certain genetic abnormalities on purpose, puppy mill dogs are bred and cross-bred to the extent that some dogs do not even remain similar to the American Kennel Club's definition of the breed. [FN77]
Indeed, puppy millers often deceive consumers who purchase their dogs by declaring them “pedigreed,” [FN78]
when in truth, so long as the ancestry of a dog is documented, the dog can be called pedigreed. [FN79]
Therefore, a miller may sell a dog to consumers as pedigreed simply because he owns the parents and grandparents of that puppy. [FN80]
Becoming even more popular are “designer dogs,” or puppies that are mixtures of other breeds to create cute hybrids such as puggles, jugs, and labradoodles. [FN81]
Unlike other mutts or mixed breed dogs, “designer dogs” have documented purebred ancestries, thus making them desirable to the public. [FN82]
Accordingly, many puppy mills are beginning to mass-produce these dogs to deal with the increasing demand. [FN83]
Female breeding stock dogs are bred at every possible opportunity with little or no recovery time between litters. [FN84]
When the females are no longer able to reproduce, they are usually killed. [FN85]
Puppies also suffer, as they are typically removed from their mothers at a younger age than they should be, and are typically sold to pet shops and marketed as young as six weeks of age. Because they have been removed from their mothers and littermates at such a young age, these dogs can sometimes lack crucial social skills acquired in the first two months of being a puppy, such as bite inhibition and proper dog-to-dog socialization. This can lead to under-socialized, shy, and aggressive dogs that wind up in shelters and are eventually euthanized for lack of other option. While this practice can be harmful and misleading to consumers, the ultimate harm is suffered by the dogs that will suffer from illness, under-socialization and genetic defects due to inbreeding and disregard for breeding standards.
2. There is a Profound Lack of Enforcement by the Government.
The USDA is responsible for enforcing the AWA. [FN86]
A subdivision of the USDA known as Animal and Plant Health Inspection Service (APHIS) has been delegated the reponsibility of inspecting facilities covered under the Act. [FN87]
The ASPCA, along with the Humane Society of the United States (HSUS) and PETA, has determined through years of research that the AWA is not being enforced in many areas. [FN88]
Most of these areas involve Class A and Class B dealers, who have worked out ways *458
around inspections and continue to remain in operation despite obvious conditions that violate the regulations imposed by the Act. [FN89]
However, an enforcement problem arises because the USDA and APHIS cannot be compelled to enforce the AWA; if the ASPCA were to sue the USDA for not enforcing the law with respect to particular dealers, its claim would not be likely prevail. [FN90]
The power and discretion to take action against licensees rests with the USDA, not private citizens. [FN91]
Courts have consistently chosen not to interfere in the USDA's decisions unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” [FN92]
An alternative enforcement theory is for organizations like the ASPCA to sue the USDA for its apparent adoption of a policy of non-enforcement against breeders generally. In order for this theory to be effective, the “policy” that the USDA has adopted must be considered a final agency action that violates the Administrative Procedure Act by being arbitrary, capricious, an abuse of discretion, or not in accordance with the law. This is of course much easier said than done.
Three cases demonstrate the difficulty of employing this theory as a possible avenue of enhanced AWA enforcement. The first is the 1985 Supreme Court decision in Heckler v. Chaney
, a case that did not involve the USDA, but nonetheless considered the extent of judicial discretion granted to government agencies. Here, the Court considered the extent to which a decision of an administrative agency to exercise its “discretion” not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 501 et seq. (APA). [FN93]
The Supreme Court upheld the appellate court's *459
decision that an agency's choice not to take enforcement action should be presumed immune from judicial review under the APA. [FN94]
The Court stated that “an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.” [FN95]
The Court went on to say that “[t]he danger that agencies may not carry out their delegated powers with sufficient vigor does not necessarily lead to the conclusion that courts are the most appropriate body to police this aspect of their performance.” [FN96]
Therefore, with its decision, the Supreme Court declared that an agency's decision-making cannot be questioned by the citizens through the court system.
A second case that set precedent in this matter was Animal Legal Defense Fund, Inc. v. Glickman
. In this 1996 decision, the Animal Legal Defense Fund (ALDF) sued the USDA in federal court for its failure to enforce the AWA with respect to the treatment of primates in research facilities. [FN97]
, the United States District Court for the District of Columbia came to several conclusions. The first was that the AWA delegates the discretion for enforcement to the Secretary of Agriculture to make investigations and inspections as he/she deems necessary, basing its decision in part on the ruling in Heckler v. Chaney
Second, the court found that the AWA does not impose a duty on the Secretary of Agriculture to “make a finding of a violation or to initiate enforcement action.” [FN99]
Third, the court found that under the Act, the USDA is not required to penalize a regulated entity that is found to be in violation of the law. [FN100]
Essentially, the court in Glickman
confirmed prior court decisions holding *460
that government agencies such as the USDA should have the ultimate discretion to act as they deem fit. The Glickman
court ultimately found that this was not an issue suitable for judicial review as intended by Congress, and the case against the USDA was dismissed.
The third case pertaining to an agency's discretion not to enforce certain legislation is Adams v. Richardson
. This was an action brought against the Secretary of Health, Education, and Welfare by certain African American students, citizens, and taxpayers. [FN101]
The citizens and students claimed that the agency had not fulfilled its duty to enforce Title VI of the Civil Rights Act of 1964 because it did not take action to end segregation in public schools receiving federal funding. [FN102]
In contrast to Animal Legal Defense Fund v. Glickman
, the court in Adams
found that the agency's adoption of a policy of non-enforcement was actually reviewable by the court. [FN103]
The situations are similar in that here the Department of Health was found to have “consciously and expressly adopted a general policy [of nonenforcement]” that was so extreme as to amount to “an abdication of its statutory responsibilities.” [FN104]
In contrast to the AWA however, the Civil Rights Act of 1964 contains a clear and direct statutory mandate for enforcement. The Secretary of Health, unlike the Secretary of Agriculture, does not have discretion as to whether to enforce the laws or not. In contrast, the Secretary of Agriculture has complete statutory discretion regarding whether or not to enforce the AWA. The AWA's statutory language states that the Secretary “may” enforce the law, not that he “must” or “shall” enforce it. The Adams
case is not as on point on this issue, and therefore because of the major difference in statutory language, Adams
cannot be used as precedent-setting case law to sue the USDA for its delinquency in enforcing the AWA.
