Puppy Mills: Laws To Protect Pups and Purchasers

Posted by on Mar 21, 2012 in Animals & the Law | 1 comment

If someone were to describe a situation where a hundred dogs were found living in all-wire cages that offered little or no shelter from extremes in weather, where the dogs themselves were suffering from overgrown nails, ear and eye infections, severely matted hair, and untreated wounds, I would expect us all to have a similar reaction: surely, this was a situation of neglect that amounted to animal cruelty; such cruelty would be a violation of any state cruelty statute. Perhaps some of us would question whether this was a case of animal hoarding, which, though also constituting neglect and cruelty, adds a factor of human mental illness to consider when deciding what is justice.

However, many times a scenario such as the one I’ve described is the reality known as a “puppy mill,” a large breeding facility where the market for purebred companion animals has turned dogs into crops, and where breeders that look into those lovable puppy eyes see only dollar signs. And the only thing worse than being a puppy at a mill is being one of the dogs who are kept solely for breeding purposes. While puppies are sold into (we hope) loving homes, mamas will spend their whole lives in cages, kept pregnant for as long as their bodies will keep producing. When they are spent, they will be sick, exhausted, and euthanized.

So why aren’t these breeders prosecuted for cruelty? Here’s a look at the federal and state laws in place, where they fall short, as well as some recent legislative efforts to come to the aid of those suffering.

Federal Law

The Animal Welfare Act, under the supervision of the USDA’s Animal and Plant Health Inspection Service (APHIS), is the major federal law that is supposed to protect animals used for commercial purposes. The minimum threshold standards address basic needs of food, water, shelter, and veterinary care. Unfortunately, animals sold by retail pet store owners are explicitly exempt. The original thinking behind the exemption was that, because people would be going into pet stores, they would be able to see the conditions; therefore, additional regulation wouldn’t be necessary – the retailers would self-regulate in their own interest. However, with the rise of internet sales, the public doesn’t have the same access it once did. A wonderful-looking web site does not mean things are looking so wonderful behind the fences. And getting onto the premises to inspect these places is nearly impossible.

The Puppy Uniform Protection and Safety Act
This piece of legislation currently is under review by the United States House (H.R. 835) and Senate (S. 707). The law would help to close the loophole in the AWA by regulating breeders that sell more than 50 dogs per year; it also includes the requirement for daily exercise.

Particularly because of the nature of the puppy mill business — interstate commerce — a uniform federal standard is essential in the protection of these dogs across state lines.

State Laws
Many states have taken different approaches towards offering dogs in puppy mills greater protection. State laws may impose regulations on individuals in possession of a certain number of dogs (i.e., 30 dogs in Virginia); in other states, such as Pennsylvania and Arizona, breeders are required to obtain kennel licenses. Other states may place a cap on the total number of dogs one can have on premises (Louisiana prohibits more than 75 dogs). Still other laws require that dogs be given time outside of their cages for exercise.

However, as with other systems that rely on permits and licensing, there are frequently issues of monitoring and enforcement; even where the law allows for inspections, local law enforcement is unlikely to make this a priority when they are already feeling stretched thin by other community demands.

During the 2010 elections, there was cause for great excitement when Missouri citizens voted in favor of  “The Puppy Mill Cruelty Prevention Act” (Proposition B), which placed restrictions (such as a 50 dog cap) on dog breeders. Missouri is one of the Midwestern states where puppy mills are big business. Not surprising, then, that after the measure passed, there was pressure from rural communities where these puppy mills are located to overturn the vote; the industry claimed the Act as it was written would be too costly… businesses would close. Consequently, in 2011, the law was repealed by Missouri’s Governor. In its place, new legislation was signed into effect that does not include many of the key provisions — and therefore protections — of the original Act.

Consumer Demand
Stronger laws, as those described above, are essential to regulate breeding establishments and to bring an end to puppy mills. Furthermore “puppy lemon laws” help protect the uninformed consumer who unknowingly purchases a dog with health or congenital defects — not uncommon in dogs born within the puppy mill system. In addition, dogs coming from these miserable conditions can be extremely difficult to socialize.

Getting beyond the availability of compensation for an unhealthy puppy remains the fact that, simply put, the public needs to stop purchasing these puppies. The puppy mill industry is a for-profit business. If the demand for these puppies goes away, the businesses will end. Not only is it imperative to cease buying these puppies, but it also is essential to educate others about the true conditions of these places so that they, too, will look elsewhere for their next family dog.

our Galileo as a puppy

Please adopt — don’t shop!
Local animal control centers euthanize upwards of 70% of the stray animals they take in. Approximately 4 million shelter animals are euthanized each year, 60 percent of them dogs. I encourage everyone who is thinking about adding a canine member to the family to please adopt – don’t shop! Besides the nearest animal control, local humane societies and foster/rescue organizations are seeking loving furever homes for animals in need. My Pushkin came from Bideawee in NYC; Galileo was a puppy rescued by the Tucson organization FAIR.

