Exotic and wild animals

S1093 and A1923, the latest versions of Nosey’s law, a bill that originally would have prohibited the use of elephants in traveling animal acts, has now expanded its reach to “prohibit the use of [all] wild or exotic animal traveling animal acts.”

Why is this a concern?  There are many legitimate animal exhibitions that inform and educate the public about exotic and wild animals that would be prohibited if this bill were to become law.

The current version of this bill, originally introduced in 2016, attempts to but fails to address the flaws in its prior iteration, which Governor Christie vetoed as one of his last official functions.

The definitions and provisions in the proposed bill, described here in relevant part, demonstrate the problems with the law:

“Performance” means any animal . . .  display, exhibition, exposition, fair . . . petting zoo, presentation, public showing . . .  trade show, or similar undertaking in which animals . . . participate as accompaniments for the entertainment, amusement, or benefit of a live audience.

“Wild or exotic animal” means any non-domesticated species of mammal, bird, reptile, or amphibian.

In previous versions of this bill, the terms “wild” and “exotic” were not defined.  The proposed definition above does not correct the prior deficiencies.  First, there is a problem with the term “domesticated.”

The terms “domestic” and “domesticated” have been interpreted by courts where those terms were not defined in statutes or regulations in suit.  See, e.g., Commonwealth v. Comella, 735 A.2d 738 (Pa. Commw. Ct. 1999) (questioning whether a “dog” is a “domestic animal,” based on statutory analysis); Bueckner v. Hamel, 886 S.W.2d 368 (Tex. Ct. Appl. 1994) (affirming judgment based, in relevant part, on the exclusion of “deer” as “domestic animals”); City of Rolling Meadows v. Kyle, 494 N.E.2d 766 (Ill. App. Ct. 1986) (reversing holding that owner’s monkey was not a domesticated house pet); Turudic v. Stephens, 31 P.3d 465, 471 (Or. Ct. App. 2001) (concluding that “although the cougar may be more exotic than goldfish or hamsters, they are, nevertheless, indisputably family pets.”)

Instead of using the term “domesticated” the term “domestic” should be used.

“Domestic” should be defined as “domestic livestock” and “domestic companion animal” and “pet” should be defined as “domestic animal.”  Since these terms have been subject to court interpretation (see, e.g. People v. Garcia, 777 N.Y.S.2d 846 (N.Y. Sup. Ct. 2004) (asserting that the statutory definition of “companion animal” was unconstitutionally vague); Levine v. Connor, 540 F.Supp.2d 1113(N.D. Cal. 2008) (addressing the exclusion of poultry from the definition of “livestock” in the Humane Slaughter Act); State v. Nelson, 499 N.W.2d 512 (Minn. Ct. App. 1993) (reversing conviction for cruelty to a rooster, based on the definition of “livestock”), “domestic livestock” should be further defined pursuant to section 1 of P.L. 1995, c. 311 (C.4:22-16.1); “domestic companion animal” should be further defined pursuant to subsection u. of section 1 of 14 P.L. 1978 (C.2C:20-1).

It would be problematic to incorporate NJDEP’s definition of exotic mammal, bird, reptile or amphibian which means “any nongame species or mammal, bird, reptile or amphibian not indigenous to New Jersey,” since that would prohibit many animal exhibitions and fairs.  For example, domestic cattle are not indigenous to New Jersey.

Then, there is the issue with ferrets, which New York City has ruled are “wild” animals.

In addition to these issues with defined (or undefined terms) the proposed exemptions in the bill, presented below, do nothing to right size the problems with this bill.

This section shall not apply to:

(1)   exhibitions at a non-mobile, permanent institution or facility certified by the United States Department of Agriculture and accredited by the Association of Zoos and Aquariums, the Global Federation of Animal Sanctuaries, the American Sanctuary Association, or a similar organization as determined by the Department of Environmental Protection;

(2)   outreach programs for educational or conservation purposes conducted by a facility accredited by the Association of Zoos and Aquariums, the Global Federation of Animal Sanctuaries, the American Sanctuary Association, or a similar organization as determined by the Department of Environmental Protection;

(3)   an institution of higher education exhibiting wild or exotic animals for research or education purposes; or

(4)   outreach programs for educational or conservation purposes conducted by governmental entities.

