Committee on Animals and the Law

The Examiner reported on February 15, 2012, that on February 15, Assembly Bill A05449A will be introduced in the NY state Ag Committee. This bill would permit shelters to kill animals immediately if shelter staff determines that the animals are in "psychological pain". Yet, as the article explains, there is no definition of what constitutes psychological pain.

Likewise, this bill would permit the same shelters to deny rescue groups' attempts to adopt animals.

You may read this article at http://www.examiner.com/animal-advocacy-in-birmingham/proposed-new-york-law-may-endanger-local-companion-animals.

We were informed thereafter that Assemblyman Lentol declined to report this bill to the full Assembly.

Do you think this bill should have been able to have a chance to be voted upon by the entire Assembly? And, why or why not?

Would you support this bill? And, why or why not?

Happy Endangered Species Day!

Created by United States Senate in 2006, Endangered Species Day is the third Friday in May. Every year for the past five years, wildlife refuges, zoos, aquariums, botanical gardens, museums, libraries, schools, scout troops and community organizations have held Endangered Species Day events, not only to raise awareness of challenges facing endangered species, but to celebrate the success stories in endangered species protection - the Peregrine Falcon, Kirtland's Warbler, the Wyoming toad, among others. So of course, you can't celebrate Endangered Species Day without celebrating the main legal tool for protecting endangered species - the Endangered Species Act (ESA). In fact, according to the U.S. Fish & Wildlife Service, the ESA has saved hundreds of species from extinction since its inception in 1973.

But the ESA, it appears, is only as strong as the political will to enforce it. A recent budgetary rider put forth by Congress and signed into law by President Obama included a line delisting grey wolves from federal protection under the ESA in Montana, eastern Oregon, eastern Washington, and north-central Utah. What is significant about this is that, under the ESA, delisting a species from protection should be a long process, including scientific study and public debate; yet this recent delisting was accomplished during a last minute budget compromise by Congress. Although, as Keith Rizzardi of the ESA Blawg points out, the U.S. Fish & Wildlife Service may have delisted the wolves anyway, but for the problems with wolf management in Wyoming, the end result is that the ESA was significantly weakened by this eleventh hour legislation. Rizzardi points out: "Sadly, by effectively repealing the ESA as applied to canis lupus, Congress has opened the door to a whole new world...."

Why is this a problem? Some history is in order. The current ESA was passed by Congress in 1973, nearly unanimously. The ESA, drafted in "recogn[ition] that endangered and threatened species needed worldwide protection through development of international treaties and conventions," aimed to make "endangered species protection of highest priority of the government." In 1978, the Supreme Court ruled that the "plain intent" of the ESA must be followed, "whatever the cost" - arguably a recognition that science must trump economic and political arguments where the ESA is concerned. As Law Professor Taimie L. Bryant writes, "The ESA, by protecting animals in fact, implies that animals are valuable, which in turn reinforces the norm of protecting animals."

Over the years, the ESA was amended several times. Notably, after the 1978 Supreme Court ruling in Tennessee Valley Authority v Hill, quoted above, Congress sought to weaken the power of the act by introducing exemptions from its stringent requirements. Various other amendments honed the act, or strengthened it, amended listing and pre-listing requirements.

The current ESA works, in short, by "listing" endangered species, and then protecting the listed species. Listing is a long process, requiring scientific study of the species in question, its habitat and threats to its survival, a comment period when independent scientists and the public may submit comments on the species, and a final determination to list the species or not. Notably, the listing process must be "based solely on science, not on economics or other factors." This requirement, that science trumps economic or political factors where endangered species are concerned, is the key to the successes of the Act.

The other side of the coin - "delisting" - removes federal protections from a species. Delisting should only happen once a species has either recovered and no longer needs protection, or has become extinct. Delisting, like listing, is to be based on scientific studies and an examination of the same factors as in listing. Again, the final determination to delist should come only after scientific study and a lengthy comment period. After delisting, the federal government is supposed to monitor the health of the species for five years.

Despite these requirements, on April 13, 2011, for the first time ever, Congress, not the U.S. Fish & Wildlife Service, deliberately removed an animal - grey wolves - from the endangered species list. There was no extensive study and no comment period. Instead, the delisting was done behind closed doors, the language buried in an eleventh hour bipartisan budget proviso later signed into law by President Obama. As Oregon Governor John Kitzhaber noted in a letter to the president, this delisting is "a highly undesirable precedent" on an issue that "deserve[s] open and informed debate."

That is a good thing to remember on Endangered Species Day. It is wonderful that the Senate created a day dedicated to raising awareness of the challenges facing endangered species. But creating a feel-good holiday and doing the real work of protecting endangered species are two different things.

