|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.|
|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. Arcelay||--- A.3d ---- 2018 WL 2927748 (June 12, 2018)||The appellant Arcelay appeals his conviction for the summary offense of cruelty to animals after he left his two small Yorkie dogs were found inside of his vehicle on an 87 to 90 degree day for approximately two hours at Willow Grove Naval Air Station. The dogs were rescued from the car and survived (law enforcement gave the dogs water and placed them inside an air conditioned building). After receiving a citation for leaving the animals, appellant entered a plea of not guilty and appeared for the Magisterial Judge. He was found guilty and assessed fines and costs of $454.96. At a Summary Appeal de novo hearing, the officers who responded to the scene presented evidence, including testimony on the dogs being in the car for two hours and photographs of the area showing no shade was available. Appellant testified that he was retired from the Reserves and was at the base to set up for a family picnic. During the morning, he indicated that he checked on the dogs every fifteen minutes. Appellant testified that "he believes the public overreacts when they see dogs in a car" and he was upset that someone had gone into his vehicle to remove the dogs. The court ultimately found appellant guilty of the summary offense, but put appellant on a probation for three months in lieu of fines and costs, taking into account Appellant's lack income. On the instant appeal, appellant first questions whether the Court of Common Pleas had jurisdiction to hear this matter since it occurred on a military installation. Appellant also raises whether the evidence was insufficient as a matter of law for the cruelty to animals conviction. As to the jurisdictional argument, the court here found the issuance of the summary citation at the military base was appropriate. The court observed that it is well-settled that military and non-military courts may exercise concurrent subject matter jurisdiction for criminal matters. The court also found that there was sufficient evidence to support appellant's conviction, where his conduct in leaving the dogs in a closed car on a hot, summer day presented an unreasonable risk of harm. The judgment was affirmed.|
|State v. Hearl||--- A.3d ----, 182 Conn. App. 237 (2018)||Defendant Hearl was convicted of nineteen counts of animal cruelty by jury. The convictions stem from the care of his goat herd used for his goat cheese manufacturing business in Connecticut in 2014. Defendant and his business partner moved a herd from Massachusetts to Cornall, CT in May of 2014, where they rented an open air barn space (mainly used for dairy cows), but did not negotiate any boarding or care of the goats. Another farmer (Betti) rented the other half of the barn space for his dairy cows. Betti became concerned about defendant's goat herd in Fall 2014. As the condition of the goats deteriorated (to the point of death for some of the goats), Betti informed the state Dept. of Agriculture and this spurred the investigation which culminated in the seizure of defendant's remaining living goats in January 2015. On appeal of his conviction, defendant raises four main arguments: (1) the evidence adduced at trial was insufficient to sustain his conviction, (2) the trial court did not provide the jury with a proper instruction on the required mental state; (3) § 53–247 (a) is unconstitutionally vague as applied to his conduct; and (4) his conviction and sentencing on nineteen separate counts of animal cruelty violates the constitutional prohibitions against double jeopardy. As to defendant's first insufficiency of the evidence claim, defendant's argument centered on whether he had charge or custody of the goats necessary to impute responsibility to him. The court found that there was ample evidence before the jury to support the finding that the defendant confined, or had charge or custody of, the goats. Not only did the defendant play an active role in the management of the goats according to testimony, but.in converstations with officers, defendant “took the lead on telling me what was being done with the management of the goats” and that he “predominated the conversation” about the mortality rates in the herd. In fact, the court found compelling evidence of defendant's custody role where since he had authority to order the euthanization of the animals. Defendant's attempts to characterize his role as mere "ownership," with no role in the particulars of confinement, were unpersuasive. Ownership itself "can still be probative evidence that the defendant bore the responsibility of caring for the goats and authorizing their confinement." Equally unpersuasive was defendant's claim that his business partner was the was who alone confined the 20 plus goats in the open air barn. However, the court noted that there is "no authority limits liability under the statute to a single actor when the facts demonstrate that more than one person may have confined the goats or had charge or custody of them." The jury reasonably could have concluded that the defendant, having confined, or having charge or custody of, the goats, failed to give the goats proper care or food, water, and shelter. On defendant's second claim, the court concluded that the mens rea required for a conviction under the relevant portion of § 53–247 (a) is general intent and that the trial court did not err by declining to instruct the jury on criminal