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.

There have been two of the three scheduled listening sessions offered by APHIS seeking comments on regulations regarding the welfare of birds not bred for use in research.  A specific schedule for the promulgation, proposal and final adoption of these regulations as ordered by the D.C. Circuit in January 2020, in Am. Anti-Vivisection Soc’y v. United States Dep’t of Agric., 946 F.3d 615. The final listening session is scheduled on Thursday, October 15, 2020 at 5:00 p.m. EDT.

USDA provides for registration on its website:

                To register for the listening sessions and learn more about the comment process, please visit: https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/aw-news/bird-listening-sessions.

Are there appropriate performance-based standards we could establish across a wide variety of species of birds?  Can we use classes of birds to set performance-based standards appropriate for the class?  If so, what might these classes look like?

How do bird breeders avoid interfering with nesting and breeding or other biological activities of birds?   How can we ensure that housing, feeding, or inspection requirements do not interfere with these activities?

Should we revise or add exemptions for certain dealers, exhibitors, operators of auction sales, and carriers and intermediate handlers of birds not bred for use in research?  If so, what should those exemptions be?  Please provide supporting data if possible.

Are there thresholds beyond which an entity should not be required to be licensed?  For example, we are aware that there are many entities who breed small numbers of birds; if we should exempt those entities, what exemption criteria should we use?

Are there certain species which should be exempt?

During the first listening session, representatives from PETA and other animal rights organizations expressed concern about APHIS’s request for comments regarding potential exemptions, stating that no exemptions should be permitted.

If you have an interest or concern about the content of these regulations, you should participate in the process and submit verbal and written comments.

This Press Release, republished with permission, is available in Dutch, English, Finnish, French, German, and Spanish.

The International Partnership for Dogs (IPFD) is calling on stakeholder groups – including dog show enthusiasts, kennel and breed clubs, legislators, dog owners, veterinarians, welfare advocates – from all regions and countries to come together to address issues currently impacting the health, welfare, and breeding of dogs.

Our article, Reframing Current Challenges Around Pedigree Dogs: A Call for Respectful Dialogue, Collaboration and Collective Actions (also available in Dutch, Finnish, French, German, and Spanish), responds to a wave of recent legislative actions, especially in Europe. Although primarily focused on brachycephalic (flat-faced) breeds, regulations may eventually impact all pedigree and non-pedigree dogs.

“This is a call for each one of us to examine how our personal attitudes, attachments, and beliefs impact these discussions, says Dr. Brenda Bonnett, CEO, IPFD.  “And it is a call to work collectively for what is truly in the best interest of dogs and the people who care for them.”

A key part of IPFD’s mission is to encourage, initiate, and facilitate collaboration among key stakeholders in the dog world to enhance dog health, well-being and welfare, and support human-dog interactions. “IPFD is a multi-stakeholder, international organization,” says Dr. Pekka Olson, IPFD Chair. “And it is perfectly positioned to encourage and facilitate open, respectful dialogue and collective actions in the best interest of both dogs and people.” Many of today’s challenges have been part of discussions at and actions from IPFD’s International Dog Health Workshops. The new IPFD International Working Group on Extreme Conformation in Dogs is one such initiative.

IPFD has compiled extensive resources to advance the conversation called for in this article. Together with collaborators from various sectors, we are creating a roadmap for the future, i.e. to help us to Think Globally, Act Locally.

“While we understand and respect the differences in attitudes and realities in different regions and across stakeholder groups, we also know there is common ground and shared purpose,” Bonnett adds. “Everyone who has any interest in dogs, pedigree dogs, and the world of ‘dogs and people’ is encouraged to become engaged in addressing challenges. This article and accompanying resources will support this process.”

The International Partnership for Dogs (IPFD) is a non-profit organization leading a global, multi-stakeholder effort to address issues affecting dog health, well-being, and welfare. Our main platform is DogWellNet.com. Our people include a Board comprised of individuals with respected international reputations, and a small but committed team of consultants in several countries. Volunteers from our Partners and Collaborator organizations and a network of experts are integral to what we do.
Our Contributors, Partners, and Sponsors include national kennel clubs, international cynological organizations, groups with breed specific interests, educational/academic and professional organizations, and key players in the pet industry. Together we foster collaborative action to achieve our shared goals, support human-animal interactions, and benefit all dogs worldwide.

For More Information:
Follow developments and find further resources on DogWellNet.com and learn about the IPFD.

