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October News

 

 Endangered species protection denied for 25 species, including Pacific Walrus, by Trump administration. The Fish & Wildlife Service (FWS) announced in early October that it would not be listing 25 imperiled species that were subjects of petitions. Advocates suggest that many of these species, such as the Pacific Walrus, Florida Keys Mole Skink, and North Rocky Mountains Fisher, are in danger of extinction due to climate change. The effects of climate change were projected into the analyses by FWS in the Status Reviews. However, in nearly all, FWS indicated any concerns about species' sustainability were "speculative." With the Pacific Walrus, FWS stated the following: "While we have high certainty that sea-ice availability will decline as a result of climate change, we have less certainty, particularly further into the future, about the magnitude of effect that climate change will have . . . or how the species will respond to those changes" (82 FR 46618). One organization critical of FWS’ action called it a “head-in-the-sand” approach. 

  Federal District Court holds that USDA-APHIS cannot arbitrarily and capriciously reissue license renewal for animal exhibitor that it knew had been violating the Animal Welfare Act (AWA). The Animal Legal Defense Fund sued the Department of Agriculture for renewing Tom and Pamela Sellner's Cricket Hollow Zoo in Iowa despite multiple violations of the animal welfare requirements in the AWA. In fact, the USDA filed an administrative complaint against the Sellners and commenced a formal investigation in 2015, even after 100 violations were logged over the course of five years, according to ALDF. The court described the "bifurcated" approach to licensing established by USDA-APHIS, where initial applicants must comply with regulations and pass an agency compliance inspection, while license renewal applicants must only pay a fee and agree to continue to comply with regulations. After the District Court's dismissal of the case, the Court of Appeals affirmed in part, but remanded back to the District Court. "On remand, the agency must, at a minimum, explain how its reliance on the self-certification scheme in this allegedly “smoking gun” case did not constitute arbitrary and capricious action." Animal advocates contend that such a case shows the "rubber stamping" of licenses. USDA-APHIS is still taking comments for a proposed rule to change this process until October 23rd: https://www.regulations.gov/document?D=APHIS-2017-0062-0001

 California becomes the first state to enact a ban on the sale of non-rescue pets at pet stores. AB 485 was signed into law by Gov. Jerry Brown on Friday, October 13th. The law goes into effect on January 1, 2019 and prohibits a pet store operator from selling a cat, dog, or rabbit in a retail pet store unless it was obtained from a public animal control agency or shelter or rescue group. It also requires each pet store to maintain records sufficient to document the source of each dog, cat, or rabbit the pet store sells for at least one year, and to post, in a conspicuous location on the cage or enclosure, a sign listing the name of the entity from which each animal was obtained. Violators of any provision are subject to a $500 civil penalty. Read the new law: https://www.animallaw.info/policy/assembly-bill-no-485.

  Oregon becomes latest state to enact "rescue" law for pets in hot cars. Gov. Kate Brown signed HB 2732 into law in late June. In 2017, several other states including Indiana, Colorado, and Arizona enacted laws that shield any person, not just law enforcement, from civil and often criminal liability for breaking car windows to rescue distressed animals (and minor children) in standing vehicles. The common thread in the new rescue laws is that the person must follow several steps to ensure immunity from liability: (1) determining the vehicle is locked; (2) seeing that the animal is in imminent danger; (3) notifying law enforcement/first responders; (4) using no more force than necessary to remove the animal; (5) remaining with the animal in a safe place until law enforcement arrives. Check out our table of all the 27 state laws

New archives

Cases

Seventh Circuit upholds Chicago ordinance banning sale of animals from large-scale, commercial breeders (i.e., "puppy mills") - Park Pet Shop, Inc. v. City of Chicago, --- F.3d ----, 2017 WL 4173707 (7th Cir. Sept. 21, 2017). Local pet stores and breeders brought an action against the validity of a city ordinance limiting the sources from which they may obtain dogs, cats, and rabbits for resale. They stake their claim on the grounds that the ordinance goes beyond Chicago’s home-rule powers under the Illinois Constitution and violates the implied limits on the state power imposed by the Commerce Clause of the United States Constitution. Petitioners appeal the district court’s dismissal of case for failure to state a claim. The Court of Appeals affirmed, holding that the Illinois Constitution allows Chicago to regulate animal control and welfare concurrently with the state so long as no state statute specifically limits the municipality. Further, the court rejected the argument that the ordinance discriminates against interstate commerce. The court of appeals affirmed the district court's dismissal of the suit for failure to state a claim.

