Two articles were published about dogs (and cats) in the New York Times on September 4, 2019, that describe, in part, varying positions of a complicated issue-spay and neuter of pets in the United States—“Spaying, Neutering and Rescuing Lead to Drop in Pet Euthanasia” by author Alicia Parlapiano and “Dogs Are Not Here for Our Convenience” by Alexandra Horowitz.  Ms. Parlapiano describes the decreased euthanasia rates across the country attributable—at least in part—to voluntary spay and neutering programs and increases in adoptions from shelters and rescue organizations.

As previously discussed, beginning with the voluntary spay and neuter program instituted by the Maine Department of Agriculture decades ago, most states in the North East and other locations have significantly reduced the number of dogs roaming the streets resulting from irresponsible dog breeding.  There are some pockets in the country, where there are populations of stray and roaming dogs.  As Ms. Parlapiano reported, after a tragic and fatal dog attack in Dallas in 2016, consultants “determined that there were about 8,700 loose dogs roaming in the city that year.  The dogs were almost exclusively found in low-income South Dallas neighborhoods.”

Importantly, the consultants did not conclude that the dogs were purebred or purposely-bred dogs purchased from pet stores.  This false narrative has been used extensively by animal activists to convince lawmakers that pet stores are evil, the puppies they sell are sick and genetically flawed, and that they come from puppy mills.  All lies, but which have had their intended effect—ban sales of professionally and purposely bred dogs to people through pet stores.

Now that the vast majority of people are buying, aka adopting, dogs through shelters and rescues, the continued existence of the amazing number of dog breeds is imperiled.  A recent study, published by INDEPENDENT, titled “Humans have altered dogs’ brains, research finds” by Jason Bittel, reports that “selective breeding [of dogs] by humans has resulted in a single species with more physical variation than almost any other in the animal kingdom.  And now, scientists have provided the first evidence that all of this selective tweaking has not just changed dogs’ sizes, shapes, colours and behaviours.  It has also altered the way their brains are built.”If true, the behaviors of certain breeds that people find enduring and specifically desire in their family pet, may be lost if purposefully-bred dogs were entirely replaced by randomly, irresponsibly-bred dogs that end up in shelters and rescues.

Ms. Parlapiano also reported on two increasingly important issues affecting pets that are subject to shelter and rescue environments: (1) that there is a significant lack of uniform data to track the movement of animals through these international, national and local systems—often unregulated (my contribution); (2) the increased scrutiny of euthanasia rates in shelters, results in movement of animals from facility to facility—which may be detrimental to each animal’s health and welfare (also my contribution).

But the overarching observation that spay and neuter programs have led to decreased euthanasia of animals in shelters, is questioned in the other dog-related article published in the same edition of the Times—“Dogs Are Not Here for Our Convenience,” an op-ed by Alexandra Horowitz which will be discussed in a subsequent blog.

On Wednesday, August 21, 2019, the U.S. Department of Transportation published a “Final statement of enforcement priorities regarding service animals.”  84 FR 43480-01, 2019 WL 3934886 (F.R.).  Unfortunately, as several associations commented, the language in this “guidance document” creates more not less confusion regarding what is legally identifiable a “service animal.”

This final statement followed an interim statement (published on May 23, 2018) and an advance notice of proposed rulemaking (ANPRM) seeking comment on amending the Department’s Air Carrier Access Act (ACAA) regulation on the transportation of service animals (published on May 23, 2018).

As several commenters stated, these publications conflate the ADA service animal and emotion support animals as “service animals” instead of differentiating the use of these animals, as legally recognized, as (1) service animals permitted pursuant to the ADA (dogs and miniature horses, trained to address an individual’s disability); and (2) those used commonly as emotional support animals (no specific training is required).  The agency stated “the most commonly recognized service animals (i.e., dogs, cats, and miniature horses) are accepted for transport.”

The agency defines service animals to include emotional support animals: Service Animals (Including Emotional Support Animals)

Under the Air Carrier Access Act (ACAA) a service animal is any animal that is individually trained or able to provide assistance to a person with a disability; or any animal that assists persons with disabilities by providing emotional support.