The Committee on Animals and the Law invites you to visit our Endangered Species Day page at:
http://www.nysba.org/AM/Template.cfm?Section=Endangered_Species_Day

to become better informed about the important role the law plays in the protection of animal species in greatest need of our help.

2. ESA Blawg, http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/budget_bill_delists_wolf.

3. A History of the Endangered Species Act of 1973, US Fish and Wildlife Services, (2008).

4. History of the United States Endangered Species Act, Florida Museum of Natural History Ichthyology Department, http://www.flmnh.ufl.edu/fish/education/ESA.htm.

5. Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).

6. Similarity or Difference as a Basis for Justice: Must Animals Be Like Humans to Be Legally Protected From Humans? Taimie L. Bryant, 70 Law & Contemporary Problems 207-254 (2007).

7. (Emphasis added), The Citizens' Guide to the Endangered Species Act, Earthjustice and the Endangered Species Coalition.

An increasing number of cities all over the country are banning pet stores from selling dogs and cats.
Proponents of the bans say the aim is to increase the adoption of animals from shelters, and diminish the market for animals from substandard breeding facilities that supply some pet stores. Opponents say pet stores should be able to sell dogs and cats.
What do you think? Is banning the retail sale of dogs and cats an effective way to fight "Puppy Mills" and increase shelter adoptions? Do you believe that pet store should be able to sell dogs and cats?
For more details see: http://www.avma.org/onlnews/javma/mar11/110301k.asp

There has been an increasing number of states regulating or proposing to regulate commercial breeders.

See blog posting Passage of Prop B and Aftermath http://nysbar.com/blogs/animalaw/2010/11/passage_of_prop_b_and_aftermat.html#comments
For a list of the state regulations for commercial breeders and dealers see: http://www.avma.org/advocacy/state/issues/Breeder_Bills-Table.pdf
Some animal rights activists fear New York may become the next "Puppy Mill State," as other states pass tougher laws on regulating animal breeding. http://www.wten.com/global/story.asp?s=14072570

What do you think? Should NY follow the "trend" and adopt more stringent laws for companion animal breeders?

On January 18, 2011, the New York City Council voted to adopt two bills relating directly to animals. Mayor Bloomberg is expected to sign both into law. http://council.nyc.gov/html/releases/01_18_10_prestated_animals.shtml

The first, entitled the "anti-tethering" bill, provides very specific parameters, both on time and manner, that dogs may be tethered. The bill requires that a dog not be tethered for more than three consecutive hours in a twelve hour period, mandates the particular type of tether which may be used, the location in which the dog may be tethered (for instance in a place devoid of objects which may cause entanglement and in a manner which will keep the dog on the owner's property). Additionally, if someone does tether a dog, that person is required to provide the dog with food, water and shelter.

Violations of this law would carry both civil and criminal penalties. First time violators will receive a warning or a $250 fine if the dog is injured. A repeat violator within one year will be chargeable with a class B misdemeanor. In addition, there are civil penalties of between $250 and $500.

The second bill seeks to promote spaying and neutering of dogs by increasing the licensing fee on intact dogs from $11.50 to $34.00. The increased revenue will go into a fund for free or low cost spaying and neutering, public education campaigns and other veterinary services for New York City residents.

What are your thoughts about these bills?

The Anti-tethering Bill:

Should a person face both a civil and criminal penalty for one violation of this statute?

Are there any reasons that should a statutory exception to the tethering requirements?
The Licensing Fee Bill:

Do you think the increased cost of licensing an intact dog will actually promote spaying and neutering of dogs as it is intended to do? Or, is this just another tax on New Yorkers?

Do you think it may have the unintended effect of resulting in fewer owners licensing their dogs?

On Tuesday, November 2, the Puppy Mill Cruelty Prevention Act (or Proposition B) passed by very narrow margin in Missouri. Although policy reform is most often generated through state legislatures, Prop B was a citizen-supported initiative.

The very controversial measure will amend existing laws regulating dog breeders to require any person who owns more than ten unaltered female dogs for the purpose of breeding to follow certain standards for feeding, veterinary care, housing, exercise and rest cycles between breeding.
No person will be allowed to have custody of more than 50 dogs for the purpose of breeding. Under the proposed statute, a crime of puppy mill cruelty will be considered a misdemeanor.

Supporters of Prop B, such as HSUS and ASPCA, touted the measure as a much-needed tool to help police Missouri’s large-scale commercial dog breeders and ensure dogs receive humane care. Opponents, such as the American Kennel Club and Pet Industry Joint Advisory Council (PIJAC), called the measure excessive and unnecessary, since state and federal laws already govern Missouri’s breeders. They also said some of the provisions were cost-prohibitive and would force licensed breeders out of business.