Amending the statute to include stronger, mandatory language such as “must enforce” may not solve the problem. While statutory language may give private organizations legal standing on which to pursue action against blatant agency disregard for the absolute mandate, the USDA and APHIS still lack the manpower and financial resources required to inspect and enforce regulations in all of the facilities that they are charged with overseeing. The most obvious proposal for enforcing a strong mandatory statute would be to increase funding and manpower for inspections. However, this proposal currently represents at best a utopian ideal. The present legal standing for animals does not provide the government with enough incentive to increase funding for APHIS or to create more jobs for inspectors. [FN105]
Furthermore, because of longstanding notions of judicial deference to government agencies such as the USDA, it will be difficult to enforce noncompliance with new mandatory language unless their actions are arbitrary or capricious. [FN106]
Additionally, even if the statutory language is changed to create mandatory enforcement provisions, the loophole in the Act that exempts puppy mills will not close simply by this linguistic modification.
In sum, according to the three cases discussed here, Heckler
, and Adams
, the current loose statutory language of the AWA gives the USDA virtually absolute discretion regarding enforcement of the Act, its provisions, and the entities that it is supposed to be regulating. Aside from the agency's discretion in enforcing the Act, there is another problem with suing an agency under the APA for adopting a policy of non-enforcement. In order for an agency's action to be reviewable by the courts, it must be a “final” agency action, meaning that it “must mark the consummation of the agency's decision making process [and] must be one by which rights or obligations will be determined, or from which legal consequences will flow.” [FN107]
If an *462
administrative action is not deemed to be final, it will not be subject to judicial review.
IV. CAN THE LAWS BE CHANGED?
Over the past few years, as public awareness about cruelty and neglect towards animals has increased, legislation designed towards protecting animals has correspondingly increased. The most prominent one is the federal Puppy Uniform Protection Statute, better known as the PUPS Bill--a proposal that will make a major amendment to the AWA and potentially work to close the loophole that has allowed dealers who sell to the public directly to go unregulated. Following closely behind the PUPS Bill are Federal 2008 Farm Bill amendments and many state laws that have been amended and bolstered to include provisions protecting animals from cruelty and abuse in more recent times.
2. Federal Action: The PUPS Bill and 2008 Farm Bill
Despite being over forty years old, the AWA has been the primary federal law regulating animals and those who handle them. According to ASPCA attorney Cori A. Menkin, there has been a call to action for many years from national groups like the ASPCA and the HSUS, but nothing has been done until recently. [FN108]
In September of 2008, federal lawmakers introduced a bill that has been a long time in the works - a bill that will start to crack down on abusive puppy mills and dog dealers in the United States. [FN109]
The proposed legislation will actually help to close the loophole in the AWA that currently allows the large, commercial breeders who sell their dogs on the internet and directly to the public to avoid the licensing and *463
regulations required by the Act. [FN110]
This proposed legislation is known as the “Puppy Uniform Protection Statute” (PUPS), and is often affectionately referred to as “Baby's Bill” in honor of a rescued puppy mill dog named Baby is who now the subject of a new book about the plight of puppy mill survivors. [FN111]
The bill will require that dogs used for breeding be removed from their cages for exercise every day rather than live their entire lives in small cages with no opportunity to get out and run. [FN112]
It will also add an amendment to Section 2 of the AWA to define a ‘retail pet store’ as a person that “(1) sells an animal directly to the public for use as a pet; and (2) does not breed or raise more than 50 dogs for use as pets during any one-year period.” [FN113]
Furthermore, Section 3 of the AWA that governs licenses under the Act will be amended “by striking ‘retail pet store or other person who’ and inserting ‘retail pet store, or other person who (1) does not breed or raise more than 50 dogs for use as pets during any one-year period.”’ [FN114]
The Humane Standards section of the AWA, Section 13, will also be amended by adding new subsection (j) stating that:
(1) Subject to paragraph (2), a dealer shall provide each dog held by such dealer that is of the age of 12 weeks or older with a minimum of two exercise periods during each day for a total of not less than one hour of exercise during such day. Such exercise shall include re[-]moving the dog from the dog's primary enclosure and al[-]lowing the dog to walk for the entire exercise period, but shall not include the use of a treadmill, catmill, jenny mill, slat mill, or similar device, unless prescribed by a doctor of veterinary medicine.
(2) Paragraph (1) shall not apply to a dog certified by a doctor of veterinary medicine, on a *464
form designated by and submitted to the Secretary, as being medically pre[-]cluded from exercise. [FN115]
Another section addressing the impact of the amendments on state animal laws provides that the amendments made by the Act “shall not be construed to preempt any law or regulation of a State or a political subdivision of a State containing requirements that are greater than the requirements of the amendments made by this Act.” [FN116]
While the bill might seem effective in closing the loophole in the AWA, it simply requires breeders to obtain a license from the USDA if they raise more than fifty dogs in a one-year time period and sell directly to the public. [FN117]
Legislators are confident that the bill is not going to “hinder the operation of reputable and responsible breeders ... [and is instead] ... aimed at protecting dogs and making individuals who are motivated by profit over the fair and humane treatment of dogs accountable for their actions.” [FN118]
It has been said that the amendment to the AWA is long overdue, as public national television coverage and several large-scale cruelty investigations and raids of puppy mills that were headed up by the HSUS, ASPCA, and other animal shelters. [FN119]
Because the bill was introduced in September 2008, just a few short months before the 2008 election, the Act was almost certain to take a backburner to the election and Congress' scheduled adjournment. [FN120]
As of the time of publication of this *465
Note, the bill has not become law, but may still be reintroduced during the next legislative session. [FN121]
In addition to the possibility of the PUPS Bill changing the language in the AWA, the 2008 Farm Bill, as amended in May 2008, represented a major victory for the ASPCA and other animal welfare groups. [FN122]
As previously noted, when the AWA was first passed, the internet has not yet become a major source for animal commerce and a literal breeding throughout world were able to ship dogs to paying customers in the United States. [FN123]
Because of this new puppy mill market and the increasing demand for designer and rare breeds of dogs, the United States was flooded with imported puppies that were in poor health and possibly carried diseases that were potentially harmful to people and other animals. [FN124]
As the standards of foreign puppy mills are certainly not subject to any United States laws or regulations (especially the AWA), many of these dogs were also raised and bred in shockingly inhumane conditions. [FN125]
The 2008 Amended Farm Bill has implemented some major changes to the animal industry as a whole. [FN126]
Specifically targeting foreign puppy mills, the bill prohibits the importation of puppies that are under six months of age for the purpose of *466
resale in the United States. [FN127]
However, if the dog is in good health and has received all of its vaccinations upon inspection, it will be allowed into the United States so long as it is over six months old. [FN128]
The Farm Bill was amended to strengthen penalties for animal fighting, and to increase the protection of pets, the Secretary of Agriculture was obligated to review a report required of the National Institute of Health and to make recommendations on the disposition of Class B Dealers accordingly. [FN129]
While these amendments to the Farm Bill may not seem drastic enough to combat the plague of domestic puppy mills, they are a step in the right direction by the federal government.
