As recently reported, the NJSPCA has hefty legal fees, averaging nearly a quarter of a million dollars a year, as reported by Kane In Your Corner: NJSPCA refusing to show invoices for legal fees.

But, following an OPRA request for the invoices requested by Kane In Your Corner (“Kane”), NJSPCA first refused to produce the requested documents and later stated that they did not exist-they were allegedly discarded by “the organization’s former treasurer, Frank Rizzo.”

This latest incident followed the agency’s failure to file its required IRS 990 forms for 2013, 2014, and 2015 which resulted in the termination of its non-profit status, as least temporarily.

In addition to these federal requirements, the NJSPCA is required to provide financial (and enforcement) information to the NJ Attorney General and legislature, which it apparently has not provided as required,

Interestingly, Governor-appointed NJSPCA board member David Gaier resigned from the Board, “calling the organization ‘dysfunctional’ and citing its lack of transparency,” as previously reported by Kane In Your Corner.

Gaier resigned after learning from Kane about the organization’s failure to file the IRS financial reports, several months after the fact.  Gaier’s observations about the NJSPCA are remarkably similar to those identified in the 2000 State of New Jersey Commission of Investigation (“SCI”) report-Societies for the Prevention of Cruelty to Animals.

According to Kane, Gaier noted:

the NJSPCA ‘lacks proper public oversight and accountability,’ adding, ‘the very concept of a non-profit law enforcement agency is unworkable, even absurd, and the result is an organization mired in controversies and lawsuits.’ Gaier says he believes the NJSPCA needs to be ‘reconstituted as a proper state agency with genuine government oversight, transparency, and new leadership, or it should be dissolved.’

The SCI report found:

[d]espite its reputation for advancing innovative animal welfare and control programs, New Jersey remains mired in an archaic legislative scheme that places the enforcement of animal cruelty laws in the hands of unsupervised, volunteer groups of private citizens. The 1868 and 1873 laws that created the New Jersey and county Societies for the Prevention of Cruelty to Animals arose at a time when law enforcement agencies were in their infancy and the enforcement of laws was entrusted frequently to private citizens. Today, the SPCAs represent a rudimentary system that has not kept pace with the state’s advancements in law enforcement or its interest in the welfare of animals. Against the backdrop of a highly stratified and professional law  enforcement system, it is an anomaly that the state continues to empower organizations of private citizens to carry weapons, investigate criminal and civil conduct, enforce laws, issue summonses, effect arrests and obtain and execute search warrants. The issue is no longer whether or how to fix this errant group of self-appointed, self-directed and uncontrolled entities, but whether to eliminate the archaic system entirely. The Commission concludes that the time has come to repeal the government authority vested in the SPCAs and place the function of enforcing the cruelty laws within the government’s stratified hierarchy of law enforcement. Those who are truly devoted to animal welfare may continue that effort by forming humane  organizations or participating in the numerous groups already in existence.

Currently there are several proposed bills that would provide for greater accountability of the NJSPCA to government entities.

  • A706/S1429 would require accountability of the NJSPCA and county societies for the prevention of cruelty to animals to the NJ Attorney General and county prosecutors; and
  • A707/S1427 would change the membership of, and election process for NJSPCA board of trustees.

Notably, in Bergen County the county prosecutor already requires accountability and reporting for all SPCA-related activities.  Expanding that requirement throughout the State is attainable and would enhance the role that professional law enforcement agencies have in protecting the animals throughout New Jersey.

 

 

 

At the request of New Jersey Department of Agriculture (NJDA), New Jersey Agricultural Experiment Station (NJAES), and New Jersey Farm Bureau, State legislators adopted a law in 1996 “which directs the Department of Agriculture—in consultation with the New Jersey Agricultural Experiment Station—to adopt ‘standards for the humane raising, keeping, care, treatment, marketing, and sale of domestic livestock,’ as well as ‘rules and regulations governing the enforcement of those standards.’”  35 NJR 1873(a) 2003.  At the time, livestock owners were increasingly concerned about the uneven-handed enforcement of the State’s animal cruelty statutes by state and county societies for the protection of animals (SPCA), who often had minimal, if any, knowledge about the proper care of livestock and horses.  As the State Commission of Investigation reported, there were “no standards, rules or guidelines governing [SPCA’s] composition, operation, training or activities, there is no consistency or uniformity in their make-up, functioning or enforcement of the laws.”  NJSCI Report 2000.

The law was adopted to “[p]rotect. . .  the health and well-being of New Jersey’s livestock . . . to ensure farm animals are humanely treated.  This includes livestock farmers whose livelihood depends on raising healthy animals and who, therefore, have an added financial incentive to properly care for their animals.”  35 NJR 1873(a) 2003To ensure that experts qualified to investigate complaints of cruelty involving livestock the law also requires notification of NJDA of complaints received by investigating authorities.

