This case, based on an investigation by the Texas State Board of Veterinary Medical Examiners (“TBVME”) into Dr. Hines’ digital provision of veterinary medicine, without the required initiation of a veterinarian-client-patient relationship (“VCPR”) established by an in person examination, dates back to 2012.  The Board found that Dr. Hines had violated the Texas Veterinary Practice Act by providing “advice to dog, cat and exotic animal pet owners” for a fee, via Dr. Hines’ website or by email without establishing an in-person VCPR.

“In 2013, Hines filed suit against the Board members in the United States District Court for the Southern District of Texas.”  Hines v. Quillivan, No. 19-40605 (Fifth Cir. Dec. 2. 2020).  “He argued that Texas’s physical-examination requirement violated his First Amendment, equal-protection, and substantive-due-process rights. The defendants filed a Rule 12(b)(6) motion to dismiss, which the district court granted in part.” Id. (citing Hines v. Alldredge, No. 1:13-CV-56, 2014 WL 11320417, at *8 (S.D. Tex. Feb. 11, 2014)). “On appeal, though, this court held that all of Hines’s claims failed to state a claim.” Id.

Dr. Hines filed another suit in the Southern District of Texas on October 2, 2018 based on changes to Texas’s telemedicine law, and based on another Supreme Court case abrogating the professional-speech doctrine, which formed the basis in Dr. Hines first appeal (“Hines 1”).  In the recent lawsuit which was also dismissed, Dr. Hines brought another equal protection claim and renewed this First Amendment claims.  The complex legal argument will be discussed in a future blog, but upon further review of some of the facts, I wanted to share an interesting observation.

Many state boards of veterinary medicine have amended their requirements regarding telemedicine during the COVID pandemic, including the TBVME, which has issued the following guidance on its website:

The Board has jurisdiction over all veterinary medicine offered or provided to clients and patients located within the state of Texas.

. . .

The veterinarian must hold an active Texas license, even if they are licensed and located in another jurisdiction.  Telemedicine Guidance (emphasis added).

Without discussing whether Dr. Hines has a valid First Amendment professional-speech which has been remanded to the district court for further proceedings, it is not included in the record whether Dr. Hines offered advice via website or email to clients in or outside of the State of Texas.

If outside the State, I would argue that the TBVME does not have jurisdiction (although those other states would).  It is not clear whether jurisdiction was ever raised in these cases, and based on the Agreed Order 2012-98 Ronald S. Hines, D.V.M. appears to have consented to and waived his right to any jurisdictional challenged (which could potentially be challenged further).

It may be interesting to explore the disparate laws governing telemedicine in veterinary medicine and how that may impact the outcome of this and similar cases.

A317, a bill that would require annual inspection of animal or veterinary facilities as defined in Section 1 pf P.L. 1983, c. 98, has been re-introduced in the State Assembly.

Animal or veterinary facility, defined as incorporated, means “any fixed or mobile establishment, veterinary hospital, animal hospital or premises wherein or whereon the practice of veterinary medicine or any part thereof is conducted.”

Such annual inspections would include traditional small animal clinics and hospitals; specialty animal hospitals; companion and large animal ambulatory practices; zoos; pet shops, pounds, shelters and adoption facilities; and potentially other facilities “wherein or whereon the practice veterinary medicine or any part thereof is conducted.”

“Veterinary facility,” a subsection of animal or veterinary facility, is more limited and means “any place or establishment, operated on a for-profit basis, where a domestic companion animal, which is not owned by either the proprietor or care-giving veterinarian, is treated, temporarily sheltered, fed, and watered for veterinary care purposes. ‘Veterinary facility’ may include an animal or veterinary facility as defined in section 1 of P.L.1983, c. 98 (C.45:16-1.1).”  N.J.S.A. 45:16-8.3(c).

Based on existing state statute, wildlife rehabilitators and facilities where the care, repair and rehabilitation of wildlife species would be exempt, as long as the work performed is under the reasonable supervision of a licensed veterinarian.  See N.J.S.A. 45:16-8.1(8).