Contact article author, Dr. Brenda N. Bonnett, CEO, IPFD, at Brenda.Bonnett@ipfdogs.co

The bill that provides for an advocate in criminal cases in New Jersey, concerning the welfare of care of animals has been reintroduced as A 4533 with additional language which renders it even more problematic for animal owners than before.

A preamble was added as Section 1, stating

  1. The Legislature finds and declares that animals are sentient beings capable of experiencing pain, stress, and fear. It is the policy of New Jersey that, in order to protect animals from experiencing pain, stress, or fear at human hands, animals are to be treated humanely. For that reason, animals shall be considered the victims of animal cruelty crimes and shall be treated as such in a court of law. (Emphasis added).

If this bill passes, the state should expect to see cases filed on behalf of animals as animal cruelty victims who are legal persons at least with respect to their rights under the animal cruelty law, the argument Plaintiff and Appellant have used in Justice v. Vercher, No. A169933 (Washington Co. Cir. July 8, 2019).

In an Amicus Brief filed by law professors in Justice v. Vercher, No. A169933 (Washington Co. Cir. July 18, 2019), they state that “[t]he Oregon Supreme Court [which] has construed Oregon anti-cruelty laws as defining animals (not their owners), as victims of crime.”  (Animal Law Professors Amicus Curiae Brief, p. 8).  The Oregon statute cited describes animals as sentient being capable of experiencing pain, stress and fear.  Id., at pp. 6-7 (citing ORG 167.305).

The amendments to proposed A 4533 expressly include both statements-that animals are sentient beings and that animals shall be considered the victims of animal cruelty crimes, in an apparent attempt to create a stronger argument that in such cases, they would be considered legal persons.  As Professor Richard Cupp stated, discussing concerns about the elevation of animals to persons,

[i]f courts adopted this radical animal legal personhood theory, it could lead to personhood arguments ostensibly on behalf of hundreds of millions or perhaps even billions of other animals as potential plaintiffs, and could allow animal rights activists to flood the courts with a huge volume of lawsuits asserting to represent the new legal persons. Further, if animal legal personhood were accepted in this context, litigation would doubtless quickly spread to lawsuits challenging biomedical research on such ‘persons,’ any commercial use of such ‘persons,’ and pet ownership of such ‘persons.’  Justice v. Vercher, No. A169933 (Washington Co. Cir Nov. 12, 2019) (Professor Richard L. Cupp Jr Amicus Brief at p. 6.).

In addition to these real concerns about the results of the potential consequences of the adoption of A 4533, adding an additional advocate for animals in cases of animal cruelty is not needed in New Jersey.    County prosecutors, and municipal prosecutors if assigned, are already charged with that duty.

An animal cruelty prosecutor shall:

  1. promote the interests of, and protect and care for, animals within the county L.2017, c. 331, § 31, eff. Aug. 1, 2018, NJSA 4:22-14.7 (a)

Each county prosecutor shall:

(1) designate any municipal or county prosecutor as the animal cruelty prosecutor of the county, and may designate any assistant animal cruelty prosecutor as needed, who shall investigate, prosecute, and take other legal action as appropriate for violations of any provision of article 2 of chapter 22 of Title 4 of the Revised Statutes, and who may serve in such capacity on a part-time basis if the responsibilities of the position allow.  L.2017, c. 331, § 28, eff. May 1, 2018.

This bill will not benefit animals since the protection of their rights not to be treated cruelly is already invested in prosecutors.  This will only benefit advocates who want to advance the rights of animals as persons.

On July 15, 2020, the United States Court of Appeals, Fifth Circuit, filed its decision, holding that “dives made by aquarium staff members to feed animals housed at aquarium and to clean the facility’s tanks qualified as “scientific diving” within [the] meaning of [the] exemption,” and reversing OSHA’s order finding the opposite which was affirmed by an Administrative Law Judge.  Houston Aquarium, Inc. v. Occupational Safety and Health Review Commission, 965 F. 3d 433 (5th Cir. 2020).

The Court reviewed the relevant exemption as a matter of first impression.   It agreed with Houston Aquarium, that the dives in question met the regulatory definition of scientific diving.  OSHA’s safety requirements for diving employers includes standards for Commercial Diving Operations (CDO).  The CDO

‘applies to diving and related support operations conducted in connection with all types of work and employments, including general industry, construction, ship repairing, shipbuilding, shipbreaking and longshoring.’  29 C.F.R. § 1910.401(a)(2).

But there is an exemption to the CDO standards for “any diving operation … [d]efined as scientific
diving and which is under the direction and control of a diving program’ that includes a diving safety manual with minimum safety procedures and a controlling diving safety board.”