As the AVMA stated, emotional support animals, while beneficial to certain people, should not be categorized as service animals:

While the AVMA also recognizes the therapeutic benefits realized by those who legitimately utilize appropriately matched emotional support animals (ESAs), and has adopted policy accordingly (see https://www.avma.org/KB/Policies/Pages/Emotional-Support-Animals.aspx), we believe the ACAA’s implementing regulations should be amended to align with the ADA in that a service animal should be defined as an animal that is individually trained to assist a person with a disability. Emotional support animals provide therapeutic benefits that alleviate one or more identified symptoms or effects of an individual’s disability, or provide emotional support to a disabled individual who has a disability-related need for such support. An ESA may be a dog, a cat, or many other kinds of animal. The way in which support is provided by ESAs (via their presence) differs from that provided by service animals (via their actions), as does the training and acclimation these animals can be expected to receive. As such, ESAs should not be considered to be analogous to service animals.

Similarly, in combined comments from the Airlines for America and the International Air Transport Association, the associations described increased concerns about the increasing identification of emotional support animals from their customers, noting:

In recent years, U.S. airlines have encountered a surge in the number of passengers seeking to travel with service animals. From 2016 to 2017, the number of service animals (excluding emotional support animals (“ESAs”)) that U.S. airlines accommodated in cabin increased by nearly 24%. The number of passengers seeking to travel with ESAs (and psychiatric service animals (“PSAs”)), however, increased at a far greater rate: by 56% in just one year (from 2016 to 2017). As DOT noted, one U.S. airline experienced a 75% increase from 2016 to 2017. One A4A member airline has experienced a more than eightfold increase in the number of ESAs since 2012. In 2017, U.S. airlines accommodated more than 750,000 ESAs in cabin, which constitutes 73% of all estimated service animals transported.

. . .

In a directly related development, our member airlines have experienced a disturbing growth in the number of passengers with questionable claims of disability seeking to travel with animals that they suggest are necessary to provide “emotional support,” but which are not trained as service animals (or even trained at all to behave in public settings like aircraft or airports). These animals, which may include wild and/or untrainable species, often are unable to behave appropriately in a public setting, including within the confines of an aircraft cabin. This growth in the number of ESAs carried has been accompanied by a surge in the number of incidents involving animals manifesting aggressive behavior (including barking, biting, nipping, growling, and fighting) and uncontrolled urinating and defecating in cabin and in the airport terminal at locations other than service animal relief areas.

As previously discussed, there are well known, widely accepted and scientifically based theories about the human health and behavioral benefits of companion animal ownership.  See, e.g., “The human-companion animal bond: how humans benefit,” Friedmann E1, Son H, PubMed.gov.

Abstract

The human-animal bond is extremely important to most clients of small animal veterinary practices. Pet ownership, or just being in the presence of a companion animal, is associated with health benefits, including improvements in mental, social, and physiologic health status. This article provides the research data regarding the human health benefits of companion animals, animal-assisted therapy, animal-assisted activities, and assistance animals; reviews measures that can be taken to enable safe pet ownership for the immunocompromised, and discusses the veterinarian’s role in supporting immune-compromised clients and clients who have assistance animals.

Continued differentiation of ADA-service animals from others that provide support to humans must be advanced to ensure that those who are in need of such assistance are able to continue to rely on the animals that provide them with such assistance.

The Swine Health Protection Act (7 U.S.C. 3801, et seq.), enacted in 1980, regulates food waste fed to swine and helps ensure that it is properly treated to kill disease causing organisms.  According to USDA,

The Swine Health Protection Act (SHPA) regulates food waste containing any meat products fed to swine.  Compliance with this act ensures that all food waste fed to swine is properly treated to kill disease organisms.  Raw meat may transmit numerous infectious or communicable diseases to swine, including exotic animal diseases such as foot-and-mouth disease, African swine fever, and classical swine fever.  In accordance with the SHPA and Federal regulations, food waste containing meat may only be fed to swine if it has been treated to kill disease organisms.

This practice has long been touted as an environmentally friendly way to feed hogs.  See,  i.e., “Recycled food waste in pig diets can reduce environmental footprint,” published in NationalHogFarmer, April 19, 2018.

As evidenced most recently in Oklahoma, in the wake of concerns about the potential global spread of African Swine Fever, states have increasingly banned this practice—even though the laws mandate cooking to eliminate infectious agents before feeding.  The Oklahoma State Veterinarian stated that “[g]arbage feeding increases the risk of foreign animal disease transmission to the swine industry . . . Outdoor domestic swine generally do not have strong biosecurity or fencing.  This creates an increased risk for diseases to spread to the feral hog population as well.”  See “Swine garbage feeding to be prohibited in Oklahoma starting November 1,” posted 10:44 AM, September 5, 2019, by K. Butcher, updated at 11:21 AM, September 5, 2019.

