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January and February News

 

  Federal court rules FWS must develop plan for release of captive red wolves to Red Wolf Recovery Program. The U.S. District Court for the Eastern District of North Carolina ruled on January 22, 2021 that the US Fish & Wildlife Service (FWS) must develop a plan by March 1st to resume the release of captive red wolves into the Red Wolf Recovery Area in North Carolina. The release of captive red wolves was stopped in 2016 because of a change in policy by FWS, ending the longstanding population recovery efforts in place since 1987. In November 2020, animal advocacy groups filed a motion for a preliminary injunction, arguing FWS violated both the ESA and APA with the policy decision to not release captive red wolves to assist this critically endangered species. In fact, plaintiffs contend that USFWS' refusal to engage in management practices related to red wolf recovery led to a reduction in total population from 45 - 60 known individuals in 2016 to only seven in 2020. One plaintiffs' attorney stated that it is time for FWS to "stop managing red wolves into extinction." Read more on this victory for the endangered red wolf.

   New Jersey Senate overwhelmingly passes measure making “trunk fighting” of dogs illegal. Senate Bill 975 outlaws a practice that sounds almost unbelievably horrific: at least two dogs are locked in the trunk of a car to fight to the death while humans place bets on which will survive. According to the bill’s statement, “[a] person who violates the bill would be guilty of a crime of the third degree and be subject to a civil penalty of  between  $3,000 and $5,000.” The threat of this heinous activity is not restricted to New Jersey, as some dog-related websites reported occurrences in Miami and one article interviewed an expert on dogfighting when “trunking” first emerged in 2013. While every state in the U.S. has laws prohibiting animal fighting, New Jersey’s bill would close any loopholes that might exist in current language of the laws.

   Ohio legislature considers mandatory reporting law for vets and others. House Bill 33 would require veterinarians and social service workers to report suspected animal abuse the same way others are required to report any suspected abuse of children, vulnerable adults and the elderly. The bill would require veterinarians, social services professionals, and anyone licensed under Chapter 4757 (counselors, therapists, and social workers) to report “a violation involving a companion animal to an officer who is not a dog warden or deputy dog warden when that person has knowledge or reasonable cause to suspect that such a violation has occurred or is occurring.” Likewise, law enforcement officers and dog wardens are also under a reporting mandate with the proposed law. A person required to make a report under section 959.07 or 959.08 of the Revised Code is immune from civil or criminal liability in connection with making that report if the person acted in good faith when making the report. The bill has passed the Ohio house. Several states have mandatory reporting laws for vets, but very few address other professions (see Connecticut and Tennessee for examples of such laws). 

News archives

Cases

Factual disputes preclude summary judgment as to duty of animal shelter that adopted out dog who attacked child after previously engaging in similar acts. Brown by Brown v. Southside Animal Shelter, Inc., 158 N.E.3d 401 (Ind. Ct. App., 2020). Plaintiffs (the Browns) appeal the trial court's grant of summary judgment in favor of Southside Animal Shelter, Inc. (“Southside”). The case stems from the adoption of a dog from defendant animal shelter. In 2014, the dog was surrendered by its owner to a neighboring animal shelter because it did not get along with another dog. The dog was adopted to another party where it attacked the family's two-year-old boy, causing significant injuries. The dog was then surrendered to the county animal shelter, who recorded the bite incident upon intake of the dog. After the mandated quarantine, the dog was eventually transferred to defendant animal shelter who was informed of the bite according to deposition testimony. However, during an 8-day aggression observation, the dog showed no signs of aggression. In late 2015, plaintiffs adopted the dog with a release that stated the history of the dog was unknown and the shelter was released from all liability resulting from illness or actions by the dog. Less than a month later, the dog attacked the Brown's six-year-old daughter causing injuries to her face. In the trial court action by the Browns against Southside, the court granted the defendant's motion of summary judgment based on the adoption release and dismissed the case. In this instant appeal before the Indiana Court of Appeals, the court focused on whether Southside owed a duty to the Browns to establish liability for the dog bite. The court found factual disputes remain as to whether Southside knew or should have known of the dog's past aggression and whether the knowledge from the volunteer who did intake for the dog imputed knowledge to the animal shelter. Ultimately, the Court found that Southside had a duty to the Browns to inform them of the dog's past bite history, and factual issues relating to that duty preclude the granting of summary judgment. Reversed and remanded.

