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January News

  Michigan Governor, Rick Synder, signs wolf-hunting bill into law. SB 1187 allows the Michigan Natural Resources Commission to designate the wolf as a "game species." The bill was quickly shuttled through the Michigan Legislature after a Court of Appeals decision in late November 2016 held the prior 2014 law was unconstitutional. Controversy surrounds the law because a majority of Michigan voters rejected a wolf hunting legislative referendum in 2014. The new law states the following provision: "The commission shall not designate any of the following as game under this subsection: . . . (c) Any species added to the game list by a public act that is rejected by a referendum before May 14, 2013." This apparently overcomes the 2014 election results. The effect of the law remains to be seen, as a 2014 federal court ruling held that wolf hunting in Michigan, Wisconsin and Minnesota is prohibited.

  U.S. Senate passes historic amendments to PACT Act, Preventing Animal Cruelty and Torture (PACT). This act, S. 1831, is the first-ever federal general anti-cruelty bill. In 2010, Congress passed a law that banned the creation, sale, and distribution of "animal crush videos," where depictions of animals being purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury are filmed. The 2016 amendments will prohibit those same acts of animal cruelty (defined in the law as "crushing") when they occur in interstate or foreign commerce or within special maritime and territorial jurisdiction of the U.S., regardless of whether a video is produced. The amendments could prohibit the intentional abuse of animals while traveling on an interstate highway, interstate commerce involving the "serious bodily injury" of animals across state lines, or intentional abuse at federally-controlled facilities. Offenders will federal felony charges with up to seven years in prison.

  Ever wonder how a species gets listed as "endangered" or "threatened" by the U.S. Fish & Wildlife Service? The process is a sometimes complicated one that involves input from both the public and scientific experts. The FWS first receives what is known as a "petition" to list a species on as endangered or threatened. It then reviews this petition for 90 days to determine whether "substantial information" indicates that listing of the species "may be warranted." There is then a 12-month review process where the FWS collects scientific data on the species and threats facing it. If listing is "warranted," notice is published in the Federal Register (a daily publication of federal rules and legal notices) of the proposed rule for 60 days so the FWS can get comments from experts and the public. Finally, the FWS makes a decision whether or not to list the species based on all this information. If listed, the rule appears again in the Federal Register and takes effect 30 days later. You can see this process broken down in chart form from the FWS.

New archives

Cases

Big Cats of Serenity Springs, Inc. v. Rhodes, 842 F.3d 1280 (D.C. Cir. 2016). Plaintiff, Big Cats of Serenity Springs is a Colorado-based non-profit that provides housing, food, and veterinary care for exotic animals regulated by the Defendant, APHIS. Three APHIS inspectors accompanied by sheriff's deputies broke into the Big Cats facility to perform an unannounced inspection of two tiger cubs. Big Cats sued the APHIS inspectors for the unauthorized entry and asserted that the entry was an illegal search under the Fourth Amendment, and sought declaratory judgment and compensatory and punitive damages. The United States District Court granted APHIS's motion to dismiss in part and denied in part. APHIS appealed. The Court of Appeals, held that: (1) Big Cats could assert a Bivens claim; (2) Big Cats adequately alleged that the inspectors violated their Fourth Amendment right to be free from unreasonable searches and seizures; and (3) Big Cats had clearly-established the constitutional right to be free of unreasonable searches or seizures, thus weighing against the inspectors' claim of qualified immunity; but (4) the inspectors did not act under the color of state law, as required for § 1983 liability. The Court of Appeals reasoned that Big Cats' complaint stated a claim for relief under Bivens because No APHIS inspector would reasonably have believed unauthorized forcible entry of the Big Cats facility was permissible. The Court of Appeals affirmed the district court's order denying the government's motion to dismiss the Bivens claim and reversed the trial court's order denying the government's motion to dismiss the § 1983 claim.