3. State Action
As awareness of the seriousness of crimes toward animals and its connection to other unwanted human behaviors has increased, individual states have improved their own animal cruelty laws. Every state in the United States including the District of Columbia has laws regarding cruelty to animals. [FN130]
While these laws certainly do not give animals rights, they do deter violence by humans and protect some animals from mistreatment and cruelty by imposing punishments for inhumane acts against them. [FN131]
Most of these state laws fall under the “purpose of human morality,” meaning that their purpose is not actually to protect the animals, but rather to keep people from acting immorally. [FN132]
More states have recently *467
begun to recognize that animal cruelty and abuse are serious issues and accordingly, there are now forty-one states with felony provisions for animal cruelty. Animal cruelty is still not a felony in Alaska, Arkansas (former state home of C.C. Baird's kennel), Hawaii, Idaho, Kansas, Mississippi, North Dakota, South Dakota, and Utah. [FN133]
In fact, there are states that have no laws at all addressing the “commercial use of dogs” - an umbrella term that includes pet stores, breeders, kennels, and dealers. [FN134]
Sometimes state laws decrease the impact made by the AWA loophole, but states more often than not categorize puppy mill operations and dealers as “breeders” and not retailers. [FN135]
The ultimate result is that there is no oversight of these facilities.
On the other hand, some states have made major efforts to improve the animal cruelty laws in their jurisdictions. A recent and significant improvement was the 2008 amendment to Pennsylvania's Dog Law. Prior to the passage of House Bill 2525, Pennsylvania was known to some as “Puppy Mill Capital of the East” and was home to countless puppy mill breeding factories. [FN136]
Known for its Lancaster farm-country puppy roadside stands, Pennsylvania is considered one of the largest puppy mill states in the country. [FN137]
After Pennsylvania's local Main Line Animal Rescue's (MLAR) Bill Smith made efforts to contact Oprah Winfrey in early 2008, the Pennsylvania puppy mill industry was exposed to many unknowledgeable viewers for the dreadful and inhumane breeding factories that they were. [FN138]
Winfrey continued to advocate against the horrors of puppy *468
mills and publicized the sad stories of the rescued dogs, many by Bill Smith of MLAR, throughout the year. [FN139]
As a large part of her successful exposé, Winfrey documented the tiny cage sizes, the wire-grate flooring, the lack of veterinary care, and the unsanitary conditions where the breeding stock dogs lived their entire lives. [FN140]
Winfrey's television shows were just the beginning for anti-puppy mill spokespeople such as ASPCA attorney Cori Menkin, Bill Smith of MLAR, and attorney Buzz Miller, who began speaking at state-wide seminars and alerting the public to problem of puppy mills. Shortly thereafter, House Bill 2525 was introduced, and for those who despised the puppy mills, it seemed like a small step to attack the greater problem of animal cruelty and abuse. After the bill's passage in late 2008, the new Pennsylvania Dog Law created a novel class of kennels known as “commercial breeding kennels,” and sought “to provide essential minimum standards for the dogs that spend their lives in such kennel settings.” [FN141]
The mandatory improvements to commercial breeding kennels include “increasing the cage size to ensure that the dogs are reasonably comfortable, providing access to an outdoor exercise area, annual veterinary examinations, [and] limiting the stacking of cages ....” [FN142]
Establishing daily cleaning standards, creating a reasonable temperature for the kennel areas, mandating appropriate lighting, imposing higher ventilation standards, and requiring strategically placed fire extinguishers all add to the list of mandatory measures kennel operators must take. [FN143]
In addition, the new law provides clear authority for the Pennsylvania Bureau of Dog Law Enforcement to enforce laws against unlicensed kennels in the same manner that it had *469
previously regulated licensed kennels. [FN144]
Additionally, the new Pennsylvania Dog Law “set forth a judicial appeals process, allow[ed] for inspections of [dog breeding] facilit[ies], provide[d] for issuance of citations and civil penalties, and provide[d]for removal of the dogs in the same limited circumstances as those that apply to licensed kennels to insure the welfare of the dogs.” [FN145]
“As with licensed kennels, the unlicensed kennels [are] afforded the opportunity to appeal any action of the department.” [FN146]
In short, viewing this new Pennsylvania State Law in comparison and conjunction with the proposed PUPS Act, all kennels that are targeted by the new state laws of Pennsylvania would also be required under federal law to obtain a license, and the Pennsylvania law would probably be altered to comply with new federal regulations.