Defendant animal abuser whose actions led to "Ponce's Law" will have lifetime ban on owning animals modified to ban only during period of probation. Archer v. State, --- So.3d ----, 2020 WL 7409970 (Fla. Dist. Ct. App. Dec. 18, 2020). Defendant Tim Archer pleaded no contest to felony animal cruelty in Florida. Archer's dog Ponce apparently made a mess in Archer's house and, when Archer "disciplined" Ponce, the dog bit him, leading to Archer violently beating and stabbing the dog to death. Public outcry over mild punishment in the state for heinous acts of animal abuse led to "Ponce's Law," which enhanced penalties (although it did not retroactively apply to Archer). As a condition of Archer's plea agreement, both parties stipulated to a restriction on future ownership of animals as part of Archer's probation. On appeal here, Archer argues that the trial court erred in imposing these special conditions of probation. The court found condition 34, which imposes a lifetime ban on ownership of animals, exceeded the trial court's jurisdiction regardless of the open-ended language of Ponce's law. The animal restriction is not "a license to exceed the general rule that prohibits a court from imposing a probationary term beyond the statutorily permissible term, which in this case is five years." The case was remanded to the trial court to modify the conditions of probation to be coextensive with the probationary term.

Federal Court denies coyote owner return of remaining coyote absent required state permits by TRO or preliminary injunction action. Tranchita v. Callahan, --- F.Supp.3d ----, 2021 WL 50349 (N.D. Ill. Jan. 5, 2021). This case involves a motion for a temporary restraining order (TRO) and preliminary injunction by Plaintiff Tranchita against Colleen Callahan, Director of the Illinois Department of Natural Resources (IDNR). In 2019, agents of the IDNR seized four coyotes Tranchita was raising at her home. After the seizure, three of the four coyotes died, and the remaining coyote, Luna, is elderly and in poor health. Tranchita seeks return of Luna from the coyote rescue center where Luna now resides. The IDNR contends that it will not release Luna until a court declares that the Plaintiff can legally possess her. Tranchita is a wildlife exhibitor and educator who has cared for orphaned coyote pups since 2006. In 2016, Tranchita forgot to obtain another Breeder Permit and then failed to do so for the successive three years. Consequently, while she possessed a USDA Exhibitor License, she did not possess the required Illinois state licenses to keep coyotes. After voluntarily dismissing her state court complaint, Plaintiff moved for a TRO and preliminary injunction enjoining Defendants from (1) requiring her to hold a Hound Running Permit in order to keep Luna in Illinois; and (2) seizing Luna so long as Tranchita holds a current Breeder Permit. Tranchita seeks prospective declaratory and injunctive remedies that are all directed to allowing her to keep Luna in Illinois without a Hound Running Permit. The court did not find that Tranchita had a likelihood of success on the merits for her five claims: her “class-of-one” equal protection claim, preemption claim, free exercise claim, procedural due process claim, and substantive due process claim. While it found that Plaintiff will suffer irreparable harm in the form of Luna's imminent death, the court noted that the harm must be "likely" rather than just "possible." Tranchita's delay in seeking preliminary injunctive relief (four months after she withdrew her state court claims) undermines her irreparable harm argument. While the court was sympathetic and concludes that Luna's death would constitute irreparable harm to Plaintiff, it was not enough to persuade the court that death is likely absent the issuance of a TRO or injunction. Finally, on balancing the harms and public interests, the court found they do not weigh decidedly in Plaintiff's favor. Thus, the court denied Tranchita's motion for a TRO and preliminary injunction.

Case Archives

Articles

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).

Does Every Dog Really Have Its Day?: A Closer Look at the Inequity of Iowa's Breed-Specific Legislation, Olivia Slater, 66 Drake L. Rev. 975 (2018).