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August News

  The SWIMS Act introduced in U.S. House would end import and export of certain marine mammals for public display. The Strengthening Welfare in Marine Settings Act of 2022, or SWIMS Act (HR 8514), was developed by advocacy organization the Nonhuman Rights Project. The act would amend the Marine Mammal Protection Act by banning the export or import of cetaceans like orcas, beluga whales, false killer whales, and pilot whales for public display in captivity. Only export and import for the purpose of bringing the animals to an approved marine mammal sanctuary would be allowed. In addition, the act amends the Animal Welfare Act by making it “unlawful for any person to breed or artificially inseminate any orca, beluga whale, false killer whale, or pilot whale for purposes of using the progeny of such species for public display.” If passed the SWIMS Act would be the first amendment to the MMPA in nearly 30 years. Want more on the MMPA? Check out our new article: Reviewing the Marine Mammal Protection Act Through a Modern Lens by Bradley Varner.

  California (AB 2606) and Delaware (HB 333) ponder cat “declawing” bans in 2022. In 2019, New York became the first state to ban this elective and painful surgery for cats (McKinney's Agriculture and Markets Law § 381). Maryland’s Governor Larry Hogan signed HB0022 in April of 2022 to become the second state to ban the procedure (which becomes effective on October 1, 2022). Amputation of a cat’s toes through onychectomy (the formal name for cat declawing) is not the only convenience surgery regularly performed on companion animals. States have begun to examine non-therapeutic tail docking and ear cropping in dogs as well, though no state bans those procedures outright. Curious to learn more about medically unnecessary surgeries in companion animals? Check out our new paper Detailed Discussion of Non-Therapeutic Procedures for Companion Animals by Asia Siev.

  Curious about changes to state animal-related laws in 2021? Look no further! Our Table of Statutory Amendments from 2021 allows you to see all of the major changes right in one table with links to the new or amended law. Highlights include Arizona adding a possession ban for those convicted of animal cruelty crimes, making it the 39th state with such a law. Washington became the fifth state to ban the sale of dogs and cats at retail pet stores. Nevada and New York now prohibit discrimination against dog breeds in home owners insurance policies by state insurers. Hawaii became the first state in the nation to mandate microchipping of dogs and cats. Texas strengthened its dog tethering provisions through passage of the Safe Outdoor Dog Act. On the wild animal side, Maryland banned brutal "killing contests" and Virginia outlawed wildlife exhibitors from offering direct contact with dangerous wild animals. Check out the table for all the changes last year!

News archives

Cases

Incident involving dog and another resident and whether this was a "direct threat" raised genuine issue of material fact to preclude summary judgment in FHA housing discrimination case. Andrade v. Westlo Mgmt. LLC, --- A.3d ----, 2022 WL 2183604 (R.I. June 17, 2022). The defendants, Westlo Management LLC (Westlo) seek review of a Superior Court order granting partial summary judgment on several counts in favor of the plaintiffs, Curtis W. Andrade and The Rhode Island Commission for Human Rights (the commission). The defendants assert that the existence of genuine issues of material fact precluded partial summary judgment and that the commission did not have standing to intervene in this matter. The matter stems from a denial of plaintiff's request for a reasonable accommodation at Westlo's property. Prior to moving in to Westlo's low-income property, plaintiff was told by a leasing agent that he was not permitted to have his dog, Enzo, because the dog (a pit bull) was on the complex' restricted breed list. After cross-motions for summary judgment by both parties, the hearing justice granted plaintiffs motion for summary judgment finding that Westlo had discriminated against Andrade. However, she found there to be a genuine issue of material fact as to whether the dog had requisite training. The justice also acknowledged that she had misstated that the request for the reasonable accommodation had occurred before an aggressive incident with the other resident. As a result, she declined to make a finding of fact on that issue. On defendants' appeal of summary judgment, defendants argue that the issue of whether an accommodation is reasonable under the FHA is a factual one and thus it was error for the hearing justice to make those determinations. The Supreme Court looked at the similar language of both the federal FHA and the state FHPA. While the court found that plaintiff met the definition for disability under the laws and that defendant was made aware of plaintiff's need for reasonable accommodation, it was troubled by the "direct threat" posed by the dog. Specifically, the court found issue with the date mix-up in the initial hearing for the incident with the dog and another resident. Therefore, due to the highly fact-specific nature of the assessment of an assistance animal as well as the conflicting evidence presented, this court disagreed with the hearing justice and concluded summary judgment was not appropriate. The record was remanded to the Superior Court for further proceedings in accordance with this opinion..

Court upholds California ban on sale of poultry that has been force-fed to produce foie gras. Ass'n des Éleveurs de Canards et d'Oies du Quebec v. Bonta, --- F.4th ----, 2022 WL 1436840 (9th Cir. May 6, 2022). California prohibits the in-state sale of products that are “the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.” Cal. Health & Safety Code § 25982. The law had a 7.5-year grace period before it went into effect. After nine years of litigation and in their third set of appeals before this Court, the parties ask the court here to decide whether California's sales ban is preempted by the Poultry Products Inspection Act (“PPIA”) or violates the dormant Commerce Clause. As to the first issue of preemption, the plaintiff sellers contend that at least one USDA Policy Book defines foie gras as liver from poultry that has been "specially fed and fattened" and other USDA documents suggest this is done via forced-feeding. Thus, contend the sellers, it is impossible to produce and properly label foie gras, as is required by the PPIA, and then also comply with the California law. The court disagreed with the assertion, finding that the sellers can still force feed birds to make their products, but not sell those in California. Further, the sellers raise a new suggestion that the ban constitutes express preemption because force feeding operates as an "ingredient requirement." Essentially, they contend you cannot have foie gras without force-feeding birds. This was also rejected, as the court found nothing new that would reverse the precedent established in the prior decision by the court. The sellers' argument that the ban is "unduly burdensome" also failed since there is not requirement that a state impose the "least burdensome" method for in-state commerce. The court held that the sales ban is neither preempted nor unconstitutional and that the specified transactions are out-of-state sales permitted by California law.

Case Archives

Articles

From Factory Farming to A Sustainable Food System: A Legislative Approach, Michelle Johnson-Weider, 32 Geo. Envtl. L. Rev. 685 (2020).

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot, 85 Tenn. L. Rev. 707 (2018).

When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing, Kate O'Reilly-Jones, 52 Colum. J.L. & Soc. Probs. 427 (Spring, 2019).

Does Every Dog Really Have Its Day?: A Closer Look at the Inequity of Iowa's Breed-Specific Legislation, Olivia Slater, 66 Drake L. Rev. 975 (2018).