I recently returned from a trip to South Africa, Botswana, Zambia and Zimbabwe with my best friend (husband) and have to share some of the awe-inspiring scenes of these majestic countries and wildlife residing therein.  I will concoct related legal theories and pass them along another time.  Until then, enjoy.

Zebra
Leopard guarding Cape Town
Hippo
Lionesses
Leopard

Cape buffalo
Giraffe
White Rhino
Lion
Elephant

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.

 

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.

Laws governing animal ownership are swiftly changing across the country, affecting owners of all types of animals.  A proposed bill in Wisconsin, AB333. would change the laws relating to the possession of certain wild animals.

The captive wildlife law authorizes a city, village, town, or county to enact an ordinance that prohibits the possession of wild animals.

This bill generally prohibits the possession, propagation, and sale of dangerous exotic animals. Under the bill, dangerous exotic animals are nonnative big cats, including lions and tigers; nonnative bears, including brown bears and polar bears; apes, including gorillas, chimpanzees, and gibbons; and crocodilians, including alligators, crocodiles, and caimans. Certain entities are exempt from the prohibitions, including veterinarians, accredited zoos, municipal zoos, circuses, federally licensed research facilities, and wildlife sanctuaries. The bill authorizes a person who does not qualify for an exemption but who owns a dangerous exotic animal when the bill takes effect to continue to possess the animal if the person registers the animal with the municipality in which the person keeps the animal.

The bill prohibits a person from allowing a member of the public to come into direct contact with a dangerous exotic animal and requires the owner of a dangerous exotic animal to inform local law enforcement if the animal escapes. The bill also authorizes a city, village, town, or county to enact an ordinance relating to dangerous exotic animals if the ordinance is at least as strict as the provisions in the bill relating to dangerous exotic animals.

The Feline Conservation Federation (FCF),  a 501(c)(3) non-profit organization with a mission to conserve wild felines through preservation, education and research, submitted comments and proposed amendments because of its concern about the unintended consequences of the amended law including:

AB 333, as written, has the potential to create new public safety concerns by removing regulatory oversight from wildlife sanctuaries. Furthermore, prohibitions on direct contact with impacted species held by all organizations will reduce animal care options, adversely impacting animal welfare.

This bill as written will result in negative impact on and the possible eventual closure of federally licensed businesses, elimination of conservation and education programs, and it will cause economic consequences that have yet to be meaningfully calculated.

According to FCF the bill was proposed just after a news story about a lion in Milwaukee, which turned out to be fabricated.

The fear instilled by this falsehood was conveniently timed in the context of this proposed legislation, and it has made meaningful dialogue about this sensitive issue even more challenging. It would be a disturbing precedent if such impactful legislation is conceived and enacted based on a fabricated crisis.

To learn more about FCF visit this website.

With the constant attacks on people and businesses working with animals humanely in entertainment, biomedical research, animal agriculture, and with companion animals, it is encouraging to learn of at least one conservation effort where protecting wildlife does not involve condemning farmers or ranchers. Too often, farmers and ranchers are viewed with disdain by conservationists who favor wildlife over domestic livestock.

But happily, this is not always the case.

For example, as reported on NPR’s “living on earth®,” conservationist Andrew Jakes, a postdoctoral Fellow at the University of Montana who has studied pronghorn antelope[1] and their migrations for years, along with the Alberta Conservation Association and the Nature Conservancy of Montana, has undertaken a project to help pronghorns navigate more easily across private ranches surrounded by barbed-wire fencing during their annual migration. According to the National Wildlife Foundation

pronghorns have the longest land migration in the continental United States . . . migrat[ing] 150 miles each way between Wyoming’s Upper Green River Basin and Grand Teton National Park.

As reported by Clay Scott from “living on earth®” the pronghorns must navigate around fenced in property making the journey longer, requiring them to expend more energy while decreasing the time they have to forage and build up resources that would allow them to survive.

Since pronghorns don’t jump, they must find sections of fencing where the bottom strand is high enough for them to go under it in order to continue on their migration path.

According to Science Director Brian Martin from The Nature Conservancy the pronghorns are:

burning a lot of calories, which may not directly kill them but makes their chances for mortality much higher. For years, The Nature Conservancy has been modifying fences to make wildlife movement easier, but with thousands of miles of fence strung across the state, knowing where and how to change fences is critical. One of the tools helping us figure that out is the remote camera.

After studying videotape of the migration, scientists and conservationists have been swapping out the lowest strand of barbed-wire with smooth wire and raising the wire to allow for easier passage of the animals. By partnering with (and not vilifying) ranchers and scientists, conservationists should be able to continue to provide for safer migration of these uniquely North American mammals.

The same cannot be said of long-standing efforts to protect threatened or endangered species exhibited in zoos, parks and circuses.

Despite the considerable scientific contributions of facilities like SeaWorld and Ringling Bros. Center for Elephant Conservation to the body of knowledge used worldwide to protect marine mammals and elephants, attacks on these types of institutions continue to amass.

The latest challenge for SeaWorld comes in the form of a congressional bill that would “ultimately phase out captive orcas from locations like SeaWorld in the United States within 50 years,” as reported by CNBC.

The Orca Responsibility and Care Advancement Act (ORCA) is supported by the Animal Welfare Institute, the Humane Society of the United States, the Humane Society Legislative Fund and People for the Ethical Treatment of Animal.

In a recent post SeaWorld states:

While efforts to phase out whales in human care may strike an emotional chord, SeaWorld and other science-based organizations are part of the solution, not the problem. Here are the 4 things you need to remember:

Killer whales at SeaWorld are healthy and thriving. Through conservation work, rescue efforts and significant contributions towards advancing scientific understanding of orcas and other marine mammals, SeaWorld is a leader in protecting and preserving these species.

We have not captured a whale in the wild in 35 years – and we will not do so.

Through our work with scientists, conservation leaders, and the government SeaWorld is ensuring that all animals in human care are treated with the dignity and respect they require and deserve.

SeaWorld has always supported science-based regulation and we look forward to continued collaboration with the government so that together we meet our shared goals of protecting the welfare of our animals, as well as saving animals in the wild.

Bans like this one have been proposed across the country affecting all animal enterprises and animal owners across the country.  Instead of benefiting the animals they are intended to protect, they will only harm them, other animals and the people whose lives are so enriched by their exposure to creatures great and small.

It is time, instead, to embrace an approach that will benefit everyone and preserve our long history of working with and for animals.

“Working together works.”

[1] Pronghorns are not actually antelope.