negligence. Defendant's third argument - that § 53–247 (a), was unconstitutionally vague - was also dispensed by the court. Even if the terms "charge" or "custody" are susceptible to some degree of interpretation, the record here shows that defendant had definite notice that his conduct violated the law. Further, the evidence at trial showed that he had notice from the state on things like heat lamps and shelter from the wind and failed to protect the animals by acting on those instructions. Finally, the court considered defendant's final double jeopardy argument and whether the legislature intended to authorize multiple convictions for cruelty for each goat or one conviction for the cruel treatment of the nineteen goats under § 53–247 (a). In looking at previous versions of the anti-cruelty law and other laws within the chapter, the court found that defendant's separate abuse and maltreatment of each goat supports the nineteen separate counts filed by the prosecutor. The judgment was affirmed.|
|Hauser v. Ventura County Board of Supervisors||--- Cal.Rptr.3d ----, 2018 WL 94788718 (Cal. Ct. App., 2018)||The plaintiff in this case applied for a conditional use permit (CUP) to keep up to five tigers on her property, but the county planning commission and board of supervisors denied her application. In her application, plaintiff indicates that the project would include three tiger enclosures, a 13,500-square-foot arena with a roof over 14 feet in height at its highest point, with the area surrounded by an eight-foot-high chain link fence encompassing over seven acres. The captive tigers would be used in the entertainment industry: movie sets, television commercials, and still photography. In denying the application, the Board found that the plaintiff failed to prove two elements necessary for a CUP: the project is compatible with the planned uses in the general area, and the project is not detrimental to the public interest, health, safety or welfare. The court noted that plaintiff bears the burden of demonstrating her entitlement to the permit. In fact, the court noted that while plaintiff claims "an unblemished safety record," she submitted videos showing tigers "roaming freely in the backyard of her Beverly Hills home" and tigers posing with plaintiff and her sister on the beach. The court observed that, "[h]er well-intentioned desire to own [the tigers] does not trump her neighbors' right to safety and peace of mind." The judgment of the lower court was affirmed.|
|United States v. Charette||--- F.3d ---- 2018 WL 3117903 (9th Cir. June 26, 2018)||Defendant Charette was convicted by bench trial of taking a grizzly bear behind his home in Montana in violation of the federal Endangered Species Act. On appeal, defendant challenges his conviction on three grounds: (1) there was insufficient evidence to infer that he did not have a permit to take the grizzly bear; (2) his request for a jury trial was improperly denied; and (3) the lower court incorrectly analyzed his self-defense claim under an objective standard as opposed to the correct subjective standard. On appeal here, the court observed that the plain language of the ESA and legislative history makes it clear that permits and exceptions under the ESA are affirmative defenses, and not elements of the crime. In this case, Charette had the burden of proving the existence of a valid permit, which he did not do at trial. The court also quickly dispensed with the Sixth Amendment jury trial issue, finding that the taking of a grizzly bear is a petty offense. As to defendant's last argument on his self-defense claim, this court did find that the trial court erred in applying an objectively reasonable standard. This error was not harmless because it affected defendant's decision to testify as to his subjective belief in the need for self-defense. As a result, this court reversed the district court's decision, vacated defendant's conviction, and remanded the case for further proceedings.|
|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."|
|Berardelli v. Allied Services Institute of Rehabilitation Medicine||--- F.3d ----, 2018 WL 3849363 (3d Cir. Aug. 14, 2018)||This case presents an issue of first impression in the Court of Appeals: whether regulations on service animals, which technically apply only to reasonable accommodations under the Americans with Disabilities Act (ADA), require that individuals with disabilities be allowed to be accompanied by their service animals under the Rehabilitation Act (RA). The facts involve an elementary student with dyslexia and epilepsy who sought to be accompanied by her service dog to school. The dog was trained to respond to her epileptic seizures and was recommended by her pediatric neurologist. The student was attending a new school after having attended a different school with her service animal who recently died. After receiving a new service animal (after being placed on a waiting list), the principal of the new school refused access for the service animal, asserting for the first time that the dog was "too much of a distraction." As a consequence of the denial, the student missed school when her seizures were too severe. After more than a year of disrupted attendance, the student's mother sought to have the seizure alert dog accompany the child to fifth grade, and the principal said he would "look into" it. Frustrated with the equivocation, the mother attempted to bring the service animal with the child and the principal prevented entrance, now saying another child had an allergy