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January News

 

   Colorado voters will consider whether to re-introduce gray wolves back to the state by 2020 ballot measure. The father of wildlife ecology, Aldo Leopold, once said “I now suspect that just as a deer herd lives in mortal fear of its wolves, so does a mountain live in mortal fear of its deer.” According to KMBZ radio, the president of the group spearheading the reintroduction measure stated that wolves are “critical components” of the Colorado ecosystem and they will address the booming deer and elk populations that browse vegetation “to the ground.” Initiative 107 will require the Colorado Parks and Wildlife Commission to create a plan for reintroduction of the wolves by 2023. Critics contend that wolves will actually lead to the greater spread of disease and cause both big game and livestock depredation. Wolves were extirpated from most of the contiguous U.S. by the end of the 20th century while the last wolf was killed in 1945 in Colorado.

   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.

   Are vegans a protected class? One tribunal in the U.K. held that “ethical veganism” is a protected class is akin to other religions that receive anti-discrimination protections. According to the Guardian, an employment tribunal considered whether a man, allegedly fired for disclosing to his coworkers at an animal welfare organization that company pension invested in animal experimentation, was unfairly dismissed for voicing his concerns. While the substantive merits of the case are still undecided, the judge found “that ethical veganism satisfied the tests required for it to be a philosophical belief protected under the Equality Act 2010.” While no U.S. court or tribunal has similarly recognized veganism this way, the issue arose in a 2000 wrongful termination case after a person refused required vaccinations that contained animal-based products at a pharmaceutical warehouse position. Animal advocates filed amicus briefs in support of Friedman’s position, but a California court of appeal (Friedman v. S. Cal. Permanente Med. Grp., 102 Cal. App. 4th 39 (2002)) eventually held that veganism is not a “religious creed.”   

   Hawaii news report raises alarm over feral cat and endangered bird conflicts. According to reports, state wildlife officials found that a feral cat killed an endangered Hawaiian petrel chick that the state Kauai Endangered Seabird Recovery Project had been tracking. The project also documented other native birds killed by feral cat predation. The researchers expressed fears over the survival of native bird populations, some of which are endangered, without proper management of feral cat communities. This concern is not new and not limited to Hawaii. To learn more about this conflict and how states and local communities are addressing the feral/community cat and bird conflict, see our topic area.

News archives

Cases

Court holds no constitutional duty to scan for microchip after chipped valuable dog spayed and adopted out. Lunon v. Botsford, --- F.3d ----, 2019 WL 7198501 (8th Cir. Dec. 27, 2019). Lunon had a German Shephard as a breed dog, named Bibi, which had gotten loose and was turned into the local animal shelter. The animal control officer failed to scan the dog for a microchip. After five days at the animal shelter, Bibi was sterilized and adopted out. Lunon was able to recover his dog through a replevin action, however, Lunon claimed that his fourteenth amendment right to procedural due process was violated when Bibi was spayed and adopted out without providing pre-deprivation notice and an opportunity for Lunon to be heard. On appeal, the Court found that the animal control officer picking up Bibi and delivering her to the animal shelter did not deprive Lunon of a protected property interest. There is no constitutional duty for an animal control officer to scan a stray dog for a microchip. Therefore, the animal control officer was not liable. The public officials that participated in this action were all protected under governmental immunity because Lunon failed to demonstrate that each individual defendant violated his constitutional right to due process. The Court ultimately reversed the order of the district court and remanded with directions to enter judgment dismissing those claims with prejudice.

Defendant zoo committed "taking" under ESA for "fetid and dystopic" conditions suffered by animals in citizen-suit by animal protection group. PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. TRI-STATE ZOOLOGICAL PARK OF WESTERN MARYLAND, INC., et al., Defendants. --- F.Supp.3d ----, 2019 WL 7185560 (D. Md. Dec. 26, 2019). PETA brought this action against defendants Tri-State Zoological Park of Western Maryland, Inc. Prior to this lawsuit, Tri-State was home to two lemurs, five tigers, and two lions which are all protected under the Endangered Species Act (“ESA”). More than half of the protected species housed at Tri-State died. PETA alleged violations of the ESA. PETA contended that the animals were subjected to harm and harassment and that Tri-State committed a “take” as defined by the ESA as a result of unsanitary living conditions, poor diets, and inadequate shelter and enrichment. The district court found that PETA had standing to bring suit. The court also found that each of the respective animals had been subjected to a take under the ESA. The court ultimately held that it would enter a separate order declaring that the Defendants violated the ESA by unlawfully taking the remaining big cats and maintaining possession of them. The Court permanently enjoined the Defendants from ever owning or possessing any endangered or threatened species and terminated the Defendants’ ownership and possessory rights to the animals.

Restitution order to humane society reversed because it was a governmental entity that cannot be  victim of abuse (even though court recognized the horse victims cannot themselves collect). State v. Marcellino, --- N.E.3d ----, 2019 WL 6311765, 2019 -Ohio- 4837 (2019). Bianca Marcellino was charged and convicted of two counts of cruelty to animals after a search of her residence revealed two horses that were in need of emergency medical aid. Marcellino was ordered to pay restitution and she subsequently appealed. On appeal, the Court contended that the trial court did not err in failing to hold a Franks hearing because even if the Court sets aside the alleged false statements in the affidavit, there remained an overwhelming amount of sufficient statements to support a finding of probable cause. The Court also held that trial courts have the authority to order restitution only to the actual victims of an offense or survivors of the victim, therefore, the award of restitution to the humane society was not valid because humane societies are a governmental entity and cannot be victims of abuse. The Court ultimately affirmed the judgment of the municipal court and reversed and vacated the order of restitution. 

Passage of legislative bill ratifying Oregon Fish & Wildlife Commission rule to remove gray wolf from endangered species list rendered petition for judicial review of rule moot. Cascadia Wildlands v. Dep't of Fish & Wildlife, --- P.3d ----, 300 Or. App. 648 (2019). Oregon Fish and Wildlife Commission ("Respondent") removed the species Canis lupus (gray wolf) from the list of species protected under the Oregon Endangered Species Act (OESA). Cascadia Wildlands, Center for Biological Diversity, and Oregon Wild ("Petitioners") sought judicial review of the amendment to Oregon law. The Petitioners contended that the decision to delist exceeded the commission’s statutory authority and did not comply with applicable rulemaking procedures. After the Petitioners filed their petition, the Oregon legislature passed House Bill 4040 which ratified the administrative rule that the Respondent promulgated delisting the gray wolf. The Respondents argued that the passage of the bill made the Petitioners' petition for judicial review moot. The Court held that the legislature using the word “ratify” in the statute indicated that they intended to confirm that the Commission’s rule delisting the gray wolf was legally satisfied, therefore, rendering judicial review moot. The petition for judicial review was ultimately dismissed.

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).