Historically most swine operations feeding recycled food house hogs outside.  New Jersey, one of the states still permitting such practices (though use has declined significantly) requires compliance with strict provisions that keep animals and people safe.  See Subchapter 4. Swine Disease Control, which includes the following provisions:

2:2–4.1 USDA Swine Health Protection Act Adopted, Supplemented

2:2–4.2 Compliance with Statute and Rules for License Issuance

2:2–4.3 Minimum Floor Space

2:2–4.4 Drainage of Buildings

2:2–4.5 Facilities for Out-of-State Animal Shipments

2:2–4.6 Water Supply

2:2–4.7 Garbage Truck Specifications

2:2–4.8 Equipment for Certain Operations

2:2–4.9 Size and Construction of Vats, Containers and Covers

2:2–4.10 Thermometers

2:2–4.11 Period for Accomplishing Heat Treatment of Garbage

2:2–4.12 Holding Areas/Containers for Untreated Garbage

2:2–4.13 Fuel Supply

2:2–4.14 Facility for Temperature Determination and Inspection

2:2–4.15 Garbage Spillage

2:2–4.16 Garbage Feeding on Ground

2:2–4.17 Trash on Premises;  Storage;  Removal

2:2–4.18 Feeding Platforms 2:2–4.18 Feeding Platforms

2:2–4.19 Solid Waste Disposal

2:2–4.20 Liquid Wastes

2:2–4.21 Dead Animal Removal

2:2–4.22 Rodent and Insect Control

2:2–4.23 (Reserved)

2:2–4.24 (Reserved)

2:2–4.25 2:2–4.25 Premises Concentrating Swine for Public Sales Construed as Livestock Market

2:2–4.26 Quarantine of Premises Suspected of Hog Cholera Infection

2:2–4.27 Notice of Hog Cholera Illness

2:2–4.28 Removal of Swine Dead of Hog Cholera;  Construction of Trucks

2:2–4.29 Cleaning and Disinfecting Trucks

2:2–4.30 Investigation of Suspected Hog Cholera;  Access to Premises

2:2–4.31 Indemnity for Swine Destroyed by Hog Cholera

2:2–4.32 Swine Consigned to Livestock Markets

2:2–4.33 Quarantine of Swine After Sale

2:2–4.34 Disinfecting Following Sale of Swine

2:2–4.35 Indemnity of Infected Swine in Sale Market

2:2–4.36 Authority of Secretary of Agriculture or His or Her Agents

2:2–4.37 Swine Pseudorabies Vaccination

 

Feeding swine recycled human food predates the enactment of the Swine Health Protection Act, and the practice was expressly exempted from the prohibitions New Jersey tried to impose on Philadelphia— banning the importation of garbage—held invalid under the commerce clause in City of Philadelphia v. New Jersey, 98 S.Ct. 2531 (1978).

According to USDA, currently 22 states prohibit such feeding practices, but Oklahoma’s News 4 reported that Oklahoma would become the 24th state to ban the practice.

Regardless, this environmentally-friendly alternative appears to be on its way out.

A NJ bill just introduced would prohibit enforcement of provision in decedent’s will that would require euthanasia of healthy domestic companion animal.  See S4060 and sister bill A5691.

As used in this act:

(1) “Fiduciary” includes executors, general administrators of an intestate estate, administrators with the will annexed, substituted administrators, substituted administrators with the will annexed, guardians, substituted guardians, trustees, substituted trustees and, unless restricted by the subject or context, temporary administrators, administrators pendente lite, administrators ad prosequendum, administrators ad litem and other limited fiduciaries.

(2) “Domestic companion animal” means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law, for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes.

  1. Any provision in a will that directs the fiduciary to euthanize a healthy domestic companion animal is against public policy and is void and unenforceable.

As explained in the bill Statement, “[t]he bill was prompted by reports in March 2019 that a healthy Shih Tzu in Virginia was euthanized pursuant to her late owner’s will. Reportedly, a local animal shelter had offered to hold the dog for adoption, but the executor declined. The executor brought the dog to a vet, where she was euthanized.”

Courts in the Third Circuit have already held that provisions in wills requiring euthanization of healthy dogs was void against public policy.  See In re Capers Estate, 34 Pa. D. & C. 2d 121, 127 (Orphans’ Ct. 1964).  However, clearly, this is not always the case in all jursidictions.

If the intent of these bills is to provide for “pets” then the term “Domestic companion animal” should be amended to exclude “Domestic livestock” defined pursuant to section 1 of P.L. 1995, c. 311 (C.4:22-16.1).  This would avoid confusion about certain species like horses, defined as domestic livestock in NJ, but may not be used for business or agricultural purposes by certain owners.  If not provided for in testamentary instruments like wills or trusts, a stable may assume ownership of a horse if payment for board or other expenses ceases upon the death of the owner pursuant to the Stableman’s lien law (N.J.S.A. 2A:44-51).

