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August News

 

  Great Lakes population of gray wolves remains protected as "endangered" after federal court decision. Almost 40 years ago, gray wolves were divided into two regional listings for purposes of the Endangered Species Act (ESA): the Minnesota gray wolves (listed as "threatened"), and the remaining endangered gray wolf. In the early 2000's, the Fish & Wildlife Service then subdivided the gray wolf listing into distinct population segments (DPS). At issue in this case, is the attempted removal of one of the DPS (Western Great Lakes) from the ESA list. While the Service has the legal authority to identify a distinct population segment, the court found that the Service did not do that "properly" here; it amounted to a “backdoor route to the de facto delisting of already-listed species.” According to the Court, " . . . when a species is already listed, the Service cannot review a single segment with blinders on, ignoring the continuing status of the species’ remnant." The court also found the Service's analysis flawed where it failed to consider loss of the wolves' historic range (by 90+%). The ruling upholds a 2014 district court decision that vacated the Service's 2011 rule delisting the Western Great Lakes DPS. 

  Connecticut governor signs law bringing "animal shelters" within state licensing and inspection requirements. Under HB 6334, which amends Sec. 22-344, an animal shelter, defined as "any private entity that operates a building or facility that is used solely to house homeless animals for the purpose of rescue or adoption and that is not operated within a private residence," must now register with the Commissioner of Agriculture and follow state regulations concerning the humane care of dogs and cats. A fee of $50 is required for registration. For an initial application for registration, the zoning enforcement official of the municipality where such animal shelter is to be operated or maintained must certify that the animal shelter conforms to the municipal zoning regulations. Prior to the amendment, animal shelters were not licensed and inspected like other listed entities such as commercial kennels, pet shops, grooming and training facilities, and animal importers. Failure to comply with these requirements may result in the registration being revoked or suspended.

  Vermont and Texas enact laws prohibiting the sexual assault of animals. These two states became the 44th and 45th states to adopt such laws. On June 7th, Vermont's governor signed the legislation that amends the state's anti-cruelty law by making engaging in sexual conduct a misdemeanor, with an enhanced penalty for second or subsequent convictions. Texas makes certain activities in its new law felonies and other misdemeanors for first offenses. Additionally, upon conviction, a sentencing judge may require the defendant to relinquish custody of animals residing in his her home. A conviction also becomes a "reportable conviction or adjudication" for the state's sexual offender registration program. See our updated Table of Laws.

New archives

Cases

Cruelty conviction upheld for leaving pet locked in van for over 40 minutes on 90+ degree day - State v. Graves, Slip Copy, 2017 WL 3129373 (Ohio Ct. App., 2017). In 2016, Graves left his dog in locked van in an unshaded spot with the windows closed while he went into a grocery store. In total, the dog spent about 40-45 minutes locked in the van. Graves was issued a citation for cruelty to animals and later convicted at a bench trial. On appeal, Graves first asserts that R.C. 959.13(A)(3) is unconstitutional because the statute is void for vagueness as applied to him and overbroad. This court found that the definition of cruelty was not so unclear that it could not be reasonably understood by Graves. In fact, the court noted "[t]he danger of leaving an animal locked in a sealed vehicle in hot and humid conditions is well-known." In rejecting defendant's challenge that his conviction was against the manifest weight of the evidence, the court found Graves acted recklessly under the law based on the hot and humid weather conditions and the fact that humans outside the van were experiencing the effects of extreme heat. Affirmed.

Federal District Court finds Utah's "ag gag" law unconstitutional - Animal Legal Defense Fund v. Herbert, Slip Copy 2017 WL 2912423 (D. Utah July 7, 2017). The law criminalizes the act of lying to obtain access to an agricultural operation and the subsequent recording or filming once inside. According to legislative history and statements, the act is directed at undercover operations that investigate farm animal abuse. Plaintiffs assert that the law violates their First Amendment rights. The court first found these activities, while still a form of "lying," were protected under the First Amendment. After finding that the act impinges protected speech, the court then analyzed whether it withstood a strict scrutiny review. The State proffered government interests that include concerns over worker protection and disease outbreak. However, the court noted nothing in the legislative history substantiating these claims or any actual incidents supporting these asserted government interests. The court found the Act did not survive strict scrutiny as it was not narrowly tailored and was directed the content of the speech (the act of recording a facility). The Plaintiffs' Motion for Summary Judgment was granted and the State's Motion for Summary Judgment was denied.

"Starving" cattle that were "near death" justified warrantless search/seizure under emergency aid exception - State v. Hershey, --- P.3d ----, 286 Or.App. 824 ( Or. Ct. App.,2017). In this Oregon case, defendant appeals his conviction of first-degree animal neglect. Specifically, defendant argues the denial of his motion to suppress evidence was erroneous. The evidence was obtained when the local sheriff (Glerup) entered defendant's property to administer emergency aid to defendant's cattle. During testimony in the motion to suppress, Glerup testified that he first received a call from defendant's neighbors who reported that the cattle appeared to be "starving." Defendant contends on appeal that the case establishing that the emergency aid doctrine applies to animals (Fessenden) was wrongly decided. This argument was dispensed by the court because it was not properly preserved at trial. Alternatively, defendant argues that the state failed to satisfy the requirements for the emergency aid exception. In reviewing defendant's claim, the court noted that the officer's belief that immediate aid was necessary where the cattle appeared to be "near death" was reasonable. Thus, the trial court did not err when it denied defendant's motion to suppress; defendant's conviction was affirmed.

Humane Society may seek custody of animals previously seized by state in criminal action, but denial of petition to return does not divest original owner of title - Rohrer v. Humane Soc'y of Washington Cty., --- A.3d ----, 2017 WL 2774606 (Md. June 27, 2017). Appellant Rohrer questions the authority of the Humane Society to act under CR § 10–615 (the law that allows an officer of a humane society to take possession of an animal from its owner). Rohrer also challenges the legal ownership of the animals in state custody. The seizure of Rohrer's animals began in 2014, after witnesses observed thin cattle and a subsequent search warrant revealed the presence of dead animal bodies intermingled with the living, high piles of animal feces, and goats with hooves so overgrown they could not walk. Rohrer was charged with 318 misdemeanor counts of animal cruelty, eventually being found guilty on only 5 counts and sentenced to supervised probation. During the initial proceedings, Rohrer filed  a "petition for return of seized animals" under CR § 10–615(d)(2). On appeal of that denial, the appellate court held that when an owner files a petition for return, the humane society has the burden of showing the court the seizure was necessary under the statute. The Court also weighed in on whether the denial of a petition for return affects ownership interests. The court held the function of the petition for return is to determine who has the right to temporarily possess an animal in question and does not divest original ownership rights or transfer them to the animal to the Humane Society if the petition is denied. This case was remanded to Circuit Court so that court can re-evaluate Rohrer's Petition for Return of this animals.

Case Archives

Articles

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).

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).