Animal Law Legal Center home page

May - June News

  How much has really changed for companion animals in 15 years? In 2007, one of our editors surveyed state cases involving harm to companion animals - "pet damages" as it is often known. At that time, there were very few cases that looked beyond traditional market value for injury or loss of pets and even fewer that considered non-economic damages like emotional distress damages and loss of companionship. Recently, our Legal Fellow revised the Detailed Discussion of Pet Damages by taking another look at pet damages jurisprudence and found virtually no change in 15 years. Fair market value - the value of an item at the time of destruction or the cost to replace something - remains the overriding approach by courts. Interestingly, society's view of pets continues to evolve, with 95% of people considering dogs, cats, and the like to be family members. This is up by seven percentage points from 2007. Court opinions acknowledge this disconnect between societal views and the legal system, but suggest that, without established precedent, change must come from state legislatures.

  The start to summer also marks the beginning of peak season for rabies - does your state require vaccination? Rabies has been a problem throughout human history. In 1885, a rabies vaccine was developed that saved many from this inevitably fatal disease. Nearly 100 years, a laboratory developed the first vaccine for dogs that supplied a three-year immunity against the virus. This development effectively eradicated the canine-derived variant in many countries. As a result, over the decades, many states made vaccination against rabies a requirement within their state laws. Some state laws delegate this authority to city and county health departments. About 40 states have some sort of rabies law on their books. What does your state require? See our Table of Rabies Laws to find out more!

  Curious about changes to state animal-related laws in 2021? Look no further! Our Table of Statutory Amendments from 2021 allows you to see all of the major changes right in one table with links to the new or amended law. Highlights include Arizona adding a possession ban for those convicted of animal cruelty crimes, making it the 39th state with such a law. Washington became the fifth state to ban the sale of dogs and cats at retail pet stores. Nevada and New York now prohibit discrimination against dog breeds in home owners insurance policies by state insurers. Hawaii became the first state in the nation to mandate microchipping of dogs and cats. Texas strengthened its dog tethering provisions through passage of the Safe Outdoor Dog Act. On the wild animal side, Maryland banned brutal "killing contests" and Virginia outlawed wildlife exhibitors from offering direct contact with dangerous wild animals. Check out the table for all the changes last year!

News archives

Cases

Plaintiffs fail to establish standing to force SeaWorld to release records related to marine mammal deaths at facilities. Marino v. Nat'l Oceanic & Atmospheric Admin., --- F.4th ----, 2022 WL 1548489 (D.C. Cir. May 17, 2022). Plaintiff animal welfare organizations sued the National Marine Fisheries Service (NMFS) and its parent agency, the National Oceanic and Atmospheric Administration, seeking to enforce conditions in permits held by SeaWorld. In 1994, the Marine Mammal Protection Act (MMPA) was amended such that it shifted authority to oversee conditions of marine mammals at exhibitors from NMFS to the Animal and Plant Health Inspection Service (APHIS). After three pre-1994 orcas died at SeaWorld, plaintiffs tried to convince NMFS that it still had the authority to enforce the pre-1994 rules related to release of records, but NMFS contended that its authority was extinguished in 1994. Plaintiffs brought suit, arguing that the NMFS's policy rests upon an arbitrary and capricious interpretation of the MMPA, and that its refusal to enforce the permit conditions was also arbitrary and capricious. The district court dismissed the plaintiffs’ suit for lack of standing. On appeal here, the court examined plaintiffs' standing under the three-part Lujan test. The court found a lack of redressability for the plaintiffs. Plaintiffs fail to allege any facts from which the court could infer the relief they seek would likely cause the NMFS to redress their alleged harms. In fact, because the MMPA language on permits is permissive, NMFS has discretion whether to enforce them. This is coupled with the fact that there is no evidence that third-party SeaWorld will turn over the reports even if NMFS were to direct them. Therefore, this court held that the district court did not err in determining that the plaintiffs lacked standing to pursue this case. Affirmed.

Court upholds California ban on sale of poultry that has been force-fed to produce foie gras. Ass'n des Éleveurs de Canards et d'Oies du Quebec v. Bonta, --- F.4th ----, 2022 WL 1436840 (9th Cir. May 6, 2022). California prohibits the in-state sale of products that are “the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.” Cal. Health & Safety Code § 25982. The law had a 7.5-year grace period before it went into effect. After nine years of litigation and in their third set of appeals before this Court, the parties ask the court here to decide whether California's sales ban is preempted by the Poultry Products Inspection Act (“PPIA”) or violates the dormant Commerce Clause. As to the first issue of preemption, the plaintiff sellers contend that at least one USDA Policy Book defines foie gras as liver from poultry that has been "specially fed and fattened" and other USDA documents suggest this is done via forced-feeding. Thus, contend the sellers, it is impossible to produce and properly label foie gras, as is required by the PPIA, and then also comply with the California law. The court disagreed with the assertion, finding that the sellers can still force feed birds to make their products, but not sell those in California. Further, the sellers raise a new suggestion that the ban constitutes express preemption because force feeding operates as an "ingredient requirement." Essentially, they contend you cannot have foie gras without force-feeding birds. This was also rejected, as the court found nothing new that would reverse the precedent established in the prior decision by the court. The sellers' argument that the ban is "unduly burdensome" also failed since there is not requirement that a state impose the "least burdensome" method for in-state commerce. The court held that the sales ban is neither preempted nor unconstitutional and that the specified transactions are out-of-state sales permitted by California law.

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).