Animal Law

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You have probably heard of the decision by the First Judicial Department’s Appellate’s Division upholding the lower courts’ decision not to sign orders to show cause seeking the transfer of chimpanzees from one form of captivity to another, under the rejected narrative that writs of habeas corpus should be applied to the chimps because they are allegedly “persons.”

Citing to and relying on the amicus brief filed by Pepperdine Law Professor Richard Cupp, the Court held that animals are not legal persons because they are unable to fulfill legal duties, or to be held legally accountable for their actions.  The Court described and rejected petitioner’s repeated attempts to have courts grant “personhood status” to chimpanzees.

Petitioner has filed four identical petitions in four separate state courts in four different counties in New York. Each petition was accompanied by virtually the same affidavits, all attesting to the fact that chimpanzees are intelligent, and have the ability to be trained by humans to be obedient to rules, and to fulfill certain duties and responsibilities. Petitioner has failed to present any new information or new ground not previously considered. The “new” expert testimony presented by petitioner continues to support its basic position that chimpanzees exhibit many of the same social, cognitive and linguistic capabilities as humans and therefore should be afforded some of the same fundamental rights as humans.

Interestingly, the NonHuman Right’s Project (NhRP) describes the chimpanzees for whom they filed petitions―Tommy, Hercules, Leo, and Kiko―as “clients.” 

This is curious, since, according to New York State’s Rules of Professional Conduct  (yes there are ethical standards for attorneys) there are a number of provisions that call into question whether these chimpanzees should be considered “clients.”

For example, Rule 1.4 requires a lawyer to inform their client of “any decision or circumstance with respect to which the client’s informed consent . . . is required.”  Did or could the chimpanzee “clients” provide informed consent to NhRP to file the petitions?

Also, Rule 1.7 (Conflict of Interest: Current Clients) states in relevant part:

a lawyer shall not represent a client if a reasonable lawyer would conclude that . . . there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial business, property or other personal interests.

Does the NhRP’s interest in and requests for donations related to these petitions affect the lawyers’ professional judgment related to these petitions?

Rule 7.1 provides:

A lawyer or law firm shall not use or disseminate or participate in the use or dissemination of any advertisement that: contains statements or claims that are false, deceptive or misleading . . . [where] such an advertisement may include information as to . . . (2) names of clients regularly represented, provided that the client has given prior written consent . . .

The NhRP advertises the names of four chimpanzees as their “clients.”  There is no indication on the website that the chimpanzees― Tommy, Hercules, Leo, or Kiko―provided written consent for this purpose (nor would it have been possible for them to do so).

It is clear that NhRP believes passionately in its mission statement, to “work for the recognition and protection of fundamental rights for nonhuman animals,” but perhaps they should be more careful about their use of words, like “clients.”

Words matter.

In a stunning turn of events, USDA has deactivated it’s Animal Care Search Tool, as indicated on its website:

Animal Care Search Tool-DEACTIVATED
Animal Care Search Tool-DEACTIVATED.

USDA inspection reports of licensees pursuant to the Animal Welfare Act, among other data, were previously available on this search engine.

The following alert is provided when clicking on the link (now deactivated):

Courts are continuously issuing decisions that provide agencies with guidance on interpreting and applying laws applicable to the release of information to the public by the Federal government, including the Privacy Act and Freedom of Information Act.  In addition, the U.S. Department of Justice maintains comprehensive guidance involving the Privacy Act, Freedom of Information Act, and other laws, and updates such guidance based on legal developments.  APHIS, with the support from the Office of the General Counsel, continuously monitors these sources of information and makes refinements to APHIS’ practices, as needed.

Based on our commitment to being transparent, remaining responsive to our stakeholders’ informational needs, and maintaining the privacy rights of individuals, APHIS is implementing actions to remove documents it posts on APHIS’ website involving the Horse Protection Act (HPA) and the Animal Welfare Act (AWA) that contain personal information.  These documents include inspection reports, research facility annual reports, regulatory correspondence (such as official warnings), lists of regulated entities, and enforcement records (such as pre-litigation settlement agreements and administrative complaints) that have not received final adjudication.  In addition, APHIS will review and redact, as necessary, the lists of licensees and registrants under the AWA, as well as lists of designated qualified persons (DQPs) licensed by USDA-certified horse industry organizations to ensure personal information is not released to the general public.

Those seeking information from APHIS regarding inspection reports, research facility annual reports, regulatory correspondence, and enforcement records should submit Freedom of Information Act requests for that information.  Records will be released when authorized and in a manner consistent with the FOIA and Privacy Act.  If the same records are frequently requested via the Freedom of Information Act process, APHIS may post the appropriately redacted versions to its website.  In addition, some enforcement records (such as initial decision and orders, default decisions, and consent decisions) are available on the USDA’s Office of Administrative Law Judge’s website (https://www.oaljdecisions.dm.usda.gov).

For more information on preparing and submitting Freedom of Information Act requests, please visit https://efoia-pal.usda.gov/palMain.aspx.

So what does this change in policy mean for businesses, like pet stores in certain towns, cities, and states, that are required to provide USDA inspection reports to their customers, upon request or the purchase of a puppy?

It depends (naturally).

If the law requiring such disclosure specifies that the inspection reports are to be obtained from the USDA website, there is now a reason why the pet stores cannot comply.  Those enforcing the law, as written, should accept the fact that the former requirement is now a legal impossibility.

If the law requiring such disclosure is not specific about where the pet store must obtain the inspection reports, then the pet stores may have to obtain those documents from their sources.  Certainly, they will be unable to obtain the reports quickly through a FOIA request (unless that process has drastically changed).  Even if obtainable through FOIA, it seems likely that the breeder’s personal information, required by many laws, will be redacted by USDA.

It will be incredibly interesting and insightful to hear more about the legal basis USDA relied upon to protect this personal information under the Privacy Act and other laws, as mentioned in the alert.

It seems likely that USDA will be explaining this in court when this policy is undoubtedly challenged.  See some of their thinking at their Q&A on their website.

Without access to USDA inspection reports, animal activists, intent on closing pet stores and eliminating dog breeding, will be unable to misrepresent the meaning of non-compliant citations on those reports, as they have consistently done to convince legislators to ban sales of pets based on mere citations.  Such citations do not mean that licensees have violated the AWA.  As described in USDA’s alert, inspection reports and other legal proceedings that have not received final adjudication are no longer available.  Hopefully, this will help ensure that licensees are provided with due process of the law that the Constitution and justice requires before their businesses are effectively shuttered.

Fox Rothschild’s has launched an Animal Law practice, led by attorney and licensed veterinarian Nancy E. Halpern, D.V.M., and made up of lawyers experienced in defending the rights of businesses and people to own and use animals humanely. This multi-disciplinary practice is a one-stop shop for animal-related business, providing the full range of corporate law services — including entity formation, financing, securities, ownership transition and exit strategy — as well as regulatory assistance, patent services and litigation, among many others. Visit the page to learn more about the services we provide and the people in the practice.