Bill A-4840 in the New Jersey Assembly, as currently drafted would interfere with the veterinarian-client-patient relationship and a pet owners ability to determine the proper care for their pets, and would provide animals greater access to free legal representation than people accused of criminal animal cruelty misdemeanors in the State.  It should not be passed unless amended.

The bill, as proposed states,

In any criminal court proceeding pursuant to R.S.4:22-17 et seq. or pursuant to P.L.2015, c.85 (C.2C:33-31), or any other criminal proceeding that affects the welfare or care of a cat or dog, the court may order, upon its own initiative or upon request of a party or counsel for a party, that a separate advocate be appointed to represent the best interests of the animal.  If a court orders an advocate to be appointed, the advocate shall be appointed from a list provided to the court by the Administrative Director of the Courts.  A decision by the court denying a request to appoint a separate advocate to represent the best interests of the animal shall not be subject to appeal.  A-4840 (emphasis added).

The “separate advocate . . . appointed to represent the best interests of the animal” would be in a similar legal position as a guardian ad litem appointed by the court, upon request, to represent the best interests of a child or incapacitated adult.

As the American Veterinary Medical Association’s position on guardianship of animals states, such changes in terminology and its effect would not protect animals, but would instead be harmful.

The American Veterinary Medical Association promotes the optimal health and welfare of animals.  Further, the AVMA recognizes the role of responsible owners in providing for their animals’ care.  Any change in terminology describing the relationship between animals and owners, including ‘guardian,’ does not strengthen this relationship and may, in fact, harm it.  Such changes in terminology may adversely affect the ability of society to obtain and deliver animal services and, ultimately, result in animal suffering.

When a similar bill was introduced in the Connecticut legislature, the Connecticut Veterinary Medical Association opposed the bill on similar grounds.  Before it was passed, it was amended to permit an animal advocate to represent the interest of justice, not the animal in certain criminal proceedings.

Animal cruelty is never acceptable, but the rights of animals to legal representation in court should not exceed the rights afforded to those accused of such acts.  If animals are to receive the benefit of legal representation, so too should the accused.  Since many animal cruelty offenses are considered non-indictable offenses, a defendant would not have access to a public defender, and would instead have to pay for legal representations.  If animals in these cases would be represented by attorneys appointed by the State or worse, from animal rights organizations, a gross misapplication of justice would result.

Even more concerning, is the escalation of the rights of animals as similar to the rights of children or incapacitated adults requiring representation by guardians ad litem.  The escalation of animal rights to those provided to humans, should be a concern to all except those who believe animals and humans should be afforded the same legal rights and that animal ownership is unconscionable and unethical.

Therefore, the bill should be amended to include representation of the accused in the same manner that the interests of the animals would be represented and should limit appointment of an advocate only by the court, and not upon the request of a party or counsel for a party.

NOTE: The Senate companion bill is S-3322.  A-4840 is scheduled for the Assembly Judiciary Committee on January 24.

The National Organic Program (NOP) is the regulatory program administered by USDA’s Agricultural Marketing Services agency that implements the Organic Foods Production Act of 1990, subsequently amended and its related regulations.

In addition to other activities, AMS manages the National List of Allowed and Prohibited Substances used on certified organic premises, which it recently amended.  See 83 FR 66559-01, 2018 WL 6788997 (F.R.) Dec, 27, 2018.

As published, the rule, effective on January 28, 2019:

changes the use restrictions for seventeen substances allowed for organic production or handling on the National List. This rule also adds sixteen new substances on the National List to be allowed in organic production or handling. In addition, this final rule lists the botanical pesticide, rotenone, as a prohibited substance in organic crop production. This final rule removes ivermectin as an allowed parasiticide for use in organic livestock production and amends our regulations to allow the use of parasiticides in fiber bearing animals. Finally, this rule inserts corrections of instructions and regulation text as listed in the proposed rule.

