|Suica - Habeas Corpus||
First case to consider that a chimpanzee might be a legal person to come before the court under a petition for Habeas Corpus.
|SuiÁa||impetraram este HABEAS CORPUS REPRESSIVO, em favor da chimpanzÈ "SuiÁa" (nome cientifico anthropopithecus troglodytes), macaca que se encontra enjaulada no Parque Zoobot‚nico Get˙lio Vargas (Jardim ZoolÛgico de Salvador), situado na Av. Ademar de Barros|
|Rapa Ltd. v. Trafford Borough Council||
Section 2 of the Pet Animals Act 1951 states that a person shall be guilty of an offence if he "carries on a business of selling animals as pets in any part of a street or public place, [or] at a stall or barrow in a market". Small transparent cubes containing water and live fish were sold as novelty items, known as 'aquababies', from a barrow in a thoroughfare of a large indoor shopping mall. The Court found that this activity involved the carrying on of a business of selling pets in a "public place" and was therefore prohibited by section 2.
|Rogers v. Teignbridge District Council||
A planned event called "The Creepy Crawly Show" was to have been held at a racecourse and to have involved the display and sale of small exotic animals by a number of different breeders, dealers and enthusiasts. The event's organizer applied to the local council for a pet shop licence under the Pet Animals Act 1951. The application was refused on the ground that the event was prohibited by section 2 of the Act which states that a person is guilty of an offence if he "carries on a business of selling animals as pets in any part of a street or public place, [or] at a stall or barrow in a market". The organizer's appeal to the local magistrates court was dismissed. Held: the holding of the event would have involved the carrying on a business of selling pets in a "public place". It would also have involved the selling of animals in a market. The event was therefore prohibited by section 2 and that it would have been unlawful for the local authority to have licensed it.
|Horton v. U.S. Dept. of Agriculture||559 Fed.Appx. 527 (6th Cir. 2014)||Petitioner sold dogs and puppies without an Animal Welfare Act (“AWA”) dealer license. An Administrative Law Judge (“ALJ”) found the Petitioner violated the AWA and issued a cease and desist order to prevent further violations of the Act and ordered Petitioner to pay $14,430 in civil penalties. Both Petitioner and Respondent, the Administrator of the Animal and Plant Health Inspection Service (“APHIS”), appealed the ALJ's decision to a judicial officer (“JO”), acting for the Secretary of the Department of Agriculture, who increased the civil penalties amount from $14,430 to $191,200. Petitioner appealed this decision, alleging that (1) the ALJ and JO erred by failing to determine the willfulness of his actions, and (2) the JO improperly applied the Department's criteria for assessing civil penalties. The 6th Circuit found that since the AWA did not contain a willfulness requirement, the JO's failure to make a willfulness determination was not an abuse of discretion. Further, the 6th Circuit held that the JO's factual findings regarding Petitioner's dog sales were supported by substantial evidence. Lastly, the 6th Circuit held the size of the civil penalty assessed against Petitioner was warranted by law. The court denied the petition for review and affirmed the Secretary's Decision and Order.|
|Animal Legal Def. Fund v. Olympic Game Farm, Inc.||--- F.Supp.3d ----, 2019 WL 2191876 (W.D. Wash. May 21, 2019)||This case has to do with the mistreatment and unsafe captivity of numerous animals kept at a roadside zoo in Sequim, Washington called Olympic Game Farm (OGF). The Animal Legal Defense Fund (ALDF) alleged that OGF’s failure to abide by the Federal Endangered Species Act, as well as alleged violations of Washington State animal cruelty laws created a public nuisance. OGF admitted one of the allegations, specifically, that they are not accredited but possess or display Roosevelt Elk. That was an admitted violation of Washington law which makes it unlawful for a non-accredited facility to possess such a species. That single admission supported ALDF’s public nuisance claim in addition to all of the other alleged state violations. The court stated that ALDF met the "low bar" of standing in a public nuisance context. Accordingly, OGF’s Motion to Dismiss was denied.|
|Douglas Furbee, et al. v. Gregory L. Wilson, et. al.||--- N.E.3d ----, 2020 WL 1503236 (Ind. Ct. App. Mar. 30, 2020)||Shelly Linder lived in an apartment complex with a no-pet policy. Linder asked if she could have an emotional-support animal and provided a letter from a licensed family and marriage therapist, which stated that Linder had a disability and required an emotional-support animal to help alleviate her symptoms. The letter did not identify a specific disability and the landlord subsequently requested more information from Linder. Linder did not provide any additional information and instead brought her cat into her apartment as her emotional-support animal. The landlord charged Linder a fine after discovering the cat on the premises and gave her seven days in which to remove the cat. Linder failed to comply which led to Linder’s eviction. The Indiana Civil Rights Commission filed a complaint against the landlord on behalf of Linder in Delaware Circuit Court alleging that the landlord failed to accommodate her request for an emotional-support animal in turn violating the Indiana Fair Housing Act. The trial court denied summary judgment for the landlord and this appeal followed. The landlord conceded that Linder was disabled and requested a reasonable accommodation, however, the landlord argued that it was not given enough information from which to “meaningfully” review Linder’s request. The Delaware Court of Appeals agreed that the Landlord did not have sufficient information to meaningfully review Linder’s request and because Linder did not inform the Landlord about her disability and her need for the cat, she was acting in bad faith. The Court ultimately reversed and remanded the case to the trial court.|
