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September News

  NOAA Fisheries releases final acoustic guidance. In August, NOAA Fisheries released a final guidance document that will help predict how marine mammals are affected by human-made underwater sounds. According to OceanCare, underwater noises can adversely affect marine mammals by interfering with communication for mating and disrupt fish food stocks. Sudden extreme sounds associated military sonar can cause marine mammals' blood vessels to burst, forcing them to suddenly surface and die from the bends. NOAA states that the guidance will help in assessing and authorizing activities that generate underwater sounds. This published guidance has also resulted in the creation of online tools that will help applicants understand and use the new guidance.

  California joins Rhode Island as second state to ban use of bullhooks to train elephants. In July, Rhode Island Governor Gina Raimondo signed HB 8197 into law (eff. 1/1/17), banning the use of bullhooks in circuses and traveling shows. A bullhook (also called an ankus or "elephant goad") is a curved metal device, similar to a fireplace poker, that is used to hit and poke the elephant in sensitive areas of its body (where the skin is thin) to force the elephant to do what a trainer requires. A law was initially passed by both the California House and Senate in the 2014-15 session, but was vetoed by Gov. Jerry Brown out of concerns of further complicating the Penal Code. The new law (SB 1062) assesses civil penalties instead of criminal and goes into effect early 2018. For more on the enactment of the California law, see the Animal Legal Defense Fund’s account.

  US Fish & Wildlife Service publishes final rule clarifying predator control and harvest on national wildlife refuges across Alaska. The rule was issued in response to public concern about predator control across Alaskan wildlife refuges. The USFWS states, "predator control is not allowed on national wildlife refuges in the state unless based on sound science and in response to a conservation concern or is necessary to meet refuge purposes, federal laws or Service policy." This rule also conforms with the Alaska National Interest Lands Conservation Act (ANILCA), which provides that all refuges in Alaska are mandated to provide the opportunity for continued subsistence use by rural Alaska residents in a manner consistent with the conservation of natural diversity. The USFWS hopes the rule will provide a "consistent and transparent approach to management of predators."

New archives

Cases

Neita v. City of Chicago, --- F.3d ---- 2016 WL 3905604 (7th Cir., 2016). Vaughn Neita brought this suit for damages under 42 U.S.C. § 1983 and Illinois law, alleging false arrest and illegal searches in violation of the Fourth Amendment arising from an animal cruelty arrest. He was ultimately found not guilty on all counts by an Illinois judge. In 2012, Neita owned a dog-grooming business and rescue shelter. When Neita arrived at Chicago Animal Control with two dogs, an animal control employee contacted police officers who then arrested Neita and searched his business premises, resulting in 13 counts of animal cruelty. With regard to this § 1983 action and Illinois state claims, while Neita amended his complaint twice, it was ultimately dismissed with prejudice for failure to adequately plead any constitutional violation. This appeal then followed. The Seventh Circuit held that to prevail on a false arrest claim under § 1983, a plaintiff must show that there was no probable cause for his or her arrest. Neita arrived at Animal Control to surrender two dogs that showed no signs of abuse or neglect without evidence that he mistreated either dog. Those statements in the amended complaint are sufficient to permit a false arrest claim to proceed. As to the claim of illegal searches, the court found that a plausible claim for false arrest also allowed his claim for an illegal search incident to his arrest to move forward. The dismissal of Neita's claims was reversed and remanded for further proceedings.

People for the Ethical Treatment of Animals, Inc. v. United States Department of Agriculture, --- F.Supp.3d ----, 2016 WL 3902745 (E.D.N.C. July 12, 2016). In this case, People for the Ethical Treatment of Animals, Inc. (PETA) filed a complaint against the United States Department of Agriculture (USDA) for violating the Administrative Procedure Act (APA). PETA argued that the USDA had violated the APA because the USDA has a “policy, pattern, and practice or rubber stamping” exhibitor license renewals to noncompliant animal exhibitors. Under the APA, any agency action that is found to be “arbitrary, capricious, or an abuse of discretion” must be held unlawful by the courts. The court in this case reviewed the facts of the case in accordance with the Chevron deference. Ultimately, the court determined that the AWA was silent with regard to exhibitor renewals and therefore moved to the second step of the Chevron decision. The court found that the AWA does not prohibit the USDA’s administrative renewal process for animal exhibitor licenses. The court held that the USDA did not act arbitrarily or abuse its description when it chose to renew certain exhibitor licenses. As a result, the court rejected PETA’s claim against the USDA.

