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September/October News

  The SWIMS Act introduced in U.S. House would end import and export of certain marine mammals for public display. The Strengthening Welfare in Marine Settings Act of 2022, or SWIMS Act (HR 8514), was developed by advocacy organization the Nonhuman Rights Project. The act would amend the Marine Mammal Protection Act by banning the export or import of cetaceans like orcas, beluga whales, false killer whales, and pilot whales for public display in captivity. Only export and import for the purpose of bringing the animals to an approved marine mammal sanctuary would be allowed. In addition, the act amends the Animal Welfare Act by making it “unlawful for any person to breed or artificially inseminate any orca, beluga whale, false killer whale, or pilot whale for purposes of using the progeny of such species for public display.” If passed the SWIMS Act would be the first amendment to the MMPA in nearly 30 years. Want more on the MMPA? Check out our new article: Reviewing the Marine Mammal Protection Act Through a Modern Lens by Bradley Varner.

  California (AB 2606) and Delaware (HB 333) ponder cat “declawing” bans in 2022. In 2019, New York became the first state to ban this elective and painful surgery for cats (McKinney's Agriculture and Markets Law § 381). Maryland’s Governor Larry Hogan signed HB0022 in April of 2022 to become the second state to ban the procedure (which becomes effective on October 1, 2022). Amputation of a cat’s toes through onychectomy (the formal name for cat declawing) is not the only convenience surgery regularly performed on companion animals. States have begun to examine non-therapeutic tail docking and ear cropping in dogs as well, though no state bans those procedures outright. Curious to learn more about medically unnecessary surgeries in companion animals? Check out our new paper Detailed Discussion of Non-Therapeutic Procedures for Companion Animals by Asia Siev.

  Massachusetts becomes 12th state to enact a “Beagle Freedom Law.” On August 4, 2022, Governor Charlie Baker signed H. 901 into law. This new law mandates that “a research facility or product testing facility shall, after the completion of any testing or research involving a dog or cat that does not require euthanasia of the animal upon the termination of the study . .  . make a reasonable effort to offer the dog or cat for adoption to an individual, an animal shelter or an animal rescue organization for the purpose of facilitating the adoption of said dog or cat to a permanent adoptive home.” The research or animal testing facilities may also enter into cooperative agreements with animal rescue organizations to carry out the provisions of this new law. To see the states that have enacted these laws, please see our Map.

News archives

Cases

Oregon court says animals lack capacity to sue on own behalf because of their "distinctive incapacity." Justice by and through Mosiman v. Vercher, --- P.3d ----, 321 Or.App. 439 (2022). The Oregon Court of Appeals, as a matter of first impression, considers whether a horse has the legal capacity to sue in an Oregon court. The Executive Director of Sound Equine Options (SEO), Kim Mosiman, filed a complaint naming a horse (“Justice”)as plaintiff with the Mosiman acting as his guardian, and claiming negligence against his former owner. In the instant appeal, Mosiman challenges the trial court's grant of defendant's motion to dismiss. In 2018, Mosiman filed a complaint on Justice's behalf for a single claim of negligence per se, alleging that defendant violated the Oregon anti-cruelty statute ORS 167.330(1) by failing to provide minimum care. Defendant moved to dismiss the complaint on the grounds that a horse lacks the legal capacity to sue and the court granted dismissal. Here, the appellate court first found no statutory authority for a court to appoint a guardian for an animal because "a horse inherently lacks self-determination and the ability to express its wishes in a manner the legal system would recognize." The animal has a "distinctive incapacity" that sets it apart from humans with legal disabilities that require appointment of a legal guardian. The court reaffirmed the law's treatment  of animals as personal property and found no support in the precedent for permitting an animal to vindicate its own legal rights. The court affirmed the trial court's judgment dismissing the complaint with prejudice.

Hearing on forfeiture of animals does not require a jury trial in Oregon. State v. Hershey, 370 Or. 200, 515 P.3d 899 (2022). Defendant's animals (22 dogs, 3 horses, and 7 chickens) were impounded in 2017 after he was charged with second-degree animal neglect. The district attorney asked the court for immediate forfeiture of the animals or for defendant to post a bond for care within 72 hours of a hearing on the matter. In response, defendant filed a motion for jury trial. The lower court denied defendant's motion and the court of appeals affirmed the ruling. Here, the Oregon Supreme court considers whether a special statutory proceeding brought under ORS 167.347 provides a right to a jury trial in accordance with Article I, section 17, of the Oregon Constitution. The Court first looked at the nature of the relief in the statute insofar as whether such relief is equitable or legal. The Court found the purpose of the statute is mainly to provide unjust enrichment of the owner when the owner does not pay for the costs of their animals' care. As such, the court found the relief was equitable in nature. The decision of the Court of Appeals and the order of the circuit court were affirmed.

Wild horses are not estrays for purposes of New Mexico's law regardless of whether they are found on private land. Wild Horse Observers Association, Inc. v. New Mexico Livestock Board, --- P.3d ----, 2022 WL 2901248 (N.M. Ct. App. July 22, 2022). This appeal examines the protection afforded to New Mexico's free-roaming horses under NMSA 1978, Section 77-18-5 (2007). The New Mexico Livestock Board (the Board) appeals from a district court order granting declaratory and injunctive relief sought by Wild Horse Observers Association, Inc. (WHOA). WHOA brought an action for declaratory and injunctive relief against the Board and others regarding the status of horses corralled by a private citizen on private property. The citizen had initially complained to the Board about the free-roaming horses on her property and was told that the Board only takes possession of horses corralled by citizens. The citizen did so, and the Board took possession of the herd, where it then posted on its website that the horses would be sold at auction. WHOA filed the instant emergency action, stating that the Board exceeded its authority and unlawfully treated the subject horses as estray livestock. The group sought a temporary restraining order (TRO) preventing the Board from impounding or selling the subject horses. The district court granted WHOA's request for a TRO, thereby prohibiting the Board from taking any action with the horses. After a bench trial on the merits, the district court determined that the Board's actions to take possession and sell the subject horses were contrary to the Board's statutory authority, enjoined the Board from “further unlawful possession and selling” of the subject horses, and awarded WHOA costs and attorney fees. This court found no error with the lower court concluding that the horses should be protected as “wild horses” because the definition of that term does not depend on whether, at the moment of their capture, the horses were on land that is private, but instead depends on whether the horses generally roam public land. Therefore, the horses were not estrays. Ultimately, this court affirmed the district court's order to the extent that it correctly determined that the subject horses are wild horse rather than estray, but reversed the district court's determination that the Board should have acted according to its statutory duties under Section 77-18-5. The case was remanded for proceedings consistent with this opinion and further consideration of attorney fees.

Case Archives

Articles

Forgotten Victims of War: Animals and the International Law of Armed Conflict, Saba Pipia, 28 Animal L. 175 (2022).

From Factory Farming to A Sustainable Food System: A Legislative Approach, Michelle Johnson-Weider, 32 Geo. Envtl. L. Rev. 685 (2020).

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot, 85 Tenn. L. Rev. 707 (2018).

When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing, Kate O'Reilly-Jones, 52 Colum. J.L. & Soc. Probs. 427 (Spring, 2019).