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November News

 

   Three animal-related ballot proposals will appear on state ballots Tuesday, November 4th. Floridians will consider Amendment 13 on their ballots. Approval of Amendment 13 by voters enacts a constitutional amendment banning dog (including greyhound) racing. Californians will decide on Proposition 12. This proposed measure establishes new minimum space requirements for certain farmed animals, including veal calves, pregnant pigs, and egg-laying hens. It also requires that egg-laying hens be raised in a cage-free environment after December 31, 2021. The measure follows the passage of Proposition 2 in 2008, which banned the sale of products from animals raised in violation of the minimum animal welfare requirements. Finally, North Carolina, like so many states recently, is seeking a constitutional amendment that would acknowledge the right to hunt, fish and harvest wildlife, and to use traditional methods to hunt, fish and harvest wildlife. The amendment does not define “traditional methods.”

   October 24, 2018: Pennsylvania Governor Wolf signs "The Motor Vehicle Extreme Heat Protection Act." This law builds upon the previous work of the General Assembly in strengthening animal protection in the state (last year was "Libre's Law"). The law (new section § 8340.3) protects law enforcement officers, animal control officers, humane society police officers, emergency responders, or the employers of those entities from liability resulting from damage to a motor vehicle or its contents for the purpose of removing a dog or cat if certain criteria are met. Specifically, these responders must: (1) have a good-faith, reasonable belief that the dog or cat is in imminent danger of suffering harm if not immediately removed from the motor vehicle; (2) make a reasonable effort to locate the driver of the motor vehicle prior to entry; (3) take reasonable steps to ensure or restore the well-being of the dog or cat; (4) use no more force than necessary under the circumstances to enter the motor vehicle; and (5) leave notice on or in the motor vehicle as outlined in the law. The new law takes effect in 60 days. This makes Pennsylvania the 30th state (including D.C.) to enact some form of "dogs in hot cars" law (see the Map of State Laws).

   Oklahoma enacts new law requiring tenants to show proof of disability if requested by landlord. HB 3282 went into effect on November 1, 2018. The law mirrors the language of HUD's EEOC Policy document from 2013 that establishes the responsibilities of housing providers when receiving requests for assistance animals. Oklahoma's law incorporates definitions and language from that document and adds some new requirements. Under subsection B., the law states that, "[s]upporting documentation that was acquired through purchase or exchange of funds for goods and services shall be presumed to be fraudulent supporting documentation." Additionally, if a person obtains a reasonable housing accommodation under this section by knowingly making a false claim, he or she is subject to eviction and can face court costs and damages payable to the landlord up to $1,000. Other states have recently enacted laws aimed at “fraudulent” assistance animals, including Alabama, Colorado, Indiana, North Dakota, South Dakota, and Wisconsin.

News archives

Cases

Landry’s, Inc. v. Animal Legal Defense Fund, --- S.W.3d ----, 2018 WL 5075116 (Tex. App. Oct. 18, 2018). This is an appeal of dismissal of appellant Landry's claims under the Texas Citizens Participation Act (“the TCPA”) and the mandatory awarding of attorney fees and sanctions. Landry's operates the Houston Aquarium, Inc. The aquarium houses four white tigers in a human-made enclosure known as "Maharaja's Temple." Appellees, including the Animal Legal Defense Fund and its attorneys as well as a radio station owner (Cheryl Conley), asserted a variety of claims in connection with the publication of the notice of intent to sue under the Endangered Species Act due to the care and housing of the tigers. As a result of that notice and the associated publicity, Landry's asserted claims in the trial court for defamation, business disparagement, tortious interference with prospective business relations, abuse of process, trespass, conspiracy to commit each of these torts, and conspiracy to commit theft. The lower court granted Conley and ALDF's motion to dismiss. It also awarded $250,000 to ALDF and $200,000 to Conley. On appeal here, Landry again points to the allegedly defamatory statements released on social media (Twitter and Facebook) and through news media regarding the tigers' care. The court noted that many of the statements were non-actionable because they were not shown to be false statements of fact or were just opinions. Nonetheless, even on those statements where Landry's met their initial burden of proving a defamation claim, the statements were protected by the judicial-proceedings privilege ("attorney immunity"). The court lowered the attorneys' fees due to one attorney dropping from the appeal, and lowered the sanctions, which were 2.4 and 2.8 times the attorneys' fees awards. The court suggested a remittitur, which would bring those awards respectively to $103,191.26 and $71,295.00. Thus, the lower court's decision to dismiss Landry's claims was affirmed, but the awards for attorneys' fee and sanctions were modified.