Scientific diving is diving performed solely as a necessary part of a scientific, research, or educational activity by employees whose sole purpose for diving is to perform scientific research tasks.  Scientific diving does not include performing any tasks usually associated with commercial diving such as: Placing or removing heavy objects underwater; inspection of pipelines and similar objects; construction; demolition; cutting or welding; or the use of explosives.

OSHA, affirmed by an Administrative Law Judge focused only on the first part of the definition of “scientific diving” and found that the aquarium’s dives and found that the feeding and cleaning dives performed by aquaria staff did not fall within the exemption.

The Court, reviewing the facts about the dives in question in light of the entire definition of “scientific diving” found,

the activities performed during the feeding and cleaning dives fall within the plain text of the exemption. During feeding and cleaning dives, divers perform tasks such as scrubbing the exhibit windows free of algae, siphoning the gravel at the bottom of exhibits, and feeding the animals. Divers testified that one focus of cleaning dives is removing aiptasia, a genus of sea anemone that reproduces quickly and can ‘overrun’ the exhibits if not handled correctly. They also testified that if an animal needs to be captured or observed more closely, this would be done during a feeding or cleaning dive. The Aquarium’s expert witness Smith testified that during all Aquarium dives, including feeding and cleaning dives, the divers ‘are required to make observations of animal health, animal behaviors, the type of food they’re eating, the type of algae that grows on the windows, [and] the condition of the exhibitory,’ all of which Smith classified as the collection of data.

This is good news for aquaria, while not binding in other circuits, especially since OSHA has prohibited certain activities in other aquaria-related settings.

 

USDA published proposed Rule 85 FR 18471 on April 2, 2020 that would,

amend the animal disease regulations to provide for a National List of Reportable Animal Diseases, along with reporting responsibilities for animal health professionals that encounter or suspect cases of communicable animal diseases and disease agents. These proposed changes are necessary to streamline State and Federal cooperative animal disease detection, response, and control efforts. This action would consolidate and enhance current disease reporting mechanisms, and would complement and supplement existing animal disease tracking and reporting at the State level.

USDA received 50 comments from individuals and the following organizations and agencies:

American Veterinary Medical Association*, The National Pork Producers Council, The American Association of Swine Veterinarians, The Swine Health Information Center, American Academy of Veterinary and Comparative Toxicology, American Association of Zoo Veterinarians*, American Board of Veterinary Toxicologists, Association of Fish & Wildlife Agencies, American Sheep Industry Association, California Department of Food & Agriculture, National Assembly of State Animal Health Officials*, National Association of State Departments of Agriculture, National Cattlemen’s Beef Association, Northeast Association of Fish & Wildlife Agencies, Inc., New Hampshire Department of Agriculture, Markets & Food, United States Fish and Wildlife Service, Wyoming Livestock Board, and North America Independent Reference Laboratories.

While these commenters all acknowledged the importance of accurate and “immediate” notification to effectuate adequate and timely response, but concerns about APHIS’ proposed rule include:

  1. Mandatory reporting requirements by individuals and entities that are not veterinarians, and therefore, according to some commenters not adequately trained to diagnose animal diseases. For example, the rule would require a laboratory to report a “confirmed case” based merely on a test result.  The North America Independent Reference Laboratories commented that veterinarian should be responsible for diagnosis/reporting under a veterinary client-patient relationship.  Specifically, this commenter noted that “an accurate diagnosis of disease cannot be made without a physical exam of the animal(s), evaluation of health/exposure history, vaccination status of the animal(s), non-infective environmental exposure vs. actual infection/disease, etc.”
  2. Providing a definition of “immediate reporting,” for example, as “within twelve (12) hours of a suspected FAD or knowledge of diagnostic testing results.”
  3. How would USDA protect the confidentiality of information reported?
  4. How the federal rule would impact existing state laws mandating reporting to the state?

The issues of greatest concern include the expansion of mandatory reporting requirements from accredited veterinarians, to the proposed list of animal health professionals with the training that would be required.  This expansion devalues the importance and role veterinarians play in protecting their patients, clients and the public from infectious diseases.

Also, because such reporting would likely result in false positive results, the consequences of such reporting would unnecessarily and negatively impact livestock producers and markets that would be prohibited from exporting animals and products from impacted states or the region or country as a whole.

Finally, even if the rule were to include confidentiality provisions, courts would ultimately determine whether the information can be protected when challenged by anyone making a request through the Freedom of Information Act.  USDA has had significant experience defending its actions in response to such legal challenges.

USDA has reopened the comment period, but it is now set to close August 21, 2020.

 

 

*I am either currently or was previously a member of these associations.