Three new substances, hypochlorous acid, magnesium oxide, and squid byproducts have been added as synthetic substances allowed for use in organic crop production.  7 CFR § 205.601

Specifically, as of the effective date:

  • Hypochlorous acid will be allowed for use as an algicide, disinfectant, and sanitizer.
  • Magnesium oxide will be allowed for use in controlling the viscosity of a clay suspension agent for humates.
  • Social soil testing an alternative verifiable methods, such as tissue testing when approved by the certifying agent, will be the only method for demonstrating a soil micronutrient deficiency.
  • Squid byproducts rom food waste processing only will be an allowed substance for use in organic crop production.
  • Rotenone will be added as a nonsynthetic substances prohibited for use in organic crop production.
  • Activated charcoal, calcium borogluconate, calcium propionate, hypochlorous acid, kaolin pectin, mineral oil, nutritive supplements—injectable vitamins, trace minerals and electrolytes, propylene glycol, acidified sodium chlorite, and zinc sulfate will be permitted as synthetic substances allowed for use in organic livestock production.

Activated charcoal and the other permitted substances in the last bullet point are important medical tools that provide medical relief to animals raised for food.

The rule also revises the list of approved and prohibited treatments for parasite control in food animals and fur-bearing animals.

The regulations permit the use of some parasiticides that can be used in organic livestock production when the following conditions exist:

(1) Emergency treatment for dairy and breeder stock only when preventive measures have failed; (2) a parasiticide withdrawal period before milk or milk products from treated animals can be sold as organic; and (3) a prohibition on use in breeder stock during the last third of gestation or during lactation if progeny will be sold as organic.

Ivermectin, a highly effective parasiticide, has been removed from permitted use in organic livestock production.

The use of some medications, such as xylazine—a historically safe and effective medication for sedation, anesthesia, muscle relaxation, and analgesia in animals, has been restricted to use “by or on the lawful written or oral order of a licensed veterinarian, in full compliance with the AMDUCA and 21 CFR part 530 of the Food and Drug Administration regulations. Also, for use under 7 CFR part 205, paragraph (a)(30 also includes the following requirements:

(i) Use by or on the lawful written order of a licensed veterinarian;

(ii) A meat withdrawal period of at least 8 days after administering to livestock intended for slaughter; and a milk discard period of at least 4 days after administering to dairy animals.

Zinc sulfate, an effective treatment for use as a footbath for control of foot rot in livestock, primarily dairy cattle, sheep and goats, will be permitted.

In summary, animals raised under the organic certification will largely benefit by the amendments to USDA’s national list of allowed and prohibited substances.

Some happenings at USDA and FDA that may impact your business are noteworthy.

On November 16, 2018 FDA released for public comment “proposed research to validate an alternative approach for bioequivalence studies for certain animal drugs.”

Bioequivalence studies are required before drugs are approved by FDA (for humans or animals) as safe and efficacious.

The proposed study will measure the bioequivalence of the approved antiparasitic drugs ivermectin and praziquantel by in vitro dissolution compared to blood levels that indicate how the drug is dissolving in the body (also known as blood-level pharmacokinetics), with the goal of validating these laboratory-based alternative (i.e., surrogate) endpoints. Ivermectin is used in dogs to treat heartworm, a potentially fatal infection. Praziquantel treats tapeworms, an internal parasite that lives primarily in the gastrointestinal tract but can form cysts in liver and other organs.

Comments to the proposed white paper, Alternative Methods for Evaluating Locally Acting, Nonsystemically Absorbed Drugs in Canine Disintegrating or Chewable, Single Layer Combination Drug Products, are available here.

To date, 46 comments are posted.

Recently the Secretary of the Department of Veterans Affairs expressed continued support for the use of dogs in certain research, without which significant gains in medical care for people and pets would not be possible.

On October 30, 2018 FDA announced “the Plant and Animal Biotechnology Innovation Action Plan to outline the key priorities the agency will pursue to support innovation in plant and animal biotechnology while advancing the agency’s public health mission.”

The overall goal of the action plan is to ensure the safety of plant and animal products of biotechnology while avoiding unnecessary barriers to future innovation.

Titled, the “Veterinary Innovation Program (VIP)” the program is designed to “guide sponsors [of certain veterinary products] through the regulatory process . . .”

Some of these innovations involve genome editing in animals, and exciting new frontier that will benefit humans and animals alike.

As reported by USDA Research, Education & Economics Information System a project titled “Improvement of Dairy animal Well-Being By Genetic Dehorning,” sponsored by the National Institute of Food and Agriculture “will evaluate gene-editing as a means for genetically dehorning cattle without crossbreeding in three steps.”