|ASSOCIACAO SANTUARIO DE ELEFANTES BRASIL||1001993-45.2019.8.11.0024||This case from Brazil concerns the elephant named "Ramba." Ramba is a former circus elephant who spent more than 30 years at circuses in Chile and Argentina. On October 18, 2019, she arrived at Santuário de Elefantes do Brasil (Brazil Elephants Sanctuary) after a 73 hour trip all the way from Chile. Before Ramba was transferred, Judge Leonísio Salles de Abreu Junior, from the 1st Civil Court at Chapada dos Guimarães, the region where the sanctuary is located in Mato Grosso , Brazil, made a ruling changing her status from a mere "good." The judge prohibited the local Government from charging the sanctuary R$ 50.000 (approximately US $ 13.00) in a tax on movement of goods finding that Ramba is not a thing, and is not a subject to importation good tax. According to an article at https://www.ambientesecom.net/2019/10/24/groundbreaking-decision-of-brazilian-judge-for-captive-elephant, the judge said further, "Her position, far from being a commodity (as she was in the life of exploitation to what she was submitted to by her former owners), is now that of a guest, who seeks for a new destination on the margins of what human evil has already caused her." Attached case is in Portuguese.|
|In re: Jennifer Caudill||2013 WL 604009 (U.S.D.A. Feb. 1, 2013)||Although the Complaint alleged that Caudill made false or fraudulent statements and/or provided false or fraudulent records to the Animal and Plant Health Inspection Service (APHIS), the emphasis in the Complaint suggested that primary reliance was being placed upon the more general determination of unfitness. The Complaint alleged that Respondents (collectively, including Caudill) engaged in activities designed to circumvent an order of the Secretary of Agriculture in revoking the Animal Welfare Act exhibitor's license previously held by Lancelot Kollman Ramos, and have acted as surrogates for Ramos. Caudill and Kalmanson were alleged to continue to act as Ramos's surrogates, and to facilitate the circumvention of his license revocation order. An Administrative Law Judge (ALJ) found factual support for termination on the grounds of false statements and providing false documents to be lacking. The AJL also found little support for the conclusion that Caudill in any way was operating as a surrogate for Ramos. The ALJ did find that although Caudill had initiated discussions with Ramos concerning the purchase of his animals prior to the effective date of his license revocation, her subsequent consummation of the transaction after his license had been revoked constitutes a violation of 9 C.F.R. § 2.132. In the end, however, the evidence was insufficient to find that Respondent Caudill was unfit to hold an AWA license or that maintenance of a license by her would in any way be contrary to the purposes of the Act|
|Ohio v. George||2014-Ohio-5781 (App. Ct, 2014)||Clayton George was convicted of raping two children of his girlfriend, age six and eight at the time of the crime. Among assignments of error on appeal was that the trial court had abused its discretion in allowing Avery, a facility dog, to accompany the two children during their testimony without a showing of necessity. On appeal, the defense argued that (1) unlike the facility dogs in Tohom, Spence, and Dye, Avery was “recognizable on the record while he was in court,” (2) the prosecution failed to show necessity for having Avery at trial, and (3) the standards set in Tohom, Spence, and Dye should have applied to determine whether Avery was permitted at trial. The appellate court noted that the defense had not objected to the presence of the dog during the trial nor had he made these three points at trial, meaning that the appellate court did not need to consider them for the first time on appeal under Ohio appellate law. The assignments of error were all overruled and the judgement of the trial court was affirmed.|
|BARKING HOUND VILLAGE, LLC., et al. v. MONYAK, et al.||299 Ga. 144, 787 S.E.2d 191 (Ga., 2016)||In 2012, Plaintiffs Robert and Elizabeth Monyaks took their dogs Lola and Callie, for ten days to a kennel owned by Defendants Barking Hound Village, LLC (“BHV”) and managed by William Furman. Callie, had been prescribed an anti-inflammatory drug for arthritis pain. However, three days after picking up their dogs from BHV, Lola was diagnosed with acute renal failure and died in March 2013.The Monyaks sued BHV and Furman for damages alleging that while at the kennel Lola was administered toxic doses of the arthritis medication prescribed for Callie. BHV and Furman moved for summary judgment on all the Monyaks' claims asserting that the measure of damages for the death of a dog was capped at the dog's fair market value and the Monyaks failed to prove that Lola had any market value. The Court of Appeals concluded that the proper measure of damages for the loss of a pet is the actual value of the dog to its owners rather than the dog’s fair market value. The court stated that the actual value of the animal could be demonstrated by reasonable veterinary and other expenses incurred by its owners in treating injuries, as well as by other economic factors. However, evidence of non-economic factors demonstrating the dog's intrinsic value to its owners would not be admissible. The Supreme Court of Georgia reversed in part and held that the damages recoverable by the owners of an animal negligently killed by another includes both the animal's fair market value at the time of the loss plus interest, and, in addition, any medical and other expenses reasonably incurred in treating the animal. The Supreme Court reasoned that “[t]he value of [a] dog may be proved, as that of any other property, by evidence that he was of a particular breed, and had certain qualities, and by witnesses who knew the market value of such animal, if any market value be shown.” The Supreme Court also affirmed the Court of Appeals in part and found no error in the court's determination that Georgia precedent does not allow for the recovery of damages based on the sentimental value of personal property to its owner.|