The NJSPCA, county SPCAs or other State or local government authority receiving a complaint shall immediately notify the New Jersey Department of Agriculture and, if the complaint is in writing, provide a copy to the NJDA at the address provided in N.J.A.C. 2:8–8.3(c).

Unfortunately, while the standards mandate humane care, the enforcement of those standards remains problematic.  It is not clear if NJDA has been notified immediately upon receipt of complaints to SPCA’s, as required by law.  This notification is critical to ensure that only the approved standards are used as guidelines, and to ensure that all inspections are conducted in accordance with accepted biosecurity protocols referenced herein to prevent the spread of infectious or contagious agents on or off farm premises.

I recently discussed these ongoing issues at the 2017 New Jersey State Agricultural Convention, where the delegates adopted a resolution to address “continued concerns from stakeholders because of humane-law enforcement personnel’s inconsistent and inappropriate enforcement of animal cruelty statutes against the owners of livestock and poultry in New Jersey, by largely ignoring the Humane Standards, even when they are being followed by the livestock owner, have not changed since the adoption of the law, despite the clear rules to guide the investigation of complaints.  See Resolution No. 6, Humane Treatment of Livestock.

The delegates “urge that New Jersey’s agricultural community evaluate the consistency and appropriateness of the implementation of the Humane Standards by the SPCA and other humane-law enforcement personnel who are tasked to respect and follow them with enforcing animal-cruelty statutes.”

They also encourage the Legislature to adequately fund the implementation and enforcement of the Humane Standards and to require SPCA agents to comply with the provisions set forth therein.

Moose’s Law, currently A308, prohibits persons convicted of criminal animal cruelty offenses from owning domestic companion animals and from working or volunteering at animal related enterprises, continues to suffer flaws that must be corrected to avoid constitutional violations and unintended consequences.

The amendments to this bill attempt to limit its provisions to conduct constituting criminal violations of New Jersey’s animal cruelty statutes, but actually fails to do so.

While new section 2 applies only to individuals who is convicted of an animal cruelty offense (an improvement over former versions, but still not appropriate), Section 3 of P.L.1983, c.525 (C.4:19-15.16a) is amended to 39 read as follows:

(1) The commissioner shall establish a list of all persons : (a) for whom a certificate , issued pursuant to subsection b. of this section, has been revoked, or (b) who have been convicted of, or found civilly liable for, a violation of any provision of chapter 22 of Title 4 of the Revised Statutes. The commissioner shall provide each municipality in the State with a copy of this list within 30 days after the list is established and not less often than annually thereafter if no revised list required pursuant to paragraph (2) of this subsection has been issued in the interim. The commissioner shall also post the list, together with a statement identifying the list’s proper use and purpose, at a publicly accessible and readily identifiable location on the Department of Health’s Internet website. (emphasis added).

Therefore, anyone found civilly liable pursuant to a provision of the animal cruelty statute will be included on this list and the long-term negative impact to those individuals listed will continue.

Animal cruelty registries can serve the public and the animals they intend to protect if limited to the inclusion of certain criminal offenders of the animal cruelty statutes, so long and the terms of inclusion on such lists are sufficiently limited and can be corrected for those found to be improperly convicted.

A308 does not include such provisions.

Additionally, A308’s pre-employment requirements effectively preclude the ability of pre-veterinary students and others interested in animal-related careers to obtain employment (voluntary or otherwise) at veterinary hospitals, zoos, aquaria, and other animal-related industries who have historically employed such students.

Assembly bill No. 2052 includes the following definition of “necessary care: in the definition section of New Jersey’s animal cruelty statute that could be problematic for farmers raising livestock and poultry in the state, if it were to apply to them:

“Necessary care” means care sufficient to preserve the health and well-being of an animal, and except for emergencies or circumstances beyond the reasonable control of the person responsible for the care of the animal, providing the following: (1) food of sufficient quantity and quality to allow for normal growth or maintenance of body weight; (2) open or adequate access to drinkable water of an appropriate temperature in sufficient quantity and quality to satisfy the needs of the animal; (3) access to adequate protection from the weather, including an enclosed non-hazardous structure sufficient to protect the animal in which there is adequate bedding to protect the animal against cold and dampness; (4) adequate protection for the animal from extreme or excessive sunlight and from overexposure to the sun, heat and other weather conditions; (5) veterinary care to alleviate suffering and maintain health; and (6) reasonable access to a clean and adequate exercise area.

