Originally posted on July 9, 2018 at NAIA Official Blog, reposted with permission.

More troubling news from the wild world of rescue import has been picked up by the Worms & Germs blog : a rescue dog with a known history of chronic health issues is imported into a private U.S. shelter from Thailand and tests positive for Melioidosis, a nasty zoonotic bacterial disease. This discovery leads to several potentially exposed people receiving blood tests (one showed signs of exposure, but none got sick), and ultimately the euthanasia of the dog.

Melioidosis is bad news

 

The plea for common sense from Worms & Germs author, Scott Weese (Ontario Veterinary College – University of Guelph), could have been written by us:

 

Logical importation practices are needed. How much time and expense went into shipping a paralysed dog transcontinentally from one shelter to another, when it was ultimately euthanized in the end anyway? I realize everything is done with good intentions, but thank about what could have been done for local homeless animals with the time, effort and expenses that were incurred here.

 

Dr. Weese generously labels the shelters and importers as well intentioned. But honestly, there must be a point where, when operations are carried out with such casual disregard for the health of shipped and local dogs (and adopters), where intentions can not be labeled as “good” — or at the end result is so damaging as to make intentions irrelevant.

 

Rescue importation, fueled by a lack of adoptable local dogs in many parts of the U.S. and the power of social media, has grown by leaps and bounds over the last two decades while U.S. dog import laws have not been updated since 1956. As a result, we are seeing dogs arrive here with everything from canine brucellosis, rabies, and the canine flu, to parasites and other vector-borne diseases. These are very serious issues, which is why NAIA has been working to modernize dog import laws for the last several years.

For more information, contact Patti Strand, NAIA President, at naia@naiaonline.org.

 

 

On July 1, 2018,  bill S2820 was introduced in the New Jersey Senate that would direct the NJ Department of Health to “adopt dog breeding standards; prohibit . . . dog breeding without {a] USDA license; and [require] compliance with DOH standards.”

Notably, there is no sister bill, and because of the fatal flaws in the bill, described in part below, it will hopefully be fated for a timely death to join other similarly flawed bills.

The most egregious flaw with this bill is the provision that would make it “unlawful to breed any dog . . . without the appropriate, current United States Department of Agriculture license for the breeding of a dog required pursuant to the federal ‘Animal Welfare Act,’ 7 U.S.C. s. 2131 et seq. . . . “

A USDA license for a dog breeder is only available for a breeder who qualifies for such as license, which is currently limited to a breeder with more than four breeding females.  Voluntary licensure for dog breeders with four or fewer breeding females is not available.  Congress, through the Animal Welfare Act, identified dog breeding as a commercial enterprise that effects interstate commerce whether conducted solely in state or out of state, and therefore required federal oversight.  As expressly state in the Congressional Statement of Policy:

The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order—

(1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment;

(2) to assure the humane treatment of animals during transportation in commerce; and

(3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen.

7 U.S.C. §2131

The interstate pet market, as identified in the Animal Welfare Act, includes dealers who are breeders, wholesalers (middlemen), retail pet stores, some of which are exempted from licensure because USDA has determined that they do not require oversight through licensing since either the public sees the animals directly (pet stores and shelters who sell face to face) or they exceed the care required without licensing (breeders with 4 or fewer females).

Any State (or a political subdivision of such State) may promulgate standards in addition to those standards promulgated by the Secretary under paragraph (1) of Section 2143 of the AWA, which states “the Secretary shall promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.”  But, a State cannot simply ban dog breeders who do not qualify for licensure under the AWA.

The other blatant error in this proposed bill is dog breeding is already regulated by the DOH in New Jersey.  N.J.S.A. 4:19-15.1 defines “kennel” as “any establishment wherein or whereon the business of boarding or selling dogs or breeding dogs for sale is carried on except a pet shop (emphasis added).

“Any person who keeps or operates or proposes to establish a kennel, a pet shop, a shelter or a pound shall apply to the clerk or other official designated to license dogs in the municipality where such establishment is located, for a license entitling him to keep or operate such establishment.”  N.J.S.A. 4:19-15.5.