Pennsylvania is one of the first of several states to take legislative action against the atrocious living conditions of puppy mill dogs. HSUS and ASPCA attorneys hope that more states will follow suit in the near future and that ultimately these dog laws will discourage puppy millers from operating altogether. [FN147]
In addition to Pennsylvania, in 2008 Virginia became the first state to pass a law limiting the number of adult dogs that a commercial breeder is entitled to possess, capping the number at 50 dogs. [FN148]
Virginia's new stricter animal laws also include provisions that impose on a dealer or pet shop a duty to provide animals in its possession or custody with adequate housing, food, water, exercise, and care. [FN149]
Furthermore, Virginia has enacted provisions in its statute that require pet dealers who intend to sell dogs that are capable of being registered pedigreed *470
to have a dealer's animal history certificate. [FN150]
This certificate contains information regarding the animals' veterinary history and detailed vaccination records. [FN151]
The Virginia bill went remarkably from its introduction in the Virginia Legislature to the Governor's desk in just four short months, demonstrating that animal-friendly laws need not drag through legislatures over the course of many months or years. [FN152]
4. The Three Pronged Approach Taken by Existing Animal Advocates
Advocates who see themselves as a voice for animals are taking what they call a three-pronged approach toward eliminating the cruelty and mistreatment toward companion animals such as dogs. [FN153]
First, the ASPCA and HSUS work together toward better enforcement of the laws that already do exist, such as the AWA and various state laws, through cooperation with the respective departments of enforcement. [FN154]
The ASPCA and HSUS use their power as well-known and established animal advocates to threaten exposure of departments that do not adhere to and enforce the current laws. [FN155]
Grassroots organizations such as “Last Chance for Animals” and “Best Friends” also use their access to the media and the inherent shock value that accompanies horrific stories of animal abuse to combat the animal abusers and alert the government. By placing a man on the inside of a puppy mill, the *471
people at “Last Chance for Animals” single-handedly alerted the federal government to the cruelty being inflicted by C.C. Baird and increased public awareness of such facilities throughout the country. [FN156]
Organizations like the Animal Legal Defense Fund (and their law school subsidiary, the Student Animal Legal Defense Fund) continue to use their legal education background and their power in the courtroom to pursue cases against animal abusers and educate the public while doing so. These legal-based organizations have the power to push the legal system to end the suffering of abused animals are supported by hundreds of dedicated attorneys and more than 100,000 members. [FN157]
The second prong of the ASPCA and HSUS approach is to strengthen the laws that already exist in both the state and federal levels. Pennsylvania House Bill 2525, now Pennsylvania law, is a prime example of reforming old and outdated laws by advocating for new and stronger anti-abuse provisions in the statutes. The PUPS Proposed Bill is another way that interested organizations can lobby to strengthen pre-existing laws such as the AWA in order to create better living conditions for dogs. The ASPCA also organizes its own movements, known as ASPCA Mission Orange, to support local governments in enhancing laws regarding companion animals. [FN158]
Mission Orange “... is a focused effort [by the ASPCA], in partnership with select communities to create a country of humane communities where animals receive the compassion and respect that is due to them as sentient creatures and furthermore where there is no more unnecessary euthanasia of healthy and adoptable animals *472
simply because there is a lack of resources and awareness”. [FN159]
The ASPCA has already implemented this program in New York City when they joined the Mayor's Alliance for New York City Animals in 2005, ensuring that no healthy animals were put to sleep. [FN160]
Similar programs were initiated in Richmond, Virginia in 2006, and the ASPCA has started partnerships in Austin, Texas, Gulfport-Biloxi, Mississippi, Philadelphia, Pennsylvania, Spokane, Washington, and Tampa, Florida. [FN161]
The third prong, and the prong which the author believes to be the most important, is an increase in general public outreach and educational programs. [FN162]
The ASPCA's Mission Orange is a vital step toward efficient public outreach and education; however, these efforts must be taken further. The more Americans who become educated about the problems of puppy mills, animal abuse, and the plight of the homeless animals in this country, the greater the chance will be that cruelty can end altogether. While a lofty goal, increasing the number of people who are educated will increase possibility that those people will educate their family, friends, and neighbors until an entire nation follows suit. The ASPCA specifically is working to find out how people are getting their dogs and from where they are getting them. [FN163]
The average person does not recognize that purchasing a puppy from a pet shop effectively supports puppy mills and factory breeders. [FN164]
The dots need to be connected for the general public to show them that for every pet store puppy that is purchased, a homeless one lives in an animal shelter and will likely be euthanized. [FN165]
The author of this note firmly believes that education is the key to a world of empty animal shelters and the abolition of puppy mills. Education needs to begin at an early age--children must be taught the proper way to care for their animals, and that their animals are not disposable, but rather are important beings who some consider to have their own fundamental rights. Community shelters also have the duty to inform the public that pets abandoned at shelters do not have a great chance of making it out alive. People need to be made aware that there is no shortage of homeless animals in this country, and that thousands upon thousands of animals lose their lives each year because of human ignorance and lack of understanding. In Philadelphia alone, approximately 30,000 homeless and unwanted animals are taken in to animal control each year. [FN166]
Of those 30,000 homeless animals, only a small fraction will make it out of the shelter system alive. [FN167]
Through federal and locally funded education programs, as well as existing programs such as the ASPCA and the HSUS, the public can learn the truth about the problems regarding lack of funds for animal programs and lack of legislation regarding animal treatment and protection. Furthermore, newly educated citizens can contact their government representatives in both the state and federal legislatures to express their opinions on the lack of effective legislation, as well as to voice their support for pending amendments to existing laws such as the PUPS Bill.
In the past few years, Americans have become increasingly aware of the plight of homeless animals, puppy mill dogs, and animals that suffer from abuse and neglect. Accordingly, we have seen an increase in legislation that strengthens anti-cruelty laws and provides protection for animals. Whether considering laws that have already passed, like PA House Bill 2525, or legislation currently pending, such as the PUPS Bill, it seems as though things are gradually shaping up for companion animals. Yet, questions remain about the current future safety of animals. Are these small steps really enough to improve the lives of these *474
creatures? Is increased cage room and one hour per day of exercise sufficient? [FN168]
Will closing the loophole to the AWA guarantee that the Department of Agriculture maintains inspections for puppy millers who sell directly to the public? Will making it more difficult for puppy millers and dealers to house their animals put them out of business altogether? Will improving living conditions for imprisoned animals truly establish the goals of organizations like the ASPCA, or will it only bring society one step closer toward a utopian dream of freeing animals from their property status? Perhaps the abolition of the property status of animals is indeed a utopian dream that will not come to fruition. If this is true, are movements toward less horrid living conditions for the animals that exist now necessary?
