Prior Animal Law Cases of the Month
Becker v. Elfreich, --- F.3d ----2016 WL 2754023 (7th Cir.,2016). Appellant, Officer Zachary Elfreich, went to the home of Appellee Jamie Becker in order to execute an arrest warrant. When Becker did not surrender right away, Officer Elfreich allowed his police dog to find and attack Becker. Upon seeing Becker, Officer Elfreich pulled him down three steps of the home staircase, and placed his knee on Becker’s back while allowing the dog to continue to bite him. Becker sued the city of Evansville and Officer Elfreich under 42 U.S.C. § 1983, alleging that the officer used excessive force in arresting him in violation of his Fourth Amendment rights. The district court denied Officer Elfreich's motion for summary judgment and the officer appealed. The Court of Appeals, Seventh Circuit, held that: first, under the totality of the circumstances, the force used by the officer post-surrender of Becker was not reasonable. Second, a police dog's use of the “bite and hold” technique is not per se deadly force. Third, Becker, was a nonresisting (or at most passively resisting). Based on these factors, the officer was not entitled to qualified immunity and a reasonable jury could find such force was excessive. The lower court decision to deny Officer Elfreich's motion for summary judgment was affirmed.
Castillo Condominium Ass'n v. U.S. Dept. of Housing and Urban Development, --- F.3d ----, 2016 WL 1732499 (1st Cir. May 2, 2016). In 2010, the Castillo Condominium Association learned that Carlo Giménez Bianco (Giménez), a condominium resident, was keeping a dog on the premises and warned him that he would be fined unless he removed the dog. Giménez, who suffered from anxiety and depression, advised the board of directors that he planned to keep his emotional support dog and that he was entitled to do so under federal law. As a result of the conflict, Giménez was forced to vacate and sell his unit and he filed a complaint of disability discrimination with the Department of Housing and Urban Development (HUD). HUD filed a charge of discrimination against the Association under the Fair Housing Act. An administrative law judge (ALJ) concluded that the Association had not violated the Act because Giménez failed to prove by a preponderance of the evidence that he suffered from a mental impairment. The ALJ’s decision was appealed to the Secretary, who found that Gimenez suffered from a cognizable disability. The Court of Appeals, First Circuit, held that substantial evidence supported the Secretary's finding that the Association's refusal to allow Gimenez to keep an emotional support dog in his condominium unit as a reasonable accommodation for his disability violated the Fair Housing Act. The Association’s petition for review was denied and the Secretary’s cross petition was granted.
Green v. Animal Protection League of Mercer Cty., --- N.E.3d ---- 2016 WL 1730535 (Ohio,2016). Carl Green III, owned a dog, which was seized by the Mercer County Dog Warden in Ohio because it was running at large and was not wearing a current registration tag. The Animal Protection League of Mercer County (“APL”) purchased the dog from the Mercer County Dog Warden and placed the dog up for adoption. Appellant, Lori Winner, adopted the dog. Green then filed a complaint in the Municipal Court, Celina County, asserting claims for replevin and conversion. The municipal court granted replevin and ordered Winner to return the dog to Green. Winner appealed this decision in the instant action arguing that (1) Green's ownership interest was terminated by operation of law; and (2) the trial court erred by failing to find that the Mercer County Dog Warden Was an Indispensable Party to the Litigation. The Court of Appeals agreed with Winner on the first assignment of error, finding that, because replevin is a statutory remedy in Ohio, the trial court's conclusion that the dog should be returned to Green is against the manifest weight of the evidence. The trial court exercised its equitable powers to award possession to Green, and that it was "in the best interest of the dog" to return it to Green. The Court of Appeals found that the statute does not provide for this type of remedy. As to the second error, this Court overruled Winner's claim, finding that there was no claim raised that the Mercer County Dog Warden wrongfully sold the dog to the APL. Thus, the dog warden had no interest in the action and the trial court did not err by failing to join the warden as a party. The judgment was reversed and remanded.
O'Malley v. Com., 66 Va. App. 296, 785 S.E.2d 221 (Va.,2016). The appellant, John Dixon O'Malley was not charged with or convicted of any crime. However, he was issued a summons to determine whether his dog was dangerous pursuant to Virginia Code § 3.2–6540(A) and (B). The jury found O’Malley's dog to be dangerous under the Virginia Code due to attacking and injuring the dog of Randall Powell. O’Malley appealed the trial court decision to the Court of Appeals of Virginia. The Court of Appeals concluded that they did not have jurisdiction over the appeal due to being a court of limited jurisdiction. The Court relied on Virginia Code § 17.1–406(A) which provides that the Court of Appeals' appellate jurisdiction was limited to appeals from final criminal convictions. The Court of Appeals reasoned that no language in Code § 3.2–6540 characterized as criminal the proceeding to identify a canine as a dangerous dog. Therefore, the finding at the trial level that O’Malley's dog was dangerous was civil in nature. Because the finding was civil in nature, the Court of Appeals lacked subject matter jurisdiction over O’Malley’s appeal and the case was transferred to the Supreme Court of Virginia.
White v Diocese of Buffalo, N.Y., 138 A.D.3d 1470 (N.Y. App. Div. 2016). Plaintiff, Rosemary White brought action against the Defendant, Sacred Heart Roman Catholic Church seeking damages for injuries she sustained when she was bitten by a priests’ dog, at premises owned by the church. White brought the action claiming negligent supervision and retention of the priest who owned dog. The church moved to dismiss, and White moved for summary judgment. The New York Supreme Court, Erie County, granted the church's motion for dismissal, and denied White’s motion. White appealed and the New York Supreme Court, Appellate Division, held that the church was not liable for negligent supervision or retention of the priest. The Appellate Division, reasoned that the Supreme Court, Erie County, properly granted the church’s motion to dismiss White’s complaint for failure to state a cause of action. The Court stated that to the extent White alleged a theory of negligent supervision and retention of the priest in her bill of particulars, the “purpose of the bill of particulars is to amplify the pleadings . . . , and [it] may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint.” Therefore, the order from the Supreme Court was affirmed.
Grey v. Johansson, Slip Copy (unpublished decision), 2016 WL 1613804 (E.D. Pa. Apr. 22, 2016). This suit was filed after Grey and Johansson entered into a disagreement about who was the rightful owner of Johansson’s late wife’s horse, Navy. Grey was Johansson’s lawyer and was left responsible for caring for and handling all sales regarding her horses after her death. Grey filed suit for fraud and defamation against Johansson after he publicly referred to Grey as a “horse stealer.” Ultimately, the court held that Grey did not produce enough to evidence to establish a case for either fraud or defamation against Johanasson. Although Johanasson did call Grey a “horse stealer,” the court found that this comment was protected by judicial privilege.
Lowry v. City of San Diego, --- F.3d ---- 2016 WL 1273183 (9th Cir. Apr. 1, 2016). Plaintiff in this case filed suit against the City of San Diego after she was attacked and bit by one of the police dogs. Lowry alleged that the City’s policy of training its police dogs to “bite and hold” individuals resulted in a violation of her Fourth Amendment rights against unreasonable seizures. The court remanded the case back to the lower court, holding that a reasonable jury could find that the use of the police dog against Lowry was an intrusion on her Fourth Amendment rights. The court maintained that the officers had reason to believe that letting the dog into Lowry’s office “off-lead” had the potential of creating severe harm. The court also noted that Lowry was not attempting to evade or resist arrest and therefore letting the dog “off-lead” may not have been reasonable. Reversed and remanded for further proceedings.
Robinson v. Pezzat, --- F.3d ---- 2016 WL 1274044 (D.C. Cir. Apr. 1, 2016). Plaintiff filed suit against two police officers and the District of Columbia after the officers shot and killed her dog while executing a warrant to search her home. She brought a § 1983 claim, alleging that the officers seized her property in violation of the Fourth Amendment. The Court of Appeals reversed the District Court’s ruling for summary judgment, holding that a jury could find in favor of the plaintiff based on her witness testimony that the dog was lying down when it was first shot. Additionally, the court maintained summary judgment for the second police officer, McLeod, who shot and killed the dog after it bit Officer Pezzat and charged forward.
Tillett v. Bureau of Land Management, Slip Copy (unpublished decision), 2016 WL 1312014 (D. Mont. Apr. 4, 2016). In this case, plaintiff (proceeding pro se) filed suit against the Bureau of Land Management (BLM) challenging its management of wild horses on the Pryor Mountain Wild Horse Range (PMWHR). Plaintiff filed suit challenging BLM’s fertility control and gather programs. BLM argued that plaintiff’s claims should be denied as a matter of summary judgment. The court ultimately held that plaintiff failed to provide any “legal authority” or “jurisdictional basis” for the remedies in which she was seeking. The court held that BLM was within its own authority to rely on its own data and surveys of its programs and was under no obligation to review its programs based on plaintiff’s alleged observations. Finally, the court held in favor of BLM as a matter of summary judgment.
Eldorado Cmty. Imp. Ass'n, Inc. v. Billings, --- P.3d ---- 2016 WL 1213269 (N.M. Ct. App., 2016). Eldorado Subdivision sued some residents who kept hens as pets at their homes. The subdivision had a covenant (Section 11) that disallowed “animals, birds, or poultry” on residents' lots unless kept as “recognized household pets." The defendant-residents claimed that their hens were pets and thus met the household pet exception in the covenant. The lower court agreed with the subdivision and ordered the owners to remove the hens. On appeal, this court looked at the actual language of the covenant, which the court did find to be "unclear and ambiguous." However, the court found that if the residents did not want poultry as household pets, it is reasonable to assume the residents would have removed language that anticipates poultry as household pets. The court here found that the lower court applied the wrong precedent and should have applied a case that favored free use of the land because the covenant is ambiguous. The ruling should not be based on what the developer of the subdivision may have had in mind in writing Section 11 or how community members would interpret its meaning. Instead, the court found that the Section 11 does not disallow hens as pets and rebuffed plaintiffs' "Chicken Little-esque view" that "the sky will fall" if chickens were permitted as pets. In fact, the court observed that if the lot owners want a different result, they must change Section 11 through the election process set out in the covenants. The judgment of the lower court was reversed.
Britton v. Bruin, Not Reported in P.3d, 2016 WL 1019213, 2016 WL 1019213 (N.M. Ct. App., 2016). In this case, plaintiff appealed a decision by the district court denying her petition for a writ of mandamus. Plaintiff petitioned the court for a writ of mandamus to stop the City of Albuquerque's effort to control a large population of feral cats in its metropolitan area by “trapping, neutering them, and then returning them” to the location at which they were found. The district court denied the petition for a writ of mandamus because the court held that there was “a plain, speedy and adequate remedy in the ordinary course of the law.” Also, the court held that because the city’s program did not result in any unconstitutional action, the writ of mandamus was not appropriate. The court affirmed the district court’s ruling, looking only at whether or not there was “a plain, speedy and adequate remedy in the ordinary course of the law.” The court did not address the issue of whether or not the city’s population control effort was appropriate and should continue. The district court's order denying Petitioner's application for a writ of mandamus is affirmed.
De Leon v. Vornado Montehiedra Acquisition L.P., --- F.Supp.3d ----, 2016 WL 814825 (D.P.R. 2016). The defendant in this case sought to dismiss plaintiff’s case, stating that the plaintiff claim did not have proper constitutional standing under the Americans with Disabilities Act (ADA). The court denied defendant’s request and held that plaintiff did present sufficient evidence to establish standing under the ADA. In order to establish standing, the plaintiff needed to prove three elements: (1) actual or threatened injury, (2) causal connection between the injury and the challenged conduct, and (3) that a favorable court decision can redress the injury. The court determined that plaintiff did satisfy all three elements by showing that plaintiff’s disabled daughter was not allowed in defendant’s shopping mall with her service dog after the mall security guard was not properly informed of protocol regarding service dogs. Ultimately, the security guard mistakenly believed that the service dog needed documentation in order to enter the mall; however, the dog was properly identified as a certified service dog and should have been allowed into the mall. Defendant's motion to dismiss was denied.
Swanson v. Tackling, --- S.E.2d ----, 2016 WL 718465 (Ga. Ct. App. 2016). This is an interlocutory appeal by the dog owners (the Swansons) in a personal injury lawsuit for a dog bite. The court in this case overruled the lower court’s ruling that the defendant was not entitled to summary judgement after defendant’s dog bit a child but the dog had never shown a propensity to injure anyone prior to the incident. Plaintiff was suing defendant after defendant’s dog bit plaintiff’s child on the arm and head. Plaintiff argued that defendant is responsible for the injuries caused by the dog because the defendant neglected to properly restrain the dog. The court reversed the lower court’s decision and held in favor of defendant, stating that there was no evidence that was presented to indicate that defendant could have or should have known that the dog would act in this way towards the child. In order to prevail, the plaintiff needed to present evidence that the dog had acted in a similar way in the past.
Riley v. Bd. of Commissioners of Tippecanoe Cty., Slip Copy, 2016 WL 90770, 2016 WL 90770 (N.D. Ind. Jan. 6, 2016) (unpublished). The plaintiff filed suit based on violations of the Americans With Disabilities Act (ADA) and the Rehabilitation Act (RA) after he was denied entrance into the Tippecanoe County Courthouse with his service dog. Initially, defendant's claims were dismissed because the Court did not adequately allege that his dog was a service dog. Defendant then filed an amended complaint with plausible allegations that his dog is a service dog. The defendants moved to dismiss the case, stating that the plaintiff had not established that his dog was a service dog according to the definition listed under rules promulgated under the Americans With Disabilities Act (ADA). The court found that the plaintiff’s dog was a service dog under the definition because the dog was “individually trained to, among other things, provide [plaintiff] with balance support and assistance during episodes of PTSD.” As a result, the defendant’s motion to dismiss the case was denied.
United States v. Zarauskas, --- F.3d ----, 2016 WL 524250 (1st Cir. Feb. 10, 2016). Defendant was found guilty by a jury of illegally importing narwhal tusks under several federal laws, including the Lacey Act, the ESA, and the MMPA, among others. On appeal, defendant contends that the district court erred by allowing and failing to cure statements by the prosecutor that allegedly violated defendant's Fifth Amendment protections. Prior to being charged, defendant met with FWS and Canadian agents where he did not proclaim his innocence when questioned on the tusks. In the process of showing inconsistency in defendant's statements, the prosecutor pointed out defendant's failure to state his innocence with the federal agents, which defendant claimed improperly burdened him at trial. The appellate court found the errors to be harmless or in response to defendant's attorney's statements. The convictions were affirmed.
Ducote v. Boleware, --- So.3d ---- 2016 WL 659022 (La. App. 4 Cir. 2/17/16). This appeal arises from a personal injury lawsuit filed by Plaintiff Ducote, stemming from injuries she suffered as the result of a bite by defendant's cat. Plaintiff was walking down the sidewalk in New Orleans in the early evening when defendant's cat jumped on her left side and bit her hand causing injury. Plaintiff opted for the rabies immunoglobulin and the vaccine at the emergency room after defendant was unable to produce a rabies certificate (though the cat was later successfully quarantined). The trial court granted summary judgment upon motion for defendant and his homeowner's insurer. On appeal, the majority observed that liability of an animal owner (other than a dog) is provided by La. C.C. art. 2321, which gives a negligence standard based on knowledge of an animal's vicious propensities. The court found that there was no scienter on defendant's part as to the cat's dangerous nature (in fact, the cat was known to be a friendly cat with no previous incidents). Plaintiff suggests that liability should be based on a theory of negligence per se. Due to defendant's violation of city ordinances related to proof of rabies vaccination, he should be liable for damages. The court, however, rejected this, as Louisiana law does not recognize statutory negligence per se. Affirmed.
Simons v. State, --- So.3d ----2016 WL 661284 (Ala. Crim. App. Feb. 12, 2016). Defendant was convicted of a Class C felony of cruelty to a dog or cat and was sentenced to twenty years in prison (the instant conviction stems from the beating a kitten to death with his bare fists). The lower court applied the Habitual Felony Offender Act (HFOA) which allowed the court to sentence defendant beyond the maximum penalty (defendant had 16 prior felony convictions). Defendant appealed his sentence, arguing that HFOA did not apply to his Class C felony of cruelty to a dog or cat. Ultimately, the court held that HFOA did not apply to the Class C felony. The court maintained that the animal cruelty statue was plainly written and explicitly stated that a first degree conviction of animal cruelty would not be considered a felony under HFOA. As a result, defendant's conviction was upheld but remanded for new sentencing.
Friends of Animals v. Clay, --- F.3d ----, 2016 WL 305359 (2d Cir. Jan. 26, 2016). Friends of Animals (“FOA”) appeals an order of the United States District Court for the Eastern District of New York granting summary judgment in favor of defendants-appellees Deputy Administrator Clay and the FWS. FOA challenged FWS's issuance of a “depredation permit” to the Port Authority of New York and New Jersey authorizing the emergency “take” of migratory birds that threaten to interfere with aircraft at JFK Airport. On summary judgment appeal, this court found that "§ 21.41 [the "emergency take" regulation] does not place Port Authority officials in the untenable position of having to choose between violating federal law and deliberately ignoring serious threats to human safety." Further, the court found the specific requirements in § 21.41 argued by FOA concern only applicants seeking a permit and not the FWS itself. In this situation, the court found the 2014 permit's emergency-take provision satisfied § 21.41 requirements. The District Court's order was affirmed.