The reason for concern is that provisions (3), (5), and (6) are inconsistent with the provisions set forth in the Humane Treatment of Domestic Livestock (N.J.A.C. 2:8-1.1 et seq.) as provided for in N.J.S.A. 4:22-16.1. which provides:

Rules and regulations; standards for humane treatment of domestic livestock-

  1. The State Board of Agriculture and the Department of Agriculture, in consultation with the New Jersey Agricultural Experiment Station and within six months of the date of enactment of this act, shall develop and adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (C. 52:14B-1 et seq.): (1) standards for the humane raising, keeping, care, treatment, marketing, and sale of domestic livestock; and (2) rules and regulations governing the enforcement of those standards.
  2. Notwithstanding any provision in this title to the contrary:

(1) there shall exist a presumption that the raising, keeping, care, treatment, marketing, and sale of domestic livestock in accordance with the standards developed and adopted therefor pursuant to subsection a. of this section shall not constitute a violation of any provision of this title involving alleged cruelty to, or inhumane care or treatment of, domestic livestock;

(2) no person may be cited or arrested for a first offense involving a minor or incidental violation, as defined by rules and regulations adopted pursuant to subsection a. of this section, of any provision of this title involving alleged cruelty to, or inhumane care or treatment of, domestic livestock, unless that person has first been issued a written warning.

  1. For the purposes of this act, “domestic livestock” means 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, according to rules and regulations adopted by the department and the board pursuant to the “Administrative Procedure Act.”

CREDIT(S) L.1995, c. 311, § 1, eff. Jan. 5, 1996.

The bill statement for A2052 states:

This bill amends the definition for “necessary care,” established 43 by P.L.2013, c.88 (designated as Patrick’s Law), to provide for 44 additional specific care requirements.

Before consideration by the senate, since the bill statement clearly indicates its intention was to provide for domestic companion animals and not domestic livestock, the definition of “necessary care” should be amended to exclude provisions regarding domestic livestock which are prescribed in N.J.A.C. 2:8-1.1 et seq. as the legislature previously mandated.

A2052 was passed by the Assembly on December 19, 2016.

A bill (A3899) prohibiting veterinary declawing procedures in New Jersey will be considered by the Assembly Agriculture and Natural Resources Committee on Monday, November 14, 2016.

This bill would create civil and criminal liabilities for any person who shall:

Perform, or cause to be performed, an onychectomy (declawing) or flexor tendonectomy procedure on a cat or other animal in violation of section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill).

As summarized in the bill statement:

This bill would prohibit a person from performing, or causing to be performed, an onychectomy (declawing) or flexor tendonectomy procedure by any means on a cat or other animal, unless the procedure is deemed necessary for a therapeutic purpose by a licensed veterinarian. Any person who violates this provision would be guilty of a disorderly persons offense, which is punishable by a fine of up to $1,000, a term of imprisonment of up to six months, or both. A violator would also be subject to a civil penalty of between $500 and $2,000.

Section 1(a) contains the same language that was included in an ordinance banning this procedure that passed in West Hollywood on April 21, 2003.

1.    (New section) a. No person shall perform, or cause to be performed, an onychectomy (declawing) or flexor tendonectomy procedure by any means on a cat or other animal, unless the procedure is deemed necessary for a therapeutic purpose by a licensed veterinarian.  A person who violates this provision shall be guilty of a disorderly persons offense.

This ordinance was upheld in court as constitutional when challenged by veterinary associations. Veterinary Med. Ass’n v. City of W. Hollywood, 61 Cal. Rptr. 3d 318 (Cal. Ct. App. 2007).

Section 1(b) requiring veterinarians to “prepare and file a written statement with the Department of Health setting forth the purpose for performing the procedure and providing the name and address of the owner or keeper of the animal, and provide a copy of that statement to the owner of the animal” impermissibly restricts the veterinary license that is granted by the Division of Consumer Affairs, not the Department of Health.  Furthermore, the disclosure of the names and addresses of pet owners and their veterinarian present a public safety and privacy concern, and violates the state law mandating that veterinarians provide for the confidentiality of all medical records. N.J.A.C. 13:44-4.9(b).

The sad fact is that there are cat owners who will give up their cats because they are destroying furniture who would otherwise keep them as pets if they had this procedure.  Unlike dogs, there are too many cats in shelters, and living in feral populations, and this will only contribute to those numbers.

As reported in a literature review prepared by the AVMA’s Animal Welfare Division, “Welfare Implications of Declawing of Domestic Cats,” published on Feb. 16, 2016, the benefits of the procedure were discussed.

In some cases declawing may be an alternative to relinquishment, outdoor housing or euthanasia. For example, in a 1991 survey of Ontario veterinarians, respondents indicated that approximately 50% of their clients would no longer own their cat if it had not been declawed. Following aggression, a survey of veterinarians reported scratching as the behavioral problem most frequently associated with abandonment of cats in Brazil. Unacceptable behaviors such as daily scratching increase the risk of relinquishment of an animal to a shelter, and declawing decreased the risk of relinquishment. As approximately 72% of cats relinquished to animal shelters are euthanatized, owners may feel they are faced with the choice of declawing their pet cat or potentially condemning it to death. Because outdoor cats are exposed to predators, street traffic, inclement weather, and diseases (e.g., feline leukemia, feline infectious peritonitis), owners may not consider keeping a scratching cat outside to be a viable alternative. Thus declawing may sometimes be necessary to ensure that a pet cat keeps its home. (Citations omitted).