There are additional statutory and regulatory requirements for such kennels, enforced by the local health department, the DOH, and the State Board of Veterinary Medical Examiners.  See, e.g., Requirements for Disease Control and Health Care Programs for New Jersey Kennels, Pet Shops, Pounds and Shelters, May 2016; see also, N.J.A.C. §§8:23A-1.1 -1.13 (Animal Facility Operation)

Therefore, the requirement for DOH to “develop standards for the appropriate breeding of dogs in commercial and residential settings” is superfluous, unnecessary and redundant.

Assemblyman Daniel R. Benson introduced a bill (A4298) that would amend “animal cruelty offenses and penalties concerning animal abandonment and failure to report injuring certain animals with a motor vehicle; increases civil penalties for certain other animal cruelty offenses.”  Like so many bills in New Jersey related to animal issues, including another misguided, S2820 to be discussed later, A4298 would subject many livestock owners, including horse owners, to liability under the law, even though their animals are properly cared for.  Many of these proposed amendments are not consistent with the requirements in the “Humane Treatment of Domestic Livestock,” (the “Humane Standards”), N.J.A.C. §§2:8-1.1 et seq. which the legislature mandated for “domestic livestock,” defined as “cattle, horses, donkeys, swine, sheep, goats, rabbits, poultry, fowl, and any other domesticated animal deemed by the State Board of Agriculture and the Department of Agriculture, in consultation with the New Jersey Agricultural Experiment Station, to be domestic livestock for such purposes.”  N.J.S.A. 4:22-16.1 (c).

The Humane Standards provide for feeding, watering, keeping, marketing and sale, and care and treatment of livestock, based on animal science and veterinary medicine.  There is a rebuttable presumption that “the raising, keeping, care, treatment, marketing, and sale of domestic livestock in accordance with the standards . . . shall not constitute a violation of any provision of this title involving alleged cruelty to, or inhumane care or treatment of, domestic livestock.”  N.J.S.A. 4:22-16.1 (b)(1).  However, when both the statute and regulations were enacted, the Humane Standards were consistent with the statutory provisions, including the definition and provisions related to “necessary care.”  If the statutory provisions of “necessary care” require care inconsistent with and in excess of those required by the Humane Standards (which would occur if A4298 became law), the rebuttable presumption may not be applicable.

This issue is compounded by three major factors:

  1. Those enforcing animal cruelty statutes often believe (erroneously) that any time an animal is injured or becomes sick, the owner or caretaker is at fault and liable under the animal cruelty statutes;
  2. Those enforcing animal cruelty statutes are often inadequately trained in animal care, particularly care involving livestock;
  3. Animal activist groups, opposed to animal use by humans, increasingly target law makers and enforcers, providing them with biased, non-scientifically sound, misleading and inaccurate information and proposed statutory language intended to ban the breeding, sale, and use of animals.

Concerns about A4298 relate largely to the amendments of the definition of “necessary care” described below:

The bill would amend the definition of “necessary care” to provide for “care sufficient to preserve the health and well-being of an animal . . . including:

(2)          open or adequate access to drinkable water of an appropriate temperature* in sufficient quantity and quality to satisfy the animal’s needs;

(3)          access to adequate protection from the weather, including access to an enclosed non-hazardous structure sufficient to protect the animal from the weather that has adequate bedding to protect against cold and dampness, and adequate protection from extreme or excessive sunlight and from overexposure to the sun, heat and other weather conditions;

(4)          veterinary care deemed necessary by a reasonably prudent person to prevent or relieve injury, neglect or disease, alleviate suffering, and maintain health; and

(5)          reasonable access to a clean and adequate exercise area.

Taken one by one, here are the concerns:

  1. What does “open” access to drinkable water mean?

Livestock, including horses, must be provided “daily access to water in sufficient quantity and quality to satisfy the animal’s physiologic needs as evidenced by the animal’s hydration status.”  N.J.A.C. 2:8-2.3.  However, animals do not require access to water 24/7, if that is what the definition of “open” access to water means.

  1. The requirement to provide water “of an appropriate temperature” is unnecessary and can lead to unfounded charges of animal cruelty.

