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September News

 

   Trump administration issues new rules for Endangered Species Act that factor in economic interests in listing process and change criteria for critical habitat. In August, Interior Secretary David Bernhardt announced the new rules after over a year of rulemaking process that included sifting through 800,000 public comments. One of the most significant changes involves the listing process. Currently, 50 C.F.R. § 424.11(b) states that, "[t]he Secretary shall make any determination . . . without reference to possible economic or other impacts of such determination." After changes that become effective on September 26th, that section removed the "without reference to possible economic or other impacts of such determination," thereby allowing economic factors to be weighed in a listing determination. Additionally, the new rules constrain the ability of regulators to consider climate change. The designation of critical habitat has also changed, as regulators must now first consider areas occupied by endangered or threatened species first before considering unoccupied areas for critical habitat (leaving those areas available for potential human development). Trump officials and fossil fuel/mining lobbyists praised the rule "improvements," claiming that they will "ease the regulatory burden" on the American people.

   Convention on International Trade in Endangered Species of Fauna and Flora (CITES) 18th annual meeting in Geneva, Switzerland results in enhanced protections for species across the world. The meeting, known informally as the "CoP 18," included members from 182 countries and took place from August 17 - 28th. The United States is a Party to CITES, which is a treaty that seeks to protect species from becoming endangered or threatened due to international trade. According to an article in National Geographic, marine animals have begun to gain protections under CITES (which was originally set up for terrestrial species). Topics discussed also included rising trade in exotic species (especially reptiles as pets) and debates over how to effectively manage the trade in large animals like elephants native to southern African countries. Other concerns focused on whether CITES is acting quickly enough to address increasing extinction rates and if the process itself is inherently flawed due to a lack of transparency and the large number of party countries. Want to learn more about CITES? See our Overview.

   Alabama becomes the latest state to crack down on "fake" service animals. The state of Alabama will join 26 other states with laws that criminalize the fraudulent presentation of pets as service animals (two other states have related laws). The overall goal of these laws is to deter people from using their pets to gain access or receive benefits reserved for disabled individuals using trained service animals. As such, the penalty may be a relatively small fine or misdemeanor, depending on the state. Other states like Rhode Island and Montana have pending bills on fake service animals. See our Map of Fraudulent Service Animal Laws.

 

News archives

Cases

Feral cats not "domestic animals" for purposes of insurance policy exclusion. Goldberger v. State Farm Fire & Cas. Co., --- P.3d ----, 2019 WL 3792803 (Ariz. Ct. App. Aug. 13, 2019). Plaintiffs Goldbergers owned residential rental property insured by State Farm Fire and Casualty Company under a rental dwelling policy. After the lower court granted State Farm’s motion to dismiss plaintiffs’ suit for breach of contract and insurance bad faith based on an exclusion for damage by “domestic animals,” this appeal followed. The appellate court agreed with the Goldbergers that “domestic animals” is reasonably susceptible to two interpretations: (1) a species-based definition that says that domestic animals belong to a broader class of animals that have been domesticated at some point in history; and (2) an individualized definition that says that domestic animals are animals that are kept by a person for various purposes, including as pets. The Court ultimately decided that the individualized definition makes more sense in terms of the insurance policy itself as well as case law. Domestic animals encompass animals that are subject to the care, custody, and control of a person. On the facts alleged in the complaint alone, the Court could not say that the tenant was keeping the feral cats in such a manner that the exclusion would preclude coverage. The court therefore resolved all reasonable inferences in the Goldberger’s favor and presumed that the cats were feral. The Court reversed the superior court’s order dismissing the Goldberger’s complaint and remanded for further proceedings consistent with the opinion.