For those who are drawn to a particular breed, Petfinder.com will allow you to search for that darling Daschund or Boston Terrier. Also, many local rescue groups focus on a particular breed. Here in Tucson, for example, we have the Arizona Greyhound Rescue and the Southern Arizona Beagle Rescue. In nearby Phoenix, there is Southwest German Shepherd Rescue. These are just a few of the countless organizations that will help you find the perfect match… without going to a breeder.

Read More

Animals in Tort Law: property status & noneconomic damages

Posted by on Jan 27, 2012 in Animals & the Law | 0 comments

A Texas appellate court recently ruled that owners of a wrongfully euthanized dog may recover “sentimental” or “intrinsic” damages. While this interpretation of state law might result in an award greater than an animal’s “fair market value” (which, in many cases, can be next to nothing), it still puts companion animals in a category closer to a family heirloom than a living, sentient being. The property status of animals remains a hot topic, so thanks to Jennie for her guest-blog today!

guest blogger: Jennie Schenck

When choosing a topic for my Law Review note, I was asked to consider a legal concept I had learned during my 1L year that I found strange or inconsistent with reality. I came up with a topic rather quickly: I wanted to write about animals as property—and why they ought to have a higher legal classification than that.

I remember writing “WTF?” in the margins of my torts book next to the case that explained why animals are considered property in the eyes of the law. I remember wondering if the judge who wrote the opinion could honestly sit there and analogize animals to inanimate possessions like cars or furniture with a straight face.  It doesn’t take studies and statistics to show that people regard their animals more as family members and less as mere property (though statistics do support that point time and time again). I grew up in a family that gave our pets Christmas and birthday gifts, spent thousands of dollars on our pets’ medical care when necessary, and took more pictures of our pets than the rest of the family combined.  Low and behold, we didn’t do this with our cars or our furniture. And I had a feeling my family was more of the rule than the exception.  In my note, I decided to focus on why the law is so stagnant in this area and what can be done to give animals a higher legal status.

I started by examining case law. Soon, I found a pattern—judges and juries really were sympathetic to pet owners whose pets had been injured or killed due to the tortuous conduct of another, but were almost always unwilling to award anything but economic damages, reflective of animals’ property status.  When they did award noneconomic damages, they were often very small and the court was careful to limit the award to the facts of that specific case. One involved an old lady whose dog was killed and whose house was subsequently burgled—the court awarded damages for the worth of the dog as a guard against intruders, but made sure to limit the award to the facts of that case.  I eventually decided the answer was with the legislature.  Courts would not be willing to extend noneconomic damages in tort cases involving animals unless they had some sort of clear vehicle for doing so.

As of a year ago, when I completed my Law Review note, three states—Tennessee, Illinois, and Connecticut—had enacted statutes that allowed for certain types of noneconomic damages in cases involving the loss or injury of a pet.  I examined two of these in detail (because the Illinois and Connecticut statutes were very similar). One specified that noneconomic damages were to reimburse the owner for the loss of companionship he suffered due to the loss of or injury to the pet.  The other gave the court more leeway in deciding the nature of noneconomic damages. Both were limited in the amount of damages that could be awarded.

Based on the two statutes and my perception of the amounts and types of noneconomic damages necessary to deter inhumane conduct toward animals and adequately reimburse pet owners, I created my own noneconomic damages statute.  I specified that damages should be to reimburse the owner for loss of companionship and for the owner’s foreseeable emotional distress. I included a limit on the amount of damages available (higher for intentional conduct than for negligent conduct), exemptions for governments and veterinary businesses, and a broad definition of “pet” (“pet” being an animal that would qualify his owner for damages under the statute).  My statute was meant to serve as a general template for states to use for their own pet-loss statutes.

Now that I have taken an animal law class and have had about a year to think about the note, I wish I had focused more on the suffering of the animal rather than the loss of companionship and suffering of the animal’s owner.  I now believe that this would get us closer to giving animals a higher legal standing than the statutory remedy I set forth.  However, this comes with a whole new host of problems, of which my note only skims the surface.

