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April News

 

  Trump administration overturns rule prohibiting the killing of denning bears and wolves in Alaska. On April 3, 2017, POTUS signed H.J.Res. 69, a joint resolution that overturns a final rule issued by the U.S. Fish and Wildlife Service. Previously, the rule prevented nonsubsistence hunters from trapping or killing wolves in their dens with cubs, snaring bears with wires, or scouting for grizzly bears from airplanes. Legislators claim this joint resolution puts wildlife management back in the state's hands. Rep. Don Young (R-AK) stated the Obama-era rule was an "illegal power grab" by the federal government, which sought to manage sustainable populations of these apex predators. In response to H.J.Res. 69, the Alaska Department of Fish and Game released a set of questions and answers aimed at clarifying state predator control policies. The Department states that aerial hunting can only occur under "Intensive Management" programs, which are not currently being conducted for bears. As to the "denning of bears and or bear cubs," the Department states that it occurs "in a limited area where it is a customary and traditional practice as was requested by local residents." Additionally, state law allows the hunting of bear cubs or bear sows with cubs in denning areas only and in "one area where it is allowed year round under customary and traditional practices." For more, see http://www.adfg.alaska.gov/index.cfm?adfg=hottopics.res69.

  Use of spring-action cyanide traps by Wildlife Services (WS) questioned after boy injured and his dog killed. According to news sources, a 14-year old boy and his Labrador retriever were walking near the border of his family's property in Idaho when he reached down to touch what he thought was a sprinkler head. The device (known as an M-44) was triggered and ejected an orange powder, which covered both and killed the dog. An M-44 factsheet from WS (a branch of the USDA) indicates that it is a targeted means of predator control for foxes and coyotes (canids). The device is baited in a way to expel sodium cyanide powder into a canid species' mouth. WS states, "Animals killed by sodium cyanide appear to show no overt signs of distress or pain," though the poisoned Idaho dog went into a seizure state before expiring and the boy is still being monitored for cyanide poisoning. WS explains that by the cyanide powder degrades quickly in the soil environment as well as the tissue of the killed animal. A 10-year study by WS showed that more than 97 percent of animals killed by M-44s were "target" species. For more see the WS factsheet, which also includes contact information for WS at the end.

  West Indian Manatee downlisted from endangered to threatened. The change in status means that the manatee is "no longer considered in danger of extinction throughout all or a significant portion of its range, but is likely to become so in the foreseeable future without continued ESA protections," according to the FWS. The population is now estimated at over 6000, up from just a few hundred animals when protections were implemented in the early 1970's. FWS credits this victory with "diverse conservation efforts and collaborations by Florida and other manatee states" through such measures as retrofitting water control devices (found at locks and levees), Florida counties educating boaters on the dangers of impacts, working with Florida power plants to protect warm water outflows, fishing gear cleanup, and many more actions. The manatee also receives protection under the Marine Mammal Protection Act (MMPA). For me, see the FWS' press release.

New archives

Cases

Negligent infliction of emotional distress during dog euthanasia - Repin v. State, --- P.3d ---- 2017 WL 1063482 (Wash. Ct. App., 2017). Robert Repin sued Washington State University (WSU) and WSU veterinarian, Dr. Margaret Cohn-Urbach after his dog suffered complications while being euthanized. Repin argued that Cohn-Urbach was grossly negligent in performing the euthanasia which caused his dog pain and prolonged her death. Ultimately, Repin sued for breach of contract, reckless breach of contract, professional negligence, lack of informed consent, intentional or reckless infliction of emotional distress, and conversion. The trial court dismissed all of Repin’s claims and Repin appealed. The Court of Appeals affirmed the trial court’s decision and found that Repin was unable to provide sufficient evidence to establish that a reasonable jury may be able to find in his favor. As a result, the Court of Appeals dismissed Repin's claims.

Preemption of pet sale laws in NYC - New York Pet Welfare Association, Inc. v. City of New York, 850 F.3d 79 (2d Cir. 2017). In 2015, New York City enacted a group of laws aimed at dealing with problems associated with the companion animal business in the city by regulating the sale of dogs and cats in pet shops. On the day the laws were to go into effect, the New York Pet Welfare Association (NYPWA) filed suit challenging two of the laws: (1) the “Sourcing Law," which requires pet shops sell only animals acquired from breeders holding a USDA Class A licenses; and (2) the “Spay/Neuter Law,” which requires that pet shops sterilize each animal before releasing it to a consumer. NYPWA argued that the Sourcing Law violated the “dormant” Commerce Clause and is preempted by the AWA, and that the Spay/Neuter Law is preempted by New York law. The district court dismissed NYPWA’s complaint and here, the 2nd Circuit Court of Appeals affirmed the district court’s decision.