V. A NON-PROPERTY STATUS FOR DOGS?
Despite the recent rise in amendments of pre-existing laws and pending new legislation, it can be argued that such laws are not enough to protect the rights of animals. As Thomas G. Kelch writes “... the common law is a ripe mechanism for changing the view of animals as property.” [FN169]
However, the only way an animal welfare issue can come before a court is if some person can assert a personal interest at stake relating to the animal that is sufficient to gain standing to bring suit. [FN170]
Animal advocates have argued that both animals and the environment itself should have standing to assert injuries; specifically, that they should have rights that can be asserted through human representatives. [FN171]
While changes to this extent have not yet occurred, the law in the area of animals has not yet seen a plateau, and this perhaps has set the stage for a movement away from most humans' view that animals are property.
In the case Corso v. Crawford Dog and Cat Hospital, Inc.
, the court pondered the proper measure of damages for mishandling the body of a dog that had been euthanized, before declaring that companion animals should be seen as occupying a status above that of ordinary property. [FN172]
The result of this noteworthy case was that plaintiff was found to be entitled to more than market value damages for the conduct of the defendant veterinary hospital in losing the body of his deceased dog and replacing it with the body of a dead cat. [FN173]
A similar view was also expressed in a concurring opinion in Bueckner v. Hamel
, where the issue concerned the amount of damages to be awarded against a defendant who shot two of the plaintiff's pet dogs. [FN174]
In his concurrence, Judge Andell stated that animals are more than property despite their current treatment in the eyes of the law. [FN175]
The spectrum of those who advocate for animals is wide. On one hand, there are those who feel as though “the property status of animals presents conceptual and practical difficulties that militate against treating animals as having inherent value and ignores the fundamental issue that our [human] use of animals - however well we treat them - cannot be justified morally.” [FN176]
Animal activists who follow this belief preach that those who advocate for animals should pursue “the abolition of *476
animal exploitation rather than its regulation.” [FN177]
On the other hand, there are those who argue that “... the benefits of changing the legal status of animals from their current position as items of property have been exaggerated.” [FN178]
That argument is based around the notion that even if animals are no longer considered property, there is no guarantee that animals will no longer be exploited and that, while ending animals' status as property may represent just one step toward the fulfillment of “an animal rights agenda,” it is a fallacy that significant improvements to their well-being cannot be made in the present. [FN179]
Francione and Charlton “maintain that it is the use of animals and not the treatment of animals that ought to be the primary focus of animal advocates and that this involves the abolition rather than just the regulation of animal exploitation.” [FN180]
“Just as the abolition of human slavery required that humans no longer be treated as the chattel property of others, the abolition of non-human slavery requires that animals no longer be treated as the economic commodities of humans.” [FN181]
Francione and Charlton argue however, that this is only possible once animals are given a right not to be treated as property, and this can only exist when “a critical mass of society rejects as a moral matter the notion that non-humans are economic commodities for human use.” [FN182]
Furthermore, this argument hinges on the idea that as a practical matter, humans must stop bringing “domestic non-humans into existence for human use, including [dogs] brought into existence *477
to serve as human companions, as well as those [animals that are] produced for ... human consumption purposes.” [FN183]
While some may see this argument as extreme, the author sees it as idealistic and utopian at best. Robert Garner has written to oppose the sentiments of Francione and Charlton. Garner has said that the abolition of a property status of all non-humans will not guarantee that these non-humans are no longer exploited. [FN184]
As supportive evidence, Garner has said that wild animals, which are technically and legally not the property of anyone (with exceptions), are still used by humans for a variety of purposes - “hunting for food, tourism, aesthetic pleasure, and so on.” [FN185]
Garner's view is that in order to truly improve status for animals, there must be a change in social attitudes toward both humans and animals to ensure that these individuals are treated with respect and compassion. [FN186]
It is unrealistic to believe that humans will cease to bring non-humans such as dogs into existence, especially in a society that created the dog as a companion to humans in the first place. Even those who consider themselves animal lovers and activists continue to keep dogs at their homes, and those who consider themselves “dog enthusiasts” continue to breed exceptional dogs that they care for greatly. However, it is still possible and necessary to educate humans about the importance of animal welfare. There has been a marked evolution in human awareness toward compassion for animals, and it cannot be said that this has reached a definitive plateau that will level out. The Animal Legal Defense Fund has shown that there are currently 116 Animal Law classes offered in law schools throughout the United States - this demonstrates that people are willing to alter their attitudes and behavior once they learn that animals need human compassion in order for things to change. [FN187]
The United States embraces a moral pluralism, where we are free to choose whether or not to eat free-range meat (or not to eat meat at all), free to avoid hunting, to visit zoos, and to resist the use of drugs and cosmetics that are developed by using animals. [FN188]
But personal freedom is a highly valued privilege of living in the United States, and to say that all humans must abstain from eating meat or keeping non-humans for their personal pleasure--while perhaps a solution to animal exploitation--is not consistent with the country's constitutional or political ethos. Francione and Charlton claim that the abolitionist movement is the only possible way, and that other advocates who claim that it is utopian do not have any guidance to support their refutation of the abolitionist ideals. [FN189]
This author believes it is not the most viable alternative. To force Americans, even over a long period of time, to give up on keeping dogs as pets is certainly not something that is likely to come to fruition in the foreseeable future. On the other hand, a measure that offers potentially immediate effects is the education of Americans (and other nations, independently) with regard to the treatment and overpopulation of, specific to this note, dogs.
This author believes that the current efforts of the ASPCA and the HSUS are commendable, and that these groups should be acknowledged rather than chastised for not doing “enough.” Considering the state legislative action that has recently been taken by Pennsylvania, Virginia, and others that will soon follow suit, as well as potential federal legislation such as the PUPS Act that will help close the long-standing puppy mill loophole in the AWA, it can be seen that slowly but surely, positive steps are being taken to improve the lives of animals. The common idiom “Rome was not built in one day” applies to the animal welfare movement, especially where companion animals are involved. Great promise has been shown in the increased awareness of humans toward non-human compassion and respect, and the author anticipates that things in the “animal respect” movement will continue to blossom. As already discussed, the key to *479
animal respect and compassion stems from education. Education is an immediate remedial measure that can be taken to increase awareness for animal welfare.
