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October News

  Reno City Council and other municipalities in Nevada adopt resolutions to ban “wildlife killing contests” while state board mulls a decision. According to the Animal Legal Defense Fund (ALDF), a wildlife killing contest is an event where hunters meet to kill native wildlife (coyotes, wolves, foxes, prairie dogs and others) and prizes are awarded for the most animals killed or the largest specimen killed. Most animal advocates and conservation authorities note that such contests may actually stimulate wildlife migration into those areas thereby increasing predator numbers and leave baby animals orphaned. On Friday September 24th, the Nevada Board of Wildlife Commissioners met to discuss the contentious issues of wildlife killing contests and bear hunts. While the state’s director noted that the meeting was dominated by the “extremes” on the issue, municipalities previously stepped up to ban these killing contests. In addition to Reno, Clark County has also issued a resolution condemning the practice and urging the state commission to follow suit. If the state bans the contests, Nevada would join Arizona, California, Colorado, Massachusetts, New Mexico, Vermont, Washington and, most recently, Maryland, which banned the contest killing of cownose rays.

  U.S. Fish and Wildlife Service (USFWS) prepares to list the emperor penguin as a threatened species on the federal Endangered Species List. On August 3rd, the USFWS issued a press release explaining a proposed rule to list the emperor penguin, a flightless seabird endemic to Antarctica, as threatened with under the Endangered Species Act (ESA). The USFWS specifically attributes climate change as the primary threat to the species due to melting sea ice. In fact, one article predicts that this species will be effectively extinct by 2100 if no action is taken. The proposed rule is now open for public comment until October 4th. What makes this listing more important is that it represents a reversal from the Trump administration’s stance on the Endangered Species Act. In September of 2019, Trump issued roll-backs to ESA protections by requiring that risks to species would be based only on the “foreseeable future” and economic impacts would be part of the scientific consideration process in listing a species. The “foreseeable future” language was interpreted to be a push-back to the established science on climate change. While President Biden has signaled a reversal of these Trump-era ESA changes, change federal rules requires engaging in a formal rulemaking process that can take months or even years unless an agency admits fault or withdraws the rules.

   Approaching summer heat means more emergency calls on dogs being left in hot cars. Currently, 31 states have laws that specifically address dogs and sometimes other domestic animals being left unattended in motor vehicles during dangerous weather conditions. A simple Internet search reveals stories of animals being rescued from overheated vehicles beginning around this time of year (in late April, Sarasota, FL police broke a window and rescued “Moose” the dog from an unattended car that had reached 111 degrees). About half of the states with laws have what can be termed “Good Samaritan” rescue laws, meaning any person can rescue an animal in imminent danger after following the steps required by law without fearing civil or criminal liability for property damage. But, be wary: there are misleading stories on social media that misrepresent whether a person can engage in property damage to free a stranded pet (check out this USA Today article that dispels the myth). The remaining states leave the rescue of animals up to first responders and law enforcement. Where does your state stand on these laws?

News archives

Cases

NJ Supreme Court holds that dog license records are not private and protected against disclosure. Bozzi v. City of Jersey City, 2021 WL 4256377 (N.J. Sept. 20, 2021). This New Jersey case considers whether owning a dog creates an objectively reasonable expectation of privacy such that the owner's personal information in the dog licensing record might be exempt from disclosure under the New Jersey Open Public Records Act (OPRA). Plaintiff Ernest Bozzi, a licensed home improvement contractor, submitted a request to the City of Jersey City (Jersey City) for dog license records to solicit customers for his invisible fencing business. He sought only the names and addresses of dog owners. Jersey City denied his request, objecting on the ground that such a disclosure would violate the dog owners’ reasonable expectation of privacy and that such a disclosure would place dog owners and non-dog owners a risk for theft (e.g., non-dog owners might be singled out for robbery or burglary). The lower court found no privacy interest in disclosing the names to comply with plaintiff's request and the Appellate Division affirmed that order. Upon Jersey City's petition for certification, the New Jersey Supreme Court affirmed that ruling, finding that owning a dog is "substantially a public endeavor in which people do not have a reasonable expectation of privacy." In looking at the OPRA privacy clauses, the Court concluded that owning a dog is "inherently, a public endeavor." In fact, dog owners continually expose themselves through social media, vet visits, public dog parks, bumper stickers, and the like, which militates against the activity being a private activity. While there are other aspects of dog licensing that may expose dog owners to a risk, like disclosure that a dog is a service animal or identifying the particular breed of the dog and exposing an owner to possible theft, the release of names and addresses does not rise to that concern. The Appellate Division's judgment was affirmed.

Plaintiff animal organizations have standing to challenge civil suit provision of Arkansas’ “ag gag” law. Animal Legal Def. Fund v. Vaught, 8 F.4th 714 (8th Cir. 2021). Several animal advocacy organizations filed a complaint against the Vaughts and Peco Foods, Inc. seeking an order that would prevent defendants from bringing a civil suit under Ark. Code Ann. § 16-118-113 (colloquially known as Arkansas' "ag gag" law). The statute provides a civil cause of action for unauthorized access to protected properties described under the law. Plaintiffs claim that the statute violates their right to free speech under the First Amendment by chilling them from engaging in activities protected under the First Amendment. In particular, the plaintiffs have "specific and definite plans" to investigate the defendants' chicken slaughterhouses and pig farms by sending undercover investigators to seek employment with defendants and collect information to support their mission to "reform[] animal agriculture." The district court found that plaintiffs failed to establish Article III standing to sue, finding that the injury at hand was too speculative. On appeal here, the court noted found that plaintiffs established the three primary elements of standing. First, but for the statute, plaintiffs allege that they would engage in the protected constitutional conduct. Second, the plaintiffs adequately outlined their intention to engage in a course of conduct that is proscribed by the statute. Finally, the court found a credible threat of enforcement that was objectively reasonable. Thus, the complaint sufficiently established a case or controversy. The lower court judgment was reversed and the case was remanded.

Exigent circumstances were present for a warrantless entry where there was concern over a medical emergency and subsequent entry showed the presence of 37 animals under noxious conditions. Gaetjens v. City of Loves Park, 4 F.4th 487 (7th Cir. 2021), reh'g denied (Aug. 12, 2021). Plaintiff Gaetjens filed a § 1983 action against city, county, and various local government officials alleging that her Fourth Amendment rights were violated after officials entered and condemned her home and seized her 37 cats. After her neighbor and emergency contact could still not locate Gaetjens, police were phoned out of concern that Gaetjens might be experiencing a medical emergency. Intense odors of feces, urine, and a possibly decomposing body greeted the police and required them to call the fire department so that the home could be entered with breathing devices. While police did not find Gaetjens, they did find 37 cats. The house was ultimately condemned and animal control were able to impound the cats (except for four that died during or after impoundment). As it turns out, Gaetjens was at the hospital during this whole process. After learning of the impoundment, Gaetjens filed the instant action. The district court granted summary judgment to defendants. On appeal here, the Seventh Circuit considered whether the warrantless entry into Gaetjens home was reasonable based on exigent circumstances. Relying on a recent SCOTUS case that found absence from regular church service or a repeated failure to answer a phone call supported an emergency exception for a warrant, the Court noted that the "litany of concerning circumstances" in the case at bar "more than provided" a reasonable basis for entry. As to the confiscation of the cats, the court noted that previous cases support the warrantless seizure of animals when officials reasonably believe the animals to be in imminent danger. While the use of the "cat grabber" did lead to an unfortunate death of one cat, the overall seizure tactics were necessary and reasonable. Thus, the Court affirmed the judgment of the district court.

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).