The sponsors should also consider including amendments to N.J.S.A. 3B:11-38 (Trusts for care of domesticated animals), currently proposed as A1507 which clarifies provisions with regard to pet trusts.  If so amended, this bill would comprehensively permit pet owners to provide for their pets appropriately after they can no longer do so.

Reposted with permission from CHRISTINE ALVARADO. First published on Meatingplace.com on August 23, 2019. https://www.meatingplace.com/Industry/Blogs/Details/87218

 

One of my previous blogs on April 5, 2019, “The Pecking order in a Straight Run Barn” mentioned some work my colleagues were conducting to survey women leaders in science and agriculture.

The focus of this survey was to determine the barriers that exist for women moving into leadership roles. I received several email and comments asking about the results.  The research was presented this summer at a scientific meeting and the results are ready to share.

Even though the numbers of women in leadership roles in business and industry have increased, agriculture and science still have lower numbers of women choosing these professions.

Why is this topic and type of research important to the poultry industry?

We are in a huge retirement phase from both the poultry and allied industries, especially with managers, directors and the executive level. So, we are looking for great leaders as we face specific, unique challenges with meat quality and food safety.

In addition, the academic world is seeing more female degree-seeking students in agriculture and females have become the majority in some animal and poultry science degrees. Therefore, we need to better pave a road for females to engage in these leadership roles for the industry to continue to grow and succeed.

Women often experience issues related to work-life balance when assuming leadership roles. “Why” was one of the questions we were looking to explore with this study. Understanding the barriers to women assuming leadership roles is an important step in increasing the number of women in these roles specifically in science and agriculture in the future.

Although social norms may be changing regarding the extent to which spouses share household and parenting activities, studies have shown that women are primarily responsible for childcare and household work. In addition, even though more organizations are considering more family friendly policies, is this enough to entice more women into the leadership role in agriculture?

The respondents of this survey were 44 years old (average), married (68.3%), with children (63.3%) and were highly educated (63.3% having an MS or a PhD), and traveled for their current jobs more than 2-3 times per month (most actually travel a lot more than that).

The largest discrepancies between what women rated as “important” versus where they rated in “satisfaction” were the availability of leadership development and mentoring opportunities, and responsibilities to home and raising children.  The respondents surprisingly (to me) found a similar level of importance and satisfaction related to support from colleagues, spouses and future home obligations.

However, women felt “stressed”, “anxiety” and uncertainty” when contemplating a more demanding leadership role.  When identifying barriers, the top of the list were “family responsibilities”, “advanced opportunities”, “time” and “home responsibilities.

What can we do as a poultry industry?

We all need to talk about this topic much more in the workplace. Women often don’t speak up regarding their needs in order to climb the corporate ladder and men aren’t always at the table when this topic is discussed in the workplace.

As a final thought, women are way too tough with each other; we are each other’s harshest critics. We (as women) don’t all have the same wants and needs and we all don’t want to climb the ladder and that’s OK!  Someone must intentionally devote time to family responsibilities such as raising kids, taking care of aging parents, and other family responsibilities.

So, let’s all get on the same page and thank the men and women out there doing the intentional work and support the men and women climbing that ladder.

Dr. Christine Alvarado is currently a professor in the Department of Poultry Science at Texas A&M University. In addition to academic teaching and research, she has worked in the poultry industry and served as a subject matter expert for USDA’s Food Safety and Inspection Service.

People who observe Halal and Kosher religious practices are increasingly faced with a threat to the prohibition of such slaughter practices in certain countries.  Many Muslim and Jewish observers follow dietary religious laws if they eat meat.  Specifically, livestock and poultry must be slaughtered following strict rules, requiring that the animal is healthy at the time of slaughter and has not been rendered unconscious through stunning.[i]  Animal rights activists believe that such practices cause unnecessary suffering to animals and have advocated for prohibitions of such practices, in some cases successfully.  With the advent of lab meat (or in vitro meat), scientists and religious leaders are struggling to determine if this alternative can qualify as halal and kosher.[ii]

There are a number of European countries that do not allow the halal or kosher slaughter of animals without being stunned before the slaughter, but there are others who permit the practice for the amount necessary for consumption by the religious group.[iii]  Specifically, the Netherlands has passed laws to end religious slaughter altogether, as advocated by The Dutch Party for the Animals.[iv]  Despite the animal rights activists’ involvement, some European countries have a powerful history of anti-Semitism and anti-Muslim rhetoric.[v]  The religious minorities often view such regulations as an emulation of Adolf Hitler’s 1933 ban on the slaughter of animals in Germany without prior stunning, which prevented Jews in Nazi Germany from accessing acceptable kosher meat.[vi]