|Warren v. Delvista Towers Condominium Ass'n, Inc.||49 F.Supp.3d 1082 (S.D. Fla. 2014)||In its motion for summary judgment, Defendant argues Plaintiff’s accommodation request under the Federal Fair Housing Act (the “FHA”) to modify Defendant's “no pet” policy was unreasonable because Plaintiff's emotional support animal was a pit bull and pit bulls were banned by county ordinance. In denying the Defendant’s motion, the District Court found that changing a no pets policy for an emotional support animal was a reasonable accommodation under the FHA. The court also found that enforcing the county ordinance would violate the FHA by permitting a discriminatory housing practice. However, in line with US Department of Housing and Urban Development notices, the court found genuine issues of material fact remained as to whether the dog posed a direct threat to members of the condominium association, and whether that threat could be reduced by other reasonable accommodations.|
|U.S. v. FMC Corp.||572 F.2d 902 (2nd Cir., 1978)||FMC operated a plant which manufactured various pesticides, requiring large amounts of wastewater which was stored in a pond. The pond attracted waterfowl during migration, some of which died. FMC attempted various measures to keep birds away from the pond. But, the Court held that FMC had engaged in an activity involving the manufacture of a highly toxic chemical and had failed to prevent this chemical from escaping into the pond and killing birds. The Court, therefore, held that this was sufficient to impose strict liability on FMC.|
|Leigh v. State||58 So. 3d 396 (Fla. Dist. Ct. App. 2011)||Philip Leigh (Defendant) appeals from an order summarily denying his motion for postconviction relief. Following a jury trial, Defendant was found guilty of trafficking in cocaine and conspiracy to traffic. Defendant claimed his trial counsel was ineffective for allowing him to appear in a leg restraint and for failing to object to the presence of a dog. Apparently, the dog became disruptive on more than one occasion and was visible to the judge and jury. The Florida appellate court reversed and remanded, with a provision that the trial court could attach portions of the record that would refute the possibility that defense counsel’s failure to object to the dog’s presence indicated ineffective assistance of counsel. Since there was apparently no evidence of the dog’s presence in the record at all, the trial court was presumably obligated to conduct an evidentiary hearing on the matter.|
|Jackson v. Mateus||70 P.3d 78 (Utah 2003)||Plaintiff filed suit against the defendant after she was bitten by the defendant’s cat and required medical attention as a result of the bite. Plaintiff found the defendant’s cat on her property and mistakenly started petting the cat, thinking that it was one of her own cats. As plaintiff was petting the cat, it bit her causing her injury. Plaintiff filed a negligence claim against defendant for not restraining the cat. The court held in favor of the defendant because the court found that this incident was not foreseeable and because it was not foreseeable, the defendant did not owe a duty to restrain the animal under the common law, municipal law, or state law.|
|Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc.||78 F.Supp.2d 1028 (D.N.D. 2011)||Plaintiffs bring this action against Goldmark Property Management alleging discrimination on the basis of disability in violation of the Fair Housing Act. The alleged discriminatory policy is a mandatory application fee, non-refundable deposit, and monthly charge that Goldmark imposes on tenants with disabilities who reside with a non-specially trained assistance animal (i.e. a companion pet). These same fees are waived for tenants with disabilities who reside with a trained assistance animal (i.e. a seeing eye dog). The FHA encompasses all types of assistance animals regardless of training; therefore, Goldmark's policy implicates the FHA. Further, Plaintiffs have met their burden of establishing a prima face case of discrimination and have presented sufficient evidence to create genuine issues for trial on the questions of the necessity and reasonableness of the requested accommodation and whether Goldmark's alleged objective for the policy is permissible under the FHA and not pretextual. Therefore, Goldmark's motion for summary judgment is granted in part and denied in part. It is granted as to Plaintiffs' claim of disparate treatment because no proof was offered of a discriminatory intent. It is denied as to Plaintiffs' claims of disparate impact and failure to make a reasonable accommodation.|
|Stevens v. Hollywood Towers and Condominium Ass'n||836 F.Supp.2d 800 (N.D. Ill. 2011)||Plaintiffs brought the instant suit contending that their Condo Board's refusal to accommodate the need for an emotional support animal forced them to sell their condo. The Defendants moved to dismiss for failure to state claims upon which relief could be granted. After finding that Plaintiffs were not entitled to unrestricted access for their dog despite a no pet waiver and after needing more facts to determine whether Defendants restrictions on Plaintiffs’ access to the building were reasonable, the District Court denied Defendants' motion to dismiss Plaintiffs' claims under the Federal Housing Amendments Act (FHAA) and the Illinois Human Rights Act (IHRA). The District Court also found Plaintiffs' interference or intimidation allegations sufficient to withstand a motion to dismiss. However, the District Court dismissed Plaintiffs’ nuisance claim because Plaintiffs had not contended that Defendants unreasonably used their own property to interfere in Plaintiffs' use and enjoyment of their home, but rather, contended that Defendants made rules that interfered with the Plaintiff's ability to use the common areas of the property as they wished. Plaintiffs’ intentional infliction of emotional distress claim was also dismissed because Plaintiffs had not sufficiently alleged that Defendants' conduct was extreme or outrageous. Finally, the constructive eviction claim was dismissed because more than a year had past between the owners’ accommodation request and the sale of their condominium. In sum, Counts I, II, and III went forward, but the remainder of the complaint was dismissed. Additionally, Defendant Sudler Building Services was dismissed from the complaint.|