So what are my concerns?

  1. The cost of annual inspections will charged to veterinary and animal facilities, which will be passed to clients and consumers. The professional boards in the State have been required, in large part, to be self-funding.  Veterinary and animal facilities are not currently required to be registered or annually inspected, so this bill, if passed, will increase costs to these regulated premises.  Currently, these facilities may be inspected by order of the State Veterinary Medical Examining Board under the auspices of the Attorney General and based upon the receipt of a complaint.  If such an inspection and related investigation results in the identification of deviation of compliance with the Veterinary Practice Act and relevant regulations, the licensee will be required to pay for the costs related to the inspection and investigation, and any fines and restitution.  Therefore, if annual inspections are required, it is reasonable to assume that the premises will have to pay for those inspections.  As small businesses—typically—these facilities will pass those costs to their clients and customers.
  2. Promulgation of comprehensive regulations will be required to notify licensees the requirements for each type of premises. Existing law describes different types of veterinary facilities by name or title (see N.J.S.A. 45-16-9.3b) defining “Hospital”; “Clinic”; “Mobile”; “Medical center”; and “Emergency” in general terms and for the purpose of not misleading or deceiving the public “as to the nature or extent of the services rendered.”  Other than some specific requirements for Emergency Clinics, related to their hours of operation and administration, the only other statutory requirement is that “[f]acilities maintained and used in connection with the practice of veterinary medicine shall be clean and sanitary.” N.J.S.A. 45:16-8.2.  Because veterinary practices can significantly vary based on the type of animals treated therein, and level of specialty provided, regulations will have to specify the requirements of these various types of practices.
  3. There is no indication that annual inspection is required to protect consumers or animals. There is no similar annual inspection requirement for other health professional’s private practices, including those owned by physicians, dentists, etc.  It seems incongruous to have more rigorous regulatory requirements for veterinary and animal facilities animals, than exists in the State for medical facilities for people.

U.S. Department of Transportation (“the Department” or “DOT”) announced it final rule on “Traveling by Air with Service Animals” on December 2, 2020.  The rule will be effective 30 days after the date of publication of the final rule in the Federal Register.

The purposes for the regulatory amendments were first described in the Department’s notice of proposed rulemaking published on February 5, 2020 and repeated in brief in final rule.

This final rule is prompted by a number of compelling needs to revise these regulations: (1) the increasing number of service animal complaints received from, and on behalf of, passengers with disabilities by the Department and by airlines; (2) the inconsistent definitions among Federal agencies of what constitutes a “service animal;” (3) the disruptions caused by requests to transport unusual species of animals onboard aircraft, which has eroded the public trust in legitimate service animals; (4) the increasing frequency of incidents of travelers fraudulently representing their pets as service animals; and (5) the reported increase in the incidents of misbehavior by emotional support animals.

The Department received, reviewed and responds to the ~15,000 comments to its February 5, 2020 Notice of Proposed Rulemaking in the final rule, as well as to the congressional mandate, in the FAA Reauthorization Act of 2018, requiring “the Department to conduct a rulemaking proceeding on the definition of the term “service animal” and to develop minimum standards for what is required for service and emotional support animals.”

One of the biggest differences between “service” animals and “emotional support” animals are the training requirements for these animals, or the lack thereof.  “Service” animals, servicing individuals suffering from disabilities as defined in the Americans with Disabilities Act and as further defined by the Department of Justice.

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability . . . 28 CFR § 35.104, 28 CFR § 36.104 Definitions.

The Department’s prior regulation recognized two types of service animals.  (1) Those as defined by DOJ  to be recognized as “service” animals (but not including miniature horses), and (2) “emotional support” animals defined as “any animal shown by documentation to be necessary for the emotional well-being of a passenger.”  Emotional support animals do not have to be specially trained to service a particular purpose or assist with a task, but were “expected to be trained to behave in public.”

The expanded number of alleged emotional support animals traveling on airlines had become an issue of concern when they failed to behave in public as expected, creating the need for the Department’s proposed and now final rule.