Many Rabbis and Islamic scholars have considered the question of whether prior stunning of the animal before slaughter is allowed under halal and kosher obligations.[vii]  The rabbis have reached a general consensus that stunning prior to slaughter is not consistent with Jewish doctrine, even under extreme situations, like that of Nazi Germany.[viii]  On the other hand, Islamic scholars have not come to a consensus about the topic; some accepting the practice if all the other conditions for halal slaughter are met, and others rejecting it because they believe it is against religious rules and creates problems for animals.[ix]  However, of the 500 million animals slaughtered annually for consumption in the Netherlands, about 1.6 to 2 million are used for halal meat, and only 3,000 are for kosher meat.[x] Thus, it is the Jewish community in the Netherlands that is facing the true challenge of finding necessary alternatives to kosher meat.[xi]

An alternative to halal and kosher meat in the Netherlands may be the world’s first test-tube beef burger, developed by biologist Mark Post of Maastricht University.[xii]  However, there are questions amongst Muslims and Jews about whether their faith allowed them to eat lab produced in vitro meat.[xiii]  In vitro meat is animal tissue cultivated from myoblasts cells that are mixed with the requisite proteins and fatty acids, and grown under lab-monitored conditions, allowing the donating animal to live.[xiv]  Thus, Jewish and Muslim scholars question whether such cultured meat is religiously acceptable.[xv]  One view is that the myoblast cells must be taken from animals considered halal, forbidding cells from pigs, dogs, or other impermissible animals.[xvi]  On the other hand, Rabbi Yuval Cherlow believes that even lab-grown pork would be kosher for consumption by Jews, as cloned meat is not subject to the rules of regular meat.[xvii]

Thus, despite the high cost of lab meat and unknown long-term effects on human health and the environment, this may be a viable alternative to those Muslims and Jews who live in countries where traditional religious slaughter has been banned.[xviii]

[i] Nina Siegal, New Slaughtering Rules Pit Dutch Religious Freedoms Against Animal Rights, N.Y. Times, Dec. 31, 2017, https://www.nytimes.com/2017/12/31/world/europe/netherlands-kosher-halal-animal-rights.html.

[ii] Id.

[iii] Library of Congress, Legal Restrictions on Religious Slaughter in Europe, March 2018.

[iv] Siegal, supra note 1.

[v] Id.

[vi] Library of Congress, Legal Restrictions on Religious Slaughter in Europe, March 2018.

[vii] Id.

[viii] Id.

[ix] Haluk Anil, Religious Rules and Requirements – Halal Slaughter, Dialrel, http://www.dialrel.eu/images/halal-rules.pdf, (last visited July 12, 2019).

[x] Siegal, supra note 1.

[xi] Id.

[xii] Reuters, Is the ‘Lab Burger’ Kosher or Halal?’ ‘Cultured Meat’ Sparks Questions on Religious Rules, HuffPost, August 9, 2013.

[xiii] Id.

[xiv] Thomas Billinghurst, Is ‘shmeat’ the answer? In vitro meat could be the future of food, Gulf News, May 02, 2013, https://gulfnews.com/going-out/restaurants/is-shmeat-the-answer-in-vitro-meat-could-be-the-future-of-food-1.1176127.

[xv] Id.

[xvi] Id.

[xvii] Toi Staff, Rabbi: Lab-grown pork could be kosher for Jews to eat – with milk, The Times of Israel, March 22, 2018, https://www.timesofisrael.com/rabbi-meat-from-cloned-pig-could-be-eaten-by-jews-with-milk/.

[xviii] Reuters, supra note 13.

 

Bunyad Bhatti is a summer associate in the firm’s Princeton office.

In this series of posts examining a recent challenge to North Carolina’s expansion of its Right to Farm Act, Rural Empowerment Ass’n for Cmty. Help v. State, No. 19-CVS-008198 (N.C. Super. Ct. filed June 19, 2019) (detailed here), today’s post considers the plaintiffs’ invocation of the relatively unknown, but not un-litigated, prohibition on “local and special laws” in the N.C. Constitution. N.C. Const. art. II, § 24. “The General Assembly shall not enact any local, private, or special act or resolution . . . [r]elating to health, sanitation, and the abatement of nuisances.” Id. Plaintiffs in the REACH complaint argue that the Act’s amendments constitute a “special law” because they were adopted “in response to a specific case and to existing circumstances at the time of their passage and designed to protect a special class or favored few.” Complaint at 37, Rural Empowerment Ass’n for Cmty. Help, No. 19-CVS-008198.