Berg v. Nguyen, --- So.3d ----, 2016 WL 100267 (Ala. Civ. App. Jan. 8, 2016). Plaintiff Berg was bitten as she walked through a parking lot of the retail store adjacent to the residence where the dogs were kept. The dogs (six or seven pit bulls) were kept by defendants' tenants at the residence. Plaintiff Berg filed a complaint against the landlords, Nguyens, and their business under a theory of landlord-tenant liability for the dog bite. The lower court granted the Nguyens' motion for summary judgment. On appeal here, the court was persuaded by defendants' evidence that they did not know of the dog's dangerous propensity and were aware of only two occasions where animal control had been called or where the dogs were left unchained in the front yard. This was sufficient for the court to find that plaintiff did not meet her burden establishing that the Nguyens knew or should have known of any dangerous propensities of the specific dog that bit plaintiff. As to the issue of defendants' knowledge that pit bulls were "inherently dangerous," the court held that the Alabama Supreme Court in Humphries established that breed alone is insufficient to impute knowledge. Summary judgment was affirmed.
Leider v. Lewis, --- Cal.Rptr.3d ----, 2016 WL 164343 (Cal. Ct. App. Jan. 14, 2016). Plaintiff-taxpayers filed suit against the Los Angeles Zoo and Director Lewis to enjoin the continued operation of the elephant exhibit and to prevent construction of a new, expanded exhibit. Plaintiffs contend that the Zoo's conduct violates California animal cruelty laws and constitutes illegal expenditure of public funds and property. On appeal by both sides, the Court held that the earlier Court of Appeals' decision was the law of the case as to the argument that the plaintiff-taxpayer was precluded from obtaining injunctive relief for conduct that violated the Penal Code. Further, refusing to apply this Civil Code section barring injunctions for Penal Code violations will not create a substantial injustice. The Court also found the order to rototill the soil was proper because it accords with the "spirit and letter" of Penal Code section 597t (a law concerning exercise time for confined animals). As to whether the exhibit constituted animal cruelty under state law, the Court found no abuse of discretion when the trial court declined to make such a finding. Finally, the Court upheld the lower court's ruling for relief under section 526a (a law that concerns actions against state officers for injuries to public property) stating, "We agree with the trial court that there is no standard by which to measure this type of harm in order to justify closing a multi-million dollar public exhibit."
State v. Milewski, --- So.3d ----, 2016 WL 231314 (Fla. Dist. Ct. App. Jan. 20, 2016). This Florida case involves the appeal of defendant's motion to suppress evidence in an animal cruelty case. Specifically, defendant Milewski challenged the evidence obtained during the necropsy of his puppy, alleging that he did not abandon his property interest in the body of the deceased dog because he thought the puppy's remains would be returned to him in the form of ashes. The necropsy showed that the puppy suffered a severe brain hemorrhage, extensive body bruises, and a separated spinal column that were consistent with severe physical abuse (which was later corroborated by Milewski's confession that he had thrown the dog). On appeal, this court found that the Fourth Amendment does not extend to abandoned property. When Milewski abandoned his puppy's remains for the less-expensive "group cremation" at the vet's office, he gave up his expectation of privacy. As such, the court found that he was not deprived of his property without consent or due process when animal services seized the puppy's remains without a warrant. The motion to suppress was reversed as to the doctor's statements/testimony and the evidence from the necropsy. The trial court's suppression of the hospital's medical records obtained without a subpoena was affirmed.
Friends of Animals v. Ashe, --- F.3d ---- 2015 WL 9286948 (D.C. Cir. Dec. 22, 2015). Friends of Animals, a non-profit animal advocacy organization, filed suit against the U.S. Fish & Wildlife Service ("the Service") in 2013, after the Service issued no initial or final determinations for 39 species of sturgeon the organization petitioned as endangered or threatened. The Endangered Species Act (ESA) requires that the Service must make a determination within 90 days for an initial determination or 12 months for a final determination after a petition is received from an interested party. However, there is also a provision in the ESA that the plaintiff must give the Service 60-days notice before filing suit. The District Court held that Friends of Animals did not give the Service adequate notice before filing suit and dismissed the complaint. On appeal, this court agreed, finding that Friends of Animals "did not wait until after the issuance of the positive initial determinations to provide 60 days' notice of the allegedly overdue final determinations." In dicta, the Court noted that "[t]he Service's approach may not be the most efficient," but the deadlines are mandatory in the statutes. Thus, its suit to compel the final determination on the listings was barred and the judgment of the District Court was affirmed.
Hogan v. Hogan, --- So.3d ---- 2015 WL 7889623 (Ala. Civ. App. Dec. 4, 2015). This case is an appeal of a judgment granting an Alabama divorce. With regard to animal law, the husband argues on appeal that the trial court erred in awarding the wife the couple's two dogs. Specifically, the husband argues that one of the dogs was given to him as a gift and is therefore his separate property. He also suggests that because the dogs lived with him since his wife moved out of the marital property, he is the "proper owner" of the dogs. The evidence is undisputed that the wife entered the marriage with one of the dogs. The second dog was given to both parties by the wife's niece. In examining Alabama law, the court observed that it has long-been held that dogs are property. Here, the court was persuaded by the testimony that when the wife moved out, she moved into an apartment and was unable to take the dogs with her. No evidence was presented that the wife's circumstances changed to allow her to keep the dogs, and there was no showing that the wife sought court intervention to regain possession of the dogs. Thus, the court held the ownership of a pet is presumed to be in the person who possesses it (the husband), and given the wife's failure to present evidence indicating that she was in a position to take the dogs, the court reversed trial court's decision to award the dogs to the wife.
McCall v. Par. of Jefferson, --- So.3d ---- 2015 WL 668716015-103 (La.App. 5 Cir. 2015). Defendant appeals a judgment from the 24th Judicial District Court (JDC) for violations of the Jefferson Parish Code. In 2014, a parish humane officer visited defendant's residence and found over 15 dogs in the yard, some of which were chained up and others who displayed injuries. Initially, defendant received a warning on the failure to vaccinate charges as long as he agreed to spay/neuter the animals. Defendant failed to do so and was again found to have numerous chained dogs that did not have adequate food, water, shelter, or veterinary care. He was ordered to surrender all dogs in his possession and was assessed a suspended $1,500 fine. On appeal, defendant claims he was denied a fair hearing because he was denied the opportunity to cross-examine witnesses and present evidence. This court disagreed, finding that the JDC functioned as a court of appeal on the ordinance violations and could not receive new evidence. Before the JDC hearing, this court found defendant was afforded a hearing that met state and local laws. The JDC judgment was affirmed.
Sickel v. State, --- P.3d ---- 2015 WL 7873714 (Alaska Ct. App., 2015). Defendant was convicted of cruelty to animals under AS 11.61.140(a) after one of her horses was found starving, without shelter, and frozen to the ground (it later had to be euthanized). On appeal, defendant claims that she did not act with the requisite "criminal negligence" under the statute unless she had a duty of care to prevent the specified harm. The court noted that while the statute does not specify the exact nature of this duty to care for particular animals, common law fills the gap. In looking to similar laws and cases from other states, the court found that AS 11.61.140(a)(2) applies only to people who have assumed responsibility for the care of an animal, either as an owner or otherwise. The jury instructions taken as a whole and the prosecutor's argument and rebuttal demonstrated that Sickel assumed the duty of care with regard to the horses and was the person tending the horses in the last three days before the now-deceased horse collapsed. The judgment of the district court was affirmed.
Bundorf v. Jewell, --- F.Supp.3d ----, 2015 WL 6636806 (D.Nevada,2015). Plaintiffs, individuals and environmental organizations, challenged a decision by the Bureau of Land Management's (BLM) to authorize two rights-of-way for the Searchlight Wind Energy Project in southern Nevada (on BLM land) under the APA. After the District Court remanded to the BLM for further explanation, the plaintiffs moved for a permanent injunction. In effect, the plaintiffs argue that when the Court remanded for further explanation, it essentially reached the merits of their NEPA and ESA claims "by identifying explanatory gaps in the Remand Order." This then necessitated vacatur of the Record of Decision (“ROD”), Final Environmental Impact Statement (“FEIS”), and the Biological Opinion (“BiOp”). On appeal, the Court agreed with plaintiffs that clarification of the Remand Order is appropriate to include the ROD, the FEIS, and the BiOp with vacatur. Otherwise, the Federal Defendants would get "two bites at the same apple . . . to fill the analytical gaps the Court identified in the Remand Order." The Federal Defendants must address the gaps related to (1) desert tortoises; (2) eagle take permitting and an Eagle Conservation Plan; and (3) risks to bald eagles, protocols for golden eagle surveys, and risks to and mitigation measures for bat species.
Jackson v. Georgalos, --- N.Y.S.3d ----, 2015 WL 7269769 (N.Y. App. Div. Nov. 18, 2015). Plaintiff appealed an order granting defendants' motion for summary judgment dismissing the complaint. The personal injury action arises from an incident where defendants' dog, who was barking at the time, jumped on the screen door causing the door to open and the dog to run out. When the plaintiff turned to get away from the dog, her ankle twisted, causing her to fall on the steps and become injured. To recover in New York on such an action, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or a person in control of the premises where the dog was, knew or should have known of such propensities. The court held that plaintiff did not raise a triable issue of fact as to whether the defendant was aware of the dog's alleged propensity to run out of the house and chase after people.
New York Pet Welfare Ass'n, Inc. v. City of New York, --- F.Supp.3d ----2015 WL 7017388 (E.D. New York,2015). Plaintiffs, a non-profit group trade association of pet stores ("NYPWA"), dog and cat breeders and dealers, veterinarians, and pet owners, brought this action against New York City, the city council, and council members, alleging that defendants have adopted laws that violate the Supremacy Clause, the Commerce Clause, the Equal Protection Clause, and the Due Process Clause, as well as various New York laws. The challenged law relates to the sale of dogs and cats in the city that require pet stores to obtain pets from Class A USDA licensees in good standing and that the pet stores spay and neuter the pets before selling them. In rejecting NYPWA's federal preemption claim, the court found that the AWA specifically contemplates local regulation in § 2143(a)(8) and previous cases have found no conflict even where the local legislation bans what is otherwise allowed under the AWA. The court also found no conflict with state law (N.Y. Gen. Bus. § 753–d) or other laws concerning veterinary licensing, pet shops, and animal cruelty. In dismissing plaintiff's Equal Protection argument, the court was not persuaded that pet stores and shelters/rescues are "similarly situated" to support the claim. The court found that even if plaintiff's factual allegations were true, the law was not economic protectionism, but an attempt to curb problems with homeless animals and euthanasia. Finally, the court found not due process violations (substantive or procedural) where there is no interference with a constitutionally protected right.
State v. Jensen, Not Reported in N.W.2d, 2015 WL 7261420 (Neb. Ct. App. Nov. 17, 2015). Defendant was convicted of convicted of two counts of mistreatment of a livestock animal in violation of Neb.Rev.Stat. § 54–903(2) and four counts of neglect of a livestock animal in violation of § 54–903(1). Defendant owned and maintained a herd of over 100 horses in Burt County, Nebraska. After receiving complaints, the local sheriff's office investigated the herd. An expert veterinarian witness at trial testified that approximately 30% of the herd scored very low on the scale measuring a horse's condition and there were several deceased horses found within the herd. On appeal, defendant argued that there was insufficient evidence to support several of his convictions. Specifically, defendant challenged whether the state proved causation and intent under the statute. The court found that the prosecution proved through testimony that defendant caused the death of the horses subject to two of the convictions. With regard to intent, the court found that the evidence showed it would have taken weeks or month for a horse to reach to the low levels on the scale. The court found that defendant was aware of the declining condition of the herd over a significant amount of time, and failed to adequately feed, water, or provide necessary care to his horses.
Am. Wild Horse Pres. Campaign v. Vilsack, --- F.Supp.3d ----2015 WL 5726880 (D.D.C., 2015). The American Wild Horse Preservation Campaign (Plaintiffs) brought this action against the United States Forest Service (Forest Service) to prevent the implementation of the new Devil’s Garden Wild Horse Territory Plan (WHT) that Modoc County helped develop. Plaintiffs brought six claims against defendants, all under the Administrative Procedures Act. In Counts I, II, and III, plaintiffs alleged that the boundary clarification was arbitrary and capricious because it violated the Wild Horses Act, the National Forest Management Act (NFMA), and National Environmental Policy Act (NEPA), and in Counts IV, V, and VI, they claimed that the adjustment to the "appropriate management level" (AML) range was arbitrary and capricious because it was contrary to the same three statutes. The court found defendants were entitled to summary judgment on all counts.
Newman, et al v. City of Payette, 2015 WL 6159471 (D. Idaho, 2015). District Court ruled City of Payette's pit bull ordinance's procedural aspects were unconstitutional, finding that the lack of hearing provisions for a dog that was impounded due to an attack or bite violated procedural due process. The court also found that forcing the dog owner to bear the burden of proving his or her dog's innocence violated due process. The court, however, found no constitutional infirmity with the notice procedure employed by Payette's pit bull ordinance, provided Payette adhered to Idaho Code § 25-2804. The court ordered Plaintiff Douglas’ Motion for Partial Summary Judgment to be granted in part and denied in part; the claims asserted against the city of Payette by Plaintiffs Monica Newman and Ruby Judine Malman to be dismissed without prejudice; and all claims asserted by Plaintiffs against the city of Fruitland to be dismissed without prejudice.
Roalstad v. City of Lafayette,--- P.3d ----2015 WL 5895396 (Col. Ct. App. Div. III , 2015). The origins of this matter began when the City of Lafayette (City) charged Defendant/Appellant with violating its municipal ordinance regarding vicious animals. Defendant/Appellant requested a jury trial pursuant to C.R.S.A. § 16-10-109. The municipal court denied the request. Since the municipal ordinance imposed fines, and because it was not a crime at common law, the court concluded the offense met the definition of “petty offense;” Defendant/Appellant was therefore entitled to a jury trial in municipal court pursuant to C.R.S.A. § 16-10-109. Further, because the ordinance and the state Dangerous Dog law were counterparts and because the ordinance was criminal in nature, the vicious animal offense was not exempt from the “petty offense” definition. Accordingly, the district court’s order was reversed.
Salazar v. Kubic, --- P.3d ----2015 WL 5895438 (Col. Ct. App. Div. VI). At her facility, Defendant raised and housed more than 200 mice and rats to be sold as feed for snakes and other carnivores. After expiration of her valid license issued under Pet Animal Care and Facilities Act (PACFA), Defendant kept operating her facility despite a cease and desist order from the Colorado Commissioner of Agriculture. The trial court granted the Commissioner's request for a permanent injunction. On appeal, the court rejected Defendant’s argument that her rodents were outside PACFA’s “pet animal” definition. Additionally, the court found rats and mice did not fit within the statutory exemptions for livestock or “any other animal designated by the Commissioner.” The court was also unpersuaded that Defendants rodents were “working animals” because there was no indication that she used them to perform any function that could be considered “work.” The district court’s decision was affirmed.
State v. Acker, No. 36578, 2015 WL 6142904, at *1 (Conn. App. Ct. Oct. 27, 2015). Defendant, the director of the Society for the Prevention of Cruelty to Animals of Connecticut, Inc., was charged with 63 counts of animal cruelty for failing to give animals “proper care by exposing [them] to conditions that placed [them] at risk of hypothermia, dehydration, or to conditions injurious to [their] well-being....” Defendant was the director of a nonprofit animal rescue organization and housed rescued dogs in an uninsulated outdoor barn heated solely by space heaters. After a trial, Defendant was convicted of 15 counts and acquitted of the remaining 48 counts of animal cruelty. On appeal, the defendant claimed that (1) there was insufficient evidence to support the conviction and (2)C.G.S.A. § 53-247(a) was unconstitutionally vague as applied to the facts of this case. The appellate court rejected defendant’s claims and affirmed the trial court’s decision.
Lawson v. Pennsylvania SPCA, --- F.Supp.3d ----, 2015 WL 4976523 (E.D. Pa. Aug. 20, 2015). Upon an investigation of numerous complaints, the Pennsylvania Society for the Prevention of Cruelty obtained a warrant and searched plaintiffs’ house. As a result, plaintiffs were charged with over a hundred counts that were later withdrawn. Plaintiffs then filed the present case, asserting violations of their federal constitutional rights, as well as various state-law tort claims. Defendants moved for summary judgment, claiming qualified immunity. The District Court denied the motion with respect to (1) the following claim in Count One: unreasonable search and seizure and the individual defendants' request for qualified immunity in connection with that claim; and (2) with respect to one plaintiff's malicious prosecution claim, but only to the charge relating to the puppy's facial injuries.
United States v. CITGO Petroleum Corp., No. 14-40128, 2015 WL 5201185 (5th Cir. Sept. 4, 2015). CITGO was convicted of multiple violations of the Clean Air Act and its regulations, and the Migratory Bird Treaty Act of 1918 (“MBTA”). CITGO contended that the MBTA convictions were infirm because the district court misinterpreted the statute as covering unintentional bird kills. The 5th Circuit agreed that “taking” migratory birds involved only “conduct intentionally directed at birds, such as hunting and trapping, not commercial activity that unintentionally and indirectly caused migratory bird deaths. The district court’s decision was reversed and remanded with instructions.