The Humane Standards already require the provision of water of sufficient quality which “refers to the acceptability of water sources for animal consumption with response to the presence of contaminants, accessibility and quantity.  Acceptable water quality means that the water is provided in ways that minimize contamination by urine, feces and other material but is accessible to the animals.  It may be provided from natural sources or manmade containers and must be sufficient quantities to prevent dehydration.  Signs of dehydration include sunken eyes, increased capillary refill time of the gums, and/or skin that tents when pinched.  Human standards for potability are not required but there should not be contaminants present in amounts that discourage the animals from drinking adequate amounts.”  N.J.A.C. 2:8-1.2.

Adding a requirement related to the temperature of the water is unnecessary, vague and ambiguous.  Prior attempts to check water temperature have placed livestock in harm’s way.  Agents or officers of the NJSPCA used to attend 4-H fairs regularly and, going livestock pen to livestock pen, would dip their hands in water buckets to “test” the temperature.  Not only was this a completely unscientific method to measure the adequacy of hydration of animals, it presented a huge biosecurity risk through the intentional introduction of potential pathogens from bucket to bucket.

  1. The bill would also require “access to an enclosed non-hazardous structure sufficient to protect the animal from the weather that has adequate bedding to protect against cold and dampness,” a provision that is inconsistent with the Humane Standards.

Each species-based section of the Humane Standards includes provisions relating to housing requirements, which expressly does not require housing in a “non-hazardous structure.”  It does require:

(a) The animal’s environment must provide relief from the elements, such as excessive wind, excessive temperature and excessive precipitation, that result in hyperthermia or hypothermia detrimental to the animal’s health.

(b) Relief under (a) above can be accomplished with natural features of the environment including, but not limited to, trees, land windbreaks, overhangs, or other natural weather barriers or constructed shelters.  N.J.A.C. 2:8-2.4.

  1. The bill would also require animal owners to provide veterinary care deemed necessary by a reasonably prudent person to prevent or relieve injury, neglect or disease, alleviate suffering, and maintain health.

Such provisions could expose any animal owner to liability if they failed to prevent diseases for which vaccines or other preventive treatments are available, but were not administered.  This is not consistent with the basic tenors of veterinary medicine, which requires consideration of the needs of each animal, based on their risk exposure.  The American Animal Hospital Association’s Canine Vaccination Guidelines, for example, states:

Not all dogs need every vaccine. Your veterinarian will ask you questions about your dog’s lifestyle, environment, and travel to help tailor the perfect vaccination plan for him. AAHA’s Lifestyle-Based Vaccine Calculator uses factors such as whether your dog visits dog parks, groomers, competes in dog shows, swims in freshwater lakes, or lives on converted farmland to help you and your veterinarian develop your dog’s individualized vaccination plan.

There are “core” and “noncore” vaccines. Vaccinations are designated as either core, meaning they are recommended for every dog, or noncore, which means they are recommended for dogs at risk for contracting a specific disease. However, your veterinarian may reclassify a “noncore” vaccine as “core” depending on your dog’s age, lifestyle, and where you live—for instance, in a region like New England where Lyme disease is prevalent, that vaccine may be considered “core.”

  1. The bill would also require reasonable access to a clean and adequate exercise area.

This is inconsistent with provisions in the Humane Standards that permits housing in caged systems, stabling of horses, etc.

Significant amendments to A4298 and sister bill S2159 are required to allow for the continued existence of animal agriculture and other animal businesses in the State of New Jersey.

 

*Underlined text are proposed amendments.

Recent amendments governing the transportation of agricultural commodities, including livestock, aquaculture and insects, have elicited concerns from cattle, hog, sheep, horse, bee and aquaculture producers, since the time restrictions on transport without rest for the truck drivers would literally stop livestock haulers in their tracks, creating hazards for their live cargo.

These concerns were described on the webpage of the National Cattlemen’s Beef Association:

The ELD enforcement date and existing hours of service (HOS) regulations pose significant consequences for the livestock industry. Current federal law limits on-duty time to 14 hours, with a maximum drive time of 11 consecutive hours. The driver must then rest for 10 consecutive hours before returning to duty.  For the great majority of the trips made by our livestock haulers, this is simply not enough drive time to accommodate the realities of hauling live animals across the country. Research also demonstrates that repeated loading and unloading of animals creates stress, harming the livestock as well as endangering the hauler.  Unfortunately, the impending December 18, 2017 electronic logging device (ELD) enforcement date and existing hours of service (HOS) rules may force small business owners out of the marketplace while also having the unintended impact of decreasing driver safety, and jeopardizing the wellbeing of hauled animals if they can no longer be hauled by highly skilled and trained drivers/stockmen.