Center for Biological Diversity v. U.S. Fish & Wildlife Service, --- F.Supp.3d ----, 2018 WL 4538622 (N.D. Cal. Sept. 21, 2018). Center for Biological Diversity ("CBD") filed an action for declaratory and injunctive relief under the Endangered Species Act, seeking protection for the Pacific fisher (a medium-sized brown mammal in the weasel family found only in North America). All parties moved for summary judgment. In April 2016, the Service withdrew the proposed listing, finding that: populations will persist in the future; wildfires will have beneficial consequences; there "may be" breeding and interchange with other populations; and there were only a small number of confirmed deaths due to toxicosis from anticoagulant rodenticides. This court first examined the effect of anticoagulant rodenticides on the Pacific fisher. The court found the Service's assessment of the increase of the emerging threat from toxicosis was arbitrary and capricious, and that the Service "cherry picked" the Gabriel study to say that the study was uncertain. In the end, the court granted plaintiff CBD motion for summary judgment and denied defendant Service's motion. The court directed the Service to prepare a new rule by March 22, 2019 (which denied plaintiff's motion for a 90-day rule and also denied the Service's request to "brief the timeline in order to evaluate staffing and budget constraints").

People v. Gordon, 2018 WL 4837574 (N.Y.Crim.Ct. Oct. 4, 2018). This New York case reflects Defendant's motion to dismiss the "accusatory instrument" in the interests of justice (essentially asking the complaint to be dismissed) for violating Agricultural and Markets Law (AML) § 353. Defendant's primary argument is that she is not the owner of the dog nor is she responsible for care of the dog, who slowly began to starve to death in defendant and her husband's backyard. Defendant claims the dog belongs to her "abusive and estranged" husband who left for Florida. While defendant asserts she has been a victim of domestic violence and has no criminal record, the People counter that defendant was aware of the dog's presence at her residence and allowed the dog to needlessly suffer. Despite the time bar, defendant did not meet her burden to dismiss in the interests of justice. The court noted that, even viewing animals as property, failure to provide sustenance of the dog caused it to suffer needlessly. In fact, the court quoted from in Matter of Nonhuman Rights Project, Inc. v. Lavery (in which denied a writ of habeas corpus for two chimpanzees) where the court said, "there is not doubt that [a chimpanzee] is not merely a thing." This buttressed the court's decision with regard to the dog here because "the Court finds that their protection from abuse and neglect are very important considerations in the present case."

Case Archives

Articles

Never Enough: Animal Hoarding Law, Courtney G. Lee, 47 U. Balt. L. Rev. 23 (2017).

Animal Consortium,  David S. Favre and Thomas Dickinson, 84 Tenn. L. Rev. 893 (2017).

The Animal Welfare Act at Fifty: Problems and Possibilities in Animal Testing Regulation, Courtney G. Lee, 95 Neb. L. Rev. 194-247 (2016).

From Inside the Cage to Outside the Box: Natural Resources as a Platform for Nonhuman Animal Personhood in the U.S. and Australia, Randall S. Abate & Jonathan Crowe, 5 Global J. Animal L. 54 (2017).

Zuchtvieh-Export Gmbh v. Stadt Kempten: The Tension Between Uniform, Cross-Border Regulation and Territorial Sovereignty, David Mahoney, 40 B.C. Int'l & Comp. L. Rev. 363 (2017).