Colorado Wild Horse v. Jewell, --- F.Supp.3d ----2015 WL 5442639 (D.D.C., 2015). Finding the number of horses too high to maintain ecological balance and sustain multipurpose land use in Colorado's White River Resource Area, the US Bureau of Land Management (BLM) invoked its authority under the Wild Free–Roaming Horses and Burros Act (“Wild Horses Act”), to declare those horses to be “excess animals” and scheduled to remove them from the land. Plaintiffs—organizations challenged BLM's “excess” determinations and asked the district court to enjoin BLM's planned gather. Because the Wild Horses Act authorized BLM's excess determination and BLM appeared to have used reasonable methods to estimate the total wild-horse population, the Court found that Plaintiffs were unlikely to prevail on their Wild Horses Act claims. The Court further found that Plaintiffs were unlikely to suffer irreparable harm as a result of the gather and that the balance of equities and the public interest weighed in favor of BLM.
State v. Crosswhite, --- P.3d ----2015 WL 5439355 (Or. Ct. App., 2015). After being tipped off about a dog fight, authorities seized several dogs from a home. Defendant was charged with one count of second-degree animal abuse and four counts of second-degree animal neglect. Defendant appealed the denial of the motion, again arguing that the state failed to prove that he had “custody or control” over the dogs. The appeals court concluded that the plain text and context of ORS 167.325(1), together with the legislature's use of the same term in a similar statute, demonstrated that the legislature intended the term “control” to include someone who had the authority to guide or manage an animal or who directed or restrained the animal, regardless if the person owned the animal. Given the facts of the case, the court concluded that based on that evidence, a reasonable juror could find that defendant had control over the dogs, and the trial court had not erred in denying defendant’s motion for judgment of acquittal.
Williams v. Lexington Cnty. Bd. of Zoning Appeals, --- S.E.2d ----2015 WL 5132323(S.C. Ct., 2015). Appellant sought review of the circuit court's order upholding the Lexington County Board of Zoning Appeals' unanimous decision that the county zoning ordinance prohibits Appellant from operating a dog grooming business at her home. The appeals court found that the word kennel, as used in the relevant Lexington County Zoning Ordinance included dog grooming. The appeals court upheld the circuit court’s decision.
Animal Legal Defense Fund v. California Exposition and State Fairs, --- Cal.Rptr.3d ----2015 WL 5050255 (Cal. Ct. App., 2015). Plaintiffs brought a taxpayer action against defendants based on allegations that defendants committed animal cruelty every summer by transporting pregnant pigs and housing them in farrowing crates at the state fair. The trial court agreed that California's animal cruelty laws were not enforceable through a taxpayer action. The Court of Appeals addressed plaintiffs' claim, that contrary to the trial court's conclusion, plaintiffs could assert a taxpayer action to enjoin waste arising out of defendants' alleged violation of the animal cruelty laws. The appeals court rejected plaintiffs' contention, concluding that they could not circumvent the prohibition recognized in Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, which concluded that recognition of a private right of action under West's Ann.Cal.Penal Code § 597t would be inconsistent with the Legislature's entrustment of enforcement of anti-cruelty laws to local authorities and humane societies, by couching their claim as a taxpayer action.
People for the Ethical Treatment of Animals v. U.S. Dept. of Agriculture, --- F.3d ----2015 WL 4727327 (D.C. Cir., 2015). Ten years after the United States Department of Agriculture (USDA) took steps to apply Animal Welfare Act (AWA) protections to birds, the task remained incomplete. The People for the Ethical Treatment of Animals (PETA) sued the USDA, arguing that its inaction amounted to agency action “unlawfully withheld,” in violation of section 706(1) of the Administrative Procedure Act (APA). The District Court granted the USDA's motion to dismiss, concluding that the USDA's enforcement decisions were committed by law to its discretion. On appeal, the court found PETA had standing, but had failed to plausibly allege that the USDA's decade-long inaction constituted agency action “unlawfully withheld” in violation of the APA. The United States Court of Appeals, District of Columbia Circuit therefore affirmed the District Court's judgment of dismissal.
Puppies 'N Love, v. City of Phoenix, --- F.Supp.3d ----2015 WL 4532586 (D. Ariz., 2015). Defendant City of Phoenix passed an ordinance that prohibited pet stores from selling dogs or cats obtained from persons or companies that bred animals; pet stores could only sell animals obtained from animal shelters or rescue organizations. Puppies 'N Love operated a pet store in Phoenix that sold purebred dogs obtained from out-of-state breeders. Puppies 'N Love and its owners sued the City, claiming primarily that the Ordinance violated the dormant Commerce Clause of the United States Constitution by closing the Phoenix market to out-of-state breeders and giving an economic advantage to local breeders. All parties, including Intervenor Humane Society of the United States (“HSUS”), filed motions for summary judgment. The District Court granted the Intervenor’s and the city’s motions, but denied Puppies ‘N Love’s motion, thereby upholding the ordinance.
Article 70 of CPLR for a Writ of Habeas Corpus, The Nonhuman Rights Project, Inc. ex rel. Hercules and Leo v. Stanley, --- N.Y.S.3d ----2015 WL 4612340 (N.Y. Sup. Ct., 2015). Petitioner brought this proceeding pursuant to CPLR article 70 and under the common law for a writ of habeas corpus on behalf of Hercules and Leo, two chimpanzees in the custody of respondent State University of New York at Stony Brook. It sought an order directing respondents to demonstrate the basis for detaining Hercules and Leo, and an order directing their release and transfer to a sanctuary in Florida. Since the Court found it was bound by the Third Department in People ex rel Nonhuman Rights Project, Inc. v. Lavery, which ruled that chimpanzees were not “legal persons” entitled to the rights and protections afforded by a writ of habeas corpus, it denied the habeas corpus petition and dismissed the proceeding. For more on the Nonhuman Rights Project (NhRP), see the collection of pleadings and cases.
Wild Horse Observers Ass'n, Inc. v. New Mexico Livestock Bd., --- P.3d ----2015 WL 4712152 (N.M. Ct. App., 2015). Plaintiff Wild Horse Observers Association, Inc. (Association) appealed the District Court's dismissal for failure to state a claim. The Association claimed that Defendant New Mexico Livestock Board (the Board) had unlawfully treated a group of undomesticated, unowned, free-roaming horses near Placitas, New Mexico as “livestock” and “estray,” rather than as “wild horses” under the Livestock Code. The Appeals Court concluded that “livestock” did not include undomesticated, unowned animals, including undomesticated and unowned horses; therefore, undomesticated, unowned horses could not be “estray.” The court also concluded that the Board had to DNA test and relocate the Placitas horses, and that the Association pleaded sufficient facts in its complaint to withstand a motion to dismiss.
Friends of Animals v. Jewell, --- F.Supp.3d ----2015 WL 4483956 (D.D.C., 2015). Friends of Animals (FOA) filed a citizen petition under the Endangered Species Act (ESA) to get the Department of Interior to determine whether the spider tortoise and flat-tail tortoise were endangered species. After waiting two years for an answer, FOA filed suit, arguing the Department’s silence had caused the group various injuries. The district court, however, found the supposed harms did not rise to the level of “concrete and particularized” injuries in fact, and granted the Department's motion to dismiss FOA's complaint for lack of subject-matter jurisdiction.
Woudenberg v. U.S. Dept. of Agriculture, --- F.3d ----2015 WL 4503212 (6th Cir., 2015). According to Department of Agriculture regulations promulgated under the federal Animal Welfare Act (with certain exceptions not applicable here), persons who are in the business of buying and selling dogs and cats (i.e. class B dealers) may not obtain dogs or cats from an individual donor “who did not breed and raise them on his or her premises.” Another provision requires a dealer in such a case to “obtain [ ] a certification that the animals were born and raised on that person's premises.” The question in this case was whether there was a violation when the dealer obtained the required certification, but the certification was false. The regulatory language was clear that a dealer violated the law by obtaining a dog or cat from an individual donor who did not breed or raise it on the donor's premises and it was still a violation even when the dealer in good faith obtained certifications that the animals had been so bred and raised. The certification requirement was an enforcement mechanism for the prohibition, not an exception. The Department of Agriculture therefore properly entered a cease-and-desist order against the petitioner.
Amos v. State, --- S.W.3d ----2015 WL 4043302 (Tex. App., 2015). A jury found appellant guilty of the offense of cruelty to a nonlivestock animal after he beat a Shih Tzu to death with a broom. Appellant asserted five issues on appeal, all of which were overruled. As to the last issue concerning the denial of his motion to suppress the dog’s necropsy, the court found that because the appellant had no intention of reclaiming the dog's body or her ashes, he thereby relinquished his interest in them. Consequently, he could no longer retain a reasonable expectation of privacy and lacked standing to contest the reasonableness of any search. The lower court’s decision was therefore affirmed.
Chadd v. U.S., --- F.3d ----2015 WL 4509174 (9th Cir., 2015). The issue in this case was whether the United States may be sued under the Federal Tort Claims Act (FTCA) for the actions of the National Park Service (NPS) relating to a mountain goat that attacked and killed a Park visitor. Appellant claimed officials breached their duty of reasonable care by failing to destroy the goat in the years leading up to her husband’s death. On appeal, the court sought to determine whether an exception to the FTCA’s waiver of sovereign immunity applied. The court found the NPS’s management policies manual did not direct or mandate the NPS to take action to kill the mountain goat, and thus the NPS's management of the goat fell within the discretionary function exception. Further, the NPS’s decision to use non-lethal methods to manage a mountain was susceptible to policy analysis, which fell within the discretionary exception as well.
Eshleman v. Key, --- S.E.2d ----2015 WL 3936075 (Ga., 2015). A county police officer failed to securely fasten her police dog’s portable kennel; the dog escaped as a result and attacked an 11 year old boy. On issuing a writ of certiorari, the Supreme Court of Georgia reviewed the denial of the officer's summary judgment. The Court stated the officer was responsible for the care and maintenance of the dog at all times, even when she was not working. For that reason, the allegation that she failed to secure the dog outside her home concerned her performance of an official function and was presumptively entitled to official immunity. However, since the county had not given the officer specific directions about the extent to which the dog should be restrained and since a generalized duty of care stated in a state statute and county ordinance was not enough to amount to a ministerial duty, the Supreme Court reversed the Court of Appeals’ decision.
United States v. Vance Crooked Arm, --- F.3d ---- 2015 WL 3542707 (9th Cir. 2015). A grand jury indicted Defendants on multiple counts of, among other things, knowingly and willfully conspiring to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles, in violation of the Migratory Bird Treaty Act (MBTA) (Count I) and unlawfully trafficking in migratory bird parts (Count II – IV). On appeal, as at the district court, Defendants argued that the counts to which they pled guilty were improperly charged as felonies because it was only a misdemeanor under the MBTA to sell migratory bird feathers. On remand, the Defendants were given the option to withdraw their guilty pleas with regard to Count II, or the district court might consider whether to resentence their convictions on that count as misdemeanors.
Gruber v. YMCA of Greater Indianapolis, --- N.E.3d ----2015 WL 3534886 (Ind. Ct. App. 2015). An eleven-year-old boy was at a YMCA camp when a pig—which had never injured anyone or exhibited any dangerous propensities—stuck its head between the bars of its pen and grabbed the boy's hand, causing injuries. The boy and his mother sued the camp, and the lower court granted summary judgment in favor of the camp. On appeal, the boy and his mother asked the court to change the standard for liability of owners of domestic animals to that of strict liability when the animal was not a cat or dog. Since the Indiana Supreme Court precedent was clear that this general rule applied to all domestic animals—and not just cats and dogs—the court declined their invitation to alter the standard. The trial court's entry of summary judgment in favor of the camp was therefore affirmed.
State v. Blatt, --- S.E.2d ---- 2015 WL 3822761 (W. Va. 2015). The Circuit Court of Wayne County ordered that Tinkerbell, a female pit bull terrier, be destroyed pursuant to West Virginia's vicious dog statute, after she injured a neighbor child who was playing in the dog’s yard. The circuit court's decision ordering that Tinkerbell be destroyed relied on a presumption that pit bull dog breeds are inherently vicious. Because extensive debate exists, the court concluded that courts may not, upon judicial notice, rely solely upon a breed-specific presumption in ordering the destruction of a dog pursuant to West Virginia's vicious dog statute. In the absence of a breed-specific presumption, the court determined that neither the remaining findings of fact in the circuit court's destruction order nor the facts presented in the record provided satisfactory proof that Tinkerbell must be euthanized. Consequently, the court reversed the circuit court's destruction order.
Swilley v. State, --- S.W.3d ---- 2015 WL 3637850 (Tex. App. 2015). In the indictment, the State alleged Appellant intentionally, knowingly, or recklessly tortured or in a cruel manner killed or caused serious bodily injury to an animal by shooting a dog with a crossbow, a state jail felony. The dog in question was a stray, which fell within the statutory definition of an “animal.” After a jury found Appellant guilty, the trial court assessed his punishment at two years' confinement in a state jail. On appeal, Appellant contended that the trial court erred by denying his motion for a mistrial after the jury heard evidence of an extraneous offense also involving cruelty to animals. Since the video that mentioned the extraneous offense was admitted without objection, the court held the Appellant waived the error and the trial court did not err by denying Appellant's motion for mistrial or by giving the instruction to disregard and overrule Appellant's first issue. Additionally, the court held the evidence was sufficient for a rational trier of fact to have found, beyond a reasonable doubt, that Appellant intentionally, knowingly, or recklessly tortured or in a cruel manner killed or caused serious bodily injury to an animal by shooting it with a crossbow.
Missouri Pet Breeders Ass'n v. Cnty. of Cook, --- F.Supp.3d ----2015 WL 2448332 (N.D. Ill., 2015). Cook County passed an ordinance that required a “pet shop operator” to only sell animals obtained from a breeder that (among other requirements) held a USDA class “A” license and owned or possessed no more than 5 female dogs, cats, or rabbits capable of reproduction in any 12-month period. Plaintiffs, a professional pet organization and three Cook County pet shops and their owners, sued Cook County government officials, alleging that the ordinance violated the United States and Illinois Constitutions. Defendants moved to dismiss the action. After concluding that plaintiffs had standing to pursue all of their claims, with the exception of the Foreign Commerce Claim, the Court granted the defendants' motion to dismiss all claims, but gave Plaintiffs a chance to cure their complaint's defects by amendment.
United States Ass'n of Reptile Keepers, Inc. v. Jewell, --- F.Supp.3d ---, 2015 WL 2207603 (D.D.C, 2015). On a motion for a preliminary injunction to enjoin implementation of the 2015 Rule (80 Fed.Reg. 12702 ), the US District Court for the District of Columbia addressed whether the U.S. Department of Interior acted within its authority when it issued Lacey Act regulations prohibiting the interstate transportation of certain large constricting snakes. The United States Association of Reptile Keepers argued that since the Lacey Act “[did] not encompass transportation of listed species between two states within the continental United States,” the Department of Interior exceeded its authority. Relying on the history of zebra mussels and bighead carp, the Department argued that it did not. The Court, however, found the Department had failed to establish that that history was sufficient to confer an authority on the Department that Congress did not confer when it enacted the controlling statutory text. The Court ruled the preliminary injunction would issue and ordered the parties to appear for a status conference on May 18, 2015 to address the scope of the injunction.
Gonzalez v. Royalton Equine Veterinary Servs., P.C., 7 N.Y.S.3d 756 (N.Y. App. Div. 2015). Veterinarian contacted State Police after allegedly observing deplorable conditions in Plaintiff's barn. The premises were subsequently searched, and a horse and three dogs were removed and later adopted. Plaintiff commenced an action in City Court for, inter alia, replevin, and several defendants asserted counterclaims based on Lien Law § 183. The Lockport City Court entered partial summary judgment in favor of owner and ordered return of animals. On appeal, the Niagara County Court, reversed and remanded. Owner appealed to the Supreme Court, Appellate Division, Fourth Department, New York. The Court found the Niagara County Society for the Prevention of Cruelty to Animals, Inc. (SPCA) was not required to bring a forfeiture action to divest Plaintiff of ownership of the seized animals because the animals were kept in unhealthful or unsanitary surroundings, the plaintiff was not properly caring for them, and the plaintiff failed to redeem the animals within five days before the SPCA was authorized to make the animals available for adoption. The city court’s order was affirmed as modified.
Keith v. Commonwealth ex rel. Pennsylvania, Dep't of Agric., --- A.3d ----, 2015 WL 2214849 (Pa. Commw. Ct., 2015). This case focuses on the Pennsylvania Department of Agriculture's preliminary objection that Petitioners' had taxpayer standing to request injunctive relief and a declaratory judgment that regulations promulgated by the Department were in conflict with the mandates set forth in the Pennsylvania Dog Law Act. Petitioners asserted that the Department was not authorized to exempt nursing mothers from the statutory ban on metal strand flooring and from the statutory requirement of unfettered access to exercise areas. Department argued that Petitioners had not pled sufficient facts to show that those directly and immediately affected by the regulations were beneficially affected. The court found Petitioners were at least as well inclined and situated as any other entities to challenge regulations that might be in conflict with those provisions. The court therefore overruled the Department's preliminary objections to Petitioners' standing
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 inspection was a follow-up inspection of an injured tiger cub at the facility. The claims included a Fourth Amendment right to be free from unreasonable searches and seizures; a 42 U.S.C. § 1983 claim; and claims for declaratory judgment. Defendants filed a motion to dismiss. The US Magistrate Judge issued a recommendation that motions be granted in part and denied in part and that the declaratory judgment claims asserted by plaintiffs be dismissed without prejudice.