The article also reviews the risks, including welfare concerns related to this veterinary procedure.

Veterinarians cannot perform this surgery, or any other, without obtaining informed consent from their patient’s owner.

The AVMA explains, in its position statement on this topic:

The decision to declaw a cat should be made by the owners in consultation with their veterinarian. Declawing of domestic cats should be considered only after attempts have been made to prevent the cat from using its claws destructively or when its clawing presents an above normal health risk for its owner(s).

Anyone interested in testifying on Monday should attend the hearing at 2:00 pm in Committee Room 15, 4th floor, State House Annex in Trenton.

New Jersey Assemblyman Troy Singleton, sponsor of “Moose’s Law,” an animal abuse registry law which I have discussed several times, has proposed another animal cruelty-related bill.  This time, in Assembly Bill No. 4313, Singleton proposes to add to the list of possible civil animal cruelty offenses conduct that “[p]uts a domestic companion animal in danger of injury or imminent harm.”

Notably, the amendment is not based on actual injury or imminent harm, but conduct that “puts a domestic animal” in such danger.  If a professional, government-authorized agency were responsible for making such determination, with the requisite training and background to do so, this amendment might be reasonable and warranted .  Unfortunately, in New Jersey, the animal cruelty statutes are enforced by quasi-governmental agencies (State and/or County Societies for the Protection of Cruelty to Animals) which have been repeatedly criticized in statewide public investigations as being corrupt, ineffective, self-interested, and unable to fulfill their duties without violating the state and federal constitutional rights of New Jersey citizens.  (See, e.g., SCI and Animal Welfare Task Force Reports).

Even if the problem of law enforcement were resolved, for example, as has occurred in New York City, since the ASPCA relinquished its law enforcement authority to the NYCPD,

Singleton’s proposed amendment suffers from the quintessential issue that a law is void for vagueness and therefore unenforceable.

What conduct would constitute placing a domestic animal in “actual injury or imminent harm” that is not already included in the statutory provisions of the State’s animal cruelty statutes?

How does this proposed amendment provide any additional protection to animals that are not already specified in the existing statute related to civil violations, provided below?

Before additional enforcement authority is provided to enforcers of the animal cruelty statutes in New Jersey, measures must be taken to ensure that the enforcing agencies are properly trained law enforcement professionals—not State and County SPCA’s.

The following conduct is currently prohibited by the State’s animal cruelty civil statutes:

4:22-26. Acts constituting cruelty in general; penalty:

A person who shall:

Overdrive, Overdrive, overload, drive when overloaded, overwork, deprive of necessary sustenance, abuse, or needlessly kill a living animal or creature, or cause or procure any such acts to be done;

Torment, torture, maim, hang, poison, unnecessarily or cruelly beat or needessly mutilate a living animal or creature; or cause or procure any such acts to be done-

Cruelly kill, or cause or procure the cruel killing of, a living animal or creature, or otherwise cause or procure the death of a living animal or creature from commission of any act described in paragraph (2) of this subsection;

Inflict unnecessary cruelty upon a living animal or creature, or unnecessarily fail to provide a living animal or creature of which the person has charge either as an owner or otherwise with proper food, drink, shelter or protection from the weather, or leave it unattended in a vehicle under inhumane conditions adverse to the health or welfare of the living animal or creature-

Receive or offer for sale a horse that is suffering from abuse or neglect, or which by reason of disability, disease, abuse or lameness, or any other cause, could not be worked, ridden or otherwise used for show, exhibition or recreational purposes, or kept as a domestic pet without violating the provisions of this article;

Keep, use, be connected with or interested in the management of, or receive money or other consideration for the admission of a person to a place kept or used for the purpose of fighting or baiting a living animal or creature;

Be present and witness, pay admission to, encourage, aid or assist in an activity enumerated in subsection e. of this section;

Permit or suffer a place owned or controlled by him to be used as provided in subsection e. of this section;

Carry, or cause to be carried, a living animal or creature in or upon a vehicle or otherwise, in a cruel or inhumane manner;

Use a dog or dogs for the purpose of drawing or helping to draw a vehicle for business purposes;

Impound or confine or cause to be impounded or confined in a pound or other place a living animal or creature, and shall fail to supply it during such confinement with a sufficient quantity of good and wholesome food and water;

Abandon a maimed, sick, infirm or disabled animal or creature to die in a public place;

Willfully sell, or offer to sell, use, expose, or cause or permit to be sold or offered for sale, used or exposed, a horse or other animal having the disease known as glanders or farcy, or other contagious or infectious disease dangerous to the health or life of human beings or animals, or who shall, when any such disease is beyond recovery, refuse, upon demand, to deprive the animal of life;

