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May News

 

   Maryland becomes the second state to ban the sale of dogs and cats at retail pet stores through the "No More Puppy-Mill Pups Act of 2018." State legislators passed this landmark piece of legislation (HB 1662) in April, which is aimed at reducing the flow of dogs from volume-based commercial breeders known as "puppy mills." The law, similar to AB 485 enacted earlier this year in California, revamps Subtitle 7 on Retail Pet Stores of the Business Regulation Code. Previously, this subtitle tried to curb the sale of dogs from puppy mills by requiring stores to disclose the source of the dog and providing consumers with more health information. Critics contended that the USDA website "Blackout" of breeder reports made this more difficult to obtain. HB 1662 replaces these requirements with a new section 19–703 that simply states, "A retail pet store may not offer for sale or otherwise transfer or dispose of cats or dogs." Section (b) emphasizes the state's goal of reducing the homeless pet population: "(b) This section may not be construed to prohibit a retail pet store from collaborating with an animal welfare organization or animal control unit to offer space for these entities to showcase cats or dogs for adoption." These provisions of the Act take effect January 1, 2020.

   Grizzly bears in the Greater Yellowstone Ecosystem, formerly on list of endangered and threatened species, may face legal hunting in states this year. FWS announced that its decision to designate the population of grizzly bears in the Greater Yellowstone Ecosystem (GYE) as a distinct population segment and remove that population from the ESA's List of Endangered and Threatened Wildlife does not require modification. This decision was echoed by Dept. of Interior Secretary Zinke in a press release last year that described FWS’ work with grizzly bear recovery, "as one of America’s great conservation successes." Zinke stated that the population of grizzly bears has recovered sufficiently to allow state management of the GYE. Critics contend that removal of the bears from the List, which occupy only 98% of their original range in the lower 48 states, spells trouble. Idaho recently completed public comment on a proposed hunt for this June and July for one adult male bear. Wyoming's controversial hunting quota includes 1.45 females and 9.86 males, according to news reports.

   Maryland becomes 7th state to pass a "Beagle Freedom Law." In late April, Maryland's Governor Larry Hogan signed S.B. 675, a law that requires certain research facilities to take steps to offer dogs and cats for adoption after they no longer are needed for research purposes. These research facilities may enter into cooperative agreements with animal rescue organizations to place these animals in new homes. In the past few years, Minnesota (2014), Connecticut (2015), Nevada (2015), California (2016), New York (2016), and Illinois (2017) have enacted similar laws. According to an article by Michael Ollove in the Huffington Post, almost 19,000 cats and 61,000 dogs were used by research laboratories in 2016. More states including Delaware, Iowa, Massachusetts, and New Jersey are considering similar bills.

   Australia mulls the future of live animal exports after abysmal conditions on transport ships exposed by whistleblowers. In April, an animal advocacy group called "Animals Australia" released footage of conditions that resulted in 2,400 sheep deaths aboard an export ship last August. The Australian agriculture minister, David Littleproud, vowed to investigate and study mortality in live animal exports. The Guardian reported on May 2nd that Opposition Labor Party leader, Bill Shorten, is now vowing to end the live export trade before the government review since "Labor sees no future for live sheep exports." So what is "live animal export?" in Australia? Learn more at our Topic Introduction.

 

New archives

Cases

Court declines use of attorney fees under ESA as a “weapon” to close small zoos. Kuehl v. Sellner, 887 F.3d 845 (8th Cir. Apr. 11, 2018). Plaintiffs brought suit against defendants the Sellners and the Cricket Hollow Zoo to enjoin defendants' mistreatment of their animals in violation of the Endangered Species Act. Defendants ran a zoo with over 300 animals, including lemurs, tigers, cougars, monkeys and birds, among others. Several of the plaintiffs visited defendants' zoo and witnessed care that raised concerns about the animals' mental and physical well-being, especially lemurs and tigers. On appeal, defendants argued that plaintiffs lack standing. The court noted that "it is the violation itself" and not the search for it that has caused injury sufficient for standing for the plaintiffs. As to defendants' argument that they could not have violated the ESA because the AWA provides a "safe harbor" for licensed facilities, the court found that the AWA does not provide blanket immunity to the ESA. Finally, as to denial of plaintiffs' request for attorney fees and costs, the court found that plaintiffs were seeking fees to serve "as a vehicle to close Cricket Hollow." The court was concerned that the use of the ESA as a "weapon" to close small, privately-owned zoos was not envisioned by the Act. Hence, those circumstances justified the district court's decision to deny the motion for attorney fees. The lower court's decision was affirmed.