To address some of these “unintended consequences” the Federal Motor Carrier Safety Administration (FMCSA) recently announced the publication of a guidance document, also published as a rule (83 FR 26374, pp 26374-26377) to:

clarify the applicability of the ‘Agricultural commodity’ exception in the ‘Hours of Service (HOS) of Drivers’ regulations.  This regulatory guidance clarifies the exception with regard to: drivers operating unladen vehicles traveling either to pick up an agricultural commodity or returning from a delivery point; drivers engaged in trips beyond 150 air-miles from the source of the agricultural commodity; determining the ‘source’ of agricultural commodities under the exemptions; and how the exception applies when agricultural commodities are loaded at multiple sources during a trip.

This is the latest of several attempts to clarify the rule as it relates to the transportation of agricultural commodities, including livestock and insects, since its adoption.  Notably, the Electronic Logging Devices are not required for livestock transporters until September 2018.

FMCSA previously published guidance documents at the end of May 2018, including Agricultural Exceptions and Exemptions to the Federal Motor Carrier Safety Administration Hours of Service (HOS) and Commercial Driver’s License (CDL) Rules and Regulatory Guidance: Transportation of Agricultural Commodities including Livestock. 

“This regulatory guidance clarifies that the following operations are not subject to the Hours-of-Service Regulations while operating within 150 air-mile radius of the source of the commodity:”

Drivers operating unladen vehicles traveling either to pick up an agricultural commodity, as defined in 395.2, or returning from a delivery point; and

Drivers engaged in trips beyond 150 air-miles from the source of the agricultural commodity are not subject to the hours of service regulations until they exit the 150 air-mile radius.

The guidance also clarifies that when agricultural commodities are loaded at multiple sources during a trip only the first loading point can be considered a source, which results in an ongoing concern about how these regulations restrict livestock haulers from loading and delivering livestock without interruption.

To fix some of the unaddressed issues with the law, on June 26, 2018, as reported in a press release on Senator Deb Fischer’s (R-Neb.) website, “[a] bipartisan group of 24 senators . . . filed an amendment to the farm bill that would provide an hours of service exemption for certain agriculture transporters, including livestock haulers, which would provide greater flexibility to operators throughout the country.”

The amendment ‘would ensure that the exemption for operations within a 150 air-mile radius from the source of an agricultural commodity applies year-round and does not vary from one state to another for certain months of the year.  The exemption currently applies to the planting and harvesting period, as determined by each state.  It would also provide an additional 150 air-mile exemption on the back end of a trip, as it currently exists on the front end.’

Before time runs out, it will be important for these issues to be ironed out so livestock can be safely transported without unnecessary and stressful stops.

Sister bills S2689 and A4225 have been introduced and reported out of the Senate Committee with amendments and the Assembly Committee, respectively.  The bills would change the effective dates of some of the provisions of the law that Governor Christie signed just before leaving office that stripped law enforcement authority from the New Jersey Society for the Prevention of Cruelty to Animals and transferred it to county prosecutors.  The law also required each municipality to designate a municipal law enforcement officer within each existing police department.

As described in the bill statement:

the revised effective dates for the various sections of P.L.2017, c.331 would be as follows, listed in chronological order of when they already took effect or will take effect in the future because of this bill:

