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September News

 

 Illinois Gov. Bruce Rauner signs SB 1261 into law, requiring courts to consider the "well-being" of a companion animal during divorce. With this amendment to the Illinois Marriage and Dissolution of Marriage Act, Illinois joins Alaska as the only states allowing courts to consider companion animals' interests during divorce proceedings. In January of this year, Alaska was the first state to amend its marital dissolution code to include such a consideration. Now, Illinois appears to require such a determination if the animal is a marital asset: "[i]n issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal" [emphasis added]. Additionally, the law states that the court "shall allocate the sole or joint ownership of and responsibility for a companion animal," which may appear to allow joint ownership of animals post-marriage. The term "companion animal" does not mean a service animal under the amendments. 

  With the 51st anniversary of the federal Animal Welfare Act (AWA), the USDA-APHIS seeks input from the public on licensing changes for breeders, dealers, and exhibitors. The Animal and Plant Health Inspection Service (APHIS), an agency within the U.S. Department of Agriculture (USDA), is responsible for enforcement of the rules and regulations under the AWA. APHIS issues nearly 6,000 yearly to entities like commercial dog breeders, sellers of animals to testing labs, and exhibitors of wild animals. While an inspection is required prior to the issuance of an initial license, no requirements must be met for renewal. According to the rule issued by APHIS itself, "[t]he current regulations also do not require a licensee to demonstrate compliance when the licensee makes any subsequent changes to his or her animals or facilities . . ." Critics contend this can result in "rubber-stamping" of licenses without reviewing the licensee's history of violations or without re-inspection of facilities. To comment on the proposed rule, go to https://www.regulations.gov/document?D=APHIS-2017-0062-0001

  Federal Circuit Court tells Forest Service to go back to drawing board after agency tries to divide critical wild horse territory relying on "administrative error" from decades agoWild horse advocates contend the decision is critical because the Forest Service (FS) sought to remove the "middle" of the territory, leading to resource constraints and disconnected horse populations. In an administrative Procedures Act (APA) challenge to the proposed management plan, plaintiffs argue that changing the borders by removing a middle section so that it was not a contiguous territory without stating proper justification was arbitrary and capricious. The Court agreed. The Court was unconvinced by the FS's attempts to "shrug off" the inclusion of the Middle Section as an "administrative error" and stated that there is no "oops" exception for federal agencies. The court was unwilling to allow the FS to correct a past error by committing a new legal error: "[I]n administrative law, as elsewhere, two wrongs do not make a right." Additionally, the Court found the FS' "Finding of No Significant Impact" in the environmental analysis was a "head-in-the-sand" approach that ignored real consequences of the boundary changes. Read the full case.

  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

No "legitimate" property interest in unlicensed dogs to support § 1983 action against police - Smith v. City of Detroit, Slip Copy, 2017 WL 3279170 (E.D. Mich., 2017). Plaintiff-dog owners brought a 42 U.S.C. § 1983 action based on unlawful seizure their dogs in violation of the Fourth Amendment. The shooting of the dogs occurred during a drug raid pursuant to a search warrant. One of the dogs escaped his barricade in the basement and was shot after allegedly charging the officers. The other dog "opened and closed the bathroom door by himself" according to testimony of the officers in their depositions, information that was absent from initial police reports according to the court. The last dog was shot as she began "charging" up the basement stairs while officers were at the top of the stairs. In analyzing the plaintiffs' Fourth Amendment interests in their dogs, the court held that because plaintiffs failed to properly license their dogs under Michigan law, they did not have a "legitimate possessory interest protected by the Fourth Amendment." Thus, plaintiffs' claims based on the Fourth Amendment were dismissed. Specifically, the court stated, "in the eyes of the law it is no different than owning any other type of illegal property or contraband." The individual officers' actions were also found to be reasonable based on the "imminent threat" of the dogs. As to the Monell claim, plaintiffs failed to establish a pattern of violations showing deliberate indifference that is sufficient to establish municipal liability. The court subsequently granted defendants' motion for summary judgment.

Whether care of threatened species is "generally accepted" must be determined under ESA harassment/taking analysis - Hill v. Coggins, --- F.3d ---- 2017 WL 3471259 (4th Cir., 2017). In 2013, Plaintiffs visited Defendants' zoo, the Cherokee Bear Zoo, in North Carolina where they observed four bears advertised as grizzly bears in substandard conditions. Plaintiffs filed a citizen suit in federal district court alleging the Zoo's practice of keeping the bears was a taking of a threatened species under the federal Endangered Species Act (ESA). On appeal to the Fourth Circuit, this Court first found Plaintiffs established Article III standing for an aesthetic injury. Second, the Court agreed with the district court that evidence (i.e., expert testimony, veterinary records, USDA reports, and the Zoo's own advertising) showed these bears were grizzly bears. As to the unlawful taking under the ESA, the Fourth Circuit vacated the lower court's holding and remanded the case to district court. The legal analysis used by the court was incorrect because the court did not first determine whether the Zoo's practices were "generally accepted" before it applied the exclusion from the definition of harassment. Affirmed in part, vacated and remanded.

Zoning ordinance not arbitrary/capricious that disallowed raising fowl, but allowed livestock/grazing under specified conditions. Hatfield v. Board of Supervisors of Madison County, --- So.3d ---- 2017 WL 3452426 (Miss., 2017). This Mississippi Supreme Court decision considers the construction of a zoning ordinance that prohibits the "keeping or raising poultry" in the "R-1 Residential District" of Madison County. The property owner, Hatfield, was found to be violating R-1 by the Madison County Board of Supervisors after county officials found around 60 "ducks, geese and other fowl" on this property. The Circuit Court found the Board's decision was supported by evidence and was not arbitrary or capricious. On appeal by Hatfield, the Supreme Court first observed that appellant lives the zoned R-1. While the R-1 zoning allows "livestock" and "grazing livestock" on tracts of land one acre or greater, it does not allow the breeding, raising, and feeding chickens, ducks, or other fowl as a permitted use. Hatfield suggested that grazing/livestock section could be interpreted to include fowl. However, the Supreme Court found that position unreasonable since the examples listed in the code section are "obviously limited to large, four-legged, hoofed animals." The circuit court's decision 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).