|U.S. v. CITGO Petroleum Corp.||893 F.Supp.2d 841 (S,D.Tex.,2014)||In 2007, CITGO was convicted of unlawfully taking and aiding and abetting the taking of migratory birds under MBTA § 707(a) after ten dead birds were found in two large open-top oil tanks. CITGO moved the Court to vacate its convictions, arguing that the MTBA criminalizes the unlawful taking or killing of migratory birds by hunting, trapping, poaching, or similar means, but does not criminalize commercial activities in which migratory birds are unintentionally killed as a result of activity completely unrelated to hunting, trapping, or poaching. In response, the Government argued that the MTBA prohibits the taking or killing of a migratory bird at any time, by any means or in any manner. The evidence presented at trial established that a number of individuals saw oil-covered birds, both dead and alive. An employee told senior management and suggested to another member of CITGO's senior management team that CITGO install nets on the tanks to prevent birds from landing in the oil. Based on this evidence, the court held that not only was it reasonably foreseeable that protected migratory birds might become trapped in the layers of oil on top of the tanks, but that CITGO was aware that this was happening for years and did nothing to stop it. Because CITGO's unlawful, open-air oil tanks proximately caused the deaths of migratory birds in violation of the MBTA, CITGO's Motion to Vacate CITGO's Conviction for Violations of the Migratory Bird Treaty Act was denied.|
|Mercado v. Ovalle||973 N.Y.S.2d 171 (N.Y.A.D. 1 Dept., 2013)||
In this New York case, plaintiff appealed the lower court's order granting defendants' motion for summary judgment in a dog bite case. Defendants, a grocery store and its owner, asserted that they did not own the two pit bulls that attacked plaintiff. The only evidence plaintiff presented showing defendants' ownership and control over the dogs were hearsay statements from the mechanic who operated the lot that the dogs guarded. The court found this evidence that defendants occasionally walked and fed the dogs insufficient to show that they "harbored" the dogs. Affirmed.
|Travis v. Murray||977 N.Y.S.2d 621 (Sup. Ct. 2013)||
A short, childless marriage ended in a custody battle over a dachshund after one spouse allegedly took the dog while the other spouse was away on a business trip. After reviewing the progression of the law in New York and in other states, the court decided to apply a “best for all concerned” standard and to give the parties a full, one-day hearing. The plaintiff’s motion to order the defendant to return the couple's dog and to be awarded “sole residential custody” of the dog was therefore granted.
|Hastings v. Sauve||989 N.E.2d 940 (N.Y., 2013)||
After plaintiff motorist was injured after hitting a cow that had wandered onto the highway, she sued farm owner, operator of cattle-shipping business, and operator's assistant, alleging that defendants were negligent in not properly confining cow to its pasture. There was no evidence that cow had a vicious or abnormal propensity, or that cow's owner knew of propensity, as required to support a strict liability claim. However, on appeal to the Court of Appeals, the court held that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal is negligently allowed to stray from the property on which the animal is kept.
|Animal Legal Defense Fund, Inc. v. Aubertine||991 N.Y.S.2d 482 (2014)||Petitioners seek, among other things, a declaration that force-fed foie gras is an adulterated food product and an order prohibiting the state respondents from allowing foie gras into the human food supply. Pre-answer motions to dismiss asserted, among other things, that petitioners lacked standing. Supreme Court granted dismissal upon such ground and petitioners appealed. Petitioner Stahlie contended he had standing based upon allegations that he occasionally ate foie gras at parties and other events and that this might increase his risk of developing secondary amyloidosis. The court, however, found the risk of exposure to be minimal and the indication of harm uncertain since Stahlie had no underlying medical conditions that might be related to an increased risk of secondary amyloidosism, that his exposure to foie gras was infrequent, and that he did not cite a situation of any person ever suffering secondary amyloidosis that was linked to foie gras. The Animal Legal Defense Fund argued that since it used its resources to investigate and litigate the alleged conduct of the state respondents, it had standing. The court, however, found that a finding of standing under this situation would essentially eliminate the standing requirement any time an advocacy organization used its resources to challenge government action or inaction. Lastly the court found that petitioners had not alleged ‘a sufficient nexus to fiscal activities of the state to allow for State Finance Law § 123-b standing.’ The lower court’s decision was therefore affirmed.|
|Animal Liberation (Vic) Inc v Gasser||(1991) 1 VR 51||
Animal Liberation were injuncted from publishing words claiming animal cruelty in a circus or demonstrating against that circus. They were also found guilty of nuisance resulting from their demonstration outside that circus. On appeal, the injunctions were overturned although the finding of nuisance was upheld.
|The Duck Shooting Case||(1997) 189 CLR 579||
The plaintiff was charged with being in an area set aside for hunting, during hunting season, without a licence. The plaintiff argued that he was there in order to collect dead and wounded ducks and endangered species and to draw media attention to the cruelty associated with duck shooting. The Court found that although the regulation under which the plaintiff was charged restricted the implied freedom of political communication, it was appropriate to protect the safety of persons with conflicting aims likely to be in the area.
|Mark, Stoner, Setter and Pearson v Henshaw||(1998) 155 ALR 118||
The four appellants, members of Animal Liberation, entered premises containing battery hens without permission. This was done allegedly on concern as to the treatment of those battery hens and the appellants claimed this constituted a reasonable excuse. After a second appeal, the convictions were upheld and it was found that the appellants did not have a reasonable excuse for trespass.