As summarized in the Executive Summary

This final rule defines a service animal as a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.  It allows airlines to recognize emotional support animals as pets, rather than service animals, and permits airlines to limit the number of service animals that one passenger can bring onboard an aircraft to two service animals.

Additional amendments and provisions are provided in the following table, also included in the final rule.

  1. SUMMARY OF THE MAJOR PROVISIONS
Subject Final Rule
Definition of Service Animal A service animal is as a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.
Emotional Support Animals Carriers are not required to recognize emotional support animals as service animals and may treat them as pets.
Treatment of Psychiatric Service Animals Psychiatric service animals are treated the same as other service animals that are individually trained to do work or perform a task for the benefit of a qualified individual with a disability.
Species Carriers are permitted to limit service animals to dogs.
   
Health, Behavior and Training Form Carriers are permitted to require passengers to remit a completed hardcopy or electronic version of the Department’s “U.S. Department of Transportation Service Animal Air Transportation Form” as a condition of transportation.
Relief Attestation Carriers are permitted to require individuals traveling with a service animal on flights eight hours or longer to remit a completed hardcopy or electronic version the Department’s “U.S. Department of Transportation Service Animal Relief Attestation” as a condition of transportation.
 
Number of Service Animals per Passenger Carriers are permitted to limit the number of service animals traveling with a single passenger with a disability to two service animals.
Large Service
Animals
Carriers are permitted to require a service animal to fit on their handler’s lap or within its handler’s foot space on the aircraft.
Control of Service Animals Carriers are permitted to require a service animal to be harnessed, leashed, or otherwise tethered in areas of the airport that they own, lease, or control, and on the aircraft.
Service Animal
Breed or Type
Carriers are prohibited from refusing to transport a service animal based solely on breed or generalized physical type, as distinct from an individualized assessment of the animal’s behavior and health.
Check-In
Requirements
Carriers are not permitted to require a passenger with a disability to physically check-in at the airport, rather than using the online check-in process, on the basis that the individual is traveling with a service animal. Airlines may require a passenger with a disability seeking to travel with a service animal to provide the service animal form(s) at the passenger’s departure gate on the date of travel.
Advance Notice Requirements Transportation Form and, if applicable, a U.S. Department of Transportation Service Animal Relief Attestation up to 48 hours in advance of the date of travel if the passenger’s reservation was made prior to that time.

Undoubtedly, passengers and the airline industry will continue to face legal challenges about the transportation of service and emotional support animals on planes.

 

The House of Representatives passed H.R. 1380, a bill that would amend the existing amendments to the Lacey Act, titled “Captive Wildlife Safety Act”, to purportedly “further the conservation of certain wildlife species . . .”

There are a number of admitted unknown consequences if this Act were to be adopted as law, as reported in the report from the Committee on Natural Resources:

  1. It is not known how many big cats, including tigers, lions, jaguars, leopards, cougars, and hybrids are currently kept in private ownership in the U.S.;
  2. There is no data about the physical characteristics of exhibition settings or the ability of the approximately 360 USDA licensed exhibitors who wish to continue public exposure to the big cats to meet the new set-back and barrier requirements.
  3. There is no data on the number of sanctuaries that transport and display big cats or the revenue associated with that activity, and thus, cannot estimate the cost of this prohibition.

There are a number of expected outcomes if this Act were to be adopted:

  1. Estimated costs of the breeding prohibition, of the approximately 200 cubs traded or sold each year at a value of $8,000 per cub, would be less than $1.6 million per year;
  2. Estimated costs to owners and trainers would incur costs in the form of foregone revenue of about $20 million per year related to prohibited use of big cats in the motion picture industry;
  3. Estimated costs to 40 exhibitors, including public zoos, , and about 200 mostly privately owned facilities that allow some form of physical contact with big cats through seasonal encounters with the animals or host or participate in special fundraising events that allow some form of encounter with the animals would be about $80 million each year.