Flint v. City of Milwaukee, 2015 WL 1523891 (E.D. Wis. 2015). In 2010, police obtained a warrant to search plaintiff’s residence for endangered species. While at the plaintiff’s residence, police shot and killed two Tibetan Mastiffs. Plaintiff was arrested and detained, but the charges were later dropped. Plaintiff filed a section 1983 suit, asserting that defendants not only unlawfully searched her residence, seized and "slaughter[ed] ... her dogs," but that they also unlawfully detained her in violation of the Fourth and Fourteenth Amendments. After District Court denied plaintiff's motion for summary judgment on her unlawful detention claim, plaintiff filed a motion for reconsideration. District Court denied plaintiff's motion for reconsideration because she had not cited any intervening change in the law, any erroneous application of the law, or any newly discovered evidence that would compel the Court to reconsider its decision. Additionally, the District Court found the court had reviewed the unlawful detention claim using the proper legal standard.
Perfect Puppy, Inc. v. City of East Providence, --- F.Supp.3d ----, 2015 WL 1474560 (D.R.I. 2015). Due to public concern about puppy mills, City passed an ordinance banning pet stores located within its limits from selling dogs and cats unless those animals were owned by a city animal shelter or animal control agency, humane society, or non-profit rescue organization for the purpose of public adoption. Plaintiff, a pet store, raised numerous challenges to the ordinance under the Constitutions of the United States and of Rhode Island, claiming that it violated the dormant Commerce Clause, the Contract Clause, the Takings Clause, and Plaintiff's equal protection and due process rights. Plaintiff and Defendant both sought summary judgment to all challenges. The court granted Defendant's motion on all counts except related to takings because that claim was not ripe for judicial review. The court found that the ordinance met the rational basis test and served legitimate government interests.
Olier v. Bailey, --- So.3d ----, 2015 WL 1611772 (Miss. 2015). Plaintiff was attacked and chased by a domestic goose in Defendant’s yard. Plaintiff came to visit Defendant's yard because she and Defendant both shared an enthusiasm for gardening discussed on a gardening website. Defendant had a "Beware--Attack Geese" sign and orally informed Plaintiff of the geese. As Plaintiff attempted to flee from the goose, she fell and broke her arm. Plaintiff sued Defendant under a theory of premises liability and, alternatively, under the dangerous-propensity rule. After a grant of summary judgment for defendant by the trial and circuit courts, plaintiff then filed the instant appeal. The Supreme Court of Mississippi held that, while Plaintiff cannot, as a matter of law, pursue her claim under her theory of general premises liability because she was a licensee rather than an invitee, she can proceed under the dangerous-propensity theory. The Court found an issue of fact as to whether Defendant was on notice of her geese's alleged dangerous propensity.
Ctr. for Biological Diversity, Defenders of Wildlife v. Kelly, --- F.Supp.3d ----, 2015 WL 1293338 (D. Idaho 2015). Plaintiffs challenged 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”). 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 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.
Cordoves v. Miami-Dade Cnty., --- F.Supp.3d ----2015 WL 1131684 (S.D. Fla. 2015). This case arises out of an incident at the Dadeland Mall during which plaintiff had a confrontation with security personnel that ended with her arrest. The incident was precipitated by the presence of a small dog plaintiff was toting in a stroller while shopping with her mother and daughter. Plaintiff alleged discrimination in public accommodations under the ADA, and excessive force in violation of the Fourth Amendment under § 1983. The District Court denied the defendants' summary judgment motion in part and granted the motion in part, finding that an issue of material fact existed as to whether the dog was a service animal; that the patron was precluded from bringing negligence claim premised on intentional torts; that officer's use of force in arresting patron was de minimis; and that the right to be free from officer's application of force was not clearly established.
Animal Legal Def. Fund v. LT Napa Partners LLC, --- Cal.Rptr.3d ---, 2015 WL 1004423 (Cal. Ct. App. 2015). Plaintiff and respondent Animal Legal Defense Fund filed an action against defendants and appellants LT Napa Partners LLC and Kenneth Frank for unfair competition, alleging defendants sold foie gras in their Napa restaurant in violation of California law. Defendants moved to strike plaintiff's claim pursuant to the anti-SLAPP statute, arguing it was exercising its free speech rights by protesting the law. Defendants appealed the trial court's denial of the motion. The appeals court affirmed the lower court's decision because the ALDF demonstrated probability of prevailing on the claim that it had standing under Unfair Competition Law (UCL); showed basis for liability against chef; and showed probability of prevailing on its claim that owner and chef unlawfully sold foie gras.
Lawrence v. N. Country Animal Control Ctr., Inc., --- N.Y.S.3d ---, 2015 WL 919734 (N.Y. App. Div. 2015). Plaintiffs adopted a basset hound from animal control despite the fact that the dog had been turned over by a prior owner to be euthanized. The basset hound, who attacked the plaintiffs on three different occasions without injury, attacked plaintiffs' other dog. Plaintiffs commenced this action seeking to recover damages for injuries, asserting causes of action for, among other things, negligence, fraudulent misrepresentation, products liability and intentional infliction of emotional distress. The appellate court found that issues of fact exist as to whether plaintiffs reasonably relied on defendants' misrepresentation and whether plaintiffs could have discovered the dog’s dangerous nature with due diligence. The appellate court did, however, find that plaintiffs did not satisfy the “rigorous ... and difficult to satisfy requirements for a viable cause of action for intentional infliction of emotional distress.”
Wyno v. Lowndes Cnty., --- S.E.2d ----, 2015 WL 1318263 (Ga. Ct. App. 2015). Victim was attacked and killed by her neighbor's dog. Victim's husband, acting individually and as administrator of his wife's estate, brought action against dog owners and several government defendants, whom he alleged failed to respond to earlier complaints about the dog. The appeals court held the trial court did not err in dismissing the action against the county and its employees in their official capacities. The former version of OCGA § 4–8–30, effective at the time of the attack, provided immunity to local governments and their employees from liability for all injuries inflicted by dangerous or potentially dangerous dogs. The appeals court held that the trial court erred in dismissing the action against the employees in their individual capacities based on official immunity, however. Judgment was therefore affirmed in part and reversed in part, and remanded to the trial court to enter a ruling specifically and directly passing on the husband’s constitutional challenge.
Food & Water Watch, Inc. v. Vilsack, 2015 WL 514389 (D.D.C., 2015). The U.S. District Court for the District of Columbia dismissed a lawsuit by plaintiffs against U.S. Secretary of Agriculture Tom Vilsack that challenged the United States Department of Agriculture’s New Poultry Inspection System (NPIS) promulgated under the US Poultry Products Inspection Act (PPIA). The court held that plaintiff’s failed to state an injury-in-fact that was traceable to the actions of the defendants for which relief could be granted. Under NPIS, far fewer federal inspectors would be stationed along slaughter lines, and the employees themselves could conduct a preliminary screening of the carcasses before presenting the poultry to a federal inspector for a visual-only inspection. Plaintiffs contended that the revised processing procedures were inconsistent with the PPIA and would ultimately result in the production of unsafe poultry products. They sought a preliminary and permanent injunction by the court to prevent the USDA and the USDA′s Food Safety and Inspection Service from implementing NPIS.
Levine v. Nat'l R.R. Passenger Corp., --- F.Supp.3d ----2015 WL 674073 (D.D.C., 2015). This action arose from plaintiff’s experience of bringing her service dog on Amtrak trains. Plaintiff brought claims on her own behalf and on behalf of a putative class of other disabled passengers against Amtrak pursuant to the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the District of Columbia Human Rights Act. Each claim related to Amtrak′s alleged practice of storing luggage in its train's “mobility aid” seating areas. Amtrak argued, amongst other things, that plaintiff lacked Article III Constitutional Standing because she had not suffered an injury in fact. The district court agreed and granted Amtrak′s motion to dismiss. The case was dismissed in its entirety.
Indiana Dep't of Natural Res. v. Whitetail Bluff, LLC, --- N.E.3d ----2015 WL 416786 (Ind. Ct. App., 2015). Appellee established a business that allowed for "high fence" hunting, which refers to hunting wild animals on property that is enclosed by a fence, of privately-owned whitetail deer. The pivotal question in this appeals case was whether the Indiana Department of Natural Resources (IDNR) was correct in asserting that the current statutory scheme prohibited this practice, and therefore allowed the agency to promulgate rules effectuating that prohibition. The Indiana Court of Appeals held that IDNR did not have the power to regulate fish and wildlife that were legally owned or held in captivity under a license. The IDNR therefore went beyond its express powers conferred upon it by the General Assembly when it promulgated rules that prohibited "high fence" hunting. The lower court's grant of summary judgment to the appellee was affirmed.
Krzywicki v. Galletti, --- N.E.3d ----2015 WL 406107 (Oh Ct . App., 2015). Appellant commenced an action against defendant boyfriend, the owner of the dog that bit her, and his business, which she held was strictly liable for the injuries she suffered, where the attack occurred. The claims against defendant boyfriend were dismissed with prejudice. A jury verdict, however, found that although the business was a “harborer” of the dog, appellant was barred from recovery because she was a “keeper of the dog in that she had physical care or charge of dog, temporary or otherwise, at the time of the incident.” On appeal, the Ohio Court of Appeals held that the status of an individual as an owner, keeper or harborer was relevant when deciding if an individual was barred from availing him or herself of the protections afforded by liability statutes. The court of appeals also ruled that the trial court properly gave the jury instruction and that the jury’s verdict was not “defective.” Further the court held that the testimony established at trial demonstrated that appellant had a significant relationship with the dog and that there was competent and credible evidence presented at trial to support the business’s position that appellant exercised some degree of management, possession, care custody or control over the dog.
Brown v. State, --- So.3d ----, 2015 WL 72231 (Fla. Dist. Ct. App. 2015). Defendant was found guilty of felony cruelty to animals after a Chow mix was found near defendant's mobile home emaciated and suffering from several long-term conditions that had gone untreated. The District Court of Florida affirmed the trial court’s decision, writing only to address her claim that the trial court erred in denying her motion for judgment of acquittal because a felony conviction could not be based on an omission or failure to act. The court noted that a defendant could be properly charged with felony animal cruelty under this version of the Florida statute for intentionally committing an act that resulted in excessive or repeated infliction of unnecessary pain or suffering to an animal by failing to provide adequate food, water, or medical treatment. The court then held that sufficient evidence existed showing that defendant owned a dog and failed, over a period of more than one year, to provide adequate food, water and needed medical care.
Kohl v. New Sewickley Tp. Zoning Hearing Bd., --- A.3d ----, 2015 WL 249186 (Pa. Commw. Ct. 2015). Applicants sought a zoning variance to operate a nonprofit dog-rescue shelter. The zoning board denied the application, concluding that the dog-rescue operation run by applicants was a non-permissible “kennel” under the ordinance. Upon reviewing the trial court's reversal of the board's decision, the Commonwealth Court of Pennsylvania concluded that the term “kennel,” as used in the zoning ordinance, was ambiguous, and had to be construed in favor of applicants to find that applicants' operation of a large dog rescue facility did not constitute the operation of a kennel. The court affirmed the trial court's decision.
State v. Gerberding, --- S.E.2d ----, 2014 WL 6907352 (N.C. Ct. App. 2014). After stabbing and slicing a dog to death, defendant was indicted for felonious cruelty to animals and conspiracy to commit felonious cruelty to animals. Defendant appealed on the basis that the trial court erred by incorrectly defining the term “without justification or excuse” to the jury. The facts indicated that defendant pinned down the dog and killed it after it bit her when she reached into its mouth to retrieve food. After careful consideration, the North Carolina Court of Appeals held that the trial court properly instructed the jury according to the North Carolina pattern jury instructions.
Van Kleek v. Farmers Insurance Exchange, 857 N.W.2d 297 (Neb., 2014). Plaintiff agreed to watch a couple’s dog while they were out of town. While plaintiff was caring for the dog, the animal bit her on her lower lip. Plaintiff's claim was rejected by the insurance company because the “insured” was defined to include “any person ... legally responsible” for covered animals. The Supreme Court of Nebraska affirmed the insurance company's motion for summary judgment, reasoning that plaintiff was “legally responsible” for the dog because she fed and watered the animal and let it out of the house while the couple was away.
Humane Society of the United States v. Jewell, --- F.Supp.3d ----2014 WL 7237702 (D.D.C. Dec. 19, 2014). HSUS sued to overturn the United States Fish and Wildlife Service's (USFWS) 2012 Final Rule to delist the Great Lakes gray wolves from the endangered species list. The US District Court called the 2012 Final Rule "arbitrary and capricious" under the Administrative Procedure Act and in violation of the ESA. The District Court thus relisted the wolves and placed them back under the control of the USFWS in Michigan, Wisconsin, and Minnesota.
Brooks v. Jenkins, --- A.3d ----2014 WL 7148925 (Md. Ct. Spec. App. Dec. 16, 2014). County deputies went to a home with a warrant to arrest a couple's son. A deputy shot the family's chocolate Labrador retriever. While the couple left the house to take the dog to the vet, the deputies entered the house—contrary to the couple's express instructions— and arrested the son. After a trial, the couple prevailed against the deputies and the jury awarded damages totaling $620,000 (reduced, after remittitur, to $607,500). The Maryland Court of Special Appeals held the $200,000 jury award in non-economic damages for the shooting of the dog on their constitutional tort claim was not excessive in light of the evidence.
Dixon v. State, --- S.W.3d ----2014 WL 7174378 (Tex. App. Dec. 16, 2014). An owner of a non-profit cat sanctuary, which housed over 200 cats taken care of by one employee, was convicted by a jury of four counts of non-livestock animal cruelty. The trial court placed the owner under community supervision for five years' on each charge, to be served concurrently. In her first issue on appeal, the owner contended the evidence was legally insufficient to support her convictions. Based on evidence that the owner only had one employee to take care of the cats, the Texas court of appeals overruled this issue. In her second issue, the owner contended that the trial court erred by overruling her motion to dismiss the indictments where the State alleged a felony by commission of elements defined as a misdemeanor under the animal cruelty statute. The court found that the failure to provide food, water, or care is the manner and means by which appellant killed the cats, causing them unjustified pain or suffering, which raised the charge from a misdemeanor to a felony.
People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 2014 WL 6802767 (N.Y. App. Div. Dec. 4, 2014). This case is an appeal from a Supreme Court judgment denying petitioner's application for an order to show cause to commence a CPLR article 70 proceeding. At issue is the legal status of a chimpanzee named Tommy who is being kept on respondents' property. Petitioners filed a habeas corpus proceeding pursuant to CPLR article 70 on the ground that Tommy was being unlawfully detained by respondents. The Court of Appeals here is presented with the novel question on whether a chimpanzee is a legal person entitled to the rights and protections afforded by the writ of habeas corpus. In rejecting this designation, the Court relied on the fact that chimpanzees cannot bear any legal responsibilities or social duties. As such, the Court found it "inappropriate to confer upon chimpanzees the legal rights . . . that have been afforded to human beings."
Hoffmann v. Marion Cnty., --- Fed.Appx. ----2014 WL 6306580 (5th Cir. Nov. 17, 2014). Plaintiffs operated a derelict-animal “sanctuary” on their ten-acre property in Marion County, Texas, where they held over one hundred exotic animals, including six tigers, several leopards, and a puma. Plaintiffs were arrested and charged with animal cruelty and forfeited the animals. Afterward, plaintiffs sued many of those involved in the events. On appeal, plaintiffs argued Marion County and the individual defendants violated their Fourth Amendment rights by illegally searching their property and seizing the animals. The court held that government officials may enter the open fields without a warrant, as the defendants did here. The district court’s grant of summary judgment was therefore affirmed.
Johnson v. D.C., --- F.Supp.3d ----2014 WL 5316644 (D.D.C. Oct. 17, 2014). Plaintiff asserts that he desires to give speeches in the District of Columbia about why he opposes treating animals as property, and in such speeches he would like to deny ownership of his dog. However, he alleges that he does not do so because he is deterred by D.C.Code § 8–1808(b). Plaintiff therefore sued the District of Columbia to obtain declaratory and injunctive relief, arguing the statute violated his First Amendment. The District Court, found that plaintiff lacked standing because he presented no concrete evidence to substantiate his fears of prosecution, but rather rests his claims on mere conjecture about possible governmental actions.
Chase v. State, --- S.W.3d ----2014 WL 6478511 (Tex. Crim. App. Nov. 19, 2014). Appellant and his wife were walking their two dogs when two neighbor dogs attacked the group. After the attack, appellant slashed the attacking dog's throat with a knife, which resulted in the dog's death. Appellant was then charged with and convicted of cruelty to non-livestock animals under Texas law. The issue before that court was whether § 822.013(a) of the Texas Health and Safety Code, a non-penal code, provided a defense to criminal prosecution. The court held that § 822.013(a)—which allows an attacked animal's owner or a person witnessing an attack to kill a dog that is attacking, is about to attack, or has recently attacked a domestic animal—is a defense against cruelty to non-livestock animals.
Morawek v. City of Bonney Lake, --- P.3d ----2014 WL 6061489 (Wash. Ct. App. Nov. 13, 2014). A woman filed a complaint with the Bonney Lake animal control authority after her neighbor’s dog killed her cat. The animal control officer served plaintiff with paperwork stating that his dog satisfied the definition of a dangerous dog under the Bonney Lake Municipal Code because the dog had killed a domestic animal without provocation while off his owner's property. Plaintiff appealed the designation to the police chief, the city hearing examiner, and the superior court; all of which affirmed the designation. The Washington Court of Appeals, however, held that the hearing examiner's finding that the owner's dog killed the neighbor's cat without provocation was not supported by substantial evidence, as required to uphold a dangerous dog designation, even though the “location” element of the dangerous dog designation was satisfied. The dangerous dog designation was therefore reversed.