Observing dogs in distress and prior calls reporting concerns sufficient to support search warrant and withstand motion to quash - People v. Williams, 15 Cal. App. 5th 111 (Cal. Ct. App. 2017), reh'g denied (Sept. 20, 2017). Defendants were convicted of felony dog fighting and felony animal cruelty. On appeal, defendants sought to suppress evidence and to quash and traverse the search warrant that led to their convictions. Police officers responding to a report of a thin, loose, horse near the defendants' home entered the property in order to make reasonable attempts to secure the loose horse and determine if there was a suitable corral on the property. The officers knew there had been prior calls to the property in response to reported concerns about the conditions of horses and pit bulls on the property. Further, one officer heard puppies barking inside the home when she knocked on the door trying to contact defendants, and another officer heard a dog whining from inside the garage. There were strong odors of excessive fecal matter reasonably associated with unhealthful housing conditions. Under those circumstances, it was reasonable for the officers to be concerned there was a dog in distress inside the garage and possibly in need of immediate aid. As a result, the court ruled that the information the officers had justified the issuance of the search warrant. The defendants' judgments of conviction were also affirmed.

Ninth Circuit upholds FWS' finding that the "desert eagle" is not a distinct population segment for ESA protection - Ctr. for Biological Diversity v. Zinke, 868 F.3d 1054 (9th Cir. 2017). In this case, the Center for Biological Diversity and Maricopa Audubon Society (collectively “CBD”) challenged the determination of the U.S. Fish and Wildlife Service (“FWS”) that the Sonoran Desert Area bald eagle (“desert eagle”) is not a distinct population segment (“DPS”) eligible for listing under the Endangered Species Act. There are two requirements for DPS status: (1) the discreteness of the population segment in relation to the remainder of the species to which it belongs, and (2) the significance of the population segment to the species to which it belongs. Here, the parties agreed that the desert eagle population is discrete, but they disputed whether the population is significant. CBD argued that if FWS found that a population segment satisfies any of the four listed significance factors, it is required to conclude that the population segment is significant. The court held that FWS did not act arbitrarily and capriciously in concluding that the desert eagle did not satisfy significance requirement for being a DPS, even though it found that the desert eagle satisfied the persistence requirement and one significance factors. The district court's grant of summary judgment to FWS was affirmed.

No, you cannot use a hovercraft to hunt moose on federal lands, says Court - Sturgeon v. Frost, --- F.3d ----, 2017 WL 4341742 (9th Cir. Oct. 2, 2017). Sturgeon sought to use his hovercraft in a National Preserve to reach moose hunting grounds. Sturgeon brought action against the National Park Service (NPS), challenging NPS’s enforcement of a regulation banning operation of hovercrafts on a river that partially fell within a federal preservation area in Alaska. Alaskan law permits the use of hovercraft, NPS regulations do not; Sturgeon argued that Park Service regulations did not apply because the river was owned by the state of Alaska. Sturgeon sought both declaratory and injunctive relief preventing the Park Service from enforcing its hovercraft ban. On remand, the Court of Appeals held that regulation preventing use of hovercraft in federally managed conservation areas applied to the river in the National Preserve. While the hovercraft ban excludes "non-federally owned lands and waters" within National Park System boundaries, this court found that the waterways at issue in this case were within navigable public lands based on established precedent. The district court's grant of summary judgment to defendants was affirmed.

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).