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February News

 

  USDA-APHIS removes access to inspection reports and other critical records from website. APHIS is the enforcing arm of the federal Animal Welfare Act (AWA) and Horse Protection Act (HPA). The Animal Welfare Act is the only federal law concerning animals used for biomedical research, exhibition, transportation, and wholesale distribution (“brokers”). The HPA was enacted in 1970 and is the primary law to stop the practice of "soring" - putting irritants or blistering chemicals on horses' hooves or forelegs to cause them to pick up their feet higher for show purposes. APHIS contends the removal was the result of a "comprehensive review" aimed at protecting privacy rights of suspected violators of the acts and others. APHIS indicates that interested parties can still seek a FOIA request, which may take years or months to complete. Several states including Louisiana (2016 law), New Jersey, and Virginia reference the ability for consumers to examine these inspection reports and/or to obtain names and license numbers of the USDA breeders/dealers in their pet purchaser protection laws. In addition, critics contend that limitation on public access will make it difficult to determine whether publicly-funded animal testing labs are meeting welfare standards and limiting taxpayer waste.

  Alaska becomes first state required to consider the "well-being" of an animal during a divorce action. The law (HB 147) was signed by Governor Bill Walker in October and became effective January 17, 2017. The law amends AS 25.24.160 contained in Chapter 24 on Divorce and Dissolution of Marriage. The amendment states: (a) In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide . . . (5) if an animal is owned, for the ownership or joint ownership of the animal, considering the well-being of the animal." Courts in most states have limited awarding pets in marriage dissolution based on traditional property classifications with only a few cases considering a pet's "best interests." For more, see our Topic Introduction to Divorce and Custody of Pets.

  U.S. Fish & Wildlife Service (FWS) establishes tool to reward landowners who protect imperiled species. FWS Director Dan Ashe issued a Director’s Order that gives property owners the ability to do voluntary conservation measures before a species is targeted for listing under the Endangered Species Act (ESA). The program allows landowners to obtain “mitigation credits” for measures that may help declining species in their state. The landowners work with state wildlife agencies to implement these efforts to maintain habitat or protect species. According to FWS, “[t]hese credits can later be redeemed to offset or mitigate actions that are detrimental to a species should it subsequently be listed under the ESA.” The agency also notes that these credits may be “traded or sold to a third party.” The credits are not redeemable until a species is listed and the conservation efforts must have oversight through a state-administered program.

New archives

Cases

Animal cruelty for harboring neglected dogs - Mouton v. State, --- S.W.3d ---- 2016 WL 7445119 (Tex. App. Dec. 28, 2016). San Antonio Animal Care Services (ACS) responded to a call about 36 pit bull terriers that were chained, significantly underweight, and dehydrated. The dogs also had scarring consistent with fighting. Police obtained a search warrant to seize the dogs, but Mouton told officers that he had been living at the residence for a couple of weeks, but that he did not own all the dogs and was holding them for someone else. Mouton was convicted of cruelty to non-livestock animals. On appeal, Mouton argued that the trial court erred in denying his motion for directed verdict because the state failed to prove that the animals were in his custody. The court held that there was sufficient evidence for a reasonable jury to find that Mouton was responsible for the health, safety, and welfare of the dogs on his property and that the dogs were subject to his care and control, regardless of whether he was the actual owner of each animal.

Obtaining animal welfare records from zoo - Fortgang v. Woodland Park Zoo, --- P.3d ---- 2017 WL 121589 (Wash. Jan. 12, 2017). Defendant Woodland Park Zoo Society (WPZS) entered an “Operations and Management Agreement” (Agreement) with the City of Seattle, giving WPZS exclusive rights and responsibilities regarding care, sale, and purchase of the Zoo's animals. Plaintiff Alyne Fortgang requested several categories of records under the state's Public Records Act (PRA), all pertaining to the Zoo's elephants. The Zoo's agent responded by asserting that the PRA did not apply because WPZS was a private company. Fortgang filed a lawsuit, and the trial court granted WPZS's motion for summary judgment, thereby dismissing the action on the ground that WPZS was not an agency subject to PRA disclosure requirements. The Court of Appeals affirmed. The Supreme Court of Washington also affirmed, holding that under a Telford analysis, WPZS was not the functional equivalent of a government agency.

Liability for loose horse (fence laws) - Hendrickson v. Grider, --- N.E.3d ---- 2016 WL 7626329, 2016-Ohio-8474. A car accident injured Plaintiffs Jo Ellen Hendrickson and her husband when their vehicle hit two horses that were on the roadway. Defendant Randall D. Grider owned the horses and Defendant Gartner owned the lot where Grider kept the horses. Defendant Cope is Gartner's son-in-law and acted as an intermediary between Gartner and Grider. The Hendrickson’s filed a complaint against Grider, Cope, and Gartner and alleged that they were owners and/or keepers of horses under statute R.C. Chapter 951 and that they negligently allowed the horses to escape. The Court of Appeals of Ohio, Fourth District affirmed the granting of summary judgment by the Common Pleas Court. The Court of Appeals reasoned that: (1) neither defendant was “keeper” of horses within the meaning of the statute which governed liability for horses running at large on public roads; (2) even if the lot owner breached their duty by allowing the owner of the horses to keep the horses on her property before fencing was installed, such breach was not the proximate cause of plaintiffs' injuries; and (3) the lot owner could not have reasonably foreseen that the horses would escape from a fenced-in lot and injure the motorist and, thus, could not be held liable for the motorist's resulting injuries.

Horse slaughter issues - Front Range Equine Rescue v. Vilsack, 844 F.3d 1230 (10th Cir. 2017). Between 2006 and 2011, Congress prevented commercial equine slaughter by prohibiting the use of funds for inspection of equine slaughterhouses.  In 2012, Congress lifted the ban on funding and the Food Safety Inspection Service (FSIS) issued grants of inspection to two commercial equine slaughter facilities: Valley Meat Company, LLC and Responsible Transportation, LLC. Plaintiffs, Front Range Equine Rescue, the Humane Society of the United States, and several other individuals and organizations (collectively, “Front Range”) sued officials of the USDA (“Federal Defendants”). Plaintiffs were seeking a declaration that the grants of inspection violated the National Environmental Policy Act and requested that the court set aside the grants of inspection.  The United States District Court for the District of New Mexico granted Front Range's motion for a temporary restraining order (TRO), which prohibited the Federal Defendants from sending inspectors to the equine slaughterhouses or providing equine inspection services to them. Valley Meat and Responsible Transportation then filed a motion in the district court to recover the injunction bonds. The United States Court of Appeals, Tenth Circuit affirmed the district court and held that Valley Meat was not entitled to recover the bonds. The Appeals Court reasoned that even if Valley Meat suffered damages, it cannot recover against the bond unless it first showed wrongful enjoinment. Valley Meat failed to do so and therefore could not collect damages.

Case Archives

Articles

Animal Rights Law Reporter, published by the Society for Animal Rights, Inc., edited by Professor Henry Mark Holzer, available issues from 1980 - 1983.

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).