  • Section 33 (which prohibits the NJSPCA from taking certain actions with regard to the charters of county societies for the prevention of cruelty to animals, and provides that the act should not be construed to require county societies to surrender any of their assets) took effect on January 16, 2018, and would remain in effect under the bill.
  • Section 34 (which pertains to certain responsibilities of the Attorney General under the act) of P.L.2017, c.331 took effect on January 16, 2018, and would remain in effect under the bill.
  • Sections 25 (which pertains to municipal responsibilities under the act), 26 (which pertains to applications for designation as a municipal humane law enforcement officer), 27 (which pertains to continuing eligibility of former humane law enforcement officers or agents), and 28 (which pertains to county prosecutor responsibilities under the act) of P.L.2017, c.331 took effect on May 1, 2018, and would remain in effect under the bill.
  • Section 29 (which pertains to applications for designation as a humane law enforcement officer of a county society for the prevention of cruelty to animals) of P.L.2017, c.331 would take effect on August 1, 2018.
  • Section 35 (which repeals certain sections of existing law concerning the NJSPCA) of P.L.2017, c.331 would continue under this bill to take effect on August 1, 2018.
  • Sections 1 through 5 and sections 7 through 24, 30, and 31 of P.L.2017, c.331 would continue under this bill to take effect on August 1, 2018.
  • Section 6 (which pertains to the appointment of certified animal control officers) of P.L.2017, c.331 and section 32 (which pertains to county societies for the prevention of cruelty to animals) of P.L.2017, c.331 would take effect on February 1, 2019.
  • Finally, the bill, would change the date of the repeal of section 8 of P.L.1997, c.247 (C.4:19-15.16c) from August 1, 2018 to February 1, 2019.

Tim Martin, lobbyist for the NJSPCA, testified at the Senate Environment and Energy Committee on Monday, June 18, 2018, in support of the proposed extensions in the law.  The NJ Association of Counties and County Prosecutors Association were also supportive of the bill since it permits counties and municipalities to work out kinks related to training, funding, and sheltering.  All 21 counties have already named municipal humane law enforcement officers and assistant prosecutors have been named in all counties to deal with animal cruelty cases.  Curriculum has been adopted for official state law enforcement training by the New Jersey Police Training Commission, based on pre-existing training used for Animal Cruelty Investigators and NJSPCA officers.

 

The impact of USDA’s newly adopted final rule to certain exhibitors of farm animals remains unclear.

A positive result of the rule is the definition of “domesticated farm-type animals.”  Farm-type animals are defined as “animals that have historically been kept and raised on farms in the United States.”  Except for the use of the term “domesticated” this definition should be adopted by states to insure that livestock and poultry remain regulated by state and local laws even if owned as “pets” or for “companionship.”

However, the term “domesticated” should be replaced by “domestic,” since courts have held that certain dangerous and exotic animals can be “domesticated” based on the case-specific facts.  See City of Rolling Meadows v. Kyle, 494 N.E.2d 766 (Ill. App. Ct. 1986) (reversing holding that owners monkey was not a domesticated house pet); Turudic v. Stephens, 31 P.3d 465, 471 (Or. Ct. App. 2001) (concluding that “although the cougar may be more exotic than goldfish or hamsters, they are, nevertheless, indisputably family pets.”).  Unfortunately the term “domesticated” instead of “domestic” is used in existing and the amended rule.

Certain exhibitors of ‘domesticated farm-type animals’ are exempt from licensure, including: (1) those who “have a de minimis size of business based on the number of animals maintained, capability of providing adequate care and treatment of such animals, and public oversight . . .”; (2) “country fairs, livestock shows, rodeos, field trials, coursing events . . . and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary”; and (3) owners of “livestock or poultry used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber.”

The amendments exclude from licensure “[a]ny person who maintains a total of eight or fewer pet animals as defined in part 1 of this subchapter, small exotic or wild mammals (such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, jerboas, domesticated ferrets, chinchillas, and gerbils), and/or domesticated farm-type animals (such as cows, goats, pigs, sheep, llamas, and alpacas) for exhibition, and is not otherwise required to obtain a license.”

For those who maintain more than eight domesticated farm-type animals, they can also be exempt from licensure if: the animals are used or intended for use as food or fiber; for improving animal nutrition, breeding, management, or production efficiency; or for improving the quality of food or fiber,  even if those animals are exhibited.  However, that was not the holding in In re: Daniel J. Hill and Montrose Orchards, Inc., AWA Docket No. 06-0006, Chief ALJ Hillson (USDA April 18, 2007).

In this case, a Complaint was issued on January 13, 2006, by Kevin Shea, Administrator of the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture to “Respondents, Daniel J. Hill and Montrose Orchard, Inc., for operating as exhibitors under the Animal Welfare Act without obtaining the requisite license.”