There are a number of deficiencies or ambiguities in the bill:

  1. There is no definition of “public” yet the bill exempts USDA exhibitors from certain prohibitions, if they “prohibit public contact, with limited exceptions, with the big cats; and maintain a 15-foot gap between the public and the animals or erect a permanent barrier.”
  2. “Permanent barrier” is not defined. Would the now commonly used plexiglass barriers placed in addition to a facilities enclosure suffice?
  3. Certain prohibitions do not apply to “an entity exhibiting animals to the public under a Class C license from the Department of Agriculture . . . if such entity or facility holds such license or registration in good standing . . .” In good standing” is not defined.
  4. Why would a State college or university be exempt from the bill’s prohibitions?
  5. The bill exempts wildlife sanctuaries if they do not commercially trade in any prohibited wildlife species, but does not define what commercial trade entails.

Some real concerns about this bill include:

  1. The estimated 200 dangerous incidents involving big cats since 1990 were not described, analyzed nor determined how this bill would prevent such incidents;
  2. The number of safely implemented programs, even if fund raisers, by USDA licensed facilities not only rely on such events to support their conservation programs, but they also introduce their visitors to these amazing species and augment the public’s support of and interest in the conservation of these species. Proposed prohibitions do so much harm to these programs, dedicated to the care and preservation of these species;

Many of us were appalled by the alleged misuse of big cats by some solely for their own fiscal or other gain.  But, so much harm results when laws are enacted that do not actually help the animals they purport to protect.  To prevent such intended or unintended consequences here, narrower and science-based amendments must be considered.

While the world is still focused on SARS-CoV-2, the virus causing the COVID-19 pandemic, US animal health officials and poultry producers have been monitoring and taking action to prevent the spread of another highly pathogenic virus-Avian Influenza-from entering the country.  As reported on the website of the Office of Epizooties (the World Organization for Animal Health) the following countries have recently reported outbreaks of strains (H5N5, H5N7, or H5N8) of Highly Pathogenic Influenza Virus causing disease and death in non-poultry and/or poultry*:

Non-poultry including wild birds affected

 

Country Strain of HPAI Reported Date of Onset Poultry affected Non-poultry including wild birds affected
Germany H5N5 Oct. 30, 2020 Not reported Reported
Netherlands H5N5 Nov. 27, 2020 Not reported Reported
Belgium H5N5 Nov. 18, 2020 Reported Not reported
Poland H5N8 Nov. 23, 2020 Reported Not reported
Slovenia H5N8 Nov. 17, 2020 Not reported Reported
Russia H5N8 Sept. 18, 2020 Reported Reported
France H5N8 Nov. 7, 2020 Not reported Reported
Iran H5N8 Nov. 19, 2020 Not reported Reported
Croatia H5N8 Nov. 17, 2020 Reported Not reported
Kazakhstan H5 Sept. 11, 2020 Reported Not reported
Japan H5N8 Nov. 4, 2020 Reported Not reported
United Kingdom H5N8 Nov. 3, 2020 Not reported Reported
Sweden H5N8 Nov. 13, 2020 Reported Not reported
Denmark H5N8 Nov. 15, 2020 Reported Not reported
Korea H5N8 Oct. 21, 2020 Not reported Reported
Australia H7N7 July 24, 2020 Reported Not reported

*This is not intended to be a comprehensive list, nor has each report from each country been reviewed.  Please visit the OIE website for complete information.

USDA Animal and Plant Health Inspection Service (APHIS) Veterinary Services (VS) has restricted importation of certain avian commodities originating from some of these countries, including, e.g.,

The importation of poultry, commercial birds, ratites, avian hatching eggs, unprocessed avian products and byproducts, and certain fresh poultry products from the State of Victoria, Australia. Any of these commodities originating from or transiting through the State of Victoria, Australia are prohibited, based on the diagnosis of highly pathogenic avian influenza in domestic birds. APHIS had previously restricted all of Australia, effective July 24, 2020. This Alert is decreasing the size of the affected zone.

See Import Alert (Australia), issued on November 25, 2020.