|Isted v. CPS||(1998) 162 J.P. 513||
The appellant was a keeper of livestock who had shot and injured a neighbor's dog that had strayed into the appellant's pig pen. He had been convicted of doing an act causing unnecessary suffering to the dog contrary to the Protection of Animals Act 1911, s 1(1)(a) (second limb). Dismissing the appeal, the Divisional Court held that the local justices were entitled to find as a matter of fact that it had not been reasonably necessary to shoot the dog.
|Yanner v Eaton||(1999) 201 CLR 351||
The appellant was a member of the Gunnamulla clan of Gangalidda tribe from Gulf of Carpentaria and killed estuarine crocodiles by harpooning. He was charged under the Fauna Conservation Act 1974 (Qld) with taking fauna without holding a licence. The Court ultimately found that the appellant's right to hunt crocodiles in accordance with the Native Title Act 1993 (Cth) were not extinguished by the Fauna Conservation Act.
|RSPCA v Harrison||(1999) 204 LSJS 345||
The respondent was the owner of a dog which was found with skin ulcerations, larval infestations and saturated in urine. On appeal, it was found that the trial judge failed to give proper weight to cumulative circumstantial evidence as to the respondent's awareness of the dog's condition. It was also found that 'illness' was intended to cover a wide field of unhealthy conditions and included the larval infestation. The respondent was convicted and fined.
|Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd||(2001) 208 CLR 199||
The respondent was successful in obtaining an injunction against the appellants from publishing a film displaying possums being stunned and killed at an abattoir. The film had been obtained from a third party while trespassing. The Court found that it was not unconscionable for the appellants to publish the film and a corporation did not have a right to privacy.
|Royal Society for the Prevention of Cruelty to Animals Western Australia Inc v Hammarquist||(2003) 138 A Crim R 329||
The respondents were charged with nine counts of inflicting unnecessary suffering on an animal, a cow, and one count of of subjecting 50 cows to unnecessary suffering. The trial judge found the respondents wrongly charged and dismissed the charges without the prosecution clearly articulating its case. The trial judge was incorrect to dismiss the charges for want of particulars. The trial magistrate was also incorrect to dismiss the tenth charge for duplicity. In some circumstances it is possible to include multiple offences in the same charge where the matters of complaint are substantially the same.
|Song v Coddington||(2003) 59 NSWLR 180||
The appellant was charged and convicted of being a person in charge and authorising the carriage of a number of goats in cages which did not allow those goats to stand upright. The appellant was a veterinary doctor employed by the Australian Quarantine Inspection Service and authorised under the Export Control (Animals) Orders 1987 to certify animals for export. On appeal, it was determined that for the purposes of the Prevention of Cruelty to Animals (General) Regulation 1996, the appellant was not a person in charge of the goats.
|The International Fund for Animal Welfare (Australia) Pty Ltd and Minister for Environment and Heritage||(2005) 93 ALD 594||
Zoos in New South Wales and Victoria sought to import asian elephants for conservation and exhibition. The Tribunal considered whether the elephants were being imported "for the purposes of conservation breeding or propagation", the zoos were "suitably equipped to manage, confine and care for the animals, including meeting the behavioural and biological needs of the animals", the importation of the elephants would "be detrimental to, or contribute to trade which is detrimental to ... the survival .... or ... recovery in nature of" Asian elephants and whether the elephants were "obtained in contravention of, [or] their importation would ... involve the contravention of, any law". The importation was allowed.
|Re The International Fund for Animal Welfare (Australia) Pty Ltd and Ors and Minister for Environment and Heritage||(2006) 42 AAR 262||
Zoos in New South Wales and Victoria sought to import five Asian elephants. After an initial hearing, further evidence was sought in relation to the condition and nature of the facilities at the zoos. The Tribunal decided that the importation of the elephants should be in accordance with a permit issued under s 303CG of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
|Rural Export & Trading (WA) Pty Ltd v Hahnheuser||(2007) 243 ALR 356||
The applicants held sheep in a pen pending live export. The respondent broke into that pen and put pork products in their feed rendering them unfit for export to countries whose markets had religious proscriptions against eating pork products. The court found that the respondent's conduct did not amount to 'hindering' as defined in the Trade Practices Act 1974 (Cth) and that his action was for the dominant purpose of environmental protection, which included protecting sheep from the conditions suffered during the live export trade.
|Re Nature Conservation Council of NSW Inc and Minister for Environment and Water Resources||(2007) 98 ALD 334||
The Commonwealth Minister for the Environment and Water Resources declared an Ocean Trap and Line Fishery to be an approved wildlife trade operation. This permitted the export of sea life from the fishery. The Nature Conservation Council claimed that the fishery was detrimental to the survival of east coast grey nurse sharks. The Tribunal found that the operation would not be detrimental to the survival of the east coast grey nurse population.
|Re Wildlife Protection Association of Australia Inc. and Minister for the Environment, Heritage and the Arts||(2008) 106 ALD 123||
The Minister for the Environment declared the New South Wales Commercial Kangaroo Harvest Management Plan 2007-2011 to be an approved wildlife trade management plan within the meaning of the Environment Protection and Biodiversity Act 1999 (Cth). The Tribunal considered aspects of the plan including: ecological sustainability; conservation of biodiversity; humane treatment; response to environmental impact; precautionary principles; ethical research; and state legislation. The plan was ultimately approved by the Tribunal with a caveat that it include a trigger to suspend the 'harvest' if population levels dropped by 30% or over.