United States v. Hess, --- F.3d ---- 2016 WL 3878221 (8th Cir.,2016). This case stems from a United States Fish and Wildlife Service's investigation into illegal trafficking of rhinoceros horns and ivory called "Operation Crash." Defendant James Hess, a taxidermist in Maquoketa, Iowa, agreed to sell a pair of lack rhinoceros horns in 2011 and was charged and convicted of one count of Lacey Act Trafficking. Hess was ultimately sentenced to 27 months in prison followed by three years of supervised release. On appeal, Hess first argued that the District Court made an “unsustainable finding on the record presented” when it stated that Hess "helped establish a market for these black rhino horns, and that is a serious offense against the planet." Because Hess failed to object at sentencing, this issue was reviewed for plain error. This court found no plain error, as the record supported the statement that Hess' action contributed to furthering a market for black rhinoceros horns. As to defendant's argument that his sentence was unreasonable, the court found that he failed to overcome the presumption of reasonableness in his bottom of the guidelines sentencing range. The judgment of the district court was affirmed.

Commonwealth v. Szewczyk, 53 N.E.3d 1286 (Mass.App.Ct.,2016). In this Massachusetts case, defendant was charged with animal cruelty after he shot a dog that had wandered onto his property with a pellet gun. Following conviction, defendant appealed the District Court’s ruling arguing that the judge erred in denying three of his eleven requests for rulings of law.Specifically, defendant's principal argument was that he had a lawful purpose in shooting (to scare the dog off his property), his intent was justified (to insure his wife's safety on the property), and the pain inflicted by defendant shooting the dog does not fit the statutory meaning of "cruel."  The court held that the District Court judge correctly denied the three requests because they were clearly outside the scope of rule 26 because they called upon the judge as a fact finder to weigh the evidence presented at trial. Additionally, the court held that a rational trier of fact would have been able to find that defendant did commit animal cruelty by shooting the dog. The court focused on the fact that the defendant could have used other means to ensure that the dog did not enter the property again without causing pain and suffering to the dog by shooting the dog in the leg. The judgment was affirmed.

Kervin v. State, --- So.3d ----, 2016 WL 3606532 (Fla. Dist. Ct. App. July 6, 2016). Donald Ray Kervin was found guilty of felony animal cruelty stemming from a 2012 incident at his residence. Animal control officers arrived to find defendant's dog "Chubbie" in a small, hot laundry room a the back of his house that emitted a "rotten-flesh odor." Chubbie was visibly wet, lying in his own feces and urine, with several open wounds infested with maggots. After questioning Kervin about the dog's injuries, defendant finally admitted to hitting Chubbie with a shovel for discipline. In this instant appeal, Kervin contends that the lower court erred in using the 2014 revised jury instruction to instruct the jury on the charged offense rather than the 2012 version of the instruction. Kevin argued that the 2014 version expanded the 2012 version to include the “failure to act” in felony animal cruelty cases. Also, Kervin argued that the 2012 version should have been used because it was in place at the time the offense occurred. Ultimately, the court found that the lower court did not err by using the 2014 jury instruction. The court held that the 2014 jury instructions merely “clarified” the 2012 jury instruction and that the “failure to act” was already present in the 2012 jury instruction. As a result, the court upheld Kervin’s guilty verdict.

Case Archives

Articles

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).

Redefining The Modern Circus: A Comparative Look At The Regulations Governing Circus Animal Treatment And America's Neglect Of Circus Animal Welfare, Jacqueline Neumann, 36 Whittier L. Rev. 167 (2014).

Why Can't I Know How The Sausage Is Made?: How Ag-Gag Statutes Threaten Animal Welfare Groups And The First Amendment, Daniel L. Sternberg, 13 Cardozo Pub. L. Pol'y & Ethics J. 625 (2015).

Interpreting “Enhancement Of Survival” In Granting Section 10 Endangered Species Act Exemptions To Animal Exhibitors, Anne Haas, 32 Pace Envtl. L. Rev. 956 (2015).