However, it looks like the fight is not over. As a state law, the measure is subject to amendments, changes or outright repeal by the legislature and Prop B could face a challenge in the coming legislative session. Breeders and agricultural groups said they were formulating plans for repealing or diluting the new law, and lawmakers in both legislative chambers said that they would support such measures.
Supporters of the law are hopeful that lawmaker will respect the will of voters.

What do you think?
If the people have voted for a referendum which they believe is needed to protect animals, should the elected public officials and financially interested groups be able to overturn it?
Or
Do you believe that such topics should not be subject to ballot initiative in the first place? In fact, opponent of Prop B like PIJAC believe that “Ballot initiatives favor organizations that have a lot of money because they can plant their message through the airwaves”. “And it makes it more difficult to educate voters the way you can educate legislators about the true impact of these types of proposals.”

For more info see:

http://www.columbiamissourian.com/stories/2010/11/03/election-night-prop-b/

http://www.kansascity.com/2010/11/04/2396011/breeders-to-push-missouri-lawmakers.html

To view the act in its entirety: http://www.sos.mo.gov/elections/2010petitions/2010-085.asp

Representative Diana Urban will re-introduce to Connecticut legislature a bill which seeks to require the state Department of Children and Families and the Department of Agriculture to cross-report animal cruelty and child abuse. Part of the rational for the bill, as Representative DebraLee Hovey stated, is that “[t]here’s clear research that there’s a link [between animal and child abuse].” Likewise, Urban also stated that “[t]his bill was formed to catch that link so that we might possibly step in before a child is abused or there is domestic violence in the home by recognizing if there is animal abuse in the home there is a red flag for future violent behavior there.”

Here is a link to one article about this topic:

http://www.ctpost.com/news/article/Bill-would-probe-link-between-animal-cruelty-688260.php

Do you believe that this bill should pass? And, why or why not?

Do you believe that New York should enact a similar bill? And, why or why not?

New York State Assembly Member Micah Kellner, in a letter, asked the Mayor and Health Commissioner of New York City to repeal a new Animal Care & Control of New York City (ACC) volunteer policy.

Link to the letter: http://www.scribd.com/doc/36757391/Letter-to-Mayor-Bloomberg-re-Animal-Care-Control

According to the letter, the new policy threatens to expel volunteers for exercising their rights to free speech and to petition their government for redress of grievances. Specifically, the policy states that volunteers may not 'publicly criticiz[e]' or cast the agency 'in a negative light' without permission from ACC. It also prohibits them from '[p]osting [criticism] on any internet site such as Facebook, My Space, Craigs List, etc.' It further states that '[v]olunteers are prohibited from distributing their personal information, or opinions in regards [to ACC] volunteers, staff, animals, and/or policies to the public.' Those who do 'will be terminated.'

Assembly Member Micah Kellner claims that this new policy violates 42 U.S.C Section 1983 which prohibits a state or municipal government to take action designed to prevent or intimidate people from exercising their First Amendment rights or punish them for doing so. New York City has claimed that ACC is an independent non-profit, but in Kellner's opinion, ACC operates as a de facto government agency. Therefore Section 1983 would apply.

Do you think ACC has the right to stop its volunteers from voicing their opinions about that organization and its policies, staff and animals?

For more info see: http://www.examiner.com/animal-shelters-in-san-francisco/nyc-mayor-asked-to-repeal-retaliatory-animal-control-policy

After the oil spill in the Gulf of Mexico a lot of organizations are trying to sue BP on behalf of animals that lost their lives and their habitat. The task is far from easy. Animal advocates argue that things would be much easier if animals had more legal protection. The following article from the ABA Journal discusses their fight to see animals legally treated more like humans.
http://www.abajournal.com/magazine/article/their_day_in_court/
What do you think? Are existing laws enough to efficiently protect animals?

Effective May 5, 2010, New York State amended its Pet Trust Law by eliminating the twenty-one year maximum duration which was included in the original legislation. See http://www.lexisnexis.com/Community/estate- elderlaw/blogs/topcases/archive/2010/06/01/2010-n-y-laws-70-effective-may-5-2010.aspx. The statute now provides that a pet trust “shall terminate when the living animal beneficiary or beneficiaries of such trust are no longer alive.” New York State E.P.T.L. §7-8.1(a).

Do you think it will help people or animals to have the twenty-one year limit removed?

Also, consider the current language of the statute that a trust will terminate upon the death of “the living animal beneficiary or beneficiaries.” Does this imply that offspring of the animal are not covered? What about pets acquired after the trust is created? Would multiple trusts be needed to cover them?

What is your overall opinion of the new statute?