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September News

Microchip bill awaits California Governor Gavin Newsom’s signature. SB 573 would prohibit a public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group from releasing a dog or cat to an owner seeking to reclaim it, or adopting out, selling, or giving away a dog or cat to a new owner, unless the dog or cat is or will be microchipped. If the organization does not have microchipping capability, the bill would require that group or shelter to make a good faith effort to locate available free or discounted regional microchipping services and provide that information to the new or existing owner. The bill would exempt a dog or cat that is medically unfit for a microchipping procedure, or a dog or cat reclaimed or received by an owner who signs a form stating that the cost of microchipping would impose an economic hardship for the owner. The bill would go into effect on January 1, 2022, and an agency, shelter, or group that violates these provisions would be subject to a civil penalty of $100, except as specified. Currently, Illinois appears to be the only state with a similar such law (IL ST CH 225 § 605/3). While a handful of states require impounding agencies to scan for microchips in incoming animals, they do not mandate microchipping as a condition of adoption.

Trump officials eye removal of gray wolf from endangered species protections. Aurelia Skipwith, the director of the U.S. Fish and Wildlife Service, told The Associated Press in early September that the agency is "working very hard to have this done by the end of the year." This would allow states to develop their own wolf management plans. Several western states including Montana, Idaho and Wyoming, and parts of Oregon, Utah and Washington have already removed wolves from their state list of endangered species. While wolves were effectively extirpated from the majority of their habitat in the past century, populations have rebounded in recent years. Skipwith contends that the species has "biologically recovered" and de-listing is appropriate. This removal attempt is not new, as the Trump administration has been seeking the wolves' de-listing for years with animal and conversation advocates responding with court challenges. The legal saga of the gray wolf has been on-going for decades as outlined in this Topic Intro from 2011.

Up to 716 sea lions in Columbia River area of Pacific Northwest to be killed as part of federal management program. In 2018, Congress amended the Marine Mammal Protection Act with the Endangered Salmon Predation Prevention Act (S.3119), authorizing the National Oceanic and Atmospheric Administration (NOAA) to issue permits that allow Washington, Oregon, and Idaho to kill sea lions to protect endangered or threatened species of salmon and steelhead. This legislation will allow for the killing of Steller's sea lions in addition to California sea lions within a 200 mile stretch of areas around the Columbia River. The operation, which could begin this fall, will use a combination of trapping and darting with the actual kill process using a lethal injection of drugs. While supporters contend that this program is critical save the endangered fishery, critics of the cull suggest that "[y]ou can’t kill your way out of this problem,” and more sea lions will then come to replace the killed ones. Read more on this pressing conservation problem at the Seattle Times.

News archives

Cases

DOI's memorandum on incidental take under the MBTA vacated since it departed with plain statutory language and over 40 years of agency action. Nat. Res. Def. Council, Inc. v. U.S. Dep't of the Interior, Slip copy, 2020 WL 4605235 (S.D.N.Y. Aug. 11, 2020). In December 2017, the Principal Deputy Solicitor of the U.S. Department of the Interior (DOI) issued a memorandum that countered almost 50 years of the agency’s interpretation of “takings” and “killings” under the MBTA (the "Jorjani Opinion"). According to the DOI in that opinion, the MBTA does not prohibit incidental takes or kills because the statute applies only to activities specifically aimed at birds. Environmental interest groups and various states brought three now-consolidated actions to vacate the memorandum and subsequent guidance issued in reliance on the memorandum. Both parties moved for summary judgment. The Jorjani Opinion contends that the criminal penalty provisions under the MBTA is limited to only acts directed at birds and those activities whose purpose is to "render an animal subject to human control" like hunting or capturing. In reviewing the Jorjani Opinion under the lessened deference standard afforded by administrative law, this court found the DOI overstated the any conflicts in interpretation of the MBTA among circuit courts (a "dramatized representation"). In addition, the court found the Jorjani Opinion "is a recent and sudden departure from long-held agency positions backed by over forty years of consistent enforcement practices." The court found the Jorjani Opinion was an unpersuasive interpretation of the MBTA's unambiguous prohibition on the killing of birds and is contrary to the plain language of the law itself. Such an interpretation runs contrary to legislative history, decades of enforcement practices by the DOI, and caselaw. Because the agency's action was held unlawful under the APA, the court found the only appropriate remedy was vacatur. Thus, Plaintiffs’ motions for summary judgment were granted, and Interior’s motion was denied.

NY Agriculture and Markets Law § 123 on dangerous dogs does not mandate euthanasia, says appellate court. Town of Ogden v. Lavilla, 185 A.D.3d 1414, 126 N.Y.S.3d 832 (2020). The Justice Court of the Town of Ogden found respondent's dog to be dangerous under Agriculture and Markets Law § 123 and ordered the dog to be euthanized. On appeal, the Supreme Court, Appellate Division, Fourth Department agreed with respondent that the lower court misapprehended and misapplied the law. The court found the power to apply the most drastic measure (euthanasia) under Section 123 is reserved for aggravating circumstances, namely a serious disfigurement. The language of the law is permissive, not mandatory; even with aggravating circumstances, a court may direct other measures to keep the dog contained. The court noted that the lower court repeatedly misstated the law, saying it only had two options, euthanasia or permanent confinement. Vacated in part and remanded.



Judicial review of tiger/monkey exhibitor license revocation and fines denied where substantial evidence supported USDA/APHIS action. Terranova v. United States Dep't of Agric., --- Fed.Appx. ----, 2020 WL 4589346 (5th Cir. Aug. 10, 2020). Petitioners seek review of a decision and order of the USDA/APHIS determining that they violated various provisions of the Animal Welfare Act (“AWA”) and its implementing regulations, imposing civil penalties, and revoking the exhibitor license granted to Terranova Enterprises, Inc. Petitioners were licensees who provide wild animals like tigers and monkeys for movies, circuses, and other entertainment. In 2015 and 2016, APHIS filed complaints against petitioners that they willfully violated multiple provisions of the AWA and knowingly violated a cease and desist order issued in 2011 to avoid future violations of the AWA. After consolidating the complaints, the Administrative Law Judge ("ALJ") found that petitioners willfully committed four violations, so the ALJ issued a cease and desist order, suspended petitioners' license for 30 days, and assessed a $10,000 penalty and an $11,550 civil penalty for failing to obey the prior cease and desist order. On appeal by both parties to the Judicial Officer of the USDA, petitioners' exhibitor license was revoked and the penalties were increased to $35,000 and $14,850, respectively. On appeal here to the Fifth Circuit, petitioners claim that the determinations of the Judicial Officer were not supported by substantial evidence and that she abused her discretion in revoking their exhibitor license. This court found there was sufficient evidence to support the violations, including failing to allow APHIS officials to conduct compliance investigations and inspections, faulty tiger enclosures, insufficient distance/barriers between tigers and the public, failure to make an environmental enrichment plan, and failings involving tiger enclosure and protection from inclement weather, among other things. The court denied the petition for review.

Case Archives

Articles

When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing, Kate O'Reilly-Jones, 52 Colum. J.L. & Soc. Probs. 427 (Spring, 2019).

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

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

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

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