First we will introduce the polled genetics into dairy cattle by gene-editing and determine if it has the same effect as crossbreeding. Second, we will determine if there are any unintended effects on the animals; and third, we will evaluate the feasibility of deploying this technology in a variety of breeds to enable broad acceptance and rearing of genetically dehorned cattle.

The project end date is April 14, 2019.

Finally, as United States Cattlemen’s Association recently announced, USDA and FDA “will jointly oversee the regulation of cell-cultured food products from cell lines of livestock and poultry.”

FDA will oversee cell collection, cell banks, and cell growth and differentiation. A transition from FDA to USDA oversight will occur during the cell harvest stage. USDA will then oversee the production and labeling of food products derived from the cells of livestock and poultry.

USCA noted that their pending petition for rule making to define “beef” and “meat” remains outstanding and should be addressed to ensure truth in labeling for consumers.

More to come about all these programs.

In a prior blog I discussed proposed amendments to Oregon’s animal cruelty statute that would provide for statutory standing to any plaintiff who files a complaint against any animal owner for alleged violations of the state’s animal cruelty statute.  Below, are summaries of several Oregon cases litigated pursuant to the current or in effect at that time.

In State v. Branstetter, 45 P.3d 137 (Or. Ct. App. 2002) review denied 54 P.3d 1042, 334 Or. 632, a horse and donkey owner was charged with 12 counts of animal neglect in the first degree, which was a Class A misdemeanor.  Id., at 138 (citing ORS 167.330).  Defendants’ animals were seized and were cared for by the pioneer Humane society of Umatilla County, who filed a petition for the animals before Defendant’s trial.  The Court ordered the forfeiture of animals if Defendant did not post a $2,700 bond within 72 hours, which he failed to do.

After being acquitted on all counts, Defendant filed an appeal with the following issue.

“Was defendant denied constitutional due process and right to a remedy as a consequence of the forfeiture statute that did not provide for setting aside the forfeiture(s) subsequent to the acquittal(s)?”  Id.

The Court denied the appeal, “reject[ing] defendant’s due process and remedies clause arguments without discussion.”  The Court also rejected Defendant’s that “any forfeiture to cover the costs of his animals’ care during the pendency of the criminal prosecution violates the excessive fines provisions of Article I, section 16, of the Oregon Constitution, and the Eighth Amendment to the United States Constitution.”  Id., at 139.

In Stirton v. Trump, 121 P.3d 714 (Or. Ct. App. 2005), a dog owner, charged with 31 counts of animal neglect in the second degree and the county impounded the 31 dogs, and a justice of the peace ordered forfeiture of the dogs following a petition filed by the impounding county.  The County Circuit Court, hearing a petition for a writ of review filed by the Defendant over jurisdictional matters, entered judgment awarding the county the cost of boarding the 31 dogs and dismissing Defendant’s petition.

On appeal, the Court affirmed the trial court’s holding that the justice of the peace court had subject matter jurisdiction, but reversed the award, finding that the county was not a party to the petition.

In State v. Marsh, 66 P.3d 541 (Or. Ct. App. 2003), the Court limited the amount in restitution the defendant must pay to the care of providing for only the ten animals he was convicted of neglecting, and not for the 69 animals that were seized from his property.

In City of Lebanon v. Milburn (2017) 398 P.3d 486 (Or. Ct. App. 2017), the Court, on appeal, rejected the City’s argument that the forfeiture of Defendant’s dog in this case was irreversible, even after the Defendant had been acquitted of criminal charges of animal cruelty.  The Court’s holding in this case, is notable:

The issue on appeal turns on whether the circuit court erred in ordering the city to return defendant’s property upon acquittal after the municipal court had ordered the property forfeited under ORS 167.350 as part of defendant’s sentence.  A court is permitted to order forfeiture, but it is contingent upon a court having determined that defendant is guilty of the offense charged. ORS 167.350(1).  Necessarily, we have recognized that ‘[t]here can be no sentence, probation or other sanction after an acquittal’ . . . We have characterized a forfeiture that is part of sentencing under ORS 167.350 as a punitive forfeiture . . . In this case, although the forfeiture was authorized under ORS 167.350 as part of the sentence in municipal court, defendant cannot continue to be subject to a punitive sanction after she has been acquitted. An acquittal is an acquittal. That outcome necessarily implicates the forfeiture that is part of the judgment in municipal court . . . Because defendant was acquitted in the circuit court, property taken from her as a result of the municipal court judgment must be returned.  Id., at 487-488 (citations omitted).