Specifically in the dog dealing industry, education of dog purchasers and citizens will increase awareness of the harms that are being done to dogs in puppy mills and pet stores across the country. This education, in turn, will lead to citizens taking action by communicating with their legislators in such a mass that the problems may no longer be ignored, and laws will eventually be changed, one at a time. Society, as a whole, needs to recognize the problem at issue here. For example, the author has come across fellow law students, all of whom can certainly be considered “educated,” who are unaware that the puppies they purchased in pet stores likely came from a mill where their mothers and fathers live in misery. Once these students become aware and become passionate, they can increase the awareness of their families and friends, who in turn can educate those they encounter in the future.
Furthermore, the government, at both state and federal levels, should implement educational programs that help to inform society about the use and abuse of animals. If people become aware, they will in turn learn to respect, and this will potentially lead to a change in societal morals. In the meantime, as laws continue to change and society's awareness increases, those who are already knowledgeable should exercise their right to choose by remaining vegan, avoiding animal exploitation, and avoiding connections to those who abuse animals; perhaps their strength and moral resolve will rub off on more and more humans as attitudes continue to evolve. There is certainly hope for respect and compassion for all non-humans, but only humans can effectively change the status quo, for the better, permanently.
The aim of this note has been to make a contribution to the awareness of the legal status of companion animals, specifically dogs. Currently, federal laws that govern man's best friend are archaic and lack fundamental protections for dogs. The relevant law has not evolved with the rest of society and fails to recognize that dogs need greater federal protection. The lack of protection *480
is exemplified by the gaping loophole in the Animal Welfare Act, which leads to the exploitation of dogs by puppy mills and pet shops that only consider human profit at the expense of animal welfare. Because of this loophole, puppy millers are able to maintain kennels that are unregulated by federal laws, and in turn can keep their breeding stock dogs in deplorable conditions to pump out adorable puppies that they sell at high profit margins. Internet sellers are the greatest beneficiaries, as they can sell their dogs to unsuspecting consumers without any sort of regulation at all. Even more disturbing is that there is also a profound lack of enforcement by the USDA, and the controlling case law has given great deference to the agency to it in its regulatory decisions.
Fortunately, through societal and legislative change, improvements for the welfare of dogs are possible in the future. Support for this position comes from an analysis of current legislation, both at the federal and state levels. At the federal level, the PUPS Bill has become the most promising piece of legislation the AWA has seen in several years. The outlook is optimistic that it will be passed in the near future. Furthermore, amendments to the 2008 Farm Bill have shown promise in improving conditions for animals that are sold over the internet. At the state level, Pennsylvania House Bill 2525 proved to be a great victory for animal welfare organizations, and other states have already followed suit with similar legislation.
While the property status of animals, specifically dogs, was only touched upon briefly, it has been argued that the abolitionist movement of ending all animal use by humans is overly idealistic and may not be possible. While the abolitionist movement may potentially achieve its goals, an approach of educating society such that moral standing of animals is changed is a more realistic and time-appropriate solution. If society is educated such that it begins understand the implications of its actions, perhaps humans can see the error of their ways and change their present attitudes about animals for feelings of compassion, and ultimately, for respect. As a result, the treatment of animals is subject predominantly to moral action, rather than a legal compulsion for abolition of non-human use altogether.
[FN1]. Candidate for Juris Doctor May, 2010
[FN2]. Rebecca J. Huss, Issues Relating to Companion Animals and Housing, in Taimie L. Bryant, et al., Animal Law and the Courts: A Reader 180 (Thompson-West ed., 2008).
[FN3]. Megan McMorris, Woman's Best Friend, Women Writers on the Dogs in Their Lives 7 (Seal Press 2006).
[FN4]. Thomas G. Kelch, Toward a Non-Property Status for Animals, 6 N.Y.U. Envtl. L.J. 531, 532 (1998).
[FN5]. See Gary L. Francione, Animal Rights and Animal Welfare, 48 Rutgers L. Rev. 397, 434-35 (1996).
[FN6]. Id. at 435-36.
[FN7]. Id. at 444.
[FN9]. Id. at 445.
[FN10]. See id.
[FN11]. Francione, supra note 4, at 405.
[FN12]. See generally Kelch, supra note 3.
[FN13]. Zoe Weil, The AV Magazine, Sept.-Oct. 1995, at 20 (reviewing Lawrence Finsen & Susan Finsen, The Animal Rights Movement in America: From Compassion to Respect (Twayne Publishers 1994)).
[FN14]. See Francione, supra note 4, at 407.
[FN16]. Animal and Plant Health Inspection Service (APHIS), The Animal Welfare Act, http://www.aphis.usda.gov/publications/animal_ welfare/content/printable_version/fs_awawact.pdf (last visited Mar. 6, 2010).
[FN17]. 7 U.S.C. § 2131 (2006).
[FN18]. Id. at § 2132(g).
[FN19]. Francione, supra note 4, at 436.
[FN21]. PETA Media Center Factsheets, The Animal Welfare Act, http:// www.peta.org/mc/factsheet_display.asp?ID=80 (last visited Mar. 6, 2010).
[FN25]. Amy Worden, Berks Kennel Owners Kill Their 80 Dogs, Philadelphia Inquirer, August 13, 2008, at 15.
[FN27]. The Humane Society, Notorious Animal Dealer Loses License and Pays Record Fine, http://www.hsus.org/animals_in_research/animals_in_research_ news/animal_dealer_loses_license_and_pays_record_fine.html (last visited Mar. 6, 2010).
[FN33]. See, e.g. Animal Welfare Institute, Dog Dealer's Day of Reckoning, http://www.awionline.org/ht/d/ContentDetails/i/1719/pid/2511 (last visited Mar. 6, 2010).
[FN34]. The Humane Society, Notorious Animal Dealer Loses License and Pays Record Fine, http://www.hsus.org/animals_in_research/animals_in_research_ news/animal_dealer_loses_license_and_pays_record_fine.html (last visited Mar. 6, 2010).