Alliance for the Wild Rockies v. Austin, --- F.Supp.3d ---- 2014 WL 5439589 (D. Mont. Oct. 28, 2014). Plaintiff challenges defendants' approval of the Rennic Stark Project (a forestry project that affected the ESA-listed lynx among other species) under the National Environmental Policy Act, the National Forest Management Act, the Endangered Species Act, and the Administrative Procedure Act. The parties framed their dispute in terms of the project's effects, or lack thereof, on the Canada lynx, the North American wolverine, sensitive and old-growth-dependent species (fisher and goshawk), and westslope cutthroat trout. The district court denied the plaintiff's motion for summary judgment on all claims.
Carpenter v. State, --- N.E.3d ---- 2014 WL 5339365 (Ind. Oct. 21, 2014). After being convicted by a Superior Court bench trial and having the Superior Court’s judgment affirmed by the Court of Appeals, defendant appealed the admission of evidence recovered from his home after officers entered it without a warrant in pursuit of an aggressive and bloody dog. The Supreme Court of Indiana found that the entry was unreasonable under the Indiana Constitution and that the evidence obtained pursuant to a subsequent search warrant was inadmissible. The Superior Court's judgment was therefore reversed.
Robinson v. City of Bluefield, --- S.E.2d ---- 2014 WL 5032602 (W. Va. Oct. 2, 2014). An Animal Control Officer responded to a complaint about two dogs at defendant's residence. While investigating the complaint at defendant's residence, the animal control officer was attacked by one of defendant's dogs. The Supreme Court of Appeals of West Virginia agreed with defendant and found that under the plain language of W.Va.Code § 19–20–20, the City of Bluefield was required to set forth satisfactory proof that defendant’s dog was “vicious, dangerous, or in the habit of biting or attacking other persons” before a circuit court or a magistrate, not a municipal court. The court therefore found that ordinance was void to the extent that it allowed a municipal court to order the destruction of the dog. The circuit court's order affirming the municipal court's order to kill Ms. Robinson's dog was therefore reversed.
Town of Bethlehem v. Acker, --- A.3d ---- (Conn. App. 2014), 153 Conn. App. 449 (2014). Plaintiffs seized approximately 65 dogs from the Society for the Prevention of Cruelty to Animals of Connecticut pursuant to a search and seizure warrant that had been issued on facts showing that the dogs, which were being kept in an uninsulated barn with an average temperature of 30 degrees Fahrenheit, were neglected, in violation of General Statutes § 22–329a. The trial court found that the smaller breed dogs were neglected, but found that larger breed dogs were not. The appellate court reversed the judgment of the trial court only with respect to its dispositional order, which directed the parties to determine among themselves which dogs were smaller breed dogs and which dogs were larger breed dogs, and remanded the case for further proceedings.
Animal Legal Def. Fund v. Otter, 1:14-CV-00104-BLW, 2014 WL 4388158 (D. Idaho Sept. 4, 2014). In a ‘hold your tongue and challenge now’ First Amendment challenge to an Idaho statute that criminalizes undercover investigations and videography at “agricultural production facilities,” plaintiffs brought suit. The claims against the Governor were dismissed under 11th Amendment immunity. The court also found that the ALDF failed to allege a concrete plan to violate subsection (e), and lacked standing to challenge section 18–7042(1)(e). However, the ALDF’s First Amendment, bare animus Equal Protection, and preemption claims survived the motion to dismiss.
Defenders of Wildlife v. Jewell, CV 12-1833 (ABJ), 2014 WL 4714847 (D.D.C. Sept. 23, 2014). In 2012, a rule transferred management of the gray wolf in Wyoming from federal control to state control. Plaintiffs moved for summary judgment, and maintained that the decision was arbitrary and capricious because Wyoming's regulatory mechanisms were inadequate to protect the species, the level of genetic exchange shown in the record did not warrant delisting, and the gray wolf was endangered within a significant portion of its range. The Court concluded that it was arbitrary and capricious for the Service to rely on the state's nonbinding promises to maintain a particular number of wolves when the availability of that specific numerical buffer was such a critical aspect of the delisting decision.
Shotts v. City of Madison, 2013-KM-01108-COA, 2014 WL 4347582 (Miss. Ct. App. Sept. 2, 2014). Defendant was charged with animal cruelty after burning his girlfriend's dog while giving it a bath. He said it was an accident. There were no other witnesses, and the attending veterinarian testified that the dog's injuries were consistent with defendant's account. The 2011 animal cruelty statute, since repealed, that applied in this case required proof beyond a reasonable doubt that defendant acted maliciously. Since the prosecution failed to meet that burden, the Mississippi Court of Appeals reversed and rendered the defendant's conviction.
United Pet Supply, Inc. v. City of Chattanooga, Tenn., 13-5181, 2014 WL 4637546 (6th Cir. Sept. 18, 2014). A private non-profit corporation that contracted with the City of Chattanooga to provide animal-welfare services, received complaints of neglect and unsanitary conditions at a mall pet store. Pet store owners brought a § 1983 suit in federal district court; the Owners alleged that the removal of its animals and revocation of its pet-dealer permit without a prior hearing violated procedural due process and that the warrantless seizure of its animals and business records violated the Fourth Amendment.
Animal Legal Defense Fund, Inc. v. Aubertine, --- N.Y.S.2d ----2014 WL 3511059 (N.Y.A.D. 3 Dept.). Petitioners seek 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. In affirming the dismissal, the court found the risk of exposure to harm from eating foie gras was minimal and the indication of harm uncertain. As to assertion of standing from The Animal Legal Defense Fund, the court 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.
Cottongame v. State, ---S.W.3d---2014 WL 3536801 (Tex. App., 2014). Appellant, a known feral cat caretaker, appealed from her conviction for violating a city ordinance regarding the number of animals that may be kept without a permit. She asserted that her conviction violated the Privileges or Immunities Clause of the Fourteenth Amendment because the city “selectively enforced" the ordinance. The court found that there was no evidence before the trial court indicating that appellant was singled out for enforcement or that her selection for enforcement was based on anything other than a valid citizen complaint. The court also rejected appellant's insufficient evidence argument.
Greater Houston German Shepherd Dog Rescue, Inc. v. Lira, --- S.W.3d ----2014 WL 4199165 (Tex. App.,2014). A German Shepherd dog owned by the appellees escaped through an open garage door of the appellees' home. Appellees made a request to transfer the dog back to them from a rescue organization. The trial court ruled in favor of the appellees on their conversion cause of action. On appeal, this court held that since the appellees did not redeem the dog in compliance with city ordinances, they did not have an entitlement to the dog, which was required to establish a conversion claim. Further, since the rescue organization was a recognized city rescue partner, animal control could lawfully transfer the dog to the rescue organization.
State v. Chilinski, --- P.3d ----2014 WL 3842953 (Mont. 2014). Defendant was convicted by a jury of 91 counts of animal cruelty and sentenced to a total of 30 years with 25 years suspended. On appeal to the Supreme Court of Montana, defendant argued the District Court erred in denying his motion to suppress the evidence obtained from the search on Fourth Amendment grounds. The Supreme Court held that the search warrant authorizing seizure of “any and all dogs” and “any and all records pertaining to dogs” was not impermissibly overbroad, and that the participation by civilian volunteers and Humane Society personnel in execution the warrant was not prohibited by the Fourth Amendment or the Montana Constitution. The Supreme Court held that the statute authorizing forfeiture of “any animal affected” as part of sentence for animal cruelty did not limit forfeiture of defendant's dogs to only those that served as basis for underlying charges.
Institute of Marine Mammal Studies v. National Marine Fisheries Service, --- F.Supp.2d ----, 2014 WL 2154348 (S.D. Miss.,2014). The Institute of Marine Mammal Studies (IMMS) alleged that NMFS regulations did not properly implement the MMPA, and that the NMFS was improperly administering placement list for rehabilitated sea lions that could not be reintroduced into the wild. While the Court found that the IMMS lacked standing on the first issue, it reviewed the claim concerning the IMMS "take" of the sea lions. The Court found that a term included in IMMS' permit improperly delegated federal authority to third parties.
In the Matter of the Application of Richard M. COPLAND, as an Executor of the estate of Lenore Lewis Abels, Deceased, 988 N.Y.S.2d 458 (2014). Co-executor of an estate petitioned the Westchester County Surrogate's Court for a decree in accordance with EPTL 7–8.1[d] reducing the amount of money to be transferred from the estate to the trustees of a testamentary pet trust established under the decedent's will. Since the decedent gave very specific instructions as to how she wanted her cats to be cared for and the petition was in opposition to the decedent’s wishes, the court denied the reduction.
State v. Amos, --- N.E.3d ---- (2014), 2014 WL 3511819. After witnessing the 73 year old defendant-appellant emerge from area by the veterinary's dumpster holding an empty, wire cage animal trap, an employee of the clinic followed the defendant-appellant's car and obtained the vehicle's license plate number. Upon returning to the dumpster, the employee found a kitten with matted eyes that seemed unhealthy. The was convicted of animal abandonment in violation of R.C. 959.01. Defendant-appellant appealed her conviction and sentence on the grounds that the court erred in finding beyond a reasonable doubt that she was a keeper or, if she was a keeper, the court erred in determining that she abandoned the animal. The Ohio Court of Appeals held that once the defendant captured the animal in a cage, she assumed the responsibility that she would treat the animal humanely and could therefore be considered a “keeper."
State v. Peck, 93 A.3d 256 (2014). Defendant appealed a judgment entered in the District Court after a bench trial found she committed the civil violation of cruelty to animals. Defendant contended that the court abused its discretion in quashing a subpoena that would have compelled one of her witnesses to testify; that the cruelty-to-animals statute is unconstitutionally vague; and that the record contains insufficient evidence to sustain a finding of cruelty to animals and to support the court's restitution order. The Supreme Judicial Court of Maine, however, disagreed and affirmed the lower court's judgment.
January 2014 - April 2014
People for the Ethical Treatment of Animals, Inc. v. United States Department of Agriculture, --- F.Supp.2d ----, 2013 WL 6571845 (D.D.C. 2013). PETA brought a suit against the USDA for failing to enforce the AWA against bird abusers and for not promulgating regulations specific to the mistreatment of avians. In a motion to dismiss, the USDA argued (1) that PETA lacked standing and (2), even if PETA had standing, the organization had failed to state a claim upon which relief could be granted.
People v. Lohnes, --- N.Y.S.2d ----, 2013 WL 6670466 (N.Y. App. Div., 2013). After breaking into a barn and stabbing a horse to death, the defendant plead guilty to charges of aggravated cruelty to animals; burglary in the third degree; criminal mischief in the second degree; and overdriving, torturing and injuring animals. On appeal, the court found a horse could be considered a companion animal within New York's aggravated cruelty statute if the horse was not a farm animal raised for commercial or subsistence purposes and the horse was normally maintained in or near the household of the owner or the person who cared for it.
Travis v. Murray, --- N.Y.S.2d ----, 2013 WL 6246374 (N.Y. 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.
Dog Case of the Month
Dog attacking and killing cat while held on leash not "objectively likely" result to sustain Florida felony animal cruelty conviction. Hamilton v. State, --- So.3d ----, 2013 WL 6670841 (Fla.App. 4 Dist.). Defendant had his dog on leash and approached too close to a cat, whereupon the leashed dog began to attack the cat. The appellate court found that defendant's conduct did not rise to a criminal level, as it was "objectively unlikely" that a leashed dog walking with his owner would inflict such damage.
Southbark, Inc. v. Mobile County Com'n , --- F.Supp.2d ----, 2013 WL 5423806 (S.D.Ala.,2013). In the past, SouthBARK, a charitable non-profit no kill shelter, acquired dogs from the Mobile County Animal Shelter (MCAS) to prevent their euthanization. After a SouthBARK employee threatened a shelter worker and statements from SouthBARK about the number of animals being killed at MCAS, MCAS refused to let SouthBARK take anymore dogs for a 6 month period. Soon after MCAS allowed SouthBARK to take dogs again, MCAS again revoked this authority.
Vanderbrook v. Emerald Springs Ranch , 109 A.D.3d 1113, 971 N.Y.S.2d 754 (N.Y.A.D. 4 Dept.,2013).While on a guided trail ride, plaintiff's sustained injuries and sued the ranch and the ranch's owners. On appeal, the court found the Supreme Court properly denied the defendants' motion for summary judgment. The court found the defendants failed to meet their initial burden of establishing entitlement to judgment as a matter of law on the issues of the horse's vicious propensity and defendants' knowledge of that propensity.
State v. Fessenden , --- P.3d ----, 2013 WL 5352270 (Or.App., 2013). This Oregon case considers, as an issue of first impression, whether the emergency aid exception to the warrant requirement applies to animals in need of immediate assistance. The court found that the emergency aid exception extends to nonhuman animals when law enforcement officers have an objectively reasonable belief that the search or seizure is necessary to render immediate aid or assistance to animals which are imminently threatened with suffering, serious physical injury or cruel death.
Dog Case of the Month
Animal adoption organization not liable for personal injuries from dog bite after parties sign contract and assume care for dog. Frank v. Animal Haven, Inc. , 107 A.D.3d 574 (N.Y.A.D. 1 Dept.,2013).
Dauphine v. U.S. , --- A.3d ----, 2013 WL 4556546 (D.C.,2013). Defendant, Dr. Nico Dauphine, was convicted of attempted cruelty to animals, contrary to D.C.Code §§ 22–1001, –1803 (2001). After an investigation, Dr. Dauphine was captured on surveillance video placing bromadialone, an anticoagulant rodenticide, near the neighborhood cats' food bowls. This court found the inclusion of the word "knowingly" did not change the statute from a general to specific intent crime, and simply shows that the actor had no justification for his or her actions.
Dog Case of the Month
Animal adoption organization not liable for personal injuries from dog bite after parties sign contract and assume care for dog. Frank v. Animal Haven, Inc. , 107 A.D.3d 574 (N.Y.A.D. 1 Dept.,2013).
Weigel v. Maryland , --- F.Supp.2d ----, 2013 WL 3157517 (D.Md 2013). A nonprofit, nonstock cooperative housing corporation issued a rule that banned pit bulls on its premises. Members and leaseholders who owned dogs believed to be pit bulls sought a temporary restraining order and preliminary injunction against the corporation and the state of Maryland in an amended complaint.
Humane Society of United States v. State , --- S.W.3d ----, 2013 WL 4080775 (Mo.,2013). On May 13, 2011, Animal Welfare Organizations sought a declaratory judgment against the State of Missouri and the Missouri Department of Agriculture stating that Senate Bill (SB) 795 violated the Missouri Constitution by amending a bill to change its original purpose. On appeal, in an en blanc opinion, the Missouri Supreme Court found the repeal and reenactment of § 273.327 in SB 161 rendered moot any decision as to whether SB795 was properly enacted.
Mitchell v. State , --- So.3d ----, 2013 WL 3927676 (Fla.App. 3 Dist.,2013). After the dog bite, accounts differ, but the defendant was later convicted of animal cruelty for the injuries the dog sustained after the bite. Upon appeal, the court found that the prosecutor had erred by framing the argument in a manner that improperly shifted the burden of proof from whether the defendant had intentionally and maliciously inflicted injuries on the dog to whether the State's witnesses were lying. Since the court found this shift in burden was not harmless, the court reversed and remanded the defendant's conviction.
State v. Gerard , 832 N.W.2d 314 (Minn.App.,2013). This case considers whether the trial court erred when it dismissed the felony count of unjustifiably killing an animal based on lack of probable cause. The incident stems from the killing of the neighbors' cat with a shotgun by defendant-respondent.
Dog Case of the Month
Washington appellate court upholds ruling against county for negligently failing to respond to multiple complaints against vicious dogs that severely mauled woman in her home. Gorman v. Pierce County , --- P.3d ----, 2013 WL 4103314 (Wash.App. Div. 2,201).
Dog Case of the Month
Dog Case of the Month
Sierra Club v. U.S. Fish and Wildlife Service , --- F.Supp.2d ----, 2013 WL 1111285 (D.D.C.,2013).Using the APA, the Sierra Club filed a suit against the USFWS due to the USFWS's response to the Sierra Club's petition to revise critical habitat for the leatherback sea turtle; the Sierra Club also charged the USFWS with unlawfully delaying the designation of the Northeastern Ecological Corridor of Puerto Rico as critical habitat for the leatherback sea turtle. While both sides filed a motion for summary judgment, the District Court only granted the USFWS motion for summary judgment because the USFWS's 12–month determination was unreviewable under the APA.
Dog Case of the Month
Missouri Veterinary Medical Bd. v. Gray , --- S.W.3d ----, 2013 WL 600201 (Mo.App. W.D., 2013). An unlicensed Missouri equine dentist (Brooke Rene Gray) appeals an order from the circuit court enjoining and prohibiting her from doing business as "B & B Equine Dentistry," where she performed equine tooth floating and other acts. The court disagreed, finding that the State has a strong interest in regulating practices that involve public safety as is the case with veterinary medicine.
Dog Case of the Month
In re Endangered Species Act Section 4 Deadline Litigation-MDL No. 2165 , --- F.3d ----, 2013 WL 45871, (C.A.D.C.,2013). After parties in a lawsuit over listing species as endangered or threatened agreed upon a settlement, the Safari Club motioned to intervene because the settlement might affect three species that the club's members hunt. The district court denied the motion to intervene as of right because the club lacked Article III standing and denied a permissive intervention because it would cause undue delay and prejudice to the parties; the court then approved the settlement and the club appealed. The appeals court affirmed the lower court's decision that the club lacked Article III standing for intervening as of right.