The Findings of Fact, included, in relevant part:

Respondents operate a business which offers the public an opportunity to purchase apples, blueberries, Christmas trees, asparagus, pumpkins and other products. Most products are sold in the Orchard’s gift shop, and some products are also offered to the public on a self-pick basis.

Respondents display to the public a number of animals including, at various times, a pig, a cow, English fallow deer, Barbados sheep and goats. These animals were displayed in large pens. There were signs directing the public to these pens.  There were signs on some of the pens identifying the animal(s) inside.  There were food dispensing machines where members of the public could insert some money and buy food to feed the animals, and a hand washing station near the pens available for public use.

The Court rejected Respondents’ argument that it was exempt from licensure because it made less than $500 from its animal operations.  It also rejected the argument that Respondents were exempt from licensure because “the animals on display at Montrose Orchards were ultimately raised for food.”

Instead the Court held,

Respondents did operate as an exhibitor under the Animal Welfare Act.  I find that Respondents’ operations were in interstate commerce or at least affected commerce, and that the display of animals as part of an inducement to visit a commercial operation constituted the charging of compensation.  I find that the exemption for those who make less than $500 from animal operations applies to dealers, and is inapplicable to Respondents.  I find that while the animals on display at Montrose Orchards were ultimately raised for food, the fact that they were on display for extended periods of time still requires an exhibitor’s license. Finally, I impose a civil penalty of $1,000 against Respondents jointly.

Whether and to the extent that similar “exhibitors” would be considered exempt pursuant to the newly adopted rules, remains to be seen.

Perhaps further clarity from USDA-APHIS would be instructive.

 

On June 4, the regulation titled “Thresholds for De Minimis Activity and Exemptions From Licensing Under the Animal Welfare Act” which purportedly implement[s] amendments to the Animal Welfare Act (AWA), was published by USDA-APHIS, effective on the date of publication.

The regulation expands some exemptions to the licensing requirements pursuant to the AWA.  There are some unintended consequences to these expansions that may be detrimental to certain animal owners.  For example, the ever-expanding pet store sourcing bans often limit sources to USDA-licensed dog breeders—if these professional breeders are not entirely excluded.  Many exempt breeders—those who own four or fewer breeding females—would prefer to be licensed so that they can sell to pet stores.  However, because the provision that permits an exempt breeder to apply for a voluntary license was previously deleted from the regulations, these breeders have cannot obtain an USDA license.

USDA notes that the “four or fewer exemption” has been in place since 2004 (addressing a comment related to licensure of small exotic and wild animal owners), there was no discussion about the growing impact to dog “hobby” breeders, perhaps because no one submitted a relevant comment.  (There was a comment that permitting these breeders to go unlicensed created a loophole, but USDA “made no changes in response to that comment”).

If these breeders were to try to use third party certifiers to prove to the public that it complies with or exceeds standards required pursuant to the AWA, the reliance on such certification may be questioned based on USDA’s recent announcement that it “will not establish new criteria for recognizing third-party inspection and certification programs when determining the Agency’s own inspection frequency under the Animal Welfare Act (AWA).”

USDA explained:

In this case, APHIS found the vast majority of the comments we received to not be in favor of establishing new criteria for recognizing third party inspection and certification programs.  Stakeholders on all sides of the issue expressed concern about APHIS’ ability to maintain responsibility for inspections and AWA compliance should third-party inspections be taken into account when determining APHIS inspection frequencies.

APHIS will continue to use its current risk-based inspection system to determine the frequency of inspections, and will continue to promote compliance with the AWA by conducting quality inspections, offering voluntary compliance support and learning opportunities, and taking enforcement action, as appropriate.

Still, no one should be surprised if activists use USDA’s decision to support their unsubstantiated position that certain third party certifications are meaningless.

While it is understandable that USDA has adopted this rule to “allow . . . APHIS to focus its limited resources on situations that pose a higher risk to animal welfare and public safety” I hope that these exemptions do not create additional hardships for animal owners, breeders, and exhibitors.  More to follow in PART TWO.

 

In Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018)-the case in which Naruto, a crested macaque by and through his alleged “next friends,” People for the Ethical Treatment of Animals, sued a photographer and his publishers for copyright infringement-the Court, citing an earlier case, Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004) stated that at least part of the requirements for standing-the existence of a case or controversy-was not impossible simply because the plaintiffs were animals.