Own, operate, manage or conduct a roadside stand or market for the sale of merchandise along a public street or highway; or a shopping mall, or a part of the premises thereof, and keep a living animal or creature confined, or allowed to roam in an area whether or not the area is enclosed, on these premises as an exhibit; except that this subsection shall not be applicable to: a pet shop licensed pursuant to P.L.1941, c.151 (C.4:19-15.1 et. seq.); a person who keeps an animal , in a humane manner, for the purpose of the protection of the premises; or a recognized breeders association, a 4-H club, an educational agricultural program, an equestrian team, a humane society or other similar charitable or nonprofit organization conducting an exhibition, show or performance;

Keep or exhibit a wild animal at a roadside stand or market located along a public street or highway of this State; a gasoline station; or a shopping mall, or a part of the premises thereof;

Sell, offer for sale, barter or give away or display live baby chicks, ducklings or other fowl or rabbits, turtles or chameleons which have been dyed or artificially colored or otherwise treated so as to impart to them an artificial color.

Use any animal, reptile or fowl for the purpose of soliciting any alms, collections, contributions, subscriptions, donations, or payment of money except in connection with exhibitions, shows or performances conducted in a bona fide manner by recognized breeders’ associations, 4-H clubs or other similar bona fide organizations;

Sell or offer for sale, barter or give away living rabbits, turtles, baby chicks, ducklings or other fowl under two months of age, for use as household or domestic pets;

Sell, offer for sale, barter or give away living baby chicks, duckling or other fowl, or rabbits, turtles or chameleons under two months of age for any purpose not prohibited by subsection q. of this section and who shall fail to provide proper facilities for the care of such animals;

Artificially mark sheep or cattle, or cause them to be marked, by cropping or cutting off both ears, cropping or cutting either ear more than one inch from the tip enf thereof, or half cropping or cutting both ears or either ear more than one inch from the tip end thereof, or who shall have or keep in the person’s possession sheep or cattle, which the person claims to own, marked contrary to this subsection unless they were bought in market or of a stranger;

Abandon a domesticated animal;

For amusement or gain, cause, allow, or permit the fighting or baiting of a living animal or creature;

Own, possess, keep, train, promote, purchase or knowingly sell a living animal or creature for the purpose of fighting or baiting that animal or creature;

Gamble on the outcome of a fight involving a living animal or creature;

Knowingly sell or barter or offer for sale or barter, at wholesale or retail, the fur or hair of a domestic dog or cat or any product made in whole or in part from the fur or hair of a domestic dog or cat, unless such fur or hair for sale or barter is from a commercial grooming establishment or a veterinary office or clinic or is for use for scientific research;

Knowingly sell or barter or offer for sale or barter, at wholesale or retail, for human consumption, the flesh of a domestic dog or cat or any product made in whole or in part from the flesh of a domestic dog or cat;

Surgically debark or silence a dog in violation of section 1 or 2 of P.L.2002, c. 102 (C:4:19-38 or C.4:19-39);

Use a live pigeon, fowl or other bird for the purpose of a target, or to be shot at either for amusement or as a test of skill in marksmanship, except that this subsection and subsections bb. And cc. shall not apply to the shooting of game;

Shoot as a bird used as described in subsection aa. of this section, or is a party to such shooting; or cc. Lease a building, room, field or premises, or knowingly permit the use thereof for the purposes of subsection aa. Or bb. Of this section- Shall forfeit and pay a sum according to the following schedule, to be sued for and discovered, with costs, in a civil action by any person in the name of the New Jersey Society for the Prevention of Cruelty to Animals;

In New Jersey, Senate Bill 2454 would “[p]rovide for confiscation and forfeiture of animals involved in animal cruelty violations, and for [the] cost of their care while being held,” all without a Court review of any evidence that would demonstrate such action was warranted.  While we have previously discussed that laws should provide for swift confiscation in situations where the animals are in imminent danger and/or require medical care that has been withheld, such measures can be accomplished pursuant to existing law that permits

“[a]n officer or agent of the New Jersey Society for the Prevention of Cruelty to Animals, or a certified animal control officer, may petition a court of competent jurisdiction to have any animal confiscated and forfeited that is owned or possession by a person at the time the person is found to be guilty of violating . . .  [animal cruelty laws].”

However, S2454 puts the proverbial cart before the horse by permitting law enforcement officers, the New Jersey State and local SPCA agents, or animal control officers to “immediately take physical custody of any animal injured or at risk of imminent harm due to the [alleged] violation and any other animals that the officer or agent believes are in danger of imminent harm” without court oversight and approval.  The proposed bill requires review by a court after confiscation has already occurred.