First, there is a concern about the arbitrary deference to accreditation by third parties, without reference to any specific animal care standards required.

Second, there are a number of non-governmental entities that are not institutional of higher education that conduct educational and outreach programs that help the public understand the importance and beauty of certain species.

As others have suggested, the language of the originally proposed bill, which would have prohibited the use of elephants in traveling animal acts, was much more preferable than these current versions.

 

S2508, Nosey’s Law, which “prohibits use of elephants and other wild or exotic animals in traveling animal acts” was passed by both houses in the N.J. legislature on January 8, 2017 and is headed to the Governor’s desk.

The bill, if signed, would put many of the state’s zoos and other businesses that include educating the public about amazing exotic species, out of business.  Therefore, hopefully, it will be vetoed by the Governor as one of his last official acts.

The bill was amended before the final vote to include banning “other wild or exotic animals” in addition to “elephants” from use in traveling animal acts.

The definitions of “Mobile or traveling housing facility.” “Performance,” and “Traveling animal act” make this bill extremely problematic and would have devastating and unreasonable results:

  1. As used in this section:

     “Mobile or traveling housing facility” means a vehicle, including a truck, trailer, or railway car, used to transport or house an animal used for performance.

“Performance” means any animal act, carnival, circus, display, exhibition, exposition, fair, parade, petting zoo, presentation, public showing, race, ride, trade show, or similar undertaking in which animals perform tricks, give rides, or participate as accompaniments for the entertainment, amusement, or benefit of a live audience.

“Traveling animal act” means any performance which requires an animal to be transported to or from the location of the performance in a mobile or traveling housing facility.

 

Based on these definitions, any wild or exotic animals transported to one of the state’s zoo’s or exotic animal exhibits would be banned.

This includes the Cape May Zoo, the Camden Aquarium, and Great Adventures, to name a few.

And the type of animals to be banned, based on the definitions promulgated by NJ DEP include:

          ‘Exotic mammal, bird, reptile or amphibian,’ [which] means any nongame species or mammal, bird, reptile or amphibian not indigenous to New Jersey.

‘Wild bird” means any bird other than a native, introduced, or feral game bird as defined in N.J.S.A 23:4-49 and other than a domesticated bird such as a chicken, turkey, guinea fowl, goose, duck, pigeon, or peafowl. ‘Wild bird’ also means the egg of a wild bird.

N.J.A.C. 7.25-4.1, et seq.

DEP requires permits for owners of exotic mammals including ferrets, llama, and exotic sheep or goats (undefined).  While llama, sheep and goats (and ratites) are also considered livestock, they would still be banned from exhibitions, including state and county fairs under the provisions of this bill.

Wild and exotic bird eggs, transported for incubation, even if to preserve endangered species would also be banned.

 

Such unintended consequences of this bill can only be addressed if it is vetoed.

NJDEP adopted a regulation in 2015 that “permits use of enclosed foothold traps to capture small fur-bearing animals, such as raccoons and opossums.”  N.J.A.C. 7:25-5.12 (g).

As set forth in the 2015-16 New Jersey Game Code, the use of the enclosed foothold traps is expressly permitted while the use of steel-jaw leghold traps is prohibited:

(g) Enclosed foothold traps may be used to harvest furbearing animals during the prescribed
open seasons and shall be subject to the following requirements:
1. All triggering and restraining mechanisms shall be enclosed by a housing;
2. The triggering and restraining mechanism is accessible only by a single opening when the
trap is set;
3. The access opening does not exceed two inches in diameter or when measured diagonally;
4. The triggering mechanism can be activated only by a pulling force; and
5. The trap has a swivel-mounted anchoring system.

(e) Steel-jaw leghold type trap:
1. Effective October 27, 1985, and thereafter, no person in this State shall:
i. Manufacture, sell, offer for sale, possess, import or transport an animal trap of the steel-jaw
leghold type;
ii. Take or attempt to take any animal by means of a trap of the steel-jaw leghold type; or
iii. Use a steel-jaw leghold type trap.

Rejecting a challenge by several state and federal animal rights organizations that the New Jersey Fish and Game Council exceeded their authority by permitting the use of the enclosed foothold traps, the Appellate Division panel of the Superior Court of New Jersey upheld the regulation and the found no deficiencies in the process used to promulgate the rule.