Effective November 21, 2020, and until further notice, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) Veterinary Services (VS) is restricting the importation of poultry, commercial birds, ratites, avian hatching eggs, unprocessed avian products and byproducts, and certain fresh poultry products from Croatia.  Any of these commodities originating from or transiting through Croatia are prohibited, based on the diagnosis of highly pathogenic avian influenza in domestic birds.

See Import Alert (Croatia), issued on November 25, 2020.

Effective November 25, 2020, and until further notice, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) Veterinary Services (VS) is adding Fukuoka Prefecture, Japan, to the list of regions of Japan affected by HPAI. APHIS is restricting the importation of poultry, commercial birds, ratites, avian hatching eggs, unprocessed avian products and byproducts, and certain fresh poultry products from the Kagawa and Fukuoka Prefectures, Japan.  Any of these commodities originating from or transiting through Kagawa or Fukuoka Prefectures, Japan, are prohibited, based on the diagnosis of highly pathogenic avian influenza in domestic birds.

See Import Alert (Japan), issued on November 25, 2020.

At least one state veterinarian, Dr. Kevin Brightbill of Pennsylvania’s Department of Agriculture, is warning the poultry industry “to step up their biosecurity practices as East Asia and Europe report cases of a highly-pathogenic Avian influenza,” as reported in New Castle News.  See Avian influenza strain calls for flock protection.

The largest and most devastating animal health disaster in US history-occurred in December 2014 when a highly pathogenic avian influenza virus entered the US in migrating wild birds.

During that outbreak, federal and state governments spent $879 million on the outbreak response which impacted 21 states leading to the depopulation of more than 50 million birds on 232 farms and trade embargoes affecting over 200,000 farms, with a total cost of $3.3 B to the US economy.

Avian influenza viruses occur naturally in wild aquatic birds who serve as natural hosts (reservoirs) of the low pathogenic version of the virus.

They spread the virus to domestic poultry (chickens, turkeys), who if infected may be asymptomatic, or have mild clinical signs (ruffled feathers, decreased egg production).

The greatest concerns about this virus is its ability to mutate to a highly pathogenic version which could potentially infect people.  Thankfully, no such mutations have been reported in the recent outbreaks and there are no reports of human illness related to HPAI.

On November 19, 2020, the First Judicial Department, Supreme Court of the State of New York, Appellate Court heard oral argument, remotely, regarding the Nonhuman Rights Project’s (the “Project”) appeal of the dismissal of their habeas corpus petition filed to establish personhood status for Happy an elephant housed at the Bronx Zoo.  The purported purpose of the petition is to permit Happy transfer from the Bronx Zoo to an elephant sanctuary the Project believes will provide her with better housing.  According to the Project’s website, they seek “[t]he right to bodily liberty, ie. Not to be imprisoned [for their clients, currently chimpanzees and elephants] and (where relevant) the right to bodily integrity, i.e. not to be experimented on.”  See Nonhuman Rights Project Frequently Asked Questioned available at https://www.nonhumanrights.org/frequently-asked-questions/.

Interestingly, when the Justices expressed concern about the impact the grant of personhood status would have to Happy or other animals, particularly in light of amendments that would be required to a plethora of existing statutes related to animal protection.  In response, the Project stated that such rights may be more limited than the legal rights people have, and may not necessarily include the right to file lawsuits.  This appeared to bolster the Court’s concern and suggestion that the legislature was in a better position to consider this issue than the courts, also noting the large number of statutes that would be impacted by the grant of personhood status to Happy.

The Court also stated that the interested amici would be able to present their arguments and concerns to the legislature during relevant legislative hearings.

In a recap of the hearing posted on youtube, at 11/19/20 https://www.youtube.com/watch?v=C_ICw9DZlIw, a member of the Project stated that, if this appeal were denied, they would appeal to the Court of Appeals where they believe Judge Fahey is aligned with the Project’s position.

Time will tell.