Based on these cases, Oregon already has sufficient state laws to protect animals from owners who fail to care for them humanely, such that the proposed amendment discussed here, that would permit anyone, to file a civil suit against an animal owner because of public policy concerns, is unnecessary.  Such an amendment would lead to a flood of lawsuits filed by plaintiffs who object to the use of animals in agriculture, biomedical research, breeding and other animal-related businesses.

An untitled proposal to amend Oregon’s Animal Cruelty statute was posted by the Oregon Secretary of State on November 14, 2018 and is available on its website.

The proposed amendment does not appear to have been formally introduced as a bill in the Oregon legislature.  The amendments, if enacted would permit anyone to file a civil action “for the protection and humane treatment of animals.”  By anyone, as the amendment provides, “plaintiff shall include any person even if the person does not have any legal interest or possessory lights in an animal.”  As another Oregon court recently observed, the state legislature might determine that the state could permit an unrelated party to file a complaint against an animal’s owner based on public policy and concerns about the humane care of animals.  See Justice v. Gwendolyn Vercher, Case No. 18CV17601 (Oregon Judicial Department, Washington County Circuit Court, Twentieth Judicial District, Sept. 17, 2018) previously discussed here.

The amendment also provides for temporary restraining order or preliminary injunction upon the filing of a verified complaint, and if the plaintiff requests it and plaintiff’s agent could be permitted “unrestricted access to the premises where the animal is located to evaluate, monitor, and provide minimum care to the animal.”

And “if it appears on the face of the complaint that the condition giving rise to the violation of O.R.S. §167.305-390 requires the animal to be removed from the defendant, then it shall be proper for the court in the order or injunction to allow the plaintiff to take possession of the animal and provide minimum care.”

Keep in mind that this is all without any evidentiary hearing of any sort, but simply based on the face of the complaint, in a suit filed by someone who, until after the complaint was filed may have had possession or first-hand knowledge of the conditions in which the animal was housed or its physical status.

But the amendment does not stop there.

It would require a defendant to post bond within ten days after a court allowed a plaintiff to take possession of the animal, and if not posted, “the court shall deem the animal to have been abandoned.”

Yikes!!

Oregon already permits a peace officer, based on probable cause, to obtain a search warrant and enter the premises or vehicle where an animal, believed to being treated inhumanely, “to provide the animal with food, water and emergency medical treatment and may impound the animal.”  Or. Rev. Stat. Ann. § 167.345 (West).

Oregon defines “peace officer” as:

(a) A member of the Oregon State Police;

(b) A sheriff, constable, marshal, municipal police officer or reserve officer as defined in ORS 133.005, or a police officer commissioned by a university under ORS 352.121 or 353.125;

(c) An investigator of the Criminal Justice Division of the Department of Justice or investigator of a district attorney’s office;

(d) A humane special agent as defined in ORS 181A.345;

(e) A regulatory specialist exercising authority described in ORS 471.775 (2);

(f) An authorized tribal police officer as defined in ORS 181A.680; and

(g) Any other person designated by law as a peace officer.

Or. Rev. Stat. Ann. § 161.015 (West).

The entirety of the proposed amendment is available here.

A discussion of several cases decided on the basis of Oregon’s animal cruelty statute to follow shortly.

 

New therapies, advancements rely on dog research

Recently, Secretary of Veterans Affairs Robert Wilkie did something rarely seen in Washington, D.C., these days. He told the truth despite pressure from special interest groups to do otherwise. Mr. Wilkie explained that, like many other Americans, he is a dog lover. However, he also supports health studies in a limited number of canines to develop new therapies aimed at helping American veterans injured on the battlefield.

Animal research has improved the health of humans and animals alike through the development of countless medications and therapies. And while most research occurs in rodents, an incredibly small percentage of these breakthroughs require dogs. While speaking at the National Press Club, Mr. Wilkie highlighted past major advancements involving canines, including the heart pacemaker and a treatment for cardiac arrhythmias. Nowadays, dogs are helping us battle various forms of cancer. In addition, new therapies developed in dogs with a form of muscular dystrophy are now being tested in human patients.