Merger of multiple convictions in animal cruelty case - State v. Silver --- P.3d ----, 283 Or.App. 847 (2017). Defendant was found guilty on multiple counts of animal abuse after failing to provide minimally adequate care for his herd of alpacas. The defendant was charged with a felony count (Count 1) and a misdemeanor count (Count 6) of first-degree animal abuse. On appeal, the defendant argued that the trial court erred by not merging the multiple guilty verdicts into a single conviction. The state agreed that the trial court did err in its decision not to merge the verdicts; however, the state argued that the mistake should not require resentencing. The defendant argued that the court should follow its previous decisions and order a remand for resentencing. Ultimately, the court remanded the case for resentencing under ORS 138.222(5)(b). The state argued that language of ORS 138.222(5)(b) should be interpreted not to include merger errors. The court disagreed with this argument and relied on its decision in previous cases that interpreted the language of the statute more broadly. Additionally, the court held that if the state’s disapproval of the ORS 138.222(5)(b) is something that should be dealt with by the legislature and not the court.

Growling and snapping during feeding shows prior viciousness in Georgia dog bite case - Steagald v. Eason, --- S.E.2d ----, 2017 WL 875038 (Ga., 2017). Gary and Lori Steagald sued the Eason family, alleging that the Easons failed to keep their dog properly restrained and were therefore liable under OCGA § 51-2-7. The Easons filed a motion for summary judgment on the basis that they had no reason to know that the dog was vicious or dangerous and therefore were not liable under the statute. On appeal, the Supreme Court of Georgia reversed the lower court’s decision. The Supreme Court of Georgia found that the Eason family was statutorily liable because the dog had previously “growled and snapped” at the Easons while being fed. The Court held that although the dog had never bit anyone prior to Lori Steagald, it was reasonable to assume that the dog could potentially bite and injure someone given the fact that it had a history of snapping and growling. As a result, the Court reversed the Easons' motion for summary judgment and determined that the question of whether the Easons are liable under the statute is for the jury.

Note from doctor supporting plaintiff's PTSD diagnosis and need for assistance animal sufficient under FHA violation suit (unpublished case). Tuman v. VL GEM LLC, Slip Copy, 2017 WL 781486 (S.D.N.Y. Feb. 27, 2017). Plaintiff sued the owners of her apartment complex after the apartment complex refused to allow her to keep an emotional support dog in her apartment to help her deal with her post-traumatic stress disorder. Truman argued that she was discriminated against after she requested a “reasonable accommodation” for her disability, in violation of the Fair Housing Act (FHA). The defendants argued that Truman failed to provide sufficient medical documentation of her need for the support dog and therefore were not liable for discrimination under the FHA. The court found that Truman was able to establish a disability under FHA by showing that her PTSD “causes her to have severe anxiety and difficulties with socialization.” Since Truman qualified as disabled under the FHA, the court turned to whether she provided the apartment complex with sufficient documentation and notice. Ultimately, the court found that Truman had provided the apartment with sufficient documentation because she provided them with a note from her doctor stipulating that Truman needed an accommodation to cope with her disability. Lastly, in ruling in favor of Tuman, the court found that the apartment complex knew of Truman’s disability and request for an accommodation and still refused to allow her to have her assistance animal.

No acquittal for "hassle" in illegal grizzly bear killing (unpublished case) - United States v. Charette, Slip Copy, 2017 WL 1012974 (D. Mont. Mar. 15, 2017). Brian F. Charette filed an appeal after he was sentenced to six months of imprisonment and ordered to pay $5,000 in restitution for shooting and killing a grizzly bear in violation of the Endangered Species Act. The court found that the trial court did not err in denying a jury trial because Charette’s offense was considered a petty offense because it carried a maximum sentence of six months. The court also addressed Charette’s Rule 29 motion which calls for an acquittal if the essential elements of the offense are not proven beyond a reasonable doubt. For someone to be convicted of knowingly taking an endangered species the government must prove beyond a reasonable doubt, that: (1) the defendant knowingly killed the animal; (2) the animal was engendered; (3) the defendant had no permit to kill the animal; and (4) the defendant did not act in self-defense or defense of others. Charette argued that the government failed to prove that he did not have a permit to kill the grizzly bear. The court found that the government did prove this element because Charette told officers that he did not report shooting the bear because he did not want to deal with the “hassle.” The court found that it was reasonable to believe that had Charette had a permit to kill the grizzly bear, he would not have found reporting it to be a hassle and therefore the government sufficiently established this element. Affirmed.

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).