In fact, the law prohibits a court review “no sooner than 10 days” for no discernible reason.   The court is limited to a review of the enforcing agency’s assessment of existing and projected costs for the care of the animals confiscated and must assess the alleged violator those costs plus a security deposit.  The accused must request a separate hearing to prove that it is unable to pay those costs.

Essentially, the concept of innocent until proven guilty would be entirely irrelevant if this bill passes.

But that is not all.

The burden of establishing probable cause of an animal cruelty violation by a petitioning enforcement agency is eliminated if the accused previously had a prior finding of probable cause of an animal cruelty offense, even if those charges were unfounded.

Even worse, if the accused is acquitted of all charges, “the court may return the animal to the owner . . . upon a determination that the owner . . . is able to adequately care for the animal.”  So even if not guilty, the owner will have to undergo some kind of assessment that they are able to care for their animal.

Sounds like double jeopardy (or worse) to me.

And the enforcement agencies are protected against inquiries about the motivation for their actions and cannot be held liable for their conduct, even if based on invidious animus.

Other states have adopted some provisions that permit confiscation of animals before conviction, similar to New Jersey’s existing laws, but none appear as draconian as in S2454.

 

 

USDA, authorized and tasked with enforcing the humane treatment of horses pursuant to the Horse Protection Act, has published amendments to its regulations pursuant to the Act.

According to a 2010 Audit Report by USDA’s Office of Inspector General:

“APHIS’ program for inspecting horses for soring is not adequate to ensure that these animals are not being abused. At present, horse industry organizations hire their own inspectors (known as designated qualified persons (DQP)) to inspect horses at the shows they sponsor. However, we found that DQPs do not always inspect horses to effectively enforce the law and regulations, and in some cases where they do find violations, they deliberately issue tickets to friends or family members of responsible individuals so that the responsible person could avoid receiving a penalty for violating the Horse Protection.”

APHIS agreed with the findings of this report and proposed regulations that would dramatically amend its regulations—not only removing the authority of horse industry organizations to train designated qualified persons, and reassigning that responsibility to APHIS—but also amends the regulations “to prohibit use of pads, substances, and action devices on horses at horse shows, exhibitions, sales, and auctions.” See 81 FR 49112, July 26, 2916.

The Tennessee Walking Horse Breeders’ and Exhibitors’ Association (TWHBEA), who will be most affected by the proposed regulations have expressed concerns about the proposed rule, warning that:

“[t]he proposed rule by the United States Department of Agriculture that would eliminate the use of any pad, action device or hoof band as well as eliminate all self-regulation will have devastating impacts. The demands on horse show management will be costly and create an unnecessary hassle and the demands on exhibitors to enter horses, regardless of the division will be prohibitive as well. Horse shows in many cases will cease to exist.

The proposed rule is clearly an overreach, typical of today’s Washington, and an overt effort to bypass Congress. In order to appease radical animal rights organizations, USDA is refusing to objectively look at the facts and instead implementing rules that are not based in science or reality. Veterinary experts at Auburn University and the University of Tennessee have proven that action devices and pads do not harm horses.”

Instead “TWHBEA is calling on USDA to assemble a group of Equine Specialists to determine objective tests and end more than forty years of conflict,” adding that:

“TWHBEA is currently funding veterinary research in order to obtain objective, scientific tests for our show horses. Changing inspectors and eliminating our show horse will do nothing to help the welfare of our horse and will crush hundreds of civic clubs across the country who depend on our shows for fundraising.”

The American Association of Equine Practitioners, whose mission is “to improve the health and welfare of the horse, to further the professional development of its members, and to provide resources and leadership for the benefit of the equine industry,” is in favor of the proposed regulations.

 

“The AAEP is extremely pleased with the USDA’s work in proposing regulation changes to end the inhumane act of soring, which is one of the most significant welfare issues affecting any equine breed or discipline in the United States.

As doctors of veterinary medicine, we have previously recommended the use of only veterinarians to inspect horses at shows for evidence of soring, as well as a ban on action devices and performance packages. Both of these items are included in the USDA’s proposed rule changes.

Soring is an intentional, cruel act which must end. The AAEP will continue to support the Prevent All Soring Tactics (PAST) Act and work to eliminate this practice.”

In USDA’s “Regulatory Impact Analysis & Analysis in support of Certification that the Rule will not have a Significant Economic Impact on a Substantial Number of Small Entities” the agency concluded that the proposed  “rule will not have a significant economic impact on a substantial number of small entities.”

However, the agency also invited comments that refute that conclusion, which provides the TWHBEA or others negatively affected by this proposed regulation the opportunity to inform USDA about potential unintended consequences of its rule.

 

 

 

 

 

 

It looks like voters in Massachusetts will soon be casting their ballots to decide whether to support or reject “a new law that would prohibit (1) confinement of egg- laying hens, calves raised for veal, and breeding pigs on a commercial farm ‘in a cruel manner,’ i.e., under conditions that prevent them from lying down, standing up, fully extending their limbs, or turning around freely; and (2) the sale by any business within the Commonwealth of ‘shell’ eggs, ‘whole veal meat,’ and ‘whole pork meat’ that the business owner or operator ‘knows or should know’ was produced from animals so confined.”