|Humane Society International Inc v Kyodo Senpaku Kaisha Ltd||(2008) 244 ALR 161||
The applicant, an incorporated public interest organisation, sought an injunction to restrain the respondent Japanese company which owned several ocean vessels engaged in, and likely to further engage in, whaling activities in waters claimed by Australia. It was found that the applicant had standing to bring the injunction and the respondent engaged in activities prohibited by the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Orders were entered against against the respondent even though it had no assets in Australia and the likelihood of being able to enforce judgment was very low.
|Rural Export & Trading (WA) Pty Ltd v Hahnheuser||(2008) 249 ALR 445||
The trial judge held that the respondent's placing of a ham mixture in the feed of sheep prior to live export was covered by the defence of dominant purpose for environmental protection under the Trade Practices Act 1974 (Cth). On appeal, the court held that the respondent's actions were not an attempt at environmental protection but rather sought to prevent what he believed would be cruelty to those animals on board the ship during live export and upon arrival. The case was referred back to the Federal Court for assessment of damages.
|Rural Export & Trading (WA) Pty Ltd v Hahnheuser||(2009) 177 FCR 398||
The respondent placed ham in food to be fed to sheep prior to live export. This action resulted in delay of live export and constituted a breach of the Trade Practices Act 1974 (Cth) without falling under the defence of 'environmental protection'. The second applicant was entitled to damages from the respondent falling under the following heads: purchasing sheep; transport; killing fees; processing fees; freezer storage fees; cost of resale; and travel expenses. The total loss was calculated at $72,873.73.
|In re Marriage of Berger and Ognibene-Berger||(Decisions Without Published Opinions) 834 N.W.2d 82 (Table) (2013)||Joe Berger appeals from the provisions of the decree of divorce from Cira Berger, including the court’s grant of Max, the family golden retriever, to Cira. He argues that it would be more equitable to grant him ownership of Max because Cira already owns another dog, Sophie, and the parties’ son, who lives with Joe, is very attached to Max. The district court made their decision based on which party would be more available to care for the dog. This court affirms that decision, citing evidence that Max is licensed to Cira, only Cira’s name is in the dog’s ‘GEO tracker’ device, and Cira got Max medical attention even when Max was in Joe’s care. The court specified that they need not determine a pet's best interests when deciding custody.|
|Coyote v. U.S. Fish and Wildlife Service||(no F.Supp. citation) 1994 E.D. California||
Defendant brought a motion after the USFWS denied his application to obtain eagle feathers for religious use where defendant failed to obtain certification from the Bureau of Indian Affairs that he was a member of a federally-recognized tribe. The court held that this requirement is both contrary to the plain reading of that regulation and arbitrary and capricious. For discussion on formerly recognized tribes and the BGEPA, see Detailed Discussion.
|Saenz v. DOI (vacated by U.S. v. Hardman, 260 F.3d 1199 (10th Cir. 2001))||(no West citation. Docket No. 00-2166)||
(This case was vacated by United States v. Hardman, 260 F.3d 1199(10th Cir. 2001). Appellant was descended from the Chiricahua tribe of Apache Indians, and, although originally recognized as a tribe, it is not presently recognized. The court affirmed the vacating of defendant's conviction for possessing eagle parts, holding that the present test under RFRA with regard to whether a tribe has been formally recognized bears no relationship whatsoever to whether one sincerely practices Indian religions and is substantially burdened when prohibited from possessing eagle parts. For discussion of Eagle Act, see Detailed Discussion .
|Commonwealth v. Baumgartner||--- A.3d ----, 2019 WL 1010357 (Mar. 4, 2019)||Appellant Charles Baumgartner was charged and convicted of animal fighting for amusement or gain as a result of an incident that occurred on March 9, 2017. Baumgartner brought his white pit pull named "Menace" to fight a pit bull that belonged to Adam Aviles. Police learned of the dog fight after being informed a video of the fight had been uploaded to social media. Baumgartner was ultimately charged with animal fighting and assaulting Mr. Aviles, but was convicted by jury only of animal fighting. On appeal, Baumgartner contends that his conviction should be set aside because the Commonwealth failed to present any evidence of amusement or gain as required by statute. As a matter of first impression, this Court considered the term "amusement or gain" as an element of the animal fighting, which is undefined in the anti-cruelty laws. The court found that no cases or other jurisdiction defines the term with respect to animal fighting, and thus, under principles of statutory interpretation, relies on the common usage and dictionary definitions. The court found that there was sufficient evidence admitted a trial for the jury to find beyond a reasonable doubt that Baumgartner allowed his dog to engage in animal fighting for amusement or gain, i.e., for “pleasurable diversion” or “advantage acquired or increased.” The Court concluded that Baumgartner facilitated the dog fight as a means of retribution against Aviles for a prior dog fighting incident. Therefore, his motive was personal gain. Accordingly, the Court affirmed Baumgartner’s conviction. Judge Pellegrini dissented stating that she does not believe that retribution is the type of amusement or gain within the meaning of the statute. She interprets the statute as outlawing animal fighting as a sport rather than all animal fights.|