While in both cases, the Ninth Circuit held that the plaintiffs did not have standing under the relevant statutes-in-suit, the fact that animals may have standing has been disputed by some and seems inconsistent with this court’s reasoning.

In Cetacean Cmty. the Court stated “we see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents.”  Cetacean Cmty., 386 F.3d at 1176.

But what the courts seem to overlook is that Article III is one of several articles to the Constitution of the United States which begins:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.  (Emphasis added).

I find Circuit Judge Smith’s concurring opinion in Naruto v. Slater, explaining the restrictions on “next friend” or “third party” standing, instructive.

The limitations on the ‘next friend’ doctrine are driven by the recognition that ‘it was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves as next friends.’

NOTE-isn’t this essentially what the Nonhuman rights project has done in its various, non-winning petitions for writs of habeas corpus.

And Judge Smith added:

Indeed, if there were no restrictions on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’

Judge Smith disagreed with the majority finding that lack of next friend standing removes jurisdiction of the court, while the majority held that next-friend standing is nonjurisdictional.

Both Judge Smith and the majority agreed that “animals cannot be represented by a next friend.”

And Judge Smith explains that “[t]here is no textual support in either the habeas corpus statute or Rule 17 for animal next friends,” providing additional legal support for courts’ rejections of the Nonhuman Rights Projects’ petitions that claimed that animals were legal persons.

However, because of these holdings over standing via Article III’s case and controversy provision by the 9th Circuit we expect to see more cases brought under the guise of the next friend.

Of note, in Oregon, a lawsuit was filed by a horse (Justice) “by and through his Guardian, Kim Mosiman” against his former owner, who had already pleaded guilty to neglect of the horse.  The suit includes a single claim for relief of negligence, allegedly based on Justice’s owner’s requirement to comply with Oregon’s anti-cruelty statute, which the owner had previously pleaded guilty to.  Justice requests relief for economic damages of not less than $100,000, non-economic damages in an amount to be determined at trial, reasonable attorneys’ fees, costs and disbursements, and other relief the court deems proper.

We should expect similar lawsuits to be filed in many jurisdictions.

 

On May 17, 2018 a plethora bills were reported out of the New Jersey Assembly Agriculture and Natural Resources Committee, some with amendments that will benefit animals and their owners if they become law, and others with sorely needed amendments.

Here is a summary of what occurred (as reported on the New Jersey Legislative website):

A781 is a bill that would establish processes for recovering the cost of caring for domestic companion animals involved in animal cruelty violations.  This bill was reported favorably with some amendments, but more should be adopted before further action.

This bill, as amended, provides for the cost of care for animals involved in animal cruelty violations, and establishes a procedure, when the owner of the animal is the alleged violator, for the owner of the animal to pay for the cost of care of the animal. The bill, as amended, specifies that ‘animal’ includes the whole brute creation, but does not include agricultural livestock or domestic livestock.

This amendment protects farmers from the overreaching practices of law enforcement supported by animal activist groups that assist in seizures of animals before the owner(s) has a hearing or opportunity to prove they have not committed alleged acts of animal cruelty.

The groups that house the seized animals charge owners millions of dollars for the “care” of these animals, even though, in some instances, they do not have adequate, if any, training in providing such care. The seized animals suffer from negligent care and sometimes die.  Many animal owners, particularly farmers, would be unable to pay for such costs and therefore forfeit ownership-all before they are actually found guilty of anything.

A1334 is a bill which would add the theft or release of an animal during burglary to the ever-expanding list of provisions that constitute animal cruelty. This amendment is not necessary and makes the cruelty statute even more cumbersome than it currently is.   If someone steals an animal that constitutes theft, for which there are existing legal remedies.  If the thief does not properly care for the animal while in their possession, then the cruelty statute already provides for remedies.  If an animal is released during a burglary and is injured there are also existing provisions in the law that would apply.

A1923, a.k.a. Nosey’s law, was amended before it was reported out of committee, but still requires amendments.  The original intent of this bill was to ban the exhibition of elephants in circuses and traveling zoos.  The amendments to the current version (which is much better than prior versions) largely address concerns of those who humanely exhibit exotic animals.  However, a glaring error remains. The bill defines “[w]ild or exotic animal” as any live animal that is classified into any of the following scientific classifications: (1) Artiodactyla, excluding domestic cattle, bison, water buffalo, yak, zebu, gayal, bali cattle, suidae, sheep, goats, llamas, vicunas, or alpacas; (2) Camelidae . . .”