Also, ultimately, such a statutory remedy would only be a small step toward giving animals a more deserving legal status.  My note addressed only tortuous interference with pets—there are hundreds of other areas of law which would have to be tweaked to truly recognize animals as having a higher legal standing.

Jennie Schenck is a third-year law student at the University of Arizona James E. Rogers College of Law. She is a board member for law school’s student chapter of the Student Animal Legal Defense Fund. Her legal experience includes family law, personal injury, estate planning, and federal contracts.  

 

Read More

Africa’s Endangered Black Rhino: the illegal horn trade

Posted by on Dec 16, 2011 in Animals & the Law | 0 comments

Rhino photo credit: Daryl Mitchell

photo credit: Daryl Mitchell

According to the International Rhino Foundation, gold is trading at approximately $1,410 a kilogram; meanwhile, a kilogram of rhino horn (comprised of the protein keratin, calcium, and melanin) is worth between $50,000 and $60,000 on the Asian black market. Most often, the horn is ground into powder for use in Traditional Chinese Medicine. Mid-20th century, there were approximately 65,000 black rhino; now, there are estimated to be only 3600 African black rhino left in the world.

Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES)
In 1973, an agreement among 175 member countries established CITES. This became the primary international treaty concerning wildlife trade, with the purpose of preventing species from becoming endangered or extinct as a result of international trade. Article II of CITES includes three appendices, with Appendix I listing species that are given the highest priority for protection as “critically endangered,” meaning they are closest to extinction: the black rhino is among them. The international trade of rhino horn was banned in 1976 by signatories to CITES. In 1988, the United States prohibited importation of rhino caught in the wild. In 1993, the Chinese government also banned the use of rhino horn, or any other parts from endangered species, in Traditional Chinese Medicine.

As impressive as CITES may sound, it is important to keep in mind its inherent limitations. Members adhere to CITES agreements as binding; however, decisions about measures and implementation are at each member’s discretion when creating their own domestic laws. Thus, CITES provisions figure into the protection of animals only in as much as they influence the crafting and enforcement of each nation’s individual laws. Secondly, the impact of CITES is limited because, unlike our Endangered Species Act, it does not address the preservation of species habitat. The depletion of the African landscape only exacerbates the problem for rhinos that are already losing the battle against poachers.

Laws in Africa
African countries have laws and bans in place with the purpose of protecting the rhino and other endangered species. For example, in South Africa, the Threatened or Protected Species Regulations of 2007 (TOPS), drafted in terms of the National Environmental Management Biodiversity Act of 2004 (NEMBA), states that no person, without a valid permit, may hunt, capture, kill, convey, import, export, keep live rhino in captivity, or possess a rhino horn. Despite these strict laws, the illegal rhino horn trade is flourishing in South Africa, where most of the remaining black rhino can be found. First, there is an exception made to allow the trade of rhino horn as part of a trophy resulting from a legal trophy hunt. And now, South Africa is considering the legalization of the rhino horn trade — asserting that legalization will facilitate regulation. However, the push for legalization puzzles me because, with internal bans still in place in Asia, South Africa will be creating a market that has no legal end point. The strategy, then, seems more of a misguided attempt that almost certainly will have tragic, irreversible consequences.

What We Can Do: A Multi-pronged Approach
Stronger laws and their enforcement are essential to helping the rhino (and other endangered species) survive the illegal wildlife trade. However, a successful program of protection must address all aspects of the trade market. Some other recommendations:

  • Anti-poaching and relocation efforts for population recovery; this will necessitate coordinated efforts of local community members and larger, well-funded organizations.
  • Injection of the horn with a non-lethal substance as a standard preventative measure. The Rhino Rescue Project  promotes the injection of chemical dyes similar to those used in the banking industry, where the dye is visible on an x-ray scanner even when the horn has been ground into powder. Although not harmful to the rhino, the use of chemicals can cause illness in others who come into contact with the treated horn. (The injection method seems more promising than the practice of dehorning rhino, which has had mixed results in deterring poachers.)
  • Education outreach, both for local communities and for global consumers. Local communities need to learn more about conservation of species and habitat; and they need to learn skills that will enable them to be self-sufficient without having to resort to poaching to make a living. Global consumers need to become more aware of the rhinos’ plight in order to make better consumer choices, thereby decreasing the demand for rhino horn on the market.

During my travels in Africa this past summer, I met several people who are active in anti-poaching and relocation programs. An anti-poaching poster — the picture of a bloodied rhino left for dead without his horn, was one of the first things I saw when I arrived at the Johannesburg airport. So the good news is that awareness is growing, and people are trying to do something about it. But the challenge remains: we’re running out of time.