to dogs. Eventually, the dog was allowed to accompany the child with a "therapeutic shirt designed to decrease allergens," but the shirt interfered with the service animal's performance of disability-related tasks. In the end, the mother withdrew the child from this particular school. The child's parent subsequently sued the school, arguing that the school had failed to accommodate the child under Section 504 of the RA. The school moved for summary judgment on all claims. Important to the claim of discrimination under the RA, the District Court instructed the jury that on a claim for failure to accommodate, the plaintiff needed to prove that that the requested accommodations were reasonable and necessary to avoid discrimination based on disability. The jury was confused at the instructions and the child's attorney urged the court to instruct the jury on ADA service animal regulations. The Court refused saying it had “g[iven] them the law that relates to this case” and would not “go look for some new law to tell them about or some different law or something that’s not been already submitted or given to them.” The jury subsequently returned a verdict for the school. On appeal here, appellants argue that, because the subjective standards for liability under the RA and ADA are the same, the service animal regulations of the ADA should apply to the RA. The Court of Appeals first examined the history and relationship of the ADA and its precursor, the RA. Based on the overarching goal of both laws - to ensure equal opportunity and inclusion - the requirements of reasonable accommodations and reasonable modifications are inextricably intertwined. Regardless of the differing entities the statutes cover, they both impose the same liability standard based on this concept of "reasonableness." The Court also found this echoed in case law dealing with a failure to accommodate under both laws. As to the service animal regulations under the ADA, the Court held that, logically, the service animal regulations are relevant to the RA even though they technically interpret the ADA. This is supported by agency guidance in other contexts from HUD, the Dept. of Justice, and the Dept. of Labor. The Court found the school's counter arguments unpersuasive especially considering the legal principle that an anti-discrimination statute like the RA must be interpreted broadly to carry out its broad remedial purpose. In essence, the Court now holds that a covered actor must accommodate the use of a service animal by an individual with a disability under the RA just as it must do under the ADA. While the "reasonableness" of that accommodation will be evaluated on a case-by-case basis, the request to be accompanied by a service animal is per se reasonable. Applying that holding to these facts, the Court found that the District Court did not correctly instruct the jury on the relevant law. The error was not harmless, and, despite the school's claim, there was not a high probability that the jury would have ruled in its favor if properly instructed. The judgment was vacated on the RA claim, reversed on the dismissal of the state discrimination claim, and remanded for further proceedings consistent with this opinion.|
|Buffalo Field Campaign v. Zinke||--- F.Supp.3d ---- 2018 WL 646887 (D.D.C. Jan. 31, 2018)||Plaintiffs Buffalo Field Campaign and other environmental groups petitioned the Fish and Wildlife Service ("Service") to add the Yellowstone bison population to the federal endangered species list. After the Service made a threshold “90–day” determination that Buffalo Field's petition failed to present sufficient scientific evidence that listing the bison may be warranted, Buffalo Field brought suit under the Administrative Procedure Act, alleging that the Service's determination was arbitrary and capricious. The United States District Court for the District of Columbia ruled that the Service applied an improper standard when evaluating Buffalo Field's petition, granted Buffalo Field's motion for summary judgment, denied the Service's cross-motion, and remanded the case for the agency to conduct a new 90–day finding using the proper standard. In particular, the court observed that the Service "simply picked a side in an ongoing debate in the scientific community," thereby in inappropriately heightening the standard of evaluation for a 90-day petition. Because of that, the court agreed with the Service that remand is the appropriate remedy as opposed to to directing the Service to begin a 12-month review.|
|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.|
|Big Cats of Serenity Springs, Inc. v. Vilsack||--- F.Supp.3d ----, 2015 WL 1432069 (D. Colo. 2015)||In an amended complaint, Plaintiffs asserted four claims against Defendants relating to a May 7, 2013 United States Department of Agriculture inspection of Big Cats of Serenity Springs, Inc. The claims included a Fourth Amendment right to be free from unreasonable searches and seizures; a 42 U.S.C. § 1983 claim against the Inspector Defendants “because they acted under color of state law when they induced the deputies to cut the chains and enter the premises;” a declaratory judgment “declaring that [Defendant] Thompson inappropriately overrode the medical advice of [Plaintiff] Big Cats' veterinarians and declaring that, in the future, the USDA cannot force [Plaintiff] Sculac to choose between following the medical advice of his veterinarians and the mandates of a USDA inspector;” and a declaratory judgment that the USDA must follow