This effectively excludes llama, vicunas and alpacas from the definition of wild or exotic animals on the one hand, but then includes them since they are members of the Camelidae family.

Additional amendments are clearly required.

A2318 , a bill that would permit any person to break into a vehicle to “rescue” an animal, if they believed that an animal was in danger, was also reported out of committee.  The bill should require any animal so “rescued” to be immediately examined by a licensed veterinarian.  If the rescuer has a good faith belief that the animal is in need of help, then examination by a veterinarian should be mandated.  The owner should pay for that examination if the veterinarian determines the animal’s health was in jeopardy, but if not, the rescuer should have to pay for the veterinary examination.  Adding those provisions may help decrease unnecessary rescues.

Another issue with this bill is that the wording “other circumstances likely to endanger or cause bodily injury or death to the animal” is vague and essentially meaningless.

A3218, a bill that “permits municipalities to contract with animal and humane societies which engage in animal foster care,” was also reported out of committee.  This bill would expose animals and people to unnecessary harm because animal foster care organizations are not regulated in New Jersey.

Finally, A4385, a bill that would require “institutions of higher education, and related research facilities, to offer cats and dogs no longer used for educational, research, or scientific purposes to animal rescue organizations for adoption prior to euthanizing the animals,” was also voted out of committee.  Not only is this bill unnecessary since successful adoption programs from these institutions have been in existence for years, reliance on unregulated animal rescue operations, as above, places animals and people at risk.

It looks like Animal Agriculture Alliance had another stellar stakeholder summit held on May 3-4 in Arlington, Va.

As reported on its website

The future of food, consumer choice, sustainability and the connection farmers and ranchers have with consumers were all topics of discussion on the first day of the Animal Agriculture Alliance’s 2018 Stakeholders Summit, themed “Protect Your Roots,” at the Renaissance Capital View Hotel in Arlington, Va.

“The conversations are changing about food to include agriculture and the message of farmers,” said Tyne Morgan, host of U.S. Farm Report and Summit moderator. “There are a lot of companies taking notice of the positive side of agriculture and they are starting to tell that story too.”

Speakers explored the increasing importance of food labels to consumers, trends in the food industry, and the future of animal agriculture, a topic commonly discussed amongst farmers and supporting industries who wonder if sufficient numbers from younger generations will take on the huge task of feeding the nation and the world, while providing for the humane care of their stock.

Other speakers presented scientific advances in the field that benefit animals and the environment, but may not always address consumer misconceptions about agricultural practices.  The agriculture community recognizes the increasing importance of educating consumers about the truth and dispelling the myths relating to animal agriculture, broadcasted by animal rights organizations .

The Animal Agriculture Alliance, “an industry-united, nonprofit organization that helps bridge the communication gap between farm and fork” brings these issues front and center on its website. Commonly misunderstood issues about Animal Care, Antibiotics, and Sustainability are discussed along with a number of resources.

The Alliance drafted comprehensive graphics depicting the interactions between animal rights activist groups, who commonly work together to mislead the public and animal welfare-related issues.

Animal Rights Activist Web by Animal Agriculture Alliance

Radical activist organizations are leading the fight to grant animals the same legal rights as humans and eliminate the consumption of food and all other products derived from animals. The ideology of the animal rights movement- that animals are not ours to own, enjoy, or use in any way- is a direct assault on farmers and pet owners. Activists often hide their true agenda in order to gain the support of unknowing pet lovers. Here, you will find current updates from the world of animal rights. The Alliance monitors the activities of these activist groups and seeks to proactively engage in the same areas they target to correct misinformation and tell the true story of agriculture.

Farmers and ranchers have a lot on their plates.  In addition to raising and caring for the animals that feed the world, they must learn how to address attacks by animal rights organizations intent on their demise, and more importantly learn to connect with consumers who have been mislead by activists.

Organizations like the Animal Agriculture Alliance, and others like Protect the Harvest, should be commended for work they do to dispel those myths.