In a slip opinion just entered, the Mass. Supreme Court upheld the validity of this ballot initiative.

As described in the opinion:

The sales provision, contained in section 3 of the petition, would make it “unlawful for a business owner or operator to knowingly engage in the sale within the Commonwealth of Massachusetts of any:

“(A) Shell egg that the business owner or operator knows or should know is the product of a covered animal that was confined in a cruel manner.

“(B) Whole veal meat that the business owner or operator knows or should know is the meat of a covered animal that was confined in a cruel manner.

“(C) Whole pork meat that the business owner or operator knows or should know is the meat of a covered animal that was confined in a cruel manner, or is the meat of the immediate offspring of a covered animal that was confined in a cruel manner.”

“On April 25, 2016, the plaintiffs commenced an action against the Attorney General and the Secretary in the county court . . . requesting declaratory relief . . . that petition 15-11 fails to meet the requirements of art. 48 and that the Attorney General erred in certifying it, and further requested a direction that the Secretary take no further steps to advance the petition or submit it to the voters.”

The Court opinion denied plaintiff’s requests finding that “the Attorney General properly certified that petition 15-11 contains only subjects that are related or are mutually dependent. It is therefore fair to ask the people of the Commonwealth to vote ‘yes’ or ‘no’ on a single petition containing both the farm and the sales provisions.”

The Court opinion also rejected Plaintiffs’ assertion that the policy statement included in the preamble was improper and argumentative and should be stricken, finding that such policy statements of the law’s intended purpose aided courts when they “have been called upon to interpret the meaning of laws adopted by initiative petition, we have been guided by statements of purpose.”

However, the Court opinion discussed its concerns that the law would be presented to the voters with a one-sentence statement that describes only the effect on farm animals raised within the state, and nothing about the sales ban that would affect every state citizen.

The one-sentence statements inform voters as follows:

“A YES VOTE would prohibit any confinement of pigs, calves, and hens that prevents them from lying down, standing up, fully extending their limbs, or turning around freely.

“A NO VOTE would make no change in current laws relative to the keeping of farm animals.”

The Court opinion included concerns because it “recognized that the one-sentence statements might be clearly misleading to voters because they make no reference to the sales provision, even though the initiative petition includes only two primary provisions and, in contrast with the farm provision, the sales provision will potentially affect every Massachusetts consumer of eggs, veal, and pork.”

However, after additional briefing about this concern, the Court opinion held that it “lack[ed] jurisdiction to order amendment of the one-sentence statements” because the plaintiffs had not filed a complaint to amend the statement as prescribed by law.

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Richard L. Cupp, Pepperdine University, writes for The Conversation:

My reaction to the killing of Harambe the gorilla at the Cincinnati zoo when a child went into the gorilla’s enclosure is probably typical: I am sickened and I am angry. This must not happen again.

One step that some advocates will surely press for in light of Harambe’s killing is to change our legal system to designate gorillas and other great apes such as chimpanzees as legal persons.

Expanding legal personhood to include intelligent nonhuman animals would give them legal rights, and would create standing for a human guardian to initiate legal actions on their behalf – much like children’s rights are protected in courts by guardians.

At first blush this may sound progressive and enlightened, but in reality the concept is fundamentally flawed and dangerous for society.

Turning to our legal system in responding to Harambe’s tragedy is the right approach, but our legal focus should be on ensuring effective human responsibility for the proper treatment of gorillas and other nonhuman animals rather than on pretending that gorillas are people.

Protections for animals

At surface, legal personhood for intelligent nonhuman animals has an edgy appeal and is often compared by its advocates to the noble battles to attain civil rights for marginalized humans.

Illustrating growing popular interest in the concept, a documentary about the legal battle for nonhuman animal personhood entitled Unlocking the Cage made its debut in January at the Sundance Film Festival. It is now opening in some theaters, and will be aired on HBO, BBC, and other television outlets later this year. The documentary highlights lawsuits filed in New York seeking to have intelligent chimpanzees treated as legal persons so that the chimpanzees would be removed from confined environments and placed in less restrictive, more natural environments.

These lawsuits do not seek to set the captive chimpanzees loose on the streets, but rather seek to have them moved to chimpanzee sanctuaries. Their arguments are based primarily on chimpanzees’ impressive cognitive abilities, asserting that as “self-aware, autonomous beings” they are “entitled to such basic legal rights as bodily liberty and integrity.” Significantly, the organization behind the lawsuits has indicated that it also plans to pursue legal personhood for other great apes (which include gorillas), as well as elephants and dolphins.