its own regulations and that it cannot conduct a warrantless search of the Big Cats facility outside of ‘normal business hours' solely because an inspector ‘want [s] to’ or because an inspector subjectively ‘believe[s][it] necessary to determine the welfare status of the animals....' ” In addition to declaratory relief, Plaintiffs also sought compensatory and punitive damages, costs, expenses, and prejudgment interest. Defendants filed a motion to dismiss. US Magistrate Judge issued a recommendation that, to the extent the Motion argued that the declaratory judgment claims should be dismissed because Plaintiffs lack standing, the Motion be granted in part and denied in part and that the declaratory judgment claims asserted by Plaintiffs Nick Sculac, Julie Walker, and Jules Investment, Inc. be dismissed without prejudice. In all other aspects, the Magistrate recommended that the Motion be denied. A District Court judge approved and adopted these recommendations and denied defendant’s objections to the recommendations.|
|Animal Legal Defense Fund v. Reynolds||--- F.Supp.3d ----, 2018 WL 1151000 (S.D. Iowa Feb. 27, 2018)||In 2012, Iowa passed a statute (Iowa code § 717A.3A) that criminalized gaining access to agricultural facilities under false pretenses and making a false representation on a job application for those facilities. Plaintiffs in this case (animal rights groups including the Animal Legal Defense Fund and PETA) brought suit alleging that the statute was unconstitutional and sought to enjoin the Defendants (governor of Iowa) from enforcing it. Their complaint alleged that the statute violates the First Amendment as discrimination on the basis of content, the Equal Protection Clause of the Fourteenth Amendment by targeting animals rights groups, and violates the Due Process Clause of the Fourteenth Amendment by burdening the freedom of speech. This case decides the Defendants’ motion to dismiss the Plaintiffs’ complaint based on lack of standing and failure to state a claim because the outlawed conduct is not protected by the First Amendment as false statements and is rationally related to the legitimate government interest of protecting private property, thereby not violating the Fourteenth Amendment. The court denies Defendants' motion with respect to the First Amendment, concluding that Plaintiffs have plausibly alleged the intent to suppress their message because of their viewpoint. However, the court grants the motion to dismiss for the claim of a Fourteenth Amendment violation because the statute in fact serves a legitimate government purpose in protecting private property.|
|Western Watersheds Project v. USDA APHIS Wildlife Services||--- F.Supp.3d ----, 2018 WL 3097016 (D. Idaho June 22, 2018)||This action considers motions for summary judgment by both parties. At issue here is a plan by a branch of the USDA called Wildlife Services (WS), which is responsible for killing or removing predators and other animals that prey on wild game animals, threaten agricultural interests, or pose a danger to humans. The decision to kill the animals comes from requests from individuals or other state and federal agencies rather than a decision by WS. For this case, the facts center on an expanded operation to kill game animals and protected species in Idaho (mainly coyotes and ravens) known as PDM. As part of this process, WS prepared and circulated a draft Environmental Assessment (EA) to other federal agencies, stakeholders, and the public seeking comment to the expanded plan. However, instead of taking the criticisms and suggestions from the EA and then undertaking a more comprehensive Environmental Impact Statement (EIS), WS instead rejected most responses and labeled them as unconvincing or invalid. This led plaintiff to file suit against WS, arguing that the agency acted in an arbitrary and capricious manner by not preparing the EIS after comments to the EA. For example, the BLM, the Forest Service, and the Idaho Department of Fish and Game (IDFG), found that the EA was not an "objective analysis" and instead sounded "like a pre-decisional defense of lethal methods." These agencies warned WS that the predator control methods were "likely to be futile over the long-term" and did not consider cascading effects on both cyclic and non-cyclic prey populations. In analyzing the factors, this court found that WS failed to consider "several federal agencies with long experience and expertise in managing game animals and protected species" when proposing to expand the expanded PDM program. There was a lack of crucial data to support WS' assumptions in its modeling that was exacerbated by use of unreliable data, according to the court. In addition, the court found that WS failed to "explain away scientific challenges to the effectiveness of predator removal." Not only was the court troubled by the lack of reliable data used by WS, but the WS’ “unconvincing responses” to agencies that had substantial experience managing wildlife and land-use concerns demonstrated to the court that the PDM is controversial and the environmental impacts were uncertain. This in and of itself necessitated an EIS under NEPA. The court held that the lack of reliable data, the unconvincing responses from WS, combine to trigger three intensity factors that combine to require WS to prepare an EIS. The plaintiffs' motion for summary judgment was granted and the defendant's motion for summary judgment was denied (the motion by plaintiff to supplement the administrative record was deemed moot).|