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June/July News

  Wolf population in Wisconsin reduced by one-third after federal protections for wolves lifted. According to a study done by researchers at the University of Wisconsin-Madison, poaching and a scheduled wolf hunt in February were largely responsible for the unexpected drop in wolf numbers. Wolves were removed from the federal list of endangered and threatened animals by former President Trump beginning in January 2021. Wisconsin has been the first state to allow wolf hunting after the removal of protections and hunters quickly surpassed kill numbers set by the state DNR. Researchers suspect “cryptic poaching” – poaching that leaves no evidence including the removal of the wolves’ radio transmitting collar – are also to blame for the increased deaths. According to an interview with a retired US Fish & Wildlife wolf recovery coordinator in the Milwaukee Journal Sentinel, it is too early to determine the effect on wolf populations from this hunt that he termed a “killing spree.”

  New York Court of Appeals agrees to hear habeas corpus case for "Happy" the Elephant housed at the Bronx Zoo. The New York Court of Appeals - the highest court in New York state - agreed on May 4th to hear the habeas corpus case for Happy, an elephant kept at the Bronx zoo for more than 40 of her 50 years. This the first time in an English-speaking country that a state's highest court will hear a habeas proceeding on behalf of a non-human animal. Happy has been housed in a solitary setting from other elephants since 2006. Steve Wise, Attorney and President of the Nonhuman Rights Project, stated that he hopes Happy "will soon become the first elephant and nonhuman animal in the US to have her right to bodily liberty judicially recognized" and that the Court will approve Happy's relocation to an elephant sanctuary. This is not the first time a habeas petition has been filed on behalf of a nonhuman animal. Read previous legal materials involving actions on behalf of chimpanzees.

   Approaching summer heat means more emergency calls on dogs being left in hot cars. Currently, 31 states have laws that specifically address dogs and sometimes other domestic animals being left unattended in motor vehicles during dangerous weather conditions. A simple Internet search reveals stories of animals being rescued from overheated vehicles beginning around this time of year (in late April, Sarasota, FL police broke a window and rescued “Moose” the dog from an unattended car that had reached 111 degrees). About half of the states with laws have what can be termed “Good Samaritan” rescue laws, meaning any person can rescue an animal in imminent danger after following the steps required by law without fearing civil or criminal liability for property damage. The remaining states leave the rescue of animals up to first responders and law enforcement. Where does your state stand on these laws? Check out this map to find out!

News archives

Cases

Maryland statute on pet damages for tortious injury excludes noneconomic damages. Anne Arundel County v. Reeves, --- A.3d ----, 2021 WL 2306720 (Md. June 7, 2021). This Maryland case examines the scope of compensatory damages available for the tortious injury or death of a pet under Md. Code Cts. & Jud. Proc. (“CJP”) § 11-110, a law that allow pet owner to recover damages for the tort-based death or injury of their pet up to a capped level. The incident giving rise to this case occurred when Anne Arundel County Police Officer Rodney Price shot Michael Reeves' dog in the front yard of Mr. Reeves' home. After a jury trial, a verdict was returned in favor of Mr. Reeves for $10,000 for the trespass to chattel claim, and $500,000 in economic damages and $750,000 in noneconomic damages for the gross negligence claim. The circuit court then reduced the gross negligence damages to $200,000 pursuant to the Local Government Tort Claims Act (“LGTCA”). CJP § 5-301 et seq. The circuit court also reduced the trespass to chattel damages to $7,500 pursuant to the then-applicable damages cap in CJP § 11-110.1. The Court of Special Appeals held in an unreported divided decision that the statute did not bar recovery of noneconomic damages. On appeal here, this court now holds that CJP § 11-110 limits the recovery for compensatory damages to the amount specified by that statute and does not allow for recovery of noneconomic compensatory damages. And while the court found there was legally sufficient evidence to support the jury's finding that Officer Price was grossly negligent, it also held that Mr. Reeves could not recover these damages due to Maryland's single recovery rule. As a matter of first impression, this court found CJP § 11-110's plain language evinces an intent to exclude those things not expressed in the statute. In other words, because the legislature defined the specific types of compensatory damages it allows, it intended to exclude other forms of damages like noneconomic damages. Further, the court found the plaintiff's reading of the statute  "illogical" because economic damages would be capped, but yet noneconomic damages would not be. Thus, it would be up to the General Assembly to expressly provide for noneconomic damages in amendments to the statute.