While in Zimbabwe, I’d planned to visit Matusadona National Park, home to one of the few sanctuaries left for the black rhino. Unfortunately, my plane ride to the next camp arrived earlier than scheduled that day, and so my trip to the park was set aside. I hope there will be black rhino left to see the next time I am in Africa.

Read More

Pet Estate Planning

Posted by on Nov 18, 2011 in Animals & the Law | 1 comment

When my dear friend Jennie told me she was working on a Pet Estate Planning Questionnaire, I asked her right away to share it with me so I could better provide for my own canine kids. I am very grateful that she also was willing to write a guest-blog for all of us on such an important subject.

guest blogger: Jennie Schenck

In modern times, a high percentage of Americans regard their pets as family members.  Approximately 45% of dog owners report that they take their dogs on vacation with them. More than half of pet owners would prefer the company of their pet to that of a human if stranded on a desert island. Half of all pet owners would be very likely to risk their lives to save their pet’s life.

These views are become increasingly apparent in the estate planning context. The most recent famous cases have involved hotel heiress Leona Helmsley leaving $12 million (later reduced to $2 million) to her maltese, Trouble, and a rumored million-dollar estate plan for talk show host Oprah Winfrey’s cocker spaniels. However, people other than the rich and famous are utilizing pet estate plans as well. Currently, approximately 20% of Americans provide for their furry and feathered friends in their estate plans.

Pet Estate Planning Questionnaire
Perhaps the simplest way of making sure your pets are cared for upon your death or incapacity is to write a letter or fill out a questionnaire for the person in charge of administering your estate plan.  This document should go into the fine details of your pet’s personality: what kind of food does he like? Where are his favorite hiding places? What kind of play does he enjoy? The letter/questionnaire should detail every little thing that you think would be helpful for a caretaker to know about your pet. This document can then be kept in a safe place with the rest of your estate planning documents. To download a (free) copy of the pet questionnaire, click here.

If you plan accordingly, you can have the letter/questionnaire incorporated into your trust or will by reference, making it legally enforceable and allowing you to change it without having to amend the actual estate planning documents.  However, the letter/questionnaire is not legally enforceable in and of itself. For this reason, a lot of pet owners choose to account for their pets directly in their estate planning documents.

Will or Trust?
The will is the first estate planning document that comes to mind for most people.  Simply put, the will directs where probate property (the majority of most people’s property) should be transferred upon your death.  Unfortunately, wills may not be terribly helpful for the pet owner who wants to set forth a detailed pet care plan after his death – wills cannot legally enforce instructions regarding pet care.  Additionally, wills transfer property in a lump sum.  A caretaker who receives one large lump sum money and realizes there is no legally enforceable way to make him care for the pet will be very tempted to spend the money on a shiny new house or car for himself, not on the pet.  As such, unless the caretaker has a personal attachment to the pet and is very trustworthy, pet owners should avoid wills for pet estate planning purposes.

A more appropriate estate planning tool for pet owners is the trust.  A trust has a grantor, or creator, who funds the trust; a trustee who holds legal title to the property and is a fiduciary, thus making him legally liable for any notable deviations from the grantor’s trust plan; and a beneficiary, who holds beneficial title to the property and is ultimately allowed to enjoy its benefits. Due to the recent surge of people who want to create pet estate plans, both the Uniform Probate Code and the Uniform Trust Code have created statutory rules that allow courts to find pet trusts valid. Thanks to these rules, all a grantor has to do is, for example, say, “I designate $5,000 for the care of my cat, Fluffy,” in the trust document itself. A court will then fill in the blanks according to the grantor’s presumed intent (though it is best if the grantor states his intent as clearly as possible, of course). The grantor can also designate alternative caretakers and direct where the property should go after the pet’s death.

The greatest advantage of the trust is that the trustee will be liable if he does not care for the pet according to the grantor’s wishes. Pet owners with trusts can be confident that their pets will continue to lead happy, healthy lives after the pet owner is gone. While pet trusts are a great way for any pet owner to create a pet estate plan, they are especially useful for people who are older, who live alone, whose spouse or children does not want to care for the pet after the grantor dies (under laws of intestacy, pets, as property, are automatically passed to the decedent’s spouse – or, if there is no spouse, to his children), or whose pets have a long life expectancy.