|Giarrusso v. Giarrusso||--- A.3d ----, 2019 WL 1606351 (R.I. Apr. 16, 2019)||This Rhode Island Supreme Court case centers on a disagreement among former spouses concerning the ex-husband's visitation with their two dogs acquired during marriage. Before the Court is an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After review, the Court concluded that cause was not shown and affirmed the order of the Family Court. The couple entered into a Marital Settlement Agreement (MSA) formalizing the terms of the dissolution of Diane and Paul Giarrusso's marriage and giving Diane all title and interest to the dogs and Paul twice a week visitation. The weekly visitation proceeded according to the agreement for over a year, when Diane ceased allowing Paul's visits. Paul then filed a motion for post-final judgment relief citing breach of the agreement and Diane counterclaimed. A justice of the Family Court held a hearing on the issue, where each party testified and submitted associated texts and emails. In one recounted incident, a dog was missing for some time at Paul's house. Ultimately, the dog was found to be accidentally locked in a closet. At the conclusion of the hearing, Diane argued that the justice should withdraw approval for the MSA because Paul failed to care for the dogs and showed bad faith, while Paul argued that Diane had breached the terms. The hearing justice affirmed the visitation schedule of the MSA, denied Diane's requested relief, and awarded attorney fees to Paul. On appeal here, Diane argues that the hearing justice was "clearly wrong and overlooked material evidence when she found that Paul had acted in good faith." In particular, Diane contends that the dogs are chattel and Paul failed to provide safe conditions and return them to her in an undamaged condition. The Supreme Court held, in noting that the MSA retains the characteristics of a contract, that it would not overturn the hearing justice's determination in absence of mutual mistake in the contract (the MSA). There was no mutual mistake in the MSA's visitation provision and no basis for the hearing justice to conclude that the MSA needs to be reformed. Further, this court found no evidence of bad faith on Paul's part and that the hearing justice's findings were support by the evidence. Thus, it was not inequitable to enforce the visitation term in the MSA as written. The order of the Family Court was affirmed and the matter returned to Family Court.|
|Perez v. County of Monterey||--- Cal.Rptr.3d ---- 2019 WL 621483 (Cal. Ct. App. Feb. 14, 2019)||In this California case, the plaintiffs sued to challenge the validity of the County of Monterey rooster-keeping ordinance, seeking a declaratory judgment that the law is unconstitutional. The ordinance limits residents to no more than four roosters on a single property without a rooster keeping permit and also describes care and keeping requirements. The trial court found that the ordinance did not violate the constitution and entered judgment for the City. Plaintiffs here appeal that decision, arguing that the ordinance: (1) takes property without compensation in violation of the Fifth Amendment to the United States Constitution; (2) infringes on Congress’ authority to regulate interstate commerce; (3) violates the Equal Protection clause of the Fourteenth Amendment to the United States Constitution; (4) is a prohibited bill of attainder; and (5) violates the rights to privacy and to possess property guaranteed by the California Constitution. With respect to the Fifth Amendment taking challenge, the court found that the regulatory takings argument failed because there is no evidence that the ordinance affected plaintiffs or that they even applied for or were eligible for a permit. As to the interstate commerce challenge, plaintiffs provided no evidence that the ordinance would cause excess roosters to be divested from owners and sold in commerce to support this claim. As to Equal Protection, the plaintiffs correctly assert that the ordinance treats people differently based on age (i.e., students engaged in 4-H or FFA activities are exempted from the four-rooster limitation). However, the court found that the county stated a legitimate objective of public health and safety and this differential treatment of a non-suspect class advances that interest. Finally, the court found the ordinance was not a bill of attainder since it prospectively regulates roosters and also that it does not violate California's right to privacy and property possession. Indeed, the court found that plaintiff did not identify a specific privacy interest implicated by the ordinance. Thus, the judgment was affirmed.|
|People v. Smalling||--- Cal.Rptr.3d ----, 2019 WL 2400413 (Cal. App. Dep't Super. Ct. May 30, 2019)||Defendant was cited for allowing a dog controlled or owned by her to cause injury or death to a service dog in violation of California’s Penal Code. The offense was an infraction. The defendant pled no contest and was fined $157. The service dog’s owner requested a restitution hearing, but the trial court denied the request stating that since the offense was an infraction, a restitution hearing was not permissible. The service dog owner appealed the decision of the trial court. The Court ultimately found that the trial court incorrectly stated that a victim of an infraction is not entitled to restitution. Both the California Constitution and the California Penal Code (the very statute that the Defendant was convicted of violating) entitle the victim to restitution. The California Constitution specifically states that restitution shall be ordered in every case regardless of the sentence or disposition of a crime in which a victim suffers a loss. The Court stated that an infraction is a crime, therefore, a restitution hearing is mandatory. The statute that the Defendant violated (section 600.2 of California’s Penal Code) also stated that a defendant shall be ordered to make restitution. The trial court abused its discretion in erroneously concluding that a crime victim is not entitled to restitution if the offense committed is an infraction and ultimately denying the victim restitution. The Defendant argued that an order for payment of restitution would be improper because she was never advised that victim restitution would be a consequence of her plea and that such an order would violate her plea agreement. She also argued that the trial court found, in good faith, that restitution was unnecessary. The Court, however, found the Defendant’s arguments unpersuasive. The Court reversed the order denying victim restitution and remanded the matter to the trial court with directions to conduct a restitution hearing.|