Would Harambe’s tragic killing have been avoided if our legal system considered a gorilla to be a legal person? Probably. A zoo likely would not be permitted to confine a legal person for viewing by the public. But although the nonhuman animal personhood approach has dramatic flair, it is not needed to change our laws regarding great apes and zoos.

Whether animals with the intelligence of great apes should be kept in any zoos, even high-quality zoos, is an increasingly serious question appropriate for thoughtful deliberation. And if the argument that they should not carries the day, this can be readily accomplished by changing the laws within our existing legal framework.

In other words, we do not need to pretend that great apes are people to protect them. Engaging in this pretension would be, in my view, both illogical and dangerous.

Society is rapidly evolving to demand greater protections for nonhuman animals, and appropriately so. Maintaining the status quo regarding levels of protection is in many instances neither feasible nor desirable.

But we are also increasingly facing a question with weighty societal implications. Will we channel this evolution through the animal welfare paradigm of enhanced human responsibility toward nonhuman animals? Or will we channel it through the radical paradigm of legal personhood and human-like rights for nonhuman animals?

In our society, legal personhood is anchored in the human community’s expectations of reciprocity from moral agents. We recognize that humans have rights, but we also generally expect them to accept responsibilities that come with belonging to or interacting with our society. Extending personhood beyond humans and their proxies would be inconsistent with our society’s core foundational principles.

When an adult chimpanzee at the Los Angeles zoo mauled a baby chimpanzee to death in front of zoo visitors in 2012, of course officials did not consider putting the chimpanzee on trial for murder. Although chimpanzees are highly intelligent as compared to most nonhuman animals, none of them are capable enough to be held morally responsible under our society’s laws. We should not dilute the protections and responsibilities connected to personhood by extending it to nonhumans incapable of the level of accountability we generally impose on humans.

Cognitive test?

Corporate personhood – the granting of legal standing and some legal rights to corporations – does not negate humanity’s centrality to personhood, because corporate personhood was created merely as a proxy for the rights and responsibilities of the humans who own the corporation. Regardless of whether corporate personhood is good or bad or whether it has been extended too far in recent Supreme Court cases, it is undeniably intended as a tool for representing human interests.

Further, analyzing courts’ and advocates’ rationales for assigning legal personhood and rights to humans who lack significant moral agency, such as young children and humans with significant cognitive impairments, demonstrates that their belonging in the human community, rather than an assessment of their cognitive abilities, is the anchor of their rights and legal personhood. I have published separate law review articles addressing in much more detail why the legal personhood of young children and the legal personhood of humans with significant cognitive impairments do not support legal personhood for intelligent nonhuman animals.

Humans are the only beings that we know of where the norm is capacity to shoulder the mutual obligations that are at a foundational level related to legal rights in our society. Among other beings of which we are aware, not only do no other types of animals meet this norm, no individual members of any other types of animals meet this norm.

The most vulnerable humans, those with significant cognitive limitations, would face the greatest risks in a shift to considering individual cognitive capacities as a basis for legal personhood. Although the legal personhood paradigm we assign to them would not immediately collapse, over time thinking of personhood in terms of individual abilities could erode their protections.

Nonhuman animal legal personhood presents other intractable problems, such as articulating a workable approach to determining how far down the intelligence chain personhood should extend.

Every species of mammals and many other nonhuman animals demonstrate some level of autonomy, indeed probably more autonomy than some humans with particularly severe cognitive limitations, such as, for example, humans in a persistent vegetative state. To ensure “equality,” should all of these animals be designated as legal persons?

More legal cases to come

Fortunately, New York’s courts have unanimously rejected nonhuman animal legal personhood thus far. By my count at least 23 New York judges have participated in ruling against the cases at various stages of the litigation. In the most prominent appellate opinion to date the court dismissed one of the lawsuits by focusing on chimpanzees’ incapacity to bear the societal responsibilities that are at a foundational level associated with rights.

But we are just at the beginning of what will be a long-term struggle. Many more lawsuits will likely be filed over the years in many jurisdictions. The ultimate outcome is far from clear, and the stakes are high.

Concluding that intelligent nonhuman animals such as Harambe should not be legal persons does not excuse us from doing more to protect them. Harambe’s outrageous death provides a powerful illustration. The facts surrounding his death must be extensively investigated to determine whether the zoo, the child’s parents, or any other humans or human proxies should be held legally accountable.

Regardless of whether the zoo’s employees made the right decision in shooting Harambe, wrong decisions must have been made earlier that allowed this tragedy to take place.

If no laws or regulations were violated, the laws and regulations almost certainly need to be changed to ensure that this does not happen again. But our focus needs to be on demanding appropriate responsibility from morally accountable humans and human institutions, rather than on the dangerous pretense of nonhuman animal personhood.


Richard L. Cupp, John W. Wade Professor of Law, Pepperdine University

This article was originally published on The Conversation. Read the original article.

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