WildEarth Guardians v. National Park Service , --- F.3d ----, 2013 WL 93169, (C.A.10 (Colo.),2013). In this case, the WildEarth Guardians brought a suit against the National Park Service for violating the National Environmental Policy Act (NEPA) and the Rocky Mountain National Park Enabling Act (RMNP)'s ban on hunting. The district court and the appeals court, however, held that the NPS did not violate NEPA because the agency articulated reasons for excluding the natural wolf alternative from its Environmental Impact Statement. Additionally, since the National Park Service Organic Act (NPSOA)'s detrimental animal exception and the RMNP's dangerous animal exception apply to the prohibition on killing, capturing, or wounding—not the prohibition on hunting, the use of volunteers to cull the park’s elk population did not violate the RMNP or the NPSOA.
Stanton v. State , --- S.W.3d ----, 2013 WL 239099, (Tenn.,2013). The defendant, a self-employed oil distributor, was charged with 16 counts of animal cruelty for intentionally or knowingly failing to provide food and care for his horses. After being denied a petition for pretrial division and a petition for a writ of certiorari, the defendant appealed to the Supreme Court of Tennessee, who granted the defendant permission to appeal, but affirmed the lower court's decision that the assistant district attorney general did not abuse his discretion and that the trial court did not err in denying the defendant's petition for writ of certiorari.
Dog Case of the Month
While defendant, as a matter of law, failed to disprove fact that dog had vicious tendencies, summary judgment still appropriate where plaintiff failed to show that she had knowledge of the dog's alleged vicious propensities. Faraci v. Urban , 101 A.D.3d 1753, --- N.Y.S.2d ----, 2012 WL 6720938 (N.Y.A.D. 4 Dept.,2012).
Wilkins v. Daniels , Slip Copy, 2012 WL 6644465 (S.D.Ohio, 2012). Various owners of exotic and wild animals filed a lawsuit in order to obtain a temporary restraining order and a permanent/preliminary injunction against the Ohio Department of Agriculture and its Director arguing that the Ohio Dangerous Wild Animals and Restricted Snakes Act was unconstitutional. The district court denied the owners’ motion for obtain a temporary restraining order and a permanent/preliminary injunction reasoning that the exceptions to the Act’s ban on owning wild and exotic animals does not violate the owners’ freedom of association rights, that the legislature had a legitimate purpose with regard to micro-chipping wild and exotic animals.
Stray from Heart, Inc. v. Department of Health and Mental Hygiene of City of New York , --- N.E.2d ----, 2012 WL 6115617 (N.Y.), 2012 N.Y. Slip Op. 08438. Petitioner, an animal rescue organization, filed suit seeking the enforcement of the Animal Shelters and Sterilization Act. The court held that the act does not provide for a private right of action for money damages. Instead, the legislative history reveals the law was designed to benefit the general public in New York City as well as stray cats and dogs. The court affirmed the lower court's decision with costs.
Dog Case of the Month
Howle v. Aqua Illinois, Inc. , --- N.E.2d ----, 2012 IL App (4th) 120207, 2012 WL 5353559 (Ill.App. 4 Dist.). As the result of a dog bite on the defendant’s rental property, the plaintiff suffered a torn cheek and irreparable damage to her ear. The plaintiff therefore attempted to recover damages from the defendant on the common law theory of negligence and through Illinois’ Animal Control Act. Upon appeal, the appellate court affirmed the lower court’s decision, though it stated a motion for summary judgment was more appropriate then the motion to dismiss for the Animal Control Act claim.
Schindler v. Mejias , --- N.Y.S.2d ----, 2012 WL 5950370 (N.Y.A.D. 3 Dept.), 2012 N.Y. Slip Op. 08205). This appeal is an appeal of the denial of defendant's motion for summary judgment in a defamation action. Plaintiff, an attorney, brought an action against Hector L. Mejias Jr., an employee of defendant Ulster County Society for the Prevention of Cruelty to Animals, claiming that Mejias falsely accused him of misrepresenting himself as the Ulster County District Attorney during a sworn deposition.
Dog Case of the Month
Allowing dog to roam unrestrained and not under owner's direct influence despite dog's following of verbal command sufficient under Connecticut's roaming dog law. State v. Smith , --- A.3d ----, 139 Conn.App. 107, 2012 WL 5357938 (Conn.App.).
Moser v. Pennsylvania Soc. for Prevention of Cruelty to Animals , 2012 WL 4932046 (E.D. Penn.). Two mares were confiscated after defendants received a complaint from a close acquaintance of the plaintiffs. The plaintiffs then sued the defendants for violating the U.S. Constitution, the U.S. Civil Rights Act, and Pennsylvania stautory and common law; the plaintiffs, however, lost when the district court granted the defendants motion for summary judgment on all counts.
Duncan v. State , 975 N.E.2d 838 (Ct. App. Ind. 2012). A complaint regarding the welfare of horses led to the defendant being convicted of 6 charges of animal cruelty, all of which were class A misdemeanors. Upon appeal, the defendant argued that he had not knowingly waived his right to a jury trial, that Indiana’s animal cruelty law was unconstitutionally vague and that there was no sufficient evidence to overcome a defense of necessity. The appeals court agreed that the defendant did not knowingly waive his right to a jury trial and therefore reversed and remanded the case on that issue; however, the appeals court disagreed with the defendant on the other issues.
Martinez v. Robledo , --- Cal.Rptr.3d ----, 2012 WL 5208537, Cal.App. 2 Dist.,2021). Both respondents filed motions in limine concerning the issue of damages in the cases and, in both case, the trial court limited the measure of damages to the market value of the dogs ($1,000). The court reasoned that otherwise, the injured animal's owner would bear the burden of all the costs of treatment, regardless of the wrongdoer's conduct. Allowing a pet owner to recover reasonable and necessary costs related to the treatment of an animal wrongfully injured is an appropriate measure of damages.
Ruiz v. Franklin County Animal Control , 732 S.E.2d 393 (N.C.App.,2012).(Unpublished Opinion). This North Carolina case is an appeal from a denial of summary judgment in favor of Franklin County Animal Control. Defendants argue that the trial court erred by declining to enter summary judgment in their favor on the basis of governmental immunity. The court found that there is no dispute in the record that Franklin County Animal Control and Stallings, in his official capacity as an Animal Control Officer, were performing a governmental function in impounding and euthanizing plaintiff's dog.
Dog Case of the Month
Dog Case of the Month
State v. Nix , --- P.3d ----, 2012 WL 3105223 (Or.App., 2012). Upon receiving a tip that animals were being neglected, police entered a farm and discovered several emaciated animals, as well as many rotting animal carcasses. The state appealed and argued the court should have imposed 20 separate convictions based on its interpretation of the word "victims" in ORS 161.067(2). The appeals court agreed.
Dog Case of the Month
Benningfield ex rel. Benningfield v. Zinsmeister , 367 S.W.3d 561, 2012 WL 2361778 (Ky.,2012). An 8-year-old boy and his sister were walking down a street when they were approached by a Rottweiler. Scared, the boy ran and was attacked by the dog, which caused the boy to suffer serious injuries. The Court ruled that a landlord could be strictly liable, but only if the landlord permitted the dog to stay on or about the premises. Since the attack did not occur on or about the premises, the landlord was not found liable under the dog bite statute.
Greenway v. Northside Hosp., Inc. , --- S.E.2d ----, 2012 WL 2819420 (Ga.App.,2012). While disoriented at a hospital, the plaintiff was asked by deputies to sign a form releasing his two yellow labs to Animal Control in the event of the plaintiff's demise. He signed the form without reading the terms, and was later informed that his dogs had been euthanized. In reversing the decision, the Court of Appeals found an issue of material fact existed towards all defendants. Questions of fact exist as to whether the euthanization of the dogs was a reasonably foreseeable consequence of the hospital's negligent conduct in contacting Animal Control instead of the Humane Society, and whether it misrepresented the content of the form to Greenway.
Watson v. State , --- S.W.3d ----, 2012 WL 2401752 (Tex.Crim.App.,2012). Defendants were convicted of attack by dog resulting in death (Tex. Health & Safety Code § 822.005(a)(1)) after a 7-year-old was killed by several of defendants' pit bull dogs. On this appeal, appellants contend that the statute fails to define the terms “attack” and “unprovoked,” and that it fails to specify what conduct is prohibited, resulting in arbitrary enforcement. The Court of Criminal Appeals affirmed the Court of Appeals decision stating that the Dog Attack statute did not violate Due Process and that the defendants' convictions did not violate the unanimous jury guarantees of the Texas or the U.S. constitution.
Dog Case of the Month
Supreme Court of Minnesota finds summary judgment for defendant inappropriate under dog bite strict liability law where plaintiff was injured voluntarily breaking up attack on his dog. Anderson v. Christopherson , --- N.W.2d ----, 2012 WL 2913222 (Minn.).
Hanrahan v. Hometown America , LLC, 2012 WL 2327814 (Fla.App. 4 Dist.). While walking his dog one evening, the plaintiff's husband was attacked by fire ants. Applying the Florida rule of “ferae naturae,” the court found that an owner or possessor of land does not have a duty to guard against harm from such wild animals unless he or she harbors or possesses them. Since the landlord did not harbor, possess, or introduce the fire ants onto the premises, the landlord owed no duty to the plaintiff.
Ruffin v. Wood , --- N.Y.S.2d ----, 95 A.D.3d 1290, 2012 WL 1939443 (N.Y.A.D. 2 Dept.). While the plaintiff was tending her garden, the defendant's dog jumped on a chain-link fence and startled plaintiff who then injured herself. While defendant conceded that the dog sometimes "jumped on people he knew in a playful manner," the dog never bit anyone or acted aggressively. On appeal, the court found there was ample support for the jury verdict in favor of defendant based on the evidence at trial.
Thomas v. Stenberg , --- Cal.Rptr.3d ----, 2012 WL 1925657 (Cal.App. 1 Dist.). While driving his motorcycle down a private road that had easement access, the plaintiff was injured by a charging cow. Upon appeal, the court held that the plaintiff failed to prove defendant was negligent for failing to warn of the presence of an unconfined and inherently dangerous animal and that the defendant was strictly liable for the cow's actions.
Dog Case of the Month
Vet's alleged promise to "take care" of plaintiff's medical bills did not create an inference of knowledge that the dog was vicious. Abundant Animal Care, LLC v. Gray , --- S.E.2d ----, 2012 WL 2125842 (Ga.App.).
Conservancy v. USFWS , --- F.3d ----, 2012 WL 1319857 (C.A.11 (Fla.)). Many environmental advocacy groups petitioned the USFWS to designate critical habitat for a species, the Florida panther, which was listed as endangered under the ESA in 1967. Claiming the agency's action was arbitrary and capricious under the Administrative Procedure Act, the groups filed a citizens suit under the ESA in district court. At district, the group's complaints were dismissed and the groups subsequently lost on appeal.
Crawford v. Van Buren County, Ark ., --- F.3d ----, 2012 WL 1813423 (C.A.8 (Ark.)). In this § 1983 action, defendant kennel operator alleged taking of private property without just compensation, unreasonable search and seizure, and due process violations in relation to seizure of dogs, and that the local humane society conspired with government entities. On appeal of summary judgment for the defendants, the court found her claims against the county were barred, and that she failed to first exhaust her administrative remedies.
State v. Cochran , --- S.W.3d ----, 2012 WL 1499893 (Mo.App. W.D.). Prompted by a phone call to make a return visit to the defendant's house, the Missouri Department of Agriculture and Animal Control discovered the defendant in the backyard, where she housed at least eleven dogs, trying to remove dog excrement from a pen and trying to remove ice from dog bowls. After further investigation, the defendant was charged with one count of animal abuse and with one count of violating a city ordinance for failure to vaccinate.
Beckwith v. Weber , --- P.3d ----, 2012 WL 1415598 (Wyo. 2012). While on vacation at a ranch in Wyoming, plaintiff was thrown or fell from a horse that stepped in a large badger hole. The plaintiff later brought a negligence suit against the ranch for injuries she had sustained during the fall. On appeal, the plaintiff challenged a jury instruction and asserted the trial court abused its discretion when it awarded costs to the ranch. The plaintiff did not prevail on either claim.
Dog Case of the Month
Appeal of right available in county board dangerous dog declaration in Washington. Coballes v. Spokane County , --- P.3d ----, 2012 WL 1448220 (Wash.App. Div. 3).
U.S. v. Lawson , --- F.3d ----, 2012 WL 1372172 (4th Cir., 2012). Defendants appealed their conviction of violating, and conspiring to violate, the animal fighting prohibition of the Animal Welfare Act (AWA). The Court of Appeals granted a new trial, but held, in part, that the AWA is a constitutional exercise of Congress' power under the Commerce Clause, and that the provision of different elements of the crime in jurisdictions permitting animal fighting does not violate equal protection rights under the Fifth Amendment.
Barrios v. Safeway Ins. Co. --- So.3d ----, 2012 WL 1000864 (La.App. 4 Cir.,2012). Louisiana dog owners sued motorist for mental anguish and property damage after their dog was hit and killed by defendant's car. While a domestic animal is considered corporeal movable property in Louisiana, the court stated, "clearly, pets are not inanimate objects." The Court upheld that the damages award of $10,000 because the dog was killed as a result of motorist's negligence, the owners were nearby and immediately arrived at scene to find their beloved dog dead, the dog was extremely valuable to owners, who had a close family-like relationship with dog for approximately 12 years, and the loss caused the owners to suffer psychic trauma.
Hastings v. Sauve , --- N.Y.S.2d ----, 2012 WL 1129275 (N.Y.A.D. 3 Dept.,2012). 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. The Supreme Court held that, since the cow was a domestic animal, injury claims could only proceed under strict liability theory based on owner's knowledge of animal's vicious propensities. 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. Thus, none of the defendants were liable for negligently failing to restrain the cow.
Dog Case of the the Month
Evidence of a fence with gaps and dog with loose collar in unfenced backyard sufficient to support misdemeanor conviction for failure to restrain a dog in Indiana. Boss v. State , --- N.E.2d ----, 2012 WL 1066099 (Ind.App.).
Mostek v. Genesee County Animal Control , Slip Copy, 2012 WL 683430 (E.D., Mich. 2012). Defendant Animal Control officer removed a neglected, gravely-ill cat that needed immediate veterinary care from Plaintiff's backyard. Plaintiff filed a pro se complaint against Defendant alleging Fourth Amendment unlawful search and/or seizure claims pursuant to 42 U.S.C. § 1983.
Futch v. State , --- S.E.2d ----, 2012 WL 603655 (Ga.,2012). Defendant appealed conviction of cruelty to animals for shooting and killing a neighbor's dog because the dog was barking at defendant's goats. The Court of Appeals held that the restitution award of $3,000 was warranted by a preponderance of the evidence even though the owner only paid $750 for the dog.
Nigro v. New York Racing Ass'n, Inc , --- N.Y.S.2d ----, 2012 WL 717854 (N.Y.,2012).An experienced former professional exercise rider sued the owner of a race track facility seeking damages for personal injury after the horse she was riding fell on her while crossing a gravel-strewn asphalt road. The Supreme Court held that the rider assumed the risk that the horse might fall by choosing to cross the road despite being aware of the danger.
Scharer v. San Luis Rey Equine Hosp., Inc. , --- Cal.Rptr.3d ----, 2012 WL 661684 (Cal.App. 4 Dist.). Horse owner sued veterinarians and equine hospital for professional malpractice after horse was euthanized less than two months after surgery to remove horse’s ovaries. The Court of Appeal affirmed summary judgment for defendants, holding that equitable tolling did not apply because plaintiff was not prevented from pursuing her claim in a timely manner by the defendants or the court. A provision in the Medical Injury Compensation Reform Act extending the statute of limitations by 90 days did not apply absent a claim for personal injury or wrongful death to a person.
Dog Law Case of the Month
Dog's proclivity to jump on people to "greet" them does not establish a proclivity to run into people and knock them over for purposes of strict liability. Hamlin v. Sullivan --- N.Y.S.2d ----, 2012 WL 850717 (N.Y.A.D. 3 Dept.).
Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World Parks & Entertainment, Inc. --- F.Supp.2d ----, 2012 WL 399214 (S.D.Cal.,2012). Plaintiffs contend that the orcas are being "held as slaves" because they are psychologically and physically held captive in stressful and unnatural conditions, and are forced to submit to the will of Sea World, among other things. The court first observed that this is an impression of first impression and, as such, there are no authorities applying the Thirteenth Amendment to non-persons. In analyzing the plain and ordinary meaning of the amendment, the court stated that the "clear language and historical context reveal that only human beings, or persons, are afforded the protection of the Thirteenth Amendment."
Erie County Society ex rel. Prevention of Cruelty to Animals v. Hoskins , --- N.Y.S.2d ----, 2012 WL 266461 (N.Y.A.D. 4 Dept.,2012). Plaintiff animal society appeals from an order to return 40 horses to defendant after they were seized pursuant to a warrant. The issue of whether the Court has the authority to order return of animals to the original owner was raised for the first time on appeal. Despite the procedural impropriety, the Court found plaintiff's contention without merit.