|Park Management Corp v. In Defense of Animals||--- Cal.Rptr.3d ----, 2019 WL 2539295 (Cal. Ct. App. June 20, 2019)||An animal rights activist named Joseph Cuviello appealed the entry of a permanent injunction in a trespass action that prohibited him from demonstrating outside of Six Flags Discovery Kingdom ("The Park") in California. The superior court rejected Cuviello’s federal and state constitutional claims that he had a right to picket there peacefully and his common law defense based on a claimed prescriptive easement. The Park was originally municipally owned and privately operated until 2007 when the Park's management acquired the park from the City of Vallejo. After that acquisition, the Park began to limit free speech until it ultimately banned all expressive activity on the property. Cuviello was one of the many people that protested at the park advocating for animals and he had done so many times in the past. The Park filed a single cause of action for private trespass against several animal advocacy groups. Cuviello argued that he had a First Amendment right to protest there because the park had been dedicated to public use, the park was a public forum under state constitutional law, and given the amount of times he had protested at the park in the past, he had acquired a common law prescriptive easement right to protest there. The trial court denied Cuviello’s cross-motion for summary judgment and granted summary judgment for the Park. It ruled that the First Amendment does not apply to private property and that the property was not a public forum under California’s constitution. It also rejected the prescriptive easement claims. Although the Park was zoned as a public and quasi-public property, the Appeals Court grappled with whether to classify the Park as a private or public forum. The Court applied a balancing test which balanced society’s interest in free expression against the Park’s interests as a private property owner. The Court concluded that the unticketed, exterior portions of the Park was a public forum. Ultimately the Court held that the trial court erred in granting the Park’s summary judgment and in denying Cuviello’s cross-motion for summary judgment. Accordingly, the Court reversed the decision of the trial court and held that on the undisputed facts here, the Park may not ban expressive activity in the non-ticketed, exterior areas of Six Flags.|
|Animal Legal Defense Fund, Inc. v. Perdue||--- F.3d ----, 2017 WL 4320804 (D.C. Cir. Sept. 29, 2017)||The Secretary of Agriculture is directed by the Animal Welfare Act to promulgate regulations governing minimum animal housing and care standards and to issue licenses for animal exhibitionists only if they adhere to these standards. The Animal Legal Defense Fund sued the Department of Agriculture for renewing Tom and Pamela Sellner's Cricket Hollow Zoo in Iowa despite multiple violations of the animal welfare requirements set forth in the Act. In fact, the USDA had filed an administrative complaint against the Sellners and commenced a formal investigation in 2015 According to the court, the USDA has established a "bifurcated" approach to licensing, where initial applicants must comply with regulations and pass an agency compliance inspection, while license renewal applicants must only pay a fee and agree to continue to comply with regulations. After the District Court's dismissal of the case, the Court of Appeals affirmed in part but remanded back to the District Court the question whether the USDA's reliance on self-certification was an arbitrary and capricious action with instructions to get further explanation from the agency. As stated by the court, "On remand, the agency must, at a minimum, explain how its reliance on the self-certification scheme in this allegedly “smoking gun” case did not constitute arbitrary and capricious action."|
|Lunon v. Botsford||--- F.3d ----, 2019 WL 7198501 (8th Cir. Dec. 27, 2019)||Lunon had a German Shephard as a breed dog, named Bibi, which had gotten loose and was turned into the local animal shelter. The animal control officer failed to scan the dog for a microchip. After five days at the animal shelter, Bibi was sterilized and adopted out. Lunon was able to recover his dog through a replevin action, however, Lunon claimed that his fourteenth amendment right to procedural due process was violated when Bibi was spayed and adopted out without providing pre-deprivation notice and an opportunity for Lunon to be heard. Lunon filed suit against the animal control officer, two directors of the animal shelter in Pulaski County, the city of North Little Rock, Pulaski County, the Pulaski County Animal Shelter, and the North Little Rock Animal Shelter. The defendants removed the case to federal court and sought summary judgment. The district court did not grant summary judgment and the defendants appealed. The Court found that the animal control officer picking up Bibi and delivering her to the animal shelter did not deprive Lunon of a protected property interest. There is no constitutional duty for an animal control officer to scan a stray dog for a microchip. Therefore, the animal control officer was not liable. The public officials that participated in this action were all protected under governmental immunity because Lunon failed to demonstrate that each individual defendant violated his constitutional right to due process. The Court ultimately reversed the order of the district court and remanded with directions to enter judgment dismissing those claims with prejudice.|
|Center for Biological Diversity, Defenders of Wildlife v. Kelly||--- F.Supp.3d ----, 2015 WL 1293338 (D. Idaho 2015)||Plaintiffs brought an action against the Defendants, challenging the U.S. Fish and Wildlife Service (“FWS”)'s November 28, 2012 Final Rule designating 30,010 acres in Idaho and Washington as critical habitat for the southern Selkirk Mountains population of woodland caribou under the Endangered Species Act (“ESA”). Specifically, plaintiffs alleged (1) that the Final Rule's critical habitat designation was arbitrary and capricious because the Defendants failed to explain how the limited amount of critical habitat designated was sufficient to recover this population of caribou and (2) that Defendants failed to provide public notice and comment on the substantially revised critical habitat designation before issuing the Final Rule. Defendants and Intervenors argued that the Final Rule satisfied the requirements of the ESA and the Administrative Procedures Act ("APA").While the district court stated that the Final Rule's analysis seemed reasonably based on the best available science, it refused to make a conclusive determination on the arbitrary and capricious issue because procedural requirements necessitated a further public review and comment period. The court therefore found the error in this case was a procedural one resulting from the FWS failing to provide a period of public review and comment on the Final Rule's critical change in reasoning. The Court therefore remanded this matter to the FWS to cure the procedural error by affording the necessary public comment period and to consider anew the critical habitat designation in light of those comments.|