North Carolina courts have not yet analyzed whether a limit on punitive damages constitutes a “special law.” Nor is it clear how the Right to Farm Act amendments even relate to “issues of health, sanitation, and the abatement of nuisances,” at least as far as North Carolina courts have construed those terms. The Supreme Court of North Carolina has stated that courts must look to “whether, in light of its stated purpose and practical effect, the legislation has a material, but not exclusive or predominant, connection to issues involving health, sanitation, and the abatement of nuisances.” City of Asheville v. State, 369 N.C. 80, 103, 794 S.E.2d 759, 776 (2016).

There is also little guidance on how North Carolina courts interpret the meaning of a “special” act or resolution. Most of North Carolina’s jurisprudence has arisen on the “local” front, but North Carolina courts have treated the terms “local” and “special” seemingly interchangeably at times. When North Carolina courts have attempted to distinguish between “local laws” and “general laws,” they have applied a “reasonable classification” test, which distinguishes between local laws, which “discriminate[] between different localities without any real, proper, or reasonable basis or necessity,” and general laws, which “appl[y] to and operate[] uniformly on all the members of any class of persons, places or things requiring legislation peculiar to itself in matters covered by the law.” City of Asheville, 369 N.C. at 91, 794 S.E.2d at 768–69. Assumedly, the state’s courts would apply an analogous test (with altered language) to the question of what constitutes a special law with one possible conclusion being that “[a] law which applies generally to a particular class of cases is not a local or special law.” See Reed v. Howerton Eng’g Co., 188 N.C. 39, 123 S.E. 479, 481 (1924).

How the court treats this legal theory will be telling in how state legislatures can constitutionally encourage the growth of agricultural industries in their state. If the very fact that a law allegedly benefits a specific individual or entity makes it an unconstitutional special law, the state’s government would likely be severely constrained in attracting entrepreneurs to the state or maintaining the state’s growing economy. For example, the General Assembly has passed a law that allows business owners to sue for harm to their business if an individual fraudulently gains employment there in order to engage in an undercover investigation, which then goes public. The North Carolina Property Protection Act, N.C. Gen. Stat. § 99A-1 (2018). Would such a law, although textually aimed at generally protecting property rights across industries, be a special law because it also benefited the state’s agricultural operations, specifically the poultry industry? State lawmakers would have to ensure that no law benefited any entity over the other, even tangentially, a seemingly absurd proposition. Hopefully the court will clarify exactly what constitutes a “special law” and if the term has a meaning distinguishable from “local.”

Sean Placey is a summer associate in the firm’s Greensboro office.

Losing a pet can be hard for owners.  However, it can be even harder for those owners to know that they will be separated from their beloved pets in their final resting place.  In the U.S., households own about 89.7 million dogs and 94.2 million cats.[1]  When looking at total pet ownership, including horses, fish and other animals, that number is at almost 400 million “pets.”[2]  As sad as it may be, both these pets and their owners are destined to pass on eventually.  Owners may worry about what will happen to their pre-deceased pet’s remains when the inevitable happens and the owners themselves pass on.  They may also be concerned about where a pet that outlives them will be buried.

The solution to these concerns will ultimately depend upon the state of burial for the owner.  As of 2016, New Yorkers are allowed to be buried in certain cemeteries alongside the cremated remains of their pets.[3]  However, this requires that the human be buried in a not-for-profit cemetery that has consented to the pet burial on its grounds.[4]  This law also only allows the burial of cremated pets on cemetery grounds.[5]  While these requirements may be slight inconveniences, New York is far more permissive of owner-pet burials than many other states.

In New Jersey, while it is technically possible for pet owners to have their remains disposed of in their pet’s cemetery, as described below, it is much harder for a human to share their final resting place with their pet, since New Jersey does not allow pets to be buried in human cemeteries.[6]  For those pet owners who take the time to plan, the following options are available.

A person who elects to be cremated can have their ashes scattered in a pet cemetery containing their pet’s remains,[7] since human cremation is considered a final disposition.[8]  Alternatively, a person can be buried in a pet cemetery as long as the pet cemetery permits human remains to be buried in their plots.[9]  This takes a considerable amount of planning for the owner prior to their death, something that not all people either think about or are able to do.