 

On November 2, 2020, the Acting Director of the Division of Consumer Affairs in New Jersey issued DCA Administrative Order No. 2020-20, ordering,

Veterinarians are authorized to provide the full scope of veterinary services, including all urgent, non-urgent and routine veterinary services, and including spays and neuters, in an office setting, and shall comply with, and ensure that their staff comply with, the following requirements to: (1) avoid person-to-person contact with animal owners/clients (hereinafter “clients”); (2) facilitate social distancing within the office; (3) adopt enhanced office cleaning and disinfection; (4) establish rigorous protections for staff; and (5) stay informed about related developments and obligations.

The Order, encourages veterinarians to use telemedicine “to the greatest extent possible to triage patients and prioritize urgent visits.”  Curbside drop offs, which have been used by veterinarians since the start of the pandemic, continue to be recommended to minimize client-staff exposures.  Veterinarians have been deemed essential employees in New Jersey even during the State shutdown.

The bulk of the additional guidance in the Order is consistent with other public health guidance, including distancing, proper use of PPE, sanitation and cleaning, guidance to staff and clients about their health and avoiding exposure if they symptoms of illness, etc.

Of course, veterinarians are very familiar with infectious disease and relevant prevention and control, so I am certain they will be able to conduct business safely and continue to provide excellent care to their patients, and comfort to their clients.

According to AP news, Denmark has plans to cull its 15 million mink on all its mink farms, with promises to compensate farmers.  Producing 40% of mink for the world, a large number of mink farms in Denmark are or have been infected with the virus causing COVID-19 infection in people, and there are reports that the virus may have mutated in or around the farms, causing even more concern.

Here in the US, mink farms are largely regulated by state law and according to the Fur Commission USA, a national, non-profit association representing U.S. mink farmers, “most of the mink farms in operation today in the U.S. are third and fourth generation family farms.”

While some animal rights organizations are salivating over what they perceive as the potential to shutter mink farms forever, mink farmers have been committed to providing “the highest quality care for their livestock.’

Mink ranchers recognize that they have a responsibility to preserve and protect the land on which they work . . . The Fur Commission USA works in conjunction with other animal welfare groups to ensure that the latest and most up-to-date research on animal health and welfare is available to mink ranchers in a timely fashion.

Minks on farms in Utah, Wisconsin and Michigan have been infected with SARS-CoV-2, as reported by Greg Cima, AVMA, with at least 8,000 deaths reported in Utah alone.  According to Utah State Veterinarian Dr. Dean Taylor,

Death rates varied widely by farm, depending on the ages of the animals, Dr. Taylor said. The infections have been killing more than 40% of breeding flocks, yet the death rates remain low for younger minks, he said.

Infected farms have been quarantined, but so far, there are no reported mink depopulation plans.

Hopefully, effective vaccines for mink will be developed as they are being developed for people.

NJ Senate bill S1034 and sister bill A4399 would establish a “special, nonlapsing fund to be known as the ‘Compassion for Community Cats Fund” that would be funded in part by “moneys as may be appropriated by the Legislature.”

Before discussing the provisions set forth in these bills, one has to wonder if this is the appropriate time to consider such legislation—at a time when so many people and businesses are suffering from the economic impact of COVID-19.

That said, the issue of population control of feral cats, notably considered invasive species, is important.  However the proposed bills do not adequately address the harm to wildlife from these populations, or the potential spread of diseases to other animals, including people.

Field research conducted using sound research design and data collection techniques yielded statistically significant evidenced-based estimates that cats kill at least one billion wild birds each year in the US (including homed outdoor cats, free-roaming abandoned cats, and feral cats).  Free-roaming abandoned and feral cats also contribute to Toxoplasma gondii contamination of watersheds and local ecosystems, threatening wildlife and human health.

The emerging science and policy decisions surrounding SARS-CoV-2 necessitates focused consideration on the impact of human disease outbreaks or other disruptions to care and services provided to free-roaming abandoned and feral cats in future emergent events.

Furthermore, euthanasia of feral cats experiencing serious medical conditions must continue to be available as a tool veterinarians can use to ensure that humane end of life provisions are available when indicated.

There are at least two additional concerns in the proposed bills.