[FN35]. Last Chance for Animals, C.C. Baird Final Sentencing, http:// www.lcanimal.org/cmpgn/cmpgn_dog_baird_sentenced.htm (last visited Mar. 6, 2010).
[FN39]. American Society for the Prevention of Cruelty to Animals, Laws that Protect Dogs in Puppy Mills, http://www.aspca.org/fight-animalcruelty/puppy-mills/laws-that-protect-dogs.html (last visited Mar. 6, 2010).
[FN40]. American Society for the Prevention of Cruelty to Animals, Puppy Mills, http://www.aspca.org/fight-animal-cruelty/puppy-mills (last visited Mar. 6, 2010).
[FN41]. American Society for the Prevention of Cruelty to Animals, What is a Puppy Mill, http://www.aspca.org/fight-animal-cruelty/puppy-mills/what-is-apuppy-mill.html (last visited Mar. 6, 2010).
[FN43]. Press Release, Pennsylvania Dog Law Action, AG Secretary: Pennsylvania Could Shed Puppy Mill Label with Passage of House Bill 2525 (Sept. 15, 2008) available at http://www.doglawaction.com/PressReleases.aspx?PRID=197.
[FN44]. What is a Puppy Mill, supra note 40.
[FN45]. Last Chance for Animals, supra note 34.
[FN46]. 7 U.S.C § 2131 (2006).
[FN49]. Id. at § 2132(f).
[FN50]. Id. at §§ 2132(f)(i)-(ii).
[FN51]. 9 C.F.R. § 1.1 (2010).
[FN53]. Id. (“[Class B Licensee] includes brokers, and operators of an auction sale, as such individuals negotiate or arrange for the purchase, sale, or transport of animals in commerce.”).
[FN54]. Telephone Interview with Cori A. Menkin, Esq., ASPCA Director of Legislative Initiatives, in New York, NY (September 2, 2008).
[FN55]. Michelle Crean, Dogs Only, Free to Good Home, http:// www.dogsonly.org/bunchers.html (last visited Mar. 6, 2010).
[FN56]. 9 C.F.R. § 1.1 (2010).
[FN57]. PETA Media Center Factsheets, supra note 20.
[FN59]. See Francione, supra note 4, at 429.
[FN60]. Press Release, The Humane Society of the United States, Federal Lawmakers Introduce Bill to Crack Down on Abusive Puppy Mills (Sept. 19, 2008), available at http://www.humanesociety.org/news/press_releases/2008/09/federal_ lawmakers_introduce_puppy_mill_legislation_091908.html [hereinafter Humane Society Press Release].
[FN61]. 315 F.3d 297 (D.C. Cir. 2003).
[FN62]. Id. at 297-98.
[FN63]. Id. at 298.
[FN64]. Id. at 297 (quoting 9 C.F.R. § 1.1 (2010)).
[FN65]. Id. at 297-98.
[FN66]. Id. at 300.
[FN67]. Doris Day, 315 F.3d at 301.
[FN68]. Id. (quoting Licensing Requirements for Dogs and Cats, 64 Fed. Reg. 38,546, 38,547 (July 19, 1999)).
[FN70]. American Society for the Prevention of Cruelty to Animals, Puppy Scams & Cons, http://www.aspca.org/fight-animal-cruelty/puppymills/puppy-scams-cons.html (last visited Mar. 6, 2010).
[FN73]. Humane Society of the United States, Inside a Puppy Mill, http:// www.stoppuppymills.org/inside_a_puppy_mill.html (last visited Mar. 6, 2010).
[FN74]. 7 U.S.C. § 2132(f)(i) (2006).
[FN75]. Cori Menkin, Learning to Give, Puppy Mills, http:// learningtogive.org/papers/paper351.html (last visited Mar. 6, 2010).
[FN77]. American Society for the Prevention of Cruelty to Animals, Puppy Mill Glossary, http://www.aspca.org/fight-animal-cruelty/puppy-mills/puppy-millglossary.html (last visited Mar. 6, 2010).
[FN78]. What is a Puppy Mill, supra note 40 (stating that the “lineage records of puppy mill dogs are often falsified”).
[FN79]. Puppy Mill Glossary, supra note 76.
[FN84]. Society for the Prevention of Cruelty to Animals, Puppy Mills - Frequently Asked Questions, http://www.spcai.org/learn/animalcruelty/item/106-puppy-mills-%E2%80%93-frequently-asked-questions.html (last visited Mar. 6, 2010).
[FN86]. 7 U.S.C. § 2146 (2006).
[FN87]. PETA Media Center Factsheets, supra note 20.
[FN88]. Menkin, supra note 53.
[FN91]. 7 U.S.C. 2149(a) (“If the Secretary has reason to believe that any person licensed as a dealer ... has violated or is violating any provision of this Act  ... he may suspend such person's license temporarily ... or revoke such license, if such violation is determined to have occurred.”).
[FN92]. Clark v. United States Dep't of Agric., 537 F.3d 934, 939 (8th Cir. 2008) (quoting 5 U.S.C. § 706(2)(A)(2006)).
[FN93]. Heckler v. Chaney, 470 U.S. 821, 823 (1985).
[FN94]. Id. at 837-38.
[FN95]. Id. at 831.
[FN96]. Id. at 834.
[FN97]. Animal Legal Def. Fund v. Glickman, 943 F. Supp. 44, 48 (D.D.C. 1996), rev'd on other grounds, 204 F.3d 229 (D.C. Cir. 2000).
[FN98]. Id. at 62.
[FN99]. Id. at 63.
[FN101]. Adams v. Richardson, 480 F.2d 1159, 1160-61 (D.C. Cir. 1973).
[FN102]. Id. at 1161.
[FN103]. Id. at 1164.
[FN104]. Id. at 1162.
[FN105]. See generally Kelch, supra note 3.
[FN106]. See Heckler v. Chaney, 470 U.S. 821, 854-55 (1985) (Marshall, J., concurring).
[FN107]. Pa. Mun. Auths. Ass'n v. Johnson, 2005 WL 2491482, at *1 (D.C. Cir., June 3, 2005) (quoting Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000)).