Additionally, these alternatives are subject to other practical considerations that owners have to account for.  First, they need to consider the impact this decision may have on their surviving family members and the owner’s beliefs regarding an appropriate final resting place for themselves.  For example, some of the Jewish faith consider cremation, at the least, frowned upon, and most consider it prohibited.[10]  Second, there are different rules governing the maintenance and future uses of pet cemeteries, as opposed to strictly human cemeteries.[11]  Thus, those considering burial in a pet cemetery may have to consider whether they are comfortable with the knowledge their resting place may not remain final.

While there may be some solutions for New Jersey residents that wish to be buried with their pets, there is a considerable amount of planning and contemplation that must go into this decision, as compared to New York residents in the same position.

All pet owners concerned about these issues should consider including their desired options in their wills and/or trusts so that their wishes are followed to the extent they are legally valid.

[1] American Pet Products Association Inc.’s 2017-2018 National Pet Owners Survey & Demographic Sourcebook; AVMA 2016.  U.S. Pet Industry Spending Figures & Future Outlook.

[2] Id.

[3] N.Y. Not-for-Profit Corp. Law § 1510(n) (McKinney 2016).

[4] Id.

[5] Id.

[6] N.J.S.A. 45:27-2 (defining a cemetery as “land or place used or dedicated for use for burial of human remains, cremation of human remains, or disposition of cremated human remains”) (emphasis added).  Additionally, The New Jersey Cemetery Board, which is in charge of licensing and regulating non-religious corporation cemeteries, has stated that, based on this definition, “A cemetery, by definition may not accept pets, unless it is exclusively a pet cemetery.”

[7] Alex Nepoliello, Want to Be Buried With Your Pet?  In N.J., It’s Complicated, NJ.com (June 26, 2019), https://www.nj.com/news/2016/09/can_nj_residents_be_buried_with_their_pets.html.

[8] See N.J.S.A. 26:6-4.2 (including cremation among discussion of final disposition).

[9] There is no state prohibition on burying human remains on private property.  However, if it is deemed dangerous to public health, such a burial may be disallowed.  See N.J.S.A. 26:6-5.  Also, before burring a body on private property, local laws and rules should be consulted and a burial permit should be obtained.  N.J.S.A. 26:6-5.1.  See also Nepoliello, supra note 7.

[10] MJL, Jewish Views on Cremation, My Jewish Learning, https://www.myjewishlearning.com/article/judaism-on-cremation/ (last visited June 27, 2019).

[11] Compare N.J.S.A. 4:22A-5 (which can allow for the removal of a dedication of a pet cemetery by the pet cemetery owner if there is relocation of the remains and permission from heirs or assigns to relocate the remains) with N.J.S.A. 45:27 (making no provision for the removal of a dedication on a cemetery).

Carmella Campisano is a summer associate in the firm’s Princeton office.

In the ongoing controversy over a series of nuisance suits regarding eastern North Carolinian hog-farming operations, a collection of advocacy groups have now filed a constitutional challenge to the North Carolina General Assembly’s recent amendments to the Right to Farm Act (the “Act”) (detailed here) in Wake County Superior Court. Rural Empowerment Ass’n for Cmty. Help v. State, No. 19-CVS-008198 (N.C. Super. Ct. filed June 19, 2019).

The amendments to the Act protect North Carolinian agricultural and forestry industries operating in good faith. The statutory scheme’s text is broadly applicable to any agricultural or forestry operation that allegedly results in a nuisance and restricts punitive damages to those instances where the federal or state executive branches bring enforcement (civil or criminal) actions against the operation. N.C. Gen. Stat. §§ 106-701 to -702 (2018). The plaintiffs construe the 2017 and 2018 amendments as specifically and intentionally denying the recovery of punitive damages in the ongoing nuisance suits in violation of the North Carolinian (but not the Federal) Constitution.

Although the statutory text itself does not mention the ongoing nuisance suits, the plaintiffs argue that other legislative evidence indicates the true purpose of the statute, namely limiting plaintiffs’ recovery in the nuisance suits. Specifically, the plaintiffs rely on legislative floor discussions and the 2018 amendment’s statement that its passage was prompted by a recent federal trial court’s misinterpretation of North Carolina’s statutory nuisance scheme. According to the complaint, this violates North Carolina’s constitutional prohibition on “special act[s] or resolution[s] . . . relating to health, sanitation, and the abatement of nuisances,” along with North Carolina’s “law of the land” constitutional provision (comparable to the federal Due Process clause), and the constitutional guarantee of a jury trial.