State v. Gruntz , --- P.3d ----, 2012 WL 403932 (Or.App.,2012). A Deputy Sheriff with years of personal experience in the care and feeding of horses, witnessed evidence of animal neglect on defendant's ranch, and 8 citizen complaints were filed. Upon defendant's motion, the trial court found that there was insufficient evidence to form probable cause. The Court of Appeals disagreed, finding that the warrant affidavit permitted reasonable inference that neglect continued to exist at time of warrant application.
Vendrella v. Astriab Family Ltd. Partnership , --- A.3d ----, 2012 WL 469867 (Conn.App.,2012). Plaintiff father took his two-year-old son to defendant's farm, where the son was bitten on the check causing serious injury and permanent scarring. On defendant's motion for summary judgment, defendant stated he had no knowledge of the horse's vicious propensities. Plaintiffs countered with support that horses by their very nature are capable of biting, and that this was known to defendant. The Appellate Court agreed.
Dog Law Case of the Month
North Carolina Court of Appeals holds market value measure of damages applies in cases involving the negligent destruction of personal property, whether sentient or not. Shera v. N.C. State University Veterinary Teaching Hosp . --- S.E.2d ----, 2012 WL 539989 (N.C. Ct. App. 2012).
National Meat Ass'n v. Harris , --- S.Ct. ----, 2012 WL 171119 (U.S.). Trade association representing packers and processors of swine livestock and pork products sued the State of California for declaratory and injunctive relief barring a ban on slaughter and inhumane handling of nonambulatory animals on federally regulated swine slaughterhouses. The Supreme Court held that the Federal Meat Inspection Act (FMIA) preempted the California Penal Code provision prohibiting the sale of meat or meat product of “nonambulatory” animals for human consumption and requiring immediate euthanization of nonambulatory animals.
U.S. v. Felts (unpublished) , Slip Copy, 2012 WL 124390 (N.D.Iowa). Defendant kennel operator was found to violate the AWA on multiple occasions when inspected by APHIS representatives. From 2005 to 2009, defendant repeatedly failed inspections. The Plaintiff's Motion for Summary Judgment was granted in part because Defendant failed to file an answer to the administrative complaint, and so was deemed to have admitted the allegations in the complaint.
Edwards v. Shanley , --- F.3d ----, 2012 WL 89193 (C.A.11 (Fla.)). Automobile driver fled scene of a traffic stop and sustained serious injuries when he was attacked by a police dog, which was allowed to continue for 5 - 7 minutes. The Court of Appeals held that the use of the police dog to help track and initially subdue the driver was constitutional, but permitting the dog to continue to attack the driver constituted excessive force.
Dog Law Case of the Month
Previous K-9 training of retired police dogs was not evidence of dogs' vicious propensities and did not affirm plaintiff's assertion that dogs were now kept as "guard dogs." Thurber v. Apmann , --- N.Y.S.2d ----, 2012 WL 225395 (N.Y.A.D. 3 Dept.,2012).
Center for Biological Diversity v. Salazar , Slip Copy, 2011 WL 6000497 (D.Ariz.). Plaintiffs filed action against Interior and FWS to set aside FWS's finding that the desert bald eagle does not qualify as a distinct population segment entitled to protection under the ESA. The Court found that FWS' 12–month finding was based on the 2007 delisting rule, which failed to comport with the notice, comment, and consultation requirements of the ESA.
Adrian v. Vonk , --- N.W.2d ----, 2011 WL 6260860 (S.D.). Ranchers sued State for damage to their property from prairie dogs from public lands. The Supreme Court held that state's statutorily-mandated actions in controlling prairie dogs were discretionary acts, and ranchers' action was barred by sovereign immunity; and statute did not provide for a nuisance cause of action against the State.
Phillip v. State , --- S.E.2d ----, 2011 WL 6187084 (Ga.App.). Defendant was sentenced to 17 years imprisonment after entering a non-negotiated guilty plea to 14 counts of dogfighting and two counts of aggravated cruelty to animals. Upon motion, the Court of Appeals held that the sentence was illegal and void because all counts, which were to run concurrently, had the maximum prison sentence of five years.
State v. Morival , --- So.3d ----, 2011 WL 6058299 (Fla.App. 2 Dist.). Defendant moved to dismiss charges of two felony counts of animal cruelty. The District Court of Appeal held that systematically depriving his dogs of nourishment was properly charged as felony animal cruelty rather than misdemeanor. Defendant fed his dogs so little that this amounted to “excessive or repeated infliction of unnecessary pain or suffering” rather than “depriv[ing an animal] of necessary sustenance.”
Dog Law Case of the Month
Pierce, County, WA fee requirement to challenge county's dangerous animal declaration (DAD) violates due process. Downey v. Pierce County , --- P.3d ----, 2011 WL 5931911 (Wash.App. Div. 2).
O'Neill v. Louisville/Jefferson County Metro Government , --- F.3d ----, 2011 WL 5345409 (C.A.6 (Ky.)). Dog owners sued city-county government and director of city animal-control agency under § 1983 for violations of Fourteenth Amendment after a warrantless search of home and seizure of their dogs. The Court of Appeals held that the owners did not need a breeder's license because their home was not a “Class A kennel.” It also held that the initial entry into owners' home by undercover animal-control officers was not a Fourth Amendment search because it did not infringe on owners' expectation of privacy.
Com. v. Linhares , --- N.E.2d ----, 2011 WL 5517133 (Mass.App.Ct.). Defendant was convicted of cruelty to animals after he intentionally hit a duck with his car in a mall parking lot as the duck crossed the road with her baby ducks. The conviction was upheld by the Appeals Court because, in cases involving the direct infliction of pain on an animal, all that must be shown is that the defendant intentionally and knowingly did acts which were plainly of a nature to inflict unnecessary pain.
Sawh v. City of Lino Lakes , 800 N.W.2d 663 (Minn.App.,2011). The city council ordered the destruction of a dog after finding it to be a dangerous animal and the owner appealed. The Court of Appeals held that procedural due process required that the owner should have been given a meaningful opportunity to contest the declaration of the dog as a “potentially dangerous animal” before it was declared a “dangerous animal” under the city ordinance.
Siegert v. Crook County , --- P.3d ----, 2011 WL 5402078 (Or.App., 2011). An individual appealed County Court’s decision to approve the location of a dog breeding kennel in a zone where such kennels were not permitted. The county interpreted the code that was in effect at the time the kennel began operating to allow dog breeding as animal husbandry, and thus permissible farm use. The Court of Appeals found the county's interpretation to be plausible.
Tennant v. Tabor , --- N.Y.S.2d ----, 2011 WL 5433831 (N.Y.A.D. 4 Dept.). Motorist collided with a horse and sued horse owners for damages. The Supreme Court held that, even if horse owners violated statute requiring them to provide shelter to horse, this did not constitute common-law negligence, which was required for damages.
Dog Law Case of the Month
Summary judgment appropriate where puppy getting underfoot thereby tripping and injuring housekeeper did not present an unreasonable risk of harm. Williams v. Galofaro , --- So.3d ----, 2011 WL 5402984 (La.App. 1 Cir.).
Anderson v. City of Camden , 2011 WL 4703104 (D.S.C.,2011). Defendant Animal Control officers took Plaintiffs' two dogs, both German Shepherds, pursuant to a pick-up order issued by a Magistrate. Plaintiffs filed Fourth Amendment claim, as well as state law claims against defendants. The court noted that this case presented a distinct issue for the Fourth Circuit concerning the seizure of vicious dogs: the dogs were not roaming, but at their owners' residence and picked up based on an order from a neutral magistrate.
Sixth Angel Shepherd Rescue, Inc v. Bengal , 2011 WL 4867541 (C.A.3 (Pa.),2011) (unpublished). Sixth Angel Shepherd Rescue rescued three dogs from North Carolina and had them delivered to Pennsylvania. The Pennsylvania Bureau of Dog Law Enforcement seized them and turned them over to Appellants PSPCA. Returning the dogs to their owner served the public interest by settling property rights and allowing Sixth Angel to fulfill its mission of finding homes for the dogs.
Jenkins v. State , 2011 WL 4825636 (Wyo.,2011). Defendant was convicted of misdemeanor animal cruelty. Defendant appealed, claiming ineffective assistance of counsel. The Supreme Court held that he was not entitled to a reversal, because he failed to demonstrate that his counsel failed to render reasonably competent assistance that prejudiced him to such an extent that he was deprived of a fair trial.
Ladnier v. Hester , --- So.3d ----, 2011 WL 5027176 (Miss.App.). Plaintiff motorist sued horse owner for negligence after he collided with the horse that was loose on the highway. The Court of Appeals sustained summary judgment for owner because the motorist produced no evidence that owner 1) had failed to act with reasonable care in enclosing his horses, 2) that horse had a propensity to escape.
Dog Law Case of the Month
Superior Court of Pennsylvania holds that Section 305(a)(1) of the dog law requiring confinement or control does not require any mens rea or scienter; the "clear legislative intent of Section 305(a)(1) is to favor the important public interest in preventing roving dogs." Com. v. Raban , --- A.3d ----, 2011 WL 4582435 (Pa.Super.).
Tarquinio v. City of Lakewood , 2011 WL 4458165 (N.D.Ohio) (unpublished opinion). Plaintiffs sought a declaratory judgment from the court that Lakewood City Ordinance 506.01, which bans pit bull dogs or those dogs with "appearance and characteristics of being predominantly of such breeds," unconstitutional. The court found that the General Assembly intended to allow municipalities to regulate the possession of pit bulls.
Engquist v. Loyas , 2011 WL 4374605 (Minn.,2011). After a 9-year old child was bitten by defendant's dog while at a sleepover at defendant's house, the child's mother sued the dog’s owners on the child's behalf. The appellate court reversed. Specifically, the jury here could have found provocation without any consideration of the victim's knowledge of the danger, and this misstatement prejudiced the defendant.
State v. Bonilla , 2011 WL 3903354 (Conn.App.). The issue before the court in this case is whether defendant's felony conviction for being a spectator at a cockfight (contrary to General Statutes § 53–247(c)) violates defendant's constitutional rights to assemble and associate, and his equal protection rights. In rejecting defendant's arguments, the court noted first that the right to assemble does not encompass the right to assemble for an unlawful purpose.
Dog Law Case of the Month
"Equal knowledge" of dog's vicious temperament precludes recovery against owner-roommate in Georgia premises liability action based on a dog bite. Stolte v. Hammack , 2011 WL 4116153 (Ga., 2011).
Daskalea v. Washington Humane Soc. , 2011 WL 3555761 (D.C., 2011). Pet owners sued after their pets were seized, detained, injured, or destroyed by the Humane Society. Pet owners’ attempts to certify a class failed because the claims were not typical. The members of the proposed class allegedly suffered a wide range of deprivations, were provided with different kinds of notice, and claimed distinct injuries. The class certification motion was also denied because the proposed members sought individualized monetary relief.
Defenders of Wildlife v. Hall , --- F.Supp.2d ----, 2011 WL 3359937 (D.Mont.).Several wildlife organizations filed suit to challenge the FWS's Final Rule delisting the gray wolf Northern Rocky Mountain distinct population segment. The case was put on hold pending the outcome of several other legal battles regarding the wolf's status on the Endangered Species List, during which gray wolf protections were reinstated. Then, after Congress passed the 2011 fiscal year budget which contained a provision requiring the FWS to delist the Northern Rocky Mountain DPS, the court dismissed the case for lack of jurisdiction.
In Defense of Animals v. U.S. Dept. of Interior , --- F.3d ----, 2011 WL 3559951 (C.A.9 (Cal.),2011). Plaintiff animal non-profits filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction to stop the government from rounding up, destroying, and auctioning off wild horses and burros in the Twin Peaks Herd Management Area. Plaintiffs alleged that the government's actions violated the Wild Free–Roaming Horses and Burros Act and the National Environmental Policy Act. However, the initial phase of the plan sought to be enjoined (the roundup) had taken place. The court held that the interlocutory appeal from the denial of a preliminary injunction was moot because the roundup had already taken place.
Allendorf v. Redfearn , 2011 WL 3105714 (Ill.,2011). After a farm employee was injured in an all terrain vehicle (ATV) while trying to round up a bull, he sued the farm owners under the Domestic Animals Running at Large Act. The Appellate Court held that the employee could not recover under the Act, which protects members of the general public who cannot be expected to appreciate the risk posed by an animal. Because the employee was not an innocent bystander but rather was attempting to exercise control over the bull at the time he was injured, he fell within the Act's definition of an “owner” of the bull.
Commonwealth v. Epifania , --- N.E.2d ----, 2011 WL 3435385 (Mass.App.Ct.,2011). Defendant appealed his conviction of arson for setting fire to a dwelling house, and wilfully and maliciously killing the animal of another person. The Appeals Court held that testimony that the cat belonged to the victim was sufficient to support a conviction of wilfully and maliciously killing the animal of another person.
Dog Law Case of the Month
City not liable for damages where it failed to enforce compliance with vicious dog ordinance and plaintiff could not prove this action exposed her to greater harm. Pray v. Whiteskunk , --- N.W.2d ----, 2011 WL 3207821 (S.D., 2011).
DuBois v. Quilitzsch , --- A.3d ----, 2011 WL 2517021 (R.I.,2011). After a dog injured a city inspector during an inspection of a property, the inspector sued the homeowners. Inspector alleged strict liability, premises liability, and negligence. The Supreme Court entered summary judgment for the defendants on the premises-liability and negligence claims because the inspector failed to show that homeowners had knowledge of their dog's vicious propensities.
People v. Land , --- N.E.2d ----, 2011 WL 2555826 (Ill.App. 1 Dist.,2011). In 2009, Jenell Land was found guilty by jury of aggravated cruelty to a companion animal, a Class 4 felony under Illinois’ Humane Care for Animals Act. Specifically, Land placed a towing chain around the neck of her pit bull, which caused a large, gaping hole to form in the dog’s neck (the dog was later euthanized).
People v. Maikhio , --- P.3d ----, 2011 WL 2437645 (Cal.,2011). Defendant was charged with possession of a spiny lobster during closed season and failure to exhibit his catch as required by a statute. By denying that he had caught anything, defendant failed to display his catch upon demand.
Dog Law Case of the Month
Use of a "bite sleeve" with dog raises question of fact as to knowledge of vicious propensity in dog bite case. Gannon v. Conti , --- N.Y.S.2d ----, 2011 WL 2637562 (N.Y.A.D. 3 Dept.,2011).
Kimes v. Grosser , 2011 WL 2128649 (Ca., 2011). After neighbors shot a cat, the owners sued to recover costs of its medical care and punitive damages. The Court of Appeal held that the owner could recover damages for costs incurred in treating the cat even if the costs exceeded the market value of the cat. The owner could also recover punitive damages upon a showing that the shooting was willful.
Kindel v. Tennis , --- N.E.2d ----, 2011 WL 2083981 (Ill.App. 5 Dist.). Plaintiff-employee was injured by a bull owned and controlled by defendants while working on the defendants' farm. The lower court granted defendants' motion to dismiss. The Appellate Court disagreed, finding that the employee's allegations were sufficient to support a claim against the farm owners under the Animal Control Act.
People v. Proehl (unpublished) , Not Reported in N.W.2d, 2011 WL 2021940 (Mich.App.). Defendant was convicted of failing to provide adequate care to 16 horses. The court disagreed with defendant's claims, explaining: "Defendant's personal belief that his horses were in good health . . . was therefore based on fallacy, and has no effect on his liability under the statute." The court noted that Defendant’s contention that he was a "hoarder" is based upon a non-adopted bill which, in any event, fails to indicate whether animal hoarding may serve as a proper defense.
Silver v. State , 2011 WL 2437286 (Md.,2011). Defendants were sentenced by the District Court after pleading guilty to one count of animal cruelty. The Court of Appeals held that the Circuit Court could order that defendants pay restitution for the euthanasia cost for the deceased horse, but it was beyond the court’s authority to order defendants pay restitution for costs of caring for the two surviving horses because defendants had not been convicted in those cases.
Dog Law Case of the Month
City animal control department protected under Indiana Tort Claims Act after boy was attacked by loose dog in violation of ordinance. Davis v. Animal Control-City of Evansville , --- N.E.2d ----, 2011 WL 2493762 (Ind.).
Fund for Animals v. Hall , --- F.Supp.2d ----, 2011 WL 1379826 (D.D.C.,2011). Environmental organization sued FWS, alleging it failed to comply with National Environmental Policy Act (NEPA) requirements when it opened and expanded hunting in national wildlife refuges.
People v. Brunette , --- Cal.Rptr.3d ----, 2011 WL 1380204 (Cal.App. 6 Dist.). Defendant was convicted of animal cruelty, and was ordered to pay restitution to the Animal Services Authority (“Authority”) that cared for the dogs. The appellate court held that the imposition of an interest charge on the restitution award was not authorized by the statutes. It also held that the Authority was an indirect victim, and was not entitled to direct victim restitution.
Simpson v. Department of Fish and Wildlife , --- P.3d ----, 2011 WL 1486081 (Or.App.,2011). Game ranch owners sought a declaratory ruling from the Depart. of Fish and Wildlife (DFW) as to whether their animals were property of the state. DFW ruled that the state had only a regulatory interest in the game animals. The Court of Appeals affirmed, holding that the State's property interest in the animals was not proprietary or possessory. The State's interest was regulatory, based on a state statute and a regulation adopted by the State Fish and Wildlife Commission.