Specifically, the Court found there was statutory authorization for “the Council to promulgate regulations such as the one at issues here, which prescribed the manner and means of taking fur-bearing animals through authorization of enclosed foothold traps as an alternative to the banned steel-jaw leghold type traps, subject to certain conditions.”

Citing to New Jersey Society for the Prevention of Cruelty to Animals v. N.J. Dep’t of Agric., 196 N.J. 366 (2008) the Court agreed with the holding by the state Supreme Court, that the process used by the Council was sound, stating:

In New Jersey Society for the Prevention of Cruelty, our Supreme Court held that because the regulations fell within the agency’s area of technical expertise [humane care of livestock], it ‘would need to discern an inherent flaw in the very process by which they were drafted and adopted . . .’ to invalidate the regulations . . . The Court determined that the ‘extensive record and careful response of the Department to the overwhelming number of comments’ did not warrant such a conclusion . . .The same could be said here.  (internal citations omitted).

The extensive record and careful response of the Department, defending the humane standards of care of livestock referenced was my responsibility as the Director of the Division of Animal Health at the time, with great assistance from DAG Nancy Costello-Miller.  In that case, the appellate division upheld the regulations, but the activists appealed to the Supreme Court.

Here, an appeal is also likely.  What is clear is that the Senate Concurrent Resolution and its sister Assembly version 25 that would have determined “that Fish and Game Council’s proposal to allow use of enclosed foothold traps is inconsistent with plain language and legislative intent of 1984 law banning animal traps of steel-jaw leghold type” is now moot.  However, a bill to ban the foothold traps is likely to be introduced.

A note about rabies, a nearly 100% fatal zoonotic disease that has been endemic in New Jersey since individuals relocated infected raccoons from the south to New Jersey. The NJ Department of Health reports on rabies testing each year and results each year.  The latest report is available here.

NYC Council is at it again.

This time, they are considering an ordinance that will ‘prohibit the display or exhibition of many wild or exotic animals, with exceptions for accredited zoos, research facilities, religious ceremonies or celebrations, and educational or conservation-related programs or presentations.”

Clearly, the ordinance, if passed, would shutter all circuses that include exhibitions of wild or exotic animals, but it could also prohibit television programs filmed in NYC that display these animals.

As reported by Verena Dobnik, Associated Press, on Oct. 13, 5:22 pm at abcnew.go.com.

The New York legislation was first introduced about a decade ago by Councilwoman Rosie Mendez, a Manhattan Democrat. Another Manhattan Democrat, Councilman Corey Johnson, recently joined in, saying that “trucking wild animals in and out of the city strictly for entertainment purposes is not a humane way to be treating them.”

A hearing on the proposed ordinance (Int. No. 1233) will be held by the Council’s Committee on Health on Oct. 20. Councilman Johnson serves as the Chairman of that committee.

Notably, Johnson was co-sponsor of the pet store sourcing ban that has been discussed numerous times, including recent blogs: Pet Stores Under Attack-Mandatory Sterilization Preempted by State Law ; Pet Stores Under Attack-Pet stores do not contribute to local overpopulation ; Pet stores under attack-sourcing bans violate the Supremacy Clause ; Pet Stores Under Attack-Continued: Shelters, Rescues and Pet Stores sell the same product – dogs and cats ; Pet Stores Under Attack-Continued: The New York City Pet Store Law Violates the Commerce Clause ; Pet Stores Under Attack.

Not surprisingly, the animal rights “nonprofits” NYCLASS and HSUS support the ban.

Circuses and related associations, including Ringling Bros. and Barnum & Bailey Circus and the Circus Fans Association of America (CFAA), are opposed to the ban. As Feld Entertainment (parent of Ringling Bros.) explains on their website:

Through the circus, every year hundreds of thousands of children are exposed to magical experiences with lions, camels, and other exotic animals like nowhere else. Help us stop this bill and save the circus for generations of families to come. Don’t let animal extremists end a 146 year family tradition.

If you want your voice heard, you should testify at the hearing on October 20, 2016 at 10 am located at Council Chambers, City Hall, 250 Broadway, New York, NY 10007.