Activists have been misleading Americans about animal studies for decades, falsely claiming they are no longer necessary. However, in many cases, there are simply no alternatives. You can’t model complex biological systems if you do not fully understand them.

It may be easy for some — including the PG editorial board — to accept animal rights fiction as fact (Nov. 17 editorial, “Put Him on a Leash: Dog Testing by Government is Wrong”). Thankfully, Mr. Wilkie did not make this mistake. He stood up for good, ethical science that benefits both veterans and animals. For that, he should be applauded, not criticized.

Paula Clifford
Washington, D.C.

The writer is the executive director of Americans for Medical Progress.

Clinical trials are commonly used during the development of drugs studied for approval by FDA for the use in animals.  Similar use in veterinary medicine has been increasing, but there are a number of interesting issues not considered in human clinical trials, where the individual involved in such trials is able to provide consent for inclusion in the trial.  Clearly, the animals that may be subject to such studies, cannot provide specific consent—their owner would have to do so on their behalf.  Those advocating for a change in status of animals as “property” to “persons” would be expected to object to such clinical trials, even if they benefit animals and people and help save their lives.

This issue was critically analyzed by veterinarians analyzing whether clinical veterinary studies must be reviewed by institutional animal care and use committees pursuant the Animal Welfare Act; the Office of Laboratory Animal Welfare for those studies funded by NIH; and/or reviewed and approved by a Veterinary Clinical Studies Committee established by a research entity, in a JAVMA published study, “Institutional animal care and use committee review of clinical studies.”

The study found

Determining whether activities conducted under the auspices of a clinical study are regulated by the USDA or OLAW, and thus require IACUC oversight, is not always a clear and simple issue. Institutions should develop their own guidance on how the IACUC oversees-or does not oversee-clinical trials.

Whether and to the extent certain clinical trials required review and approval by the IACUC pursuant to the Animal Welfare Act and/or OLAW requirements was dependent on whether the studying entities purchased the animals involved in the clinical trial and whether the proposed procedures would be required for the animal’s care, or were additional procedures only required for the purposes of the clinical trial.

The article presents 6 examples to help determine when USDA or OLAW oversight would be required.

Clearly, clinical trials, as utilized in human medicine, provide critical data related to the final approval of drugs and medical devices that will help prevent, diagnose and/or treat animals affected with life-altering diseases and conditions.

The AVMA is proposing an updated “Model Veterinary Practice Act” to its House of Delegates in the near future.  Included in the draft, which is not legally binding by any state unless specifically incorporated into the state laws, are issues involving the provision of veterinary care via telephonic or other electronic means.  As reported by AVMA in its JAVMA Nov. 1, 2018 publication,

The AVMA Model Veterinary Practice Act continues to state that veterinarian-client-patient relationship ‘cannot be established soled by telephonic or other electronic means’ . . .

As decided in Hines v. Alldredge, 783 F.3d 197 (5th Cir. 2015), “the requirement that veterinary care be provided only after the veterinarian has seen the animal, at a minimum, rational: it is reasonable to conclude that the quality of care will be higher, and the risk of misdiagnosis and improper treatment lower, if the veterinarian physically examines the animal in question before treating it.”  At least in Texas, the requirement for in person examinations by veterinarians of their patients must be conducted before diagnosis and treatment ensues.

Other issues included in the AVMA’s model act include:

  • Permitting a veterinarian to provide care to an animal during an emergency in the absence of a valid VCPR;
  • Incorporation of federal laws, including definitions and provisions of FDA’s Veterinary Feed Directive;
  • Rejection of a farrier exemption;
  • Discussion of the use of the term “veterinary nurse” and
  • The ability of lay personnel to provide veterinary massage services.

The model act will be presented to the AVMA’s House of Delegates for a vote this January.  Even if adopted, the model act is not legally binding, and its use will be individually determined by each state’s veterinary examining board.

Interestingly, in the same JAVMA publication, the results of a study of “Owner satisfaction with use of videoconferencing for recheck examinations following routine surgical sterilization in dogs” was reported:

Owners were equally satisfied with recheck examinations performed by videoconference and in-clinic appointments. Owners of dogs in the telemedicine group indicated that their dogs were less afraid during the virtual appointment, compared with what was typical for them during in-clinic appointments, but the difference was not statistically significant. Most owners who completed a postsurgical recheck  examination by videoconferencing preferred this method for similar appointments in the future.