Courts
Because statutory pet trusts are fairly new, there are still a few kinks that need to be worked out.  For example, if a court finds that a pet owner has left too much property to the pet, they can substitute their judgment for that of the grantor in deciding how much property should go to the pet.  In the case of hotel heiress Leona Helmsley, the court eventually slashed the $12 million she left to her beloved dog Trouble to $2 million. While this may still seem like an astronomical amount for a pet, some worried that the money would run out before Trouble’s death due to the expensive gourmet dog food that Helmsley directed that Trouble should eat and the huge cost of guarding the dog from dog-napping. There is a current movement to eliminate the court’s ability to lower the amount of property designated for the pet – after all, the entire purpose of a trust is to honor the grantor’s intent.

Taxes
Additionally, the tax ramifications of pet trusts are currently not favorable. For example, these types of trusts are taxed at the trust’s high income tax rates, and charitable deductions are not allowed, even if a charity is designated as the remainder beneficiary. A bill regarding more favorable income, gift, and estate tax treatment of pet trusts has been introduced in the past, but it has not gone anywhere.

Comet & Jupiter

In conclusion, pet owners/guardians have many options for making sure that their animal friends will be treated well after the pet guardian is gone. From a simple letter to an elaborate trust agreement, a person can make sure his companion animal enjoys the same standard of living (s)he enjoyed during the person’s life. Hopefully, as people begin to utilize pet estate planning more and more, the trust rules will become more refined and user friendly. Until then, a little strategy can go a long way in creating an effective pet estate plan.

Jennie Schenck is a third-year law student at the University of Arizona James E. Rogers College of Law. She is a board member for the Student Animal Legal Defense Fund at the U of A. Her legal experience includes family law, personal injury, estate planning, and federal contracts. She created the pet estate planning questionnaire as a 2011 summer law clerk at Beth Allen Law, P.C., in Portland, Oregon. She lives with her two crazy cats, Comet and Jupiter.

Read More

How Farm Subsidies (Mal)Function

Posted by on Nov 10, 2011 in Animals & the Law | 0 comments

I attended a presentation by Dr. Andrew Weil a couple of weeks ago on the subject of  food in today’s culture and public health. Part of the discussion focused on the role of  farm subsidies, which  make unhealthy food products the most accessible. Meanwhile, no fruits or vegetables are subsidized. Looking at the increasing rates of obesity and Type 2 diabetes in the U.S. — just those two factors alone — we cannot ignore that something’s gone terribly awry, and a lot of it has to do with the food we’re putting into our bodies. It’s time to get real about food. Real food, not processed food products.

Farm Subsidies & the American Farmer
Government subsidies to farmers really blossomed under Roosevelt during the New Deal era as a way of helping farmers during the Depression. The sad truth is that, in an economic climate today where small farmers are struggling, the effect of subsidies largely has the opposite of its intended effect. Today, the government gives about $30 billion in agricultural subsidies. Nearly 75% of subsidy dollars are given to only 10% of subsidized farms — the biggest players in agribusiness rather than the family farmers. Furthermore, more than 90% of the subsidies go to just a handful of crops: corn, wheat, soy, cotton, and rice. Consequently, we have an over-production of a few products and a lack of diversity in farming.

Government subsidies usually are not available to smaller farmers. Unlike subsidized farm operations, small farmers have to bear the actual costs of producing the same crops that the subsidized businesses are producing. What’s worse, they have to sell at the lower market prices that are a direct result of the surplus created by their subsidized competitors. As it turns out, rather than helping small farmers, government subsidies widen the gap in competition to the point of practically taking the smaller farmers out of the game completely.

Corn Syrup & Animal Feed
The subsidization of corn has led to a surplus of the grain, which means agribusiness is always looking for creative ways to package and sell the overabundant supply. The surplus is what led to the explosion of the corn syrup industry in America (obesity!). It’s also created a monster otherwise known as the animal-feed industry. Feeding grain to animals whose systems cannot digest grain results in sick animals on massive feed lots. There, agribusiness is only interested in growing animals as big and quickly as possible — treating living, sentient beings just like any other “crop,” with little regard for the animals’ welfare and quality of life. Cows are supposed to eat grass, not corn.

What It Really Costs Us
In the form of government subsidies, we are enabling agribusiness to present its products at prices below the actual production costs. So it’s important to figure in the tax dollars we’re handing over to be spent this way, along with our receipts from the market. Not to mention all our tax dollars that are going towards healthcare in this country. Healthcare costs are through the roof, largely because of illnesses related to America’s over-consumption and nasty food habits. It’s a vicious corporate-driven cycle and we’re smack in the middle of it.

For more details about the farm bill, check out “Top 10 Things You Should Know About The Farm Bill” by the Environmental Working Group.

 

Read More