Evidence of breaking into house to take dogs supports burglary and petit larceny convictions. People v. Miller, 159 A.D.3d 1608 (N.Y. App. Div. 2018). In this New York case, defendant appeals his conviction for burglary in the second degree, petit larceny, and criminal contempt in the first degree. Defendant went back over to his girlfriend's house, climbed into her residence through a window, and took the dogs they used to keep together. After complainant called 911, defendant led police on a high speed chase; after being arrested, defendant claimed the dogs were licensed to him. The appellate court affirmed the convictions. Notably, two dissenting judges found that defendant "had at least a good faith basis for claiming an ownership interest the dogs." The dissent stated the dogs may have been jointly owned and that, prior to his arrest, "defendant simply intended to take the dogs for a walk and then return them."

CA appellate court considers, as matter of first impression, whether same conduct can support conviction under Pen. Code, § 597, subds. (a) and (b). People v. Tom, 231 Cal. Rptr. 3d 350 (Ct. App. 2018). Defendant stabbed, beat, strangled, and then attempted to burn the dead body of his girlfriend's parent's 12-pound dog. Police arrived on the scene as defendant was trying to light the dead dog on fire that he had placed inside a barbeque grill. Defendant was convicted of two counts of animal cruelty contrary to Pen. Code, § 597, subds. (a) and (b), as well as other counts of attempted arson and resisting an officer. While defendant does not dispute these events underlying his conviction, he contends that he cannot be convicted of subsections (a) and (b) of Section 597 for the same course of conduct. Both parties agreed that subsection (a) applies to intentional acts and subsection (b) applies to criminally negligent actions. Subsection (b) contains a phrase that no other court has examined for Section 597: “Except as otherwise provided in subdivision (a) . . .” The court found that the plain language of section 597, subdivision (b) precludes convictions for violating subdivisions (a) and (b) based on the same conduct.  However, as to sentencing, the court found that defendant's subsequent attempt to burn the dog's body involved a different objective than defendant's act in intentionally killing the dog. These were "multiple and divisible acts with distinct objectives" such that it did not violate section 645 or due process in sentencing him for both. The court held that defendant's conviction for violating section 597, subdivision (b) (count two) was reversed and his modified judgment affirmed.

Claim of a "taking" of chimpanzee under ESA is not foreclosed because alleged violator is AWA licensed entity. Missouri Primate Foundation v. People for Ethical Treatment of Animals, Inc., Slip Copy, 2018 WL 1420239 (E.D. Mo. Mar. 22, 2018). This is a motion of counterclaim by defendants Missouri Primate Foundation to dismiss PETA's (the counterclaim plaintiff) assertion that two chimpanzees were being held in conditions that deprived the chimpanzees of adequate social groups, space, and psychological stimulation. PETA claimed that the Missouri Primate Foundation (MPF) (the counterclaim defendants) were holding the two chimpanzees in conditions that “harm” and “harass” the chimpanzees, thus violating the “take” prohibition of the Endangered Species Act (ESA). MPF contends that because the chimpanzees at its facility were lawfully in captivity and licensed by USDA–APHIS, so the chimpanzees cannot be subject to a “take” under the ESA. They further argued that PETA lacked standing as the AWA preempts or supersedes the ESA as to animals held at USDA licensed facilities. After examining similar cases, this court concluded that claims under the AWA and ESA are complementary and do not conflict, and that the ESA protects captive animals regardless of whether the alleged violator is an AWA licensed entity. The court found that the allegations by PETA are sufficient at this stage of the case and issues of proof are reserved for trial. As such, the court denied the motions of the counterclaim defendants.

Case Archives

Articles

Courtney G. Lee, The Animal Welfare Act at Fifty: Problems and Possibilities in Animal Testing Regulation, 95 Neb. L. Rev. 194-247 (2016).

Randall S. Abate & Jonathan Crowe, From Inside the Cage to Outside the Box: Natural Resources as a Platform for Nonhuman Animal Personhood in the U.S. and Australia, 5 Global J. Animal L. 54 (2017).

David Mahoney, Zuchtvieh-Export Gmbh v. Stadt Kempten: The Tension Between Uniform, Cross-Border Regulation and Territorial Sovereignty, 40 B.C. Int'l & Comp. L. Rev. 363 (2017).

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).