Milburn v. City of Lebanon,  --- F.Supp.3d ----, 2016 WL 6908100 (D. Or. Nov. 21, 2016). Plaintiff Milburn was acquitted of misdemeanor animal abuse on appeal, but a Lebanon police officer removed Milburns’ dog from her possession. While the appeal was pending, the Defendant, City of Lebanon, gave the dog to an animal shelter where it was later adopted by a new owner. The Linn County Circuit Court ordered the City to return the dog to Milburn after the acquittal but the Defendant City failed to comply. Milburn then brought this action pursuant to 42 U.S.C. §§ 1981 and 1983 against the City of Lebanon. The City moved for dismissal for failure to state a claim, and the United States District Court, for the District of Oregon, granted that motion while giving leave for Milburn to amend her complaint. In the Amended Complaint, Milburn contended that the City’s refusal to return her dog pursuant to the state court order deprived her of property without due process of law. Milburn also asserted a violation of her procedural due process rights. The District Court reasoned that while Milburn alleged a state-law property interest in her dog, she failed to allege that the Defendant City deprived her of that interest without adequate process. Milburn also did not allege state remedies to be inadequate. Those two omissions in combination were fatal to Milburn's procedural due process claim. Also, Milburn's assertion that the court issued an order and that the City did not comply with, is an attack on the result of the procedure. The court reasoned that attacking the result instead of the process of a procedure does not state a procedural due process claim. Therefore, Milburn’s procedural due process claim was also dismissed. The Court also held that it did not have jurisdiction over Milburn’s injunctive relief claim and dismissed it. However, the court held that Milburn could seek monetary damages. Milburn was granted leave to amend her complaint within 90 days with regard to her claim for actual and compensatory damages.

Arellano v. Broward K-9,  --- So.3d ----, 2016 WL 6992338 (Fla. Dist. Ct. App. Nov. 30, 2016). Plaintiff Arellano suffered a dog bite and injury after being attacked by a guard dog. The Defendant, Broward K–9/Miami K–9 Services, Inc. (“K–9”), owned two guard dogs. The guard dogs escaped K-9 through a cut fence after the business was burglarized. Arellano, believing the dogs to be her neighbors, fed and sheltered the dogs for about five days. When Arellano intervened in a fight between her pet dog and the K-9 dog, she was attacked. Arellano then brought a statutory damages claim for strict liability against K-9 under Florida’s dog bite statute. The Circuit Court entered summary judgment in favor of K-9 and determined as a matter of law, that Arellano's actions constituted a superseding, intervening cause, thereby precluding her statutory dog bite claim. On appeal, the District Court of Appeals held that triable issues of fact existed as to whether, and to what extent, K-9's liability under the statute should be reduced because of allegedly negligent actions by Arellano. The Court of Appeals reversed and remanded the circuit court decision and reasoned that Florida's dog bite statute imposes strict liability, subject only to a plaintiff's comparative negligence, which in this case must be determined by the trier-of-fact. K-9's liability under the statute should only be reduced because of the allegedly negligent actions of Arellano.

People v. Meadows, --- N.Y.S.3d ---- 2016 WL 7165826 (N.Y. City Ct. Dec. 5, 2016). Defendant Amber Meadows allegedly neglected to provide her dogs with air, food, and water, and confined them in a bedroom. Meadows was prosecuted for three counts of the unclassified misdemeanor of failure to provide proper food and drink to an impounded animal in violation of § 356 of the Agriculture and Markets Law (AML). Meadows moved to dismiss the Information as facially insufficient and stated that the Supporting Deposition indicated that the dogs were “in good condition.” The State argued that the allegations in both the Information and Deposition, taken together, provide a sufficient basis to establish the elements of the crime. The City Court held that: (1) “impounded” as stated in § 356 of the Agriculture and Markets Law applies only to "pounds" or kennels and does not apply to individual persons, and (2) even if the statute applied to individual persons, the allegations in the Information were not facially sufficient. Based on observations by law enforcement, it appeared the animals were properly cared for up to the point where she was incarcerated (she was unsuccessful in securing assistance for the dogs while incarcerated). The Information was dismissed with prejudice, and the People's application for leave to file an amended or superseding Information was denied.

Case Archives

Articles

Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy, Myanna Dellinger, 41 Colum. J. Envtl. L. 395 (2016).

Stevens, R.A.V., and Animal Cruelty Speech: Why Congress's New Statute Remains Constitutionally Problematic, J. Alexandra Bruce, 51 Gonz. L. Rev. 481 (2015-2016).

Animals as More Than 'Mere Things,' but Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm, Richard L. Cupp, Jr., University of Cincinnati Law Review, Forthcoming; Pepperdine University Legal Studies Research Paper No. 19 (available at SSRN: http://ssrn.com/abstract=2788309).

Designing a Model Dog Park Law,  John J. Ensminger and Frances Breitkopf, Animal Legal & Historical Center (2016).

Take it to the Limit: The Illegal Regulation Prohibiting the Take of Any Threatened Species Under the Endangered Species Act, Jonathan Wood, 33 Pace Envtl. L. Rev. 23 (2015).