This is not the first challenge to the constitutionality of limits on punitive damages in North Carolina. In Rhyne v. K-Mart Corp., the state’s Supreme Court analyzed whether the statutory cap on punitive damages to three times the compensatory damages awarded or $250,000 was constitutional. 358 N.C. 160, 594 S.E.2d 1 (2004), aff’g 149 N.C. App. 672, 562 S.E.2d 82 (2002). The plaintiffs in Rhyne brought a number of challenges similar to the plaintiffs here (e.g., law of the land challenge and right to jury trial challenge). The Rhyne court, among other things, upheld the punitive-damages cap, finding that it was a “modification of the common law within the General Assembly’s policy-making authority to define legally cognizable remedies” and that the General Assembly actually had “the power to abolish the recovery of punitive damages” in certain tort actions “because, unlike actual or compensatory damages, plaintiffs [have] no right to the recovery of those damages.” Id. at 170–71, 594 S.E.2d at 9.

This lawsuit threatens the stability of the state’s agricultural industry. Even beyond discussion of the common law and vested rights, the state government’s ability to control punitive damages plays an important role in economic growth. Although punitive damages can serve public policy by “punish[ing] intentional wrongdoing,” Rhyne, 358 N.C. at 166, 594 S.E.2d at 6, they can also be awarded with seemingly no consistency against parties engaging in similar behavior but whom juries fail to treat similarly. Theodore B. Olson, The Parasitic Destruction of America’s Civil Justice System, 47 SMU L. Rev. 359, 366 (1994) (“Punitive damages combine the worst elements of a lottery and a plague by combining little rhyme or reason for who is rewarded and who is punished.”). Such risk can often discourage entrepreneurs from entering in to industries that are prone to frivolous lawsuits, yet are still essential to a state’s economic growth, like extensive agricultural operations. Olson, supra, at 366 (“Because punitive damages are so freakish, capricious, and lottery-like, they discourage the responsible entrepreneur.”). The amendments to the Right to Farm Act, in limiting punitive damages, allow business entities involved in agricultural operations to conduct themselves accordingly, knowing the amount of risk they face by entering into an important state industry like hog-farming.

Plaintiffs’ legal theories have tenuous legal support, but, if accepted, could potentially threaten the day-to-day operations of many agricultural and forestry operations, as will be detailed in a follow-up post.

Sean Placey is a summer associate in the firm’s Greensboro office.

In recent years, farmers and ranchers have been increasingly targeted by animal rights groups trespassing on their properties, stealing farm animals, and other acts of vandalism. The frequency with which undercover animal rights groups infiltrate farms, ranches and other animal enterprises as undercover employees is increasing. In light of this increased activity, farmers and ranchers are searching for new ways to guard their property and protect their animals, especially after a breach of privacy. Although some state legislatures have attempted to regulate the release of video or photographs taken at an animal enterprise without permission, much related legislation has been successfully challenged on constitutional grounds.

For example, in Animal Legal Defense Fund, et al. v. C.L. Butch Otter and Lawrence Wasden, No. 1:14-cv-00104-BLW (D. Idaho Aug. 3, 2015), the court held that legislation which targets journalists or activists, who may be critical of animal enterprises, could violate the constitutional right to freedom of speech. While that ruling protects filming and the subsequent release of a video, there still may be legal remedies that farmers and ranchers can seek against those who enter their operation under false pretenses to harm their animals and business.

The Animal Enterprise Terrorism Act (AETA), 18 U.S.C. § 43, is a federal law that protects against the potential damage and harm caused by members of animal rights groups. The AETA prohibits individuals who have traveled in interstate or foreign commerce, or used or caused to be used the mail or any facility of interstate or foreign commerce, from damaging the property of an animal enterprise, or intentionally putting the owner of an animal enterprise in fear of death or serious bodily injury. An individual found guilty pursuant to the AETA faces a range of penalties, including fines and imprisonment depending on the severity of harm and economic damage caused.

Can farmers and ranchers use the AETA to prosecute those individuals who knowingly accepted employment of an animal enterprise for the purpose of harming that business and the animals therein? To succeed with an AETA claim, farmers or ranchers would have to demonstrate the damage to the animals, 18 U.S.C. § 43(a)(2)(A), or show how undercover employees interfered with or conspired to interfere with the operation. 18 U.S.C. §§ 43(a)(2)(B),(C).

Until these questions are explored in a court of law, best practice on any animal enterprise to prevent loss, damage or harm to animals, equipment and other property is always to thoroughly screen employees and ensure that they are properly trained and supervised.

Sarah Philips is a summer associate in the firm’s Princeton office.