August 2016 Animal Law Update: Recent Developments in the Emerging Field of Animal Law

Florida Bar Animal Law Committee Gains Section Status 

The profile of animal law in Florida has received a boost with the Florida Bar approving an Animal Law Section to represent the growing specialty. The new section, an outgrowth of the Florida Bar’s Animal Law Committee, which formed in 2004, went into effect July 1, 2016. Organizers seeking section status were backed by more than 1,000 attorneys who expressed interest in joining. Benefits of joining a section include opportunities to receive information and education about a particular area of the law and to meet attorneys with similar interests. Bar sections are more influential than committees because the former can weigh in on state legislation, so this is a great step forward for animal law in the Sunshine State.

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Dogs Are Not Mere Property, Rules Oregon Supreme Court

The June ruling in State v. Newcomb holds that when law enforcement legally seizes an animal and has probable cause to believe that animal is being cruelly treated, they do not need to obtain a warrant before a veterinarian can administer a routine blood test to determine the cause of that animal’s condition. The Oregon Supreme Court ruled that the blood draw did not constitute an illegal search under the Fourth Amendment or the Oregon Constitution. This ruling reversed a lower court decision that essentially equated a companion animal with a closed container. According to The Oregonian newspaper, in deciding that the owner’s constitutional rights had not been violated by the dog’s blood draw, “The high court noted that dogs are not ‘mere’ property and don’t require a warrant to search internally. The court differentiated animals from, say, containers or suitcases with drugs or other items stashed inside.”

This decision not only affirmed the trial court’s convicting the dog’s owner of second-degree neglect, but also contains important language about how sentience makes animals unique and different from other forms of property, despite their property classification under the law. Also notable is the extent to which the court said that “the evolving landscape of social and behavioral norms” regarding the welfare of animals influenced its decision. Many animal advocates argue that the law has not kept pace with changing social norms about companion animals, so this is an encouraging development that signals positive change in the legal system. Animal Legal Defense Fund, which filed an amicus brief in this case, applauds this decision and has written about it in detail elsewhere (see below).

Further reading:

Massachusetts Farmed Animal Ballot Measure Survives Constitutional Challenge

The Massachusetts Supreme Judicial Court has allowed a ballot question addressing the confinement of farmed animals to move forward, ruling against a constitutional challenge in a unanimous decision. The initiative would prohibit confining farmed animals in cages so small they cannot comfortably stand up, lie down, turn around, or move their limbs. It would also ban the sale of meat and eggs resulting from these practices outside Massachusetts.

The lawsuit argued the ballot question was unconstitutional because it included “multiple unrelated subjects” (confinement and sales) and addressed three different types of animals. In ruling against the plaintiffs, the court found that the confinement and sale provisions are related because they “share a common purpose of preventing farm animals from being caged in overly cramped conditions” and that the ballot question treats all three animals the same way.

Ten states in the U.S. have banned the confinement practices at issue in Massachusetts: battery cages for egg-laying hens, veal crates for calves, and gestation crates for pigs. Although only one farm in Massachusetts currently uses battery cages, and none use veal crates or gestation crates, the provision banning the sale of products resulting from these practices would have a greater impact. So far, only California has passed a law banning the sale of eggs from hens kept in cages, and no state has banned the sale of meat products from confined animals. This legislation would go further than any similar law in the U.S.

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Appeals Court Rules U.S. Navy Sonar Use Violates Marine Mammal Protection Act

The Ninth US Circuit Court of Appeals in California has banned the U.S. Navy from using sonar that harms marine mammals during peacetime training exercises, ruling that sonar causes the animals stress; disrupts their communication, navigation, feeding, and mating practices; and separates them from their calves. Military sonar activities have also been linked to the mass stranding of dozens of marine mammals around the world.

Approval for the Navy to use low-frequency sonar, which is used to detect submarines, was granted in 2012 by the National Marine Fisheries Service (NMFS). However, environmental groups, led by the Natural Resources Defense Council and joined by the Animal Legal Defense Fund, filed a lawsuit arguing this approval violated the Marine Mammal Protection Act. In a unanimous decision, the Ninth Circuit Court of Appeals agreed, reversing a lower court decision upholding the approval.

Although the Navy has policies in place to reduce harm to marine mammals, the new ruling states that current measures are inadequate and that new rules and guidelines must be created, although the court stopped short of giving details regarding content or a timeline for implementation.

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INTERNATIONAL

Australian State Bans Greyhound Racing

New South Wales (NSW), Australia’s most populous state, has banned greyhound racing after a government investigation found overwhelming evidence of “horrific” cruelty, including mass killings of heathy greyhounds deemed unsuitable for racing and “live baiting,” in which dogs are encouraged to chase and kill small animals in training sessions.

According to NSW Premier Mike Baird, the inquiry report was “chilling” and the abuses so widespread that the government was left “with no acceptable course of action except to close this industry down.” Australia has one of the world’s largest dog racing industries and although the premier expressed empathy for those who would lose their jobs as a result of this decision, his words were unequivocal: “We cannot and will not stand by and allow the widespread and systemic mistreatment of animals.”

Animal advocates are hopeful that this ban, slated to take effect in July 2017, will pave the way for other Australian states – some of which have launched their own investigations into the sport – to ban greyhound racing as well. Eight countries worldwide still allow commercial dog racing, including the United States. However, it only remains operational and legal in five U.S. states.

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