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March News

The Big Cat Public Safety Act signed into law by President Biden. On December 20, 2022, Pres. Biden signed H.R. 263 into law, prohibiting the breeding of big cats for private possession. The law adds several provisions to the Lacey Act Amendments Act of 1981. Notably, the law prohibits licensed exhibitors from hands-on experiences with the public, closing lucrative bottle-feeding of cubs and "tiger selfies" which are said to drive the rapid breeding and disposal of big cats to keep cubs on hand. While exhibitors may continue to exhibit their animals, no further breeding or acquisition of animals is allowed. Private owners must register their animals with the U.S. Fish and Wildlife Service within 180 days of the law’s passage. Violation incurs substantial civil and criminal penalties.

New York Governor Kathy Hochul signs Cruelty Free Cosmetics Act into law. Gov. Hochul signed A.5653B/S.4839B into law on December 15, 2022. The new section of the General Business code prohibits the manufacture and sale of cosmetics in New York State that have been tested on animals and takes effect in January, 2023. The attorney general may bring an action or special proceeding in the supreme court for a judgment enjoining such a violation and for a civil penalty of not more than $5,000 for the first violation and not more than $1,000 per day if the violation continues. New York joins several other states that have enacted similar laws in recent years such as California, Hawaii, Illinois, Louisiana, Maine, Maryland, Nevada, New Jersey, and Virginia.

Curious what animal-related laws were added or amended in 2022? To find the answer, check out our Table of Statutory Amendments for 2022. Overall, there were fewer changes than in past years. Laws concerning animals used in research were a hot topic again with Iowa and Massachusetts passing “beagle freedom” laws and two others banning animal testing for cosmetics. Importantly, Maryland became the second state to ban cat declawing. Several states enhanced laws requiring certain entities to scan impounded pets for microchips. However, animal protection and anti-cruelty laws received only minor attention. Was this year an anomaly or has significant change within animal law reached a legislative plateau?

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Cases

Connecticut court shuts down dog owner's claim for emotional distress under "bystander" theory after witnessing dog run over by delivery driver. Brisson v. These Guys New York Deli Corp., Not Reported in Atl. Rptr., 2023 WL 370990 (Conn. Super. Ct. Jan. 20, 2023). The Superior Court of Connecticut considers defendants' motion to strike plaintiffs' claims for emotional distress arising from the death of their pet dog. Plaintiffs argue that previous Connecticut case law (Myers v. Hartford, 84 Conn. App. 395) left open the question of whether courts could consider a claim for emotional distress damages due to the loss of a pet. The incident giving rise to the litigation occurred in 2021, where a driver for the defendants' company ran over plaintiffs' pet dog while making a delivery. Myers left often the issue of recovery of damages when a "bystander" owner witnesses a "fatal injury." The court then examined the factors articulated by the Connecticut Supreme Court for recovery of emotional damages by a bystander. In doing so, the court here determined that the relationship between a pet and its owner does not meet the "closely related" element articulated by the Supreme Court. The court stated: "Absent appellate clarification that this factor includes other relationships, including the one at issue here between a pet owner and pet, this court cannot conclude that such a relationship is sufficiently like the close human relationships required under Clohessy." The court noted that it agreed with defendants that allowing plaintiffs' claim would amount to creating a new cause of action without legislative or appellate authority. Defendants' motion to strike was granted.

Summary judgment not appropriate where city presented no evidence to support claim of substantial burden where resident keeps chickens as emotional support animals in violation of ordinance. Whiteaker v. City of Southgate, --- F.Supp.3d ----, 2023 WL 317457 (E.D. Mich. Jan. 19, 2023). The plaintiff (“Whiteaker”) contends that the City violated the FHA by denying Whiteaker's request for an exemption from City Ordinance 610.13, which prohibits City residents from maintaining chickens (or other typical farm animals) on their property. Whiteaker was issued a citation by the City for a violation of Ordinance 610.13 and appeared in district court to defend himself, claiming he had a right to keep the chickens under Michigan's Right to Farm Act, and subsequently, under the Fair Housing Act (FHA). In the instant motion for summary judgment by the City, the court examined the "reasonableness" of Whiteaker's request for a reasonable accommodation under the FHA. The court found that the balancing test required under the FHA, to wit, weighing Whiteaker's disability-related need to keep the chickens as a source of comfort and support against the City's claims that the chickens pose a threat to public health, is a triable issue of fact. Indeed, the court observed that the City's citation of documentation from the CDC only lists the "potential dangers" chickens can pose to public health without sufficient evidence to supports its claim that the chickens will burden the City financially and administratively. In contrast, Whiteaker claims a disability and has provided evidence of his disability. The court cited Whiteaker's evidentiary support for his claim of disability and need for the chickens to alleviate those symptoms against the fact the City has not presented any testimony, affidavits, or "evidence of any kind" to support its claim. Thus, the court denied the motion for summary judgment.

Intervening act of Congress corrects FOIA issues for plaintiff seeking animal welfare records from federal agency. Am. Soc'y for the Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv., 60 F.4th 16, 2023 WL 2026831(2d Cir. 2023). In 2019, Plaintiff-Appellant the American Society for the Prevention of Cruelty to Animals (“ASPCA”) sued Defendants-Appellees the U.S. Department of Agriculture and the Animal and Plant Health Inspection Service (“APHIS”) alleging that APHIS followed a "policy or practice" of violating FOIA for failing to comply with requests for records related to the agency response to maintenance of animal welfare standards and licensing of animal dealers/exhibitors. This suit was prompted by APHIS' 2017 decommissioning of two public databases that allow users (including the ASPCA) to access records on commercial breeding facilities including inspection reports and photographs. APHIS contends that there was not a policy or practice that violated FOIA because it was corrected as the result of an intervening act of Congress, specifically, the Consolidated Appropriations Act of 2020. The district court granted the motion for summary judgment on the pleadings, finding that while the decommissioning of the databases did indeed impair the ability of the ASPCA to receive prompt FOIA requests, ASPCA did not establish that the court must intervene to correct such a policy or practice and Congress already acted to correct the breakdown through the appropriations bill. On ASPCA's timely appeal here, the Second Circuit agreed with the district court that the Consolidated Appropriations Act of 2020 reversed the records access problems.

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