[FN108]. Menkin, supra note 53.
[FN109]. Humane Society Press Release, supra note 59, at 2.
[FN110]. Id. at 1.
[FN112]. Id. at 2.
[FN113]. H.R. 6949, 110th Cong. § 2 (2008).
[FN117]. Humane Society Press Release, supra note 59, at 2.
[FN120]. Pet Alert, “Puppy Uniform Protection & Safety Act” Introduced in Congress, http://www.kennelspotlight.com/US_H_6949_S_3519_PUPS.pdf (last visited Mar. 6, 2010).
[FN121]. Govtrack.us, S.3519 [110th]: Puppy Uniform Protection and Safety Act, http://www.govtrack.us/congress/bill.xpd?bill=s110-3519 (last visited Mar. 31, 2010).
[FN122]. Laws That Protect Dogs in Puppy Mills, supra note 38.
[FN126]. See Food, Conservation, and Energy Act of 2008, H.R. 6124, 110th Cong. § 2 (2008), available at http://www.usda.gov/documents/Bill_6124.pdf (last visited Mar. 6, 2010). The 2008 Farm Bill also implements farm programs, conservation programs, environmental conservation and incentives programs, rural development in the United States, nutrition programs, increased budget for research and marketing, bio-energy plans, crop insurance, and other improvements for the conditions of livestock. Id.
[FN127]. Id. at § 14210.
[FN129]. Id. at § 14216.
[FN130]. Stray Pet Advocacy, Animal Cruelty Laws by State, http:// www.straypetadvocacy.org/html/cruelty_laws.html (last visited Mar. 31, 2010).
[FN134]. Laws That Protect Dogs in Puppy Mills, supra note 38.
[FN136]. Last Chance for Animals, Campaigns, http:// www.lcanimal.org/cmpgn/cmpgn_012_puppy_aware.htm#axzz0eK7ADpNB (last visited Mar. 6, 2010).
[FN138]. The Oprah Winfrey Show, Investigating Puppy Mills, www.oprah.com/slideshow/oprahshow/slideshow1_ss_global_20080404 (last visited Mar. 6, 2010).
[FN141]. Pennsylvania Department of Agriculture, Comprehensive Amendment to the Pennsylvania Dog Law available at http:// www.doglawaction.com/files/2525summary.pdf.
[FN147]. Menkin, supra note 53.
[FN148]. Laws That Protect Dogs in Puppy Mills, supra note 38.
[FN149]. Va. Code Ann. § 3.2-6503 (2009).
[FN150]. Id. at § 3.2-6512.
[FN152]. Laws That Protect Dogs in Puppy Mills, supra note 38.
[FN153]. Sheila Walsh, Phyllis Wright: The Woman Who Gave Shelters and Their Animals More Dignity, http://www.hsus.org/about_us/accomplishments/the_people_ who_have_shaped_the_hsus/phyllis_wright_the_woman_who_gave_shelters_and_their_ animals_more_dignity.html (last visited Mar. 6, 2010).
[FN154]. See http://www.aspca.org and http://www.hsus.org (last visited Mar. 6, 2010).
[FN155]. See id.
[FN156]. See The Humane Society, Notorious Animal Dealer Loses License and Pays Record Fine, http://www.hsus.org/animals_in_research/animals_in_research_ news/animal_dealer_loses_license_and_pays_record_fine.html (last visited Mar. 6, 2010).
[FN157]. Animal Legal Defense Fund, About Us, http:// www.aldf.org/section.php?id=3 (last visited Mar. 6, 2010).
[FN158]. American Society for the Prevention of Cruelty to Animals, ASPCA Mission: Orange, http://www.aspca.org/adoption/aspca-partnership/amofaqs-final-1-4-07.pdf (last visited Mar. 6, 2010).
[FN161]. ASPCA Overview of ASPCA Partnership, http:// www.aspca.org/adoption/aspca-partnership/overview.html (last visited Mar. 10, 2010).
[FN162]. Laws That Protect Dogs in Puppy Mills, supra note 38.
[FN163]. What is a Puppy Mill, supra note 40.
[FN164]. Menkin, supra note 53.
[FN165]. Adopt A Pet, http://adoptapet.com/ (last visited Mar. 6, 2010).
[FN166]. Philadelphia PAWS website, http://www.phillypaws.org/About-PAWS/default.asp (last visited Mar. 10, 2010).
[FN168]. Comprehensive Amendment to the Pennsylvania Dog Law, supra note 140.
[FN169]. See Kelch, supra note 3, at 534.
[FN170]. Fund for Animals, Inc. v. Lujan, 962 F. 2d 1391, 1395-96 (9th Cir. 1992).
[FN171]. See Christopher D. Stone, Should Trees Have Standing?--Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450, 456, 464 (1972).
[FN172]. 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979) (“This court now overrules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property ... [a] pet is not an inanimate thing that just receives affection, it also returns it.”).
[FN174]. 886 S.W.2d 368, 376-77 (Tex. App. 1994) (Andell, J., concurring) (“[F]or the proposition that animals are treated as property in the eyes of the law. I agree that this is an established principle of the law. But animals are not merely property.”).
[FN176]. Gary L. Francione & Anna E. Charlton, Animal Advocacy in the 21st Century: The Abolition of the Property Status of Non-humans, in Animal Law and the Courts: A Reader 7 (Thompson-West ed., 2008) [hereinafter Francione & Charlton].
[FN178]. Robert Garner, Political Ideology & The Legal Status of Animals, 8 Animal L. 77 (2002) [hereinafter Garner, Legal Status of Animals].
[FN179]. Id. at 78.
[FN180]. Francione & Charlton, supra note 175, at 22.
[FN184]. Garner, supra note 177, at 91.
[FN185]. Id. at 79.
[FN186]. Id. at 80.
[FN187]. Animal Legal Defense Fund, Animal Law Courses, http:// www.aldf.org/article.php?id=445 (last visited Mar. 6, 2010).
[FN188]. Garner, supra note 177, at 89.
[FN189]. Francione & Charlton, supra note 175, at 24.
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