The fact is, telemedicine has been utilized by veterinarians since telephones have been available.  Clients calling in after-hours have consulted with veterinarians across the country who have provided advice and direction when immediate in person examination was not deemed to be necessary, based on the information provided by those clients.

With the increasing deficiency of veterinarians available to service certain rural animal producers and owners, it seems inconceivable that such remote, digital provision of veterinary services would not be permitted.

The Food Animal Residue Avoidance Databank (FARAD) recently provided guidance to small ruminant producers and their veterinarians in an article titled “Extralabel drug use (ELDU) in small ruminants” in JAVMA, Vol 253, No. 8, Oct. 15, 2018, pp 1001-1009.

“FARAD is a university-based national program that serves as the primary source for scientifically-based recommendations regarding safe withdrawal intervals of drugs and chemicals in food-producing animals. As such, FARAD is a key resource for protection of our nation’s food supply, including meat, milk and eggs, against accidental contamination of animal-derived foods with violative residues of drugs, pesticides or other agents that could compromise food safety.”

FARAD regularly provides guidance to the food animal producing industry and veterinarians regarding “the use of therapeutic drugs, pesticides and other agents that improve overall animal health and promote safe, efficient and humane production practices.”

The purpose of its latest digest, as stated, “was to provide US veterinarians guidance regarding ELDU in small ruminants. The lack of FDA-approved drugs for sheep and goats frequently necessitates ELDU in those species. When the FDA approves a drug for use in a particular species, it establishes a tolerance or that drug in the various tissues or products (eg, milk or eggs) of that species that might be consumed by people. When a drug not labeled for use in a small ruminant is administered in an extralabel manner, there is a zero tolerance for residues of the parent drug or its metabolites in the edible tissues or products of treated animals, and detection of the parent drug or metabolites in any product marketed for human consumption is considered a violation and subject to regulatory action. Given the lack of tolerance and pharmacokinetic and tissue depletion data for many drugs administered in an extralabel manner to small ruminants, extended meat and milk WDIs are generally required to ensure that drug residues are undetectable. Veterinarians need to be cognizant of the requirements for legal ELDU in food-animal species to safeguard the human food supply while continuing to promote the health and welfare of small ruminants.”

As a former owner of a veterinary large animal practice in which 50% of my patients were small ruminants (goats, sheep, alpaca and llama), it was imperative to be able to prescribe or administer drugs in an extralabel manner to provide humane care and prevent animal suffering.

Extralabel use means actual use or intended use of a drug in an animal in a manner that is not in accordance with the approved labeling. This includes, but is not limited to, use in species not listed in the labeling, use for indications (disease or other conditions) not listed in the labeling, use at dosage levels, frequencies, or routes of administration other than those stated in the labeling, and deviation from the labeled withdrawal time based on these different uses.  21 CFR 530.3.

Some of these uses have included medications added to commercial feeds, that are now governed under the Veterinary Feed Directive that FDA enforces for use in major, but not minor species.

According to guidance from FDA, “many commercial medical feeds that require a VFD are not approved for use in minor species,” defined by FDA as all species other than cattle, horses, swine, chickens, turkeys, dogs, and cats.  Compliance Policy Guide Sec. 615.115 Extralabel Use of Medicated Feeds for Minor Species.  A veterinarian may consider ELDU of medicated feed in minor species if:

There are no approved treatment options available;

The health of the animals is threatened; and

Failure to treat the animals would result in suffering or death.

The veterinarian must provide a written recommendation that includes the medical rationale for ELDU of medicated feed.

Before a veterinarian can provide such professional guidance, a valid veterinarian-client-patient relationship (VCPR) must exist.  While state laws govern the practice of veterinary medicine, including such relationships, FDA has inserted itself in the equation by identifying which states do not require the elements of a VCPR that FDA considers sufficient for the purposes of enforcing its Veterinary Feed Directive and other federal laws.

These multilayered state and federal laws can be difficult for veterinarians and small ruminant producers to decipher—hence the necessity of FARAD and other agencies to provide more specific guidance.