New York’s Ivory Ban not preempted by federal law. Art & Antique Dealers League of Am., Inc. v. Seggos, --- F.Supp.3d ----, 2019 WL 3817305 (S.D.N.Y. Aug. 14, 2019). Plaintiffs are trade organizations representing arts and antique dealers. The Defendant is the Commissioner of DEC which is a state agency tasked with protecting New York’s natural resources and environment. The state of New York imposed a ban on elephant ivory with even narrower exceptions than the federal ESA. Not only do the DEC licenses restrict ivory trade within the state pursuant to the State Ivory Law’s exceptions, but the licenses also limit the advertisement and display of ivory products. Plaintiff’s filed this action challenging the constitutionality of the State Ivory Law on preemption and First Amendment grounds. The Plaintiffs filed a motion for summary judgment and the Defendants and Intervenors crossed-moved to dismiss. The Court examined the ESA and determined that section 1535(f) did not preempt the State Ivory Law because the ESA prohibitions only applied to interstate or foreign commerce while the State Ivory Law applied to intrastate commerce. As result, the exceptions contained in the State Ivory Law did not prohibit what was authorized by the ESA. The Court granted the Defendant’s motion to dismiss on Count 1. The Plaintiff’s second count alleged that the State Ivory Law’s permit requirement violated the First Amendment. Because the court found that defendant had not met his burden, based on pleaded facts, that the Display Restriction does not “burden substantially more speech than is necessary to further the government's legitimate interests," Defendant's motion for summary judgment on Count 2 was denied. Ultimately, the Court granted the Defendant’s and Intervenor’s cross-motions to dismiss with respect to preemption and denied both the Defendant’s and Plaintiff’s motions for summary judgment with respect to the First Amendment Claim.

Louisiana statute allowing livestock owner to kill dog found harassing or wounding livestock must be affirmatively pled to receive immunity. Estis v. Mills, --- So.3d ----, 2019 WL 3807048 (La. App. 2 Cir. 8/14/19). Plaintiffs brought this action against the Defendants seeking damages for the shooting of the Plaintiff’s ten-month-old German Shepherd puppy, Bella. The Plaintiffs alleged that the Defendants shot Bella, did not disclose to them that Bella had been shot, and dumped her body over ten miles away. Defendants filed a motion for summary judgment. The trial court granted summary judgment in favor of Defendants after they argued at the motion hearing that they fell within the immunity afforded by a Louisiana statute, which gives immunity to anyone who kills a dog that is not on the property of the owner and is harassing, wounding, or killing livestock. Specifically, Defendants alleged that Bella, the puppy, was harassing their horses. On appeal, Plaintiffs argued that the immunity afforded by the statute needed to be affirmatively pled by the Defendants and that the Defendants waived such immunity by failing to assert the affirmative defense in their original answer or subsequent pleadings. The Plaintiffs further argued that the motion for summary judgment would not have been granted if not for the immunity protections. The appellate court agreed, reversing and remanding the case to the lower court.

45-day evaluation process for assistance animal did not amount to a constructive denial nor is there requirement to "immediately grant" an accommodation request under FHA. LaRosa v. River Quarry Apartments, LLC, Slip Copy, 2019 WL 3538951 (D. Idaho Aug. 3, 2019). Plaintiffs filed this action alleging that the defendants violated their rights under the Fair Housing Act ("FHA") after they requested a reasonable accommodation to keep their assistance dog at defendants' apartment (River Quarry) without paying a fee. The plaintiffs provided a copy of a note from a nurse practitioner stating that the assistance animal helps manage Mr. LaRosa’s PTSD. The process involved a back-and-forth between plaintiff and his medical care staff. At one point, defendants insisted on speaking with Mr. LaRosa’s doctor directly to verify the information that the plaintiffs had given, during which the doctor declined to verbally agree to HUD's two-step verification questions presented by defendant Cullimore. However, soon after this, Mr. LaRosa saw his primary care physician and had the actual form completed by his doctor and turned it in defendants, who then questioned whether the doctor's signature was genuine. Ultimately, this court denied the Plaintiffs claim under the FHA because River Quarry actually allowed the dog to stay in the apartment while their request for an accommodation was reviewed. Thus, there was no denial of the accommodation. The Court stated that housing providers are granted a meaningful opportunity to investigate a request for an accommodation. Housing providers do not have to immediately approve a request and River Quarry approved the request within 45 days after the initial request. The Plaintiffs, however, succeeded on their interference claim. The LaRosas were engaged in a protected activity when they applied and defendants misrepresented the contents the doctor’s conversation with defendant's attorney. The Court ultimately denied in part and granted in part the Defendant’s motion to dismiss and denied in part and granted in part the motion to dismiss claims against Kirk Cullimore and his law office. 

Case Archives

Articles

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).

When Cheaters Prosper: A Look at Abusive Horse Industry Practices on the Horse Show CircuitKjirsten SneedKentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 6 : Iss. 2 , Article 3 (2014).

Survey of Damages Measures Recognized in Negligence Cases Involving Animals, Alison M. Rowe, Kentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 5 : Iss. 2 , Article 5 (2013).

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