First, they seem to dilute the decades long Animal Population Control Program that has provided low cost sterilization of owned dogs and cats whose owners meet the eligibility requirements set forth by law (providing proof of low income).  The program is funded in part by local licensing requirements, fees collected for the NJ animal welfare license plates and as appropriated by the legislature.  However, these funds have historically been insufficient to provide for all requested sterilizations.  The addition of feral cat procedures to this oversubscribed program, will result in unintended consequences to the owned pets who should be sterilized to reduce unintended breeding.

Second, the bill would permit the commissioner of health to “contract with a nonprofit organization that is exempt from federal taxation pursuant to Section 501(c)(3) of the federal ‘Internal Revenue Code,’ 26 U.S.C. s.501(c)(3), for the administration of the Animal Population Control Program established pursuant to section 2 of P.L. 1983, c.172 (C.4:19A-1).”

A nonprofit organization is not the appropriate entity to administer the Animal Population Control Program.  Unlike the Department of Health, who has stated that they are neither in favor of or opposed to community care of feral cats, nonprofit organizations often have expressed a bias for or against such populations.  Instead, the Domestic Animal Companion Board that provides oversight of the Department of Health’s animal health programs and funding, should provide oversight to this program, if it is expanded as proposed.

Plaintiff Juliette Morizur and Plaintiff Kelly Nelson, along with other plaintiffs (at least one of whom dismissed his claims with prejudice, evidencing the sham nature of those claims) sued Sea World Parks and Entertainment, Inc. in 2015, claiming that they bought tickets to or bought a stuffed animal at SeaWorld because they allegedly relied on statements posted on SeaWorld’s website, including “SeaWorld did not separate calves from mothers”; “SeaWorld’s captive orcas had similar lifespans to those in the wild”; “collapsed dorsal fins are normal, and also equally common in the wild”; and “captivity in general does not harm orcas.”

On October 13, 2020, Hon. Jeffrey S. White, USDJ put an end to this sham of a lawsuit when he entered an order and separate judgment concluding that “Plaintiffs have failed to prove they have Article III standing to seek injunctive relief and fail to prove they have statutory standing to pursue their state law claims” and closed the case.

Standing has been a longstanding obstacle in many cases filed by animal rights organizations.  See, e.g., Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004); Naruto v Slater, 2016 WL 362231 (N.D. Cal. Jan. 28, 2016).

Here, the Court explained, in part,

Questions of Article III standing go to a federal court’s subject-matter jurisdiction.  In order to demonstrate Article III standing, Plaintiffs must show they: ‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, (3) that is likely to be redressed by a favorable judicial decision’ . . . In addition to restitution, Plaintiffs seek injunctive relief, and they must establish Article III standing for both forms of relief . . . (Internal and end citations omitted).

. . .

Plaintiffs must prove they have standing by a preponderance of the evidence.

. . .

Past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects.  Plaintiffs must prove that they have ‘suffered or [are] threatened with a ‘concrete and particularized’ legal harm . . . coupled with a ‘sufficient likelihood that [they] will again be wronged in a similar way’ . . . The latter inquiry turns on whether Plaintiffs face a ‘real and immediate threat of repeated injury’ . . . The threat of future injury cannot be ‘conjectural or hypothetical’ but must be ‘certainly impending’ to constitute an injury in fact for injunctive relief purposes.

The Court reviewed Plaintiffs deposition and trial testimony, and found them to be internally inconsistent, and “found that neither Ms. Nelson’s nor Ms. Morizur’s trial testimony that they, in fact intend to return to or purchase merchandise from SeaWorld is credible, the Court concludes they have not met their burden to prove they are faced with a real and immediate threat of an ongoing or repeated injury. Accordingly, Ms. Nelson and Ms. Morizur have failed to meet their burden to show they have Article III standing to seek injunctive relief on their claims.”

Standing has been a longstanding obstacle to plaintiffs, particularly in the animal rights arena.  It is unfortunate that it can take years for defendants to obtain sufficient evidence to dismiss such a suit, through costly discovery and motion practice, and after suffering irrevocable harm to their business.