In Justice v. Gwendolyn Vercher, Case No. 18CV17601 (Oregon Judicial Department, Washington County Circuit Court, Twentieth Judicial District, Sept. 17, 2018) the Court dismissed a complaint filed by the Animal Legal Defense Fund, for Justice, the Plaintiff, a quarter horse.  The Court held that an animal, including the equine Plaintiff, lacked the legal capacity to sue, pursuant to Oregon Rule of Civil Procedure (ORCP) §21(A)(4) and for failure to state facts sufficient to constitute a claim, pursuant to ORCP 21(A)(8).

The court finds that a non-human animal such as Justice lacks the legal status or qualifications

necessary for the assertion of legal rights and duties in a court of law . . . Justice is not the real party in interest. There are profound implications of a judicial finding that a horse, or any non-human animal for that matter, is a legal entity that has the legal right to assert a claim in a court of law. Such a finding would likely lead to a flood of lawsuits whereby non-human animals could assert claims we now reserve just for humans and human creations such as business and other entities. Furthermore, non-human animals are incapable of accepting legal responsibilities.

The Court observed that an appellate court or the state legislature might determine that public policy regarding this issue should permit such legal actions from animals, perhaps opening the door for further uncertainty through an appeal or legislative action.

The Court declined to award attorneys’ fees and costs to the defendant that was dragged into this seemingly frivolous lawsuit.

This is not the first time—or likely the last—activist nonprofit organizations have filed lawsuits on behalf of animals, in attempts to elevate their status to those of humans.  The Nonhuman Rights Project, Inc. (NHRP) filed a number of failed attempts to apportion personhood rights to certain animals, The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery, 54 N.Y.S.3d 392, 394 (N.Y. App. Div. 2017), leave to appeal denied sub nom. The Nonhuman Rights Project, Inc., on Behalf of Tommy v. Lavery, 100 N.E.3d 846 (N.Y. 2018); The Nonhuman Rights Project, Inc. ex rel. Kiko v. Presti, 3 N.Y.S.3d 698 (N.Y. App. Div. 2015); The Nonhuman Rights Project, Inc., ex rel. Kiko v. Presti, 999 N.Y.S.2d 652 (App. Div. 2015); Article 70 of CPLR for a Writ of Habeas Corpus, The Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley, 16 N.Y.S.3d 898 (N.Y.  Sup. Ct. 2015); The Nonhuman Rights Project, Inc. v. Stanley, 2015 WL 1812988 (N.Y. Sup.); see also, Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004); Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018); Tilikum v Sea World Parks & Entertainment, 84 2 F.Supp.2d 1259 (S.D. Cal. 2012).

NHRP filed another petition, The Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc., No. 17-5009822, slip op. (Conn. Super. Ct. Dec. 26, 2017), seeking personhood rights through a writ of habeas corpus for three elephants in Connecticut owned by R.W. Commerford & Sons, Inc. (the “Commerford Zoo”) on November 13, 2017.  Long before the scheduled status conference, which was to be held on February 27, 2018, the Court filed a Judgment of Dismissal and related Memorandum of Decision on December 26, 2017, finding that the petitioner lacked standing under the “next friend” theory.  Id.

The burden is on the next friend clearly to establish the propriety of his status and thereby justify the jurisdiction of the court . . . [and holding that] [b]ecause the petition has failed to allege that it possesses any relationship with the elephants, the petitioner lacks standing.

The Court also found the petition “wholly frivolous on its face in legal terms,” stating:

even if the petitioner here had standing, resolution in its favor would require this court to determine that the asserted liberty interests in its petition are assured by statute, constitution, or common law, i.e., that an elephant is a person for the purposes of this land’s laws that protect the livery and equality interests of its persons . . . [and] [b]ased on the law as it stands today, this court cannot so find.

Recently, the NHRP filed another writ of habeas corpus in Orleans County, New York, The Nonhuman Rights Project, Inc., on behalf of Happy v. Breheny, No. 18-45164 (N.Y. 2018) “demanding recognition of [an elephant named] Happy’s legal personhood and fundamental right to bodily liberty as well as her transfer to an elephant sanctuary.”  Happy has been housed at the Bronx Zoo since around 1977.  In the Memorandum of Law filed in support of its application, NHRP did not cite to the decision in R.W. Commerford & Sons, Inc.

Circuit Judge Smith’s concurring opinion in Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018) also discusses restrictions on “next friend” or “third party” standing, stating:

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’ . . . 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.’

More to come on these latest legal proceedings and other continued attempts to change the legal status of nonhuman animals.