Dog Law Case of the Month
Court upholds Los Angeles County's mandatory spay/neuter ordinance. Concerned Dog Owners of California v. City of Los Angeles , 194 Cal.App.4th 1219, --- Cal.Rptr.3d ----, 2011 WL 1601919 (Cal.App. 2 Dist.,2011). Dog owners mounted a constitutional challenge to a Los Angeles municipal ordinance that required all dogs and cats within the city to be sterilized.
Defenders of Wildlife v. Salazar , --- F.Supp.2d ----, 2011 WL 1345670 (D.Mont.). The U.S. Fish & Wildlife Service's 2009 Final Rule unlawfully delisted wolves in Idaho and Montana from the Endangered Species Act (ESA). The Court held that it had no authority to decide that it would be more equitable to ignore Congress' instruction on how an endangered species must be protected so that the wolves could be taken under the states' management plans.
Stout v. U.S. Forest Service , 2011 WL 867775 (2011). Plaintiff ranch owners held permits to graze cattle within the Murderer's Creek Wild Horse Territory (WHT), an area in which the threatened Middle Columbia River steelhead was present. The Forest Service approved a wild horse management plan in the area, but failed to prepare a Biological Assessment (BA) beforehand. The Forest Service’s failure to comply with its duty under section 7(a)(2) of the ESA was arbitrary and capricious. The
U.S. v. Wilgus , --- F.3d ----, 2011 WL 1126059 (C.A.10 (Utah)). Defendant Wilgus, who was not a member of a federally-recognized Native American tribe, was found with 137 eagle feathers during a routine traffic stop. The Court of Appeals found that the government's existing scheme for issuing eagle feather possession permits and enforcing the Eagle Act is the least restrictive means of forwarding the government's compelling interests.
People v. Hock , --- N.Y.S.2d ----, 2011 WL 1225699 (N.Y.City Crim.Ct.). Defendant was denied his motion to set aside convictions under New York animal cruelty statute. The Criminal Court, City of New York, held that the 90 day period for prosecuting a Class A misdemeanor had not been exceeded. It would be contrary to the purpose of the law and not promote justice to require that all four necessities be withheld for a conviction.
Dog Law Case of the Month
Missouri court holds that humane society had no third-party liability based on alleged breach of duty to test dog for vicious propensities or warn defendant of risks in adopting dog who has bitten in the past. Miles ex rel. Miles v. Rich , --- S.W.3d ----, 2011 WL 1564030 (Mo.App. E.D.).
People v. Curtis , --- N.E.2d ----, 2011 WL 670084 (Ill.App. 2 Dist.). Defendant owned five cats and housed 82 feral cats in her home. The Appellate Court held that the statute requiring animal owners to provide humane care and treatment contained sufficiently definite standards for unbiased application, and that a person of ordinary intelligence would consider defendant's conduct toward her pet cat to be inhumane.
Sixth Angel Shepherd Rescue Inc. v. Pennsylvania SPCA , 2011 WL 605697 (2011) (Slip Copy). Plaintiff dog rescue received a shipment of dogs from a North Carolina animal shelter which were seized by Pennsylvania SPCA. Plaintiff filed this action, alleging malicious prosecution, abuse of process, a claim that both §§ 459-209(b) and 459-603(c) are unconstitutional, and damages for defamation and “derogatory publication.” The court dismissed all claims except for those relating to the Pennsylvania Dog Law.
State v. Kuenzi , 2011 WL 659380 (2011) (publication decision pending). Defendants charged a herd of 30 to 40 deer with their snowmobiles, cruelly killing four by running them over, dragging them, and leaving one tied to a tree to die. The two men were charged with a Class I felony under Wisconsin § 951.02, which prohibits any person from “treat[ing] any animal ... in a cruel manner.” The Court concluded that the definition of “animal” included non-captive wild animals and rejected the defendants’ argument that they were engaged in “hunting.”
Dog Law Case of the Month
Son visiting parents' house had no duty to restrain pit bull involved in attack on pedestrian absent any evidence showing he possessed or controlled the dog. Muela v. Gomez , --- S.W.3d ----, 2011 WL 648940 (Tex.App.-El Paso).
Pearson v. U.S. Dept. of Agriculture , Slip Copy, 2011 WL 559083, (C.A.6,2011) (unpublished). Petitioner sought review of the decision and order of the Secretary of the USDA, terminating his license to own and exhibit wild animals (82 lions, tigers, and bears), issuing a cease and desist order, and imposing civil sanctions in the amount of $93,975 in violation of the AWA.
U.S. v. Braddock , Slip Copy, 2011 WL 327416 (C.A.4 (S.C.),2011) (unpublished). Defendant-appellants appealed their convictions following guilty pleas to offenses relating to illegal cockfighting and gambling activities. Appellants contend that district court should have dismissed the indictment or granted leave to obtain discovery because they, as Caucasians, were prosecuted federally, while two Hispanic co-conspirators and thirty-six Hispanic people arrested in connection with another cockfighting ring in Hampton County faced only state charges.
Rosenfeld v. Zoning Bd. of Appeals of Mendon , 78 Mass.App.Ct. 677, --- N.E.2d ----, 2011 WL 242734 (Mass.App.Ct.,2011). A zoning board granted landowner’s application for a special permit, and neighbor property owners appealed. The Appeals Court of Massachusetts held that defendant’s proposed use of land for horse stables fit within the agricultural use exception of the zoning ordinance and by-laws, and that plaintiffs had standing to enforce a deed restriction on defendant’s property.
Dog Law Case of the Month
Florida Court of Appeal invalidates Broward County dangerous dog ordinance that conflicts with state law. Hoesch v. Broward County , --- So.3d ----, 2011 WL 408882 (Fla.App. 4 Dist.,2011).
McDougall v. Lamm (unpublished) , Not Reported in 2010 WL 5018258 (N.J.,2010). Plaintiff witnessed her dog be killed by Defendant's dog. The court held that Plaintiff’s damages were limited to her dog's “intrinsic” monetary value or its replacement cost. Plaintiff was not entitled to compensation for the emotional distress she experienced in witnessing the attack.
State v. Mita , --- P.3d ----, 2010 WL 5483427 (Haw., 2010). Defendant, an owner of two dogs was charged with animal nuisance. The Intermediate Court of Appeals vacated the judgment of the district court. On certiorari, the Hawaii Supreme Court reversed and remanded the case, finding that the definition of animal nuisance in section 7-2.2 does not create an additional essential element of the offense; and, second, the definition of "animal nuisance" is consistent with its commonly understood meaning.
State v. Murphy , --- A.3d ----, 2010 WL 5353130 (Me.,2010). Defendant appeals her convictions two counts of cruelty to animals. The appellate found each of her five claims frivolous, and instead directed its inquiry as to whether the trial court correctly refused recusal at defendant's request. This court found that the trial court acted with "commendable restraint and responsible concern for Murphy's fundamental rights," especially in light of defendant's outbursts and provocations.
Eckhart v. Department of Agriculture , --- A.3d ----, 2010 WL 4596316 (Pa.Cmwlth.). A dog kennel operator acquired 30 dogs while under a revised notice to cease and desist operating a kennel and from buying dogs. The Commonwealth Court affirmed fines imposed by the Department of Agriculture, holding that the fines for violation of the dog law (in excess of $150,000) were not excessive or unreasonable.
Oak Creek Whitetail Ranch, L.L.C. v. Lange , --- S.W.3d ----, 2010 WL 4751676 (Mo.App. E.D.). A Missouri statute places liability on a dog owner where such dog kills or maims a sheep or "other domestic animal" of another. The Missouri Court of Appeals, Eastern District, disagreed with the trial court, finding that "domestic" should have been interpreted by the "plain meaning" of the word, which therefore includes Oak Creek’s breeder deer.
People v. Peters , --- N.Y.S.2d ----, 2010 WL 4977555 (N.Y.A.D. 3 Dept.,2010). A veterinarian was convicted of animal cruelty and sentenced to three years of probation based upon his alleged unjustifiable failure under Agriculture and Markets Law § 353 to provide a mare and her foal with necessary sustenance, food and drink.
Wrinkle v. Norman , --- P.3d ----, 2010 WL 4539371 (Kan.App.,2010). Wrinkle filed a negligence action against his neighbors (the Normans) for injuries stemming from an incident where he was trying to herd cattle he thought belonged to the Normans back into a pen on the Normans' property. The court found that Wrinkle could not meet the burden under his K.S.A. 47-123 claim that the Normans are liable for cattle running at large.
Dog Law Case of the Month
Absentee landlord's monthly visit to rental house where he rarely saw dog was insufficient to establish strict liability. Sarno v. Kelly , --- N.Y.S.2d ----, 78 A.D.3d 1157, 2010 WL 4907736 (N.Y.A.D. 2 Dept.).
Animal Welfare Institute v. Martin, --- F.3d ----, 2010 WL 4104633 (C.A.1 (Me.),2010) . Animal welfare organizations sued the State of Maine under the Endangered Species Act (ESA) to stop the authorization of trapping activity that affected Canada lynx.
Habitat for Horses v. Salazar, --- F.Supp.2d ----, 2010 WL 4151863 (S.D.N.Y.,2010) . Plaintiffs assert that the BLM’s decision to remove 60 wild horses from the North Piceance Herd Area violates the Wild Free-Roaming Horses and Burros Act of 1971, NEPA, the Information Quality Act, and the FLPMA.
Humane Soc. of U.S. v. Locke, --- F.3d ----, 2010 WL 4723195 (C.A.9 (Or.),2010) . The National Marine Fisheries Service (NMFS) authorized several states to kill California sea lions under section 120 of the Marine Mammal Protection Act (MMPA), which allows the intentional lethal taking of individually identifiable pinnipeds.
Dog Law Case of the Month
Plaintiff approaching injured dog did not constitute provocation, but is relevant to comparative fault in Louisiana dog bite case. Smegal v. Gettys, --- So.3d ----, 2010 WL 4272594 (La.App. 1 Cir.,2010) .
Carpenters Indus. Council v. Salazar, --- F.Supp.2d ----, 2010 WL 3447243(D.D.C.) . Plaintiffs, Carpenters Industrial Council, among several, averred that the FWS, in designating the owl as a "threatened species," violated the National Environmental Policy Act, the ESA, and the Administrative Procedure Act.
WildEarth Guardians v. Salazar, --- F.Supp.2d ----, 2010 WL 3832061 (D.D.C.,2010) . Plaintiff, WildEarth Guardians, brought this action against Ken Salazar, Secretary of the Interior, seeking judicial review of the U.S. Fish and Wildlife Service’s final agency actions pertaining to the Utah prairie dog.
Renzo v. Idaho State Dept. of Agr., --- P.3d ----, 2010 WL 3855338 (Idaho,2010) . A tiger habitat developer sued the Idaho State Department of Agriculture under the Idaho Tort Claims Act (ITCA) for breach of ordinary care in refusing to grant exotic animal possession and propagation permits and for intentional interference with developer's prospective economic advantage.
State v. DeMarco, --- A.3d ----, 2010 WL 3860400 (Conn.App.,2010) . Defendant appeals his conviction of two counts of cruelty to animals—specifically, cruelty to several dogs found within his home. Evidence supporting the conviction came from a warrantless entry into defendant's home after police found it necessary to do a "welfare check" based on an overflowing mailbox, 10-day notices on the door, and a "horrible odor" emanating from the home.
Dog Law Case of the Month
Texas dog attack law held constitutional because it requires at least a "reckless" mental state. State v. Taylor, --- S.W.3d ----, 2010 WL 3023282 (Tex.App.-Texarkana,2010) .
Modesto Irr. Dist. v. Gutierrez, --- F.3d ----, 2010 WL 3274499 (C.A.9 (Cal.)). Plaintiffs contended that, in listing the steelhead as "threatened" under the ESA, the NMFS violated both the ESA and APA. Plaintiffs averred that listing the steelhead as a distinct species under the ESA violated the Act because the steelhead and rainbow trout interbreed.
Western Watersheds Project v. Kraayenbrink, 2010 WL 3420012 (C.A.9 (Idaho)) . Plaintiff environmental advocacy organization sued the BLM for revisions to nationwide grazing regulations for federal lands, arguing that the revisions violated the ESA, NEPA, and FLPMA. The Court held that BLM violated NEPA by failing to take a “hard look” at the environmental consequences of the proposed changes, and violated the ESA by failing to consult with FWS before approving the revisions.
Gromer v. Matchett, --- S.W.3d ----, 2010 WL 3467727 (Mo.App. S.D.) . Defendant-farmer appeals an award to plaintiff-motorist, whose vehicle was struck by another vehicle after a horse coming from defendant's farm collided with the first vehicle. Defendant asserts that the Stock Law was inappropriately applied where he did not own the livestock in question.
People v. Romano, 2010 WL 3339158 (N.Y.Sup.App.Term,2010) . Defendant argued that the term “unjustifiably injures” in the anti-cruelty statute was unconstitutionally vague. The Court held a person could readily comprehend that he or she must refrain from causing unjustifiable injury by failing to groom a pet for several months and seeking medical care when clear, objective signs are present that the animal needs such care.
Dog Law Case of the Month
Landlord's knowledge of a pit bull's vicious propensity prior to lease agreement does not give rise to premises liability in dog bite case. Morehead v. Deitrich, 932 N.E.2d 1272 (Ind.App.,2010) .
Defenders of Wildlife v. Salazar, --- F.Supp.2d ----, 2010 WL 3084194 (D.Mont.,2010) . Twelve parties challenged the final ruling to delist the Rocky Mountain gray wolf species arguing that the decision violates the ESA by only partially protecting a listed population.
Alliance for Wild Rockies v. Lyder, --- F.Supp.2d ----, 2010 WL 3023652 (D.Mont.). Plaintiffs challenge the FWS' 2009 designation of approximately 39,000 sq. miles of critical habitat for the distinct population segment of the Canada lynx.
State ex rel. Humane Society of Missouri v. Beetem, --- S.W.3d ----, 2010 WL 3167457 (Mo.App. W.D.,2010) . The "Missourians for Protection of Dogs" ("MPD") advocated a statewide ballot measure to enact a new statutory provision to be known as the "Puppy Mill Cruelty Prevention Act." One taxpaying Missouri citizen subsequently filed a Petition for Declaratory Judgment and Injunctive Relief, challenging the ballot measure's summary statement as being "insufficient and unfair."
Dog Law Case of the Month
N.C. court reiterates that N.C. state courts have found that, "Rottweilers are aggressive by nature and that it might be negligent not to keep them restrained." Harris v. Barefoot, 2010 WL 3001399 (N.C.App.) .
Fabrikant v. French, --- F.Supp.2d ----, 2010 WL 2774043 (N.D.N.Y.) . Reacting to complaints, defendants Ulster County SPCA, executed a search warrant resulting in Fabrikant's arrest and seizure of thirteen of her fifteen animals. Plaintiff subsequently asserted that her federal constitutional rights were violated during the course of her criminal prosecution for animal cruelty.
Forest Guardians v. U.S. Fish and Wildlife Service, --- F.3d ----, 2010 WL 2674990 (C.A.10 (N.M.)) . Forest Guardians contend on appeal that the USFWS violated section 10(j) of the ESA by releasing captive-bred Falcons within an area not wholly separated geographically from an already-existing Falcon population.
U.S. v. Apollo Energies, Inc., --- F.3d ----, 2010 WL 2600502 (C.A.10 (Kan.)) . Apollo Energies, Inc. and Dale Walker were charged with violating the Migratory Bird Treaty Act after an agent with the USFWS discovered dead migratory birds lodged in each appellant's "heater-treater," a piece of equipment used in the course of appellants' Kansas oil drilling businesses, on several occasions.
Dog Law Case of the Month
Finger protruding through hole in chain-link fence does not constitute "implied consent" for entry under dog bite strict liability law. Sligar v. Odell, --- P.3d ----, 2010 WL 2674037 (Wash.App. Div. 1).
Conservation Force v. Salazar, --- F.Supp.2d ----, 2010 WL 2244122 (D.D.C.) . Plaintiffs contend that the Secretary failed to: (1) make a twelve-month finding as to the status of the Canadian Wood Bison and (2) process Plaintiffs’ applications to import bison hunting trophies.
Zuckerman v. Coastal Camps, Inc., --- F.Supp.2d ----, 2010 WL 2301145 (D.Me.) . Twelve-year old Samantha Zuckerman sustained injuries when she fell from the pony she was riding during a horseback riding lesson. This Court agreed with the Magistrate that the record raises a genuine issue of material fact concerning the “faulty tack" exception.
Moore v. People for the Ethical Treatment of Animals, Inc., --- N.E.2d ----, 2010 WL 2266081 (Ill.App. 1 Dist.) . Plaintiffs aver that defendants PETA, Diane Opresnik, John Keene, and Mary DePaolo defamed them by stating that the plaintiff-dog trainer placed a shock device on a dog's genitals and allegedly shocked it.
State v. Spade, --- S.E.2d ----, 2010 WL 2243519 (W.Va.) . In 2006, appellant was charged with one count of animal cruelty after 149 dogs were seized from her rescue shelter. The court found that the plaintiff was entitled to a restitution hearing to determine the actual reasonable costs incurred in providing care, medical treatment, and provisions to the animals seized.
Dog Law Case of the Month
Conn. Appellate Court reaffirms Conn. Supreme Court holding that a negligence cause of action can exist against a landlord who is not the owner or keeper of a dog that bites. Giacalone v. Housing Authority of Town of Wallingford, --- A.2d ----, 122 Conn.App. 120, 2010 WL 2365559 (Conn.App.) .