Animal cruelty and aggravated animal cruelty convictions for same offense violate prohibition against double jeopardy since those crimes are degree variants in Florida. Houk v. State, --- So.3d ----, 2021 WL 1685627 (Fla. Dist. Ct. App. Apr. 29, 2021). Appellant challenges her convictions and sentences for animal cruelty and aggravated animal cruelty. Appellant contends her dual convictions for those crimes violate double jeopardy because animal cruelty and aggravated animal cruelty are degree variants under section 775.021(4)(b)2. The conviction stems from Houk leaving her dog Gracie May in a car in a Walmart parking lot with the windows closed on a hot, humid day in Florida for over an hour. Apparently, Appellant had pressed a PVC pipe against the accelerator to keep the car accelerating since there was something wrong with the air conditioner. When employees gained entry to her vehicle, they discovered the A/C was actually blowing hot air and the dog was in great distress. Gracie died soon thereafter from heat stroke. A postmortem examination revealed her internal temperature was above 109.9 degrees. Houk was charged with aggravated animal cruelty and animal cruelty, tried by jury, and convicted. The appellate court first found that the offenses of animal cruelty and aggravated animal cruelty satisfy the Blockburger same elements test and do not fall under the identical elements of proof or subsumed-within exceptions. However, as to the degree variant exception, the court agreed with Appellant that the offense of animal cruelty and aggravated animal cruelty are not based on entirely different conduct and a violation of one subsection would also constitute a violation of the other. Additionally, while another statutory section allows the charging of separate offenses for multiple acts or acts against more than one animal, the section does not authorize "the charging of separate offenses or the imposition of multiple punishments when a single act against one animal satisfies both subsections." Accordingly, the court agreed with Appellant and reversed her conviction for animal cruelty (while keeping the higher degree conviction of aggravated cruelty).

FWS must explain its own contradictory positions on decision not to list Pacific walrus as threatened or endangered due to climate change. Center for Biological Diversity v. Haaland, --- F.3d ----, 2021 WL 2232487 (9th Cir. June 3, 2021).  This case is a challenge to a decision by the U.S. Fish and Wildlife Service ("Service") reversing its previous decision that the Pacific walrus qualified for listing as an endangered or threatened species under the Endangered Species Act of 1973 (“ESA”). In 2008, the Center for Biological Diversity (“Center”) petitioned the Service to list the Pacific walrus as threatened or endangered, citing the claimed effects of climate change on its habitat. In 2011, after completing a species status assessment, the Service issued a 45-page decision ("Decision") that found the listing of the Pacific walrus was warranted, but it declined to list the species because it found the need to prioritize more urgent listings. A settlement between the parties in 2017 required the Service to submit a proposed rule or a non-warranted finding. In May of 2017, the Service completed a final species assessment ("Assessment") that concluded some of the stressors to the species had "declined in magnitude" and the walruses had adjusted, which culminated in "a terse 3-page final decision that the Pacific walrus no longer qualified as a threatened species." As a result, in 2018, the Center filed this action alleging that the 2017 Decision violated the APA and ESA. The District Court granted summary judgement to the Service and this appeal followed. The Ninth Circuit first observed that, while the Assessment contains some new information, it does not explain why this new information resulted in an about-face from the Service's 2011 conclusion that the Pacific walrus met the statutory criteria for listing. The Ninth Circuit now holds that the Service did not sufficiently explain why it changed its prior position. As a result, the Court reversed the district court's grant of summary judgment to the Service and remanded it to the District Court to direct the Service to provide a sufficient explanation of its new position.

Case Archives

Articles

From Factory Farming to A Sustainable Food System: A Legislative Approach, Michelle Johnson-Weider, 32 Geo. Envtl. L. Rev. 685 (2020).

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot, 85 Tenn. L. Rev. 707 (2018).

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).