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June News

 

  Chinese government offers buyouts to wildlife farmers after Covid-19 pandemic to curb consumption of wild animals. In the aftermath of the global coronavirus pandemic, the Chinese government has begun to offer buyouts of 14 species of wildlife located on farms in the country. The government hopes the buyout will help these farmers transition from wildlife breeding to farming vegetables, herbs for Traditional Chinese Medicine, or more common farm animal species like chickens and pigs. The animals seized by the government face one of three fates – release to the wild, relocation to a zoo or research facility, or outright culling of the animals. China hopes the proposed buyouts will reduce consumption of wildlife, some of which are thought linked to the Covid-19 pandemic by scientists, and assist with transition of these farms to more sustainable livelihoods. For more on this, see the Mongabay article, which has a link to the actual order from the government.

   On January 1st, Oregon’s “beagle freedom” law (S.B. 638) became effective, joining eleven other states with such laws. These laws mandate that research facilities that use dogs (and sometimes cats) for laboratory research must offer animals deemed medically suitable for adoption instead of simply euthanizing them. The majority of states limit these laws to institutes of higher education that receive public funds except for Nevada that extends its law to private product testing facilities. Oregon’s new law defines “research facility” as “any institution of higher education or any facility, whether privately or publicly owned, leased or operated, where laboratory research is performed.” Under these laws, the research facilities may enter into agreements with animal rescue or humane agencies to take the suitable animals and adopt them to the public.

   Maine joins Connecticut with law allowing appointment of legal advocates to help animal victims in cruelty cases; will Illinois be the next state? In 2016, Connecticut broke legal ground with "Desmond's Law" that allows appointment of animal advocates in cruelty cases to represent the interests of animal victims. According to the University of Connecticut, animal advocates have been appointed in 70 animal abuse cases. Recently, Maine enacted "Franky's Law" that does the same in that state. In 2019, Illinois State Rep. Allen Skillicorn proposed HB 1631, which would allow the court, in a prosecution involving the injury, health, or safety of a cat or dog, to appoint a special advocate to "represent the interests of justice regarding the health or safety of the cat or dog." In all of these states, the legislation states that attorneys or law students who act in such capacities are volunteers. According to a WGEM news story, the Illinois bill has bipartisan support. 

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Cases

Mere possession of a federal exhibitor’s license in Indiana for wild animals does not automatically vest a property right in the permit holder. Tranchita v. Dep't of Nat. Res., --- N.E.3d ----, 2020 IL App (1st) 191251 (2020). Plaintiff Tranchita alleged that she cared for four abused and abandoned coyotes for 13 years. Plaintiff possessed a USDA Class C exhibitor’s license. She also held an Illinois state permit as a fur-bearing mammal breeder from 2011 to 2016, however, this permit lapsed after Plaintiff failed to pay the annual fee. On April 24, 2019, Illinois Department of Natural Resources (IDNR) executed a search warrant on Plaintiff’s premises. The coyotes were seized during this raid. Plaintiff was told that if she did not sign a relinquishment form that the coyotes would be euthanized or confined to a small space. IDNR cited Plaintiff for lacking proper permits and for several criminal violations of the Wildlife code. Plaintiff alleged that she had a protected property interest in the coyotes pursuant to her federal exhibitor license. The trial court found that Plaintiff did not have a protected property interest in the coyotes because she did not possess the proper Illinois permit at the time of the seizure. On appeal, the court found that, under the Illinois Wildlife Code, a fur-bearing mammal breeder permit is necessary in order to possess or raise a coyote. Plaintiff was in violation of Illinois law the moment her permit lapsed in 2016. This made the coyotes contraband since they were possessed in violation of Illinois’ Wildlife Code. No person is permitted to assert legal ownership or a right to possession of property that is contraband. While Plaintiff argued that her federal exhibitor’s license recognized a right of property in her coyotes, the Court found that the mere possession of a federal exhibitor’s license does not automatically vest a property right in the permit holder. The Court ultimately affirmed the judgement of the trial court.

Trophy hunting plaintiffs would not suffer irreparable harm and emotional distress based on delay in processing trophy import permits for endangered elephants. Dallas Safari Club v. Bernhardt, --- F.Supp.3d ----, 2020 WL 1809181 (D.D.C. Apr. 9, 2020). Individual elephant sport hunters and their hunting organizations (“Plaintiffs”) filed suit against the United States Fish and Wildlife Service seeking to import their sport-hunted elephant trophies from Africa into the United States. The Plaintiffs moved for a preliminary injunction requiring the Service to process pending and subsequently filed permit applications. All African elephant trophy imports require the Service to make an enhancement finding, meaning that the killing of the trophy animal will enhance the survival of the species, and issue an ESA permit. Additionally, certain African elephant trophy imports require a non-detriment finding and a CITES import permit. Historically, the Service made periodic countrywide enhancement and non-detriment findings, however, this came to a halt due to a Presidential tweet surrounding media criticism over the Service’s decision to lift the suspension on Zimbabwe’s ESA enhancement finding. The Court found that injunctive relief was not warranted because the Plaintiffs failed to show irreparable harm as to any Plaintiff. The individual Plaintiffs argued that they had suffered both emotional harm and economic harm. Additionally, the emotional distress claimed by the Plaintiffs would be alleviated when the Service issues a decision either granting or denying their permit applications, so the harm was not irreparable. The Court ultimately held that in light of the disruptions caused by COVID-19 and the diminished capacity of the Service to process permit applications during this unprecedented time, it would be unwise and not in the public interest to order the expeditious processing of sport trophy permit applications. The Court denied Plaintiffs’ Motion for a Preliminary Injunction.

Designation of unoccupied areas as critical habitat for jaguar was arbitrary and capricious where no rational reason was given for designation of those areas. New Mexico Farm and Livestock Bureau , et. al. v. U.S. Dep't of Interior, et. al., 952 F.3d 1216 (10th Cir. 2020). The U.S. Fish and Wildlife Service designated 764,207 acres in New Mexico and Arizona as critical habitat for the jaguar pursuant to the Endangered Species Act. The area was divided into six individual units. Units 5 and 6 were the ones at issue. Plaintiffs filed suit contending that the Service’s designation of Units 5 and 6 as critical habitat was arbitrary and capricious. The district court ruled in favor of the Service and this appeal followed. There was no concrete evidence that jaguars were present in Units 5 and 6 at any time before 1995. The Service’s reliance on sightings in 1995, 1996, and 2006 to support a conclusion of occupation in 1972 was not based on expert opinion. It was purely speculative. The Court agreed with the Plaintiffs that the Service’s designation of Units 5 and 6 as occupied critical habitat was arbitrary and capricious. The Court further found that in order for an unoccupied area to be designated as a critical habitat, the Service must first find that the designation of the occupied areas is inadequate to ensure conservation of the species. The Court ultimately found that the Service did not follow its own regulations or give a rational explanation for failing to do so and as a result, its designation of Units 5 and 6 as critical habitat was arbitrary and capricious. The decision of the district court was reversed and remanded.

Case Archives

Articles

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).

When Cheaters Prosper: A Look at Abusive Horse Industry Practices on the Horse Show CircuitKjirsten SneedKentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 6 : Iss. 2 , Article 3 (2014).

Survey of Damages Measures Recognized in Negligence Cases Involving Animals, Alison M. Rowe, Kentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 5 : Iss. 2 , Article 5 (2013).

Animal Consortium,  David S. Favre and Thomas Dickinson, 84 Tenn. L. Rev. 893 (2017).