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RESCUE ME : LEGISLATING COOPERATION BETWEEN ANIMAL CONTROL AUTHORITIES AND RESCUE ORGANIZATIONS

Rebecca J. Huss


39 Conn. L. Rev. 2059 (2007)
Publish Date:
July, 2007
Place of Publication: Connecticut Law Review
Printable Version

RESCUE ME : LEGISLATING COOPERATION BETWEEN ANIMAL CONTROL AUTHORITIES AND RESCUE ORGANIZATIONS
Connecticut Law Review
July, 2007

Article

*2059 RESCUE ME: LEGISLATING COOPERATION BETWEEN ANIMAL CONTROL AUTHORITIES AND RESCUE ORGANIZATIONS


Rebecca J. Huss [FNa1]

Copyright (c) 2007 Connecticut Law Review; Rebecca J. Huss (reprinted with permission)


Notwithstanding the overwhelming evidence that shows how important pets are to many people in the United States, the leading cause of death for dogs and cats in this country is euthanasia because of the lack of homes. Although progress has been made, conservative estimates are that between three and four million dogs and cats are euthanized each year. A successful program for implementing non-lethal strategies to control the pet population incorporates three prongs: (a) increasing adoptions, (b) increasing the number of animals sterilized and (c) increasing the number of animals retained in homes. This Article focuses on the legislative actions that should be taken immediately to implement these non-lethal strategies so that this needless euthanization can end.

*2061 I. Introduction

The relationship that people in the United States have with companion animals is complicated. In many cases, the relationship has changed from one of utility to one of affection and companionship. [FN1] In some households, animals are viewed in ways similar to that of human children. [FN2] Many people consider these animal companions as part of the family. [FN3] The role of animals as family members has become progressively more important over time. [FN4]
 
*2062 A significant amount of money is spent on companion animals in the United States. There are estimates that approximately $39 billion is spent each year on the care of these animals. [FN5] The amount of money that people are willing to spend on medical care for their animals varies widely; however, the total amount of money spent by pet owners in the United States on veterinary care is estimated at $19 billion per year. [FN6] One survey *2063 indicated that 94% of pet owners take their dogs or cats to a veterinarian regularly. [FN7]

 
A recent example of the resources devoted to certain companion animals in this country is the effort to rescue the pets of people displaced by Hurricane Katrina. Pets were reportedly the number one reason that residents refused to leave their flooded homes, [FN8] and researchers have estimated that 20% of people ordered to evacuate would not do so if it meant leaving pets behind. [FN9] The Humane Society of the United States estimated that 50,000 pets were left behind in New Orleans. [FN10] The *2064 estimates of the numbers of companion animals rescued varied between 8500 [FN11] and 20,000 animals. [FN12] One estimate was that the rescue effort would cost more than $15 million. [FN13] Even given the considerable efforts of the volunteers, the estimated percentage of animals that have been reunited with their owners-while also varying widely-is limited to between 10% [FN14] and 25%. [FN15]
 
In contrast to these animals where significant attention and resources have been allocated, millions of dogs and cats are euthanized each year because they lack a home. [FN16] In fact, “[e]uthanasia of healthy unwanted cats and dogs remains the leading cause of death of these species.” [FN17] Although the number of dogs and cat that are euthanized each year has decreased *2065 substantially in the last two decades, [FN18] there are estimates that between three and four million dogs and cats are euthanized each year. [FN19] Using the midpoint of that number as a guide, that equals about 9600 animals euthanized each day. [FN20] Another way to think about it is 400 animals each hour or seven animals each minute are euthanized.

 
There are many ramifications from the euthanization of these animals. Of course to each animal, it is a death sentence. There are economic costs associated with using euthanization as a form of animal control. [FN21] There is also a significant psychological impact on the shelter employees that are part of the euthanization process. [FN22]
 
There are media and anecdotal reports that suggest that shelter workers performing animal euthanasia are under a high level of stress. [FN23] There has been recent quantitative research finding that there is strain associated with euthanasia work. [FN24] More specifically, conducting animal euthanasia was *2066 found to be a “unique source of work stress” that has a negative impact on employee well being. [FN25]

 
There must be improvements in the system. A successful program for implementing non-lethal strategies in pet population control includes three prongs: (a) increasing adoptions, (b) increasing sterilizations, and (c) increasing the retention of companion animals in homes. [FN26] This Article focuses on the legislative actions that need to be taken to implement these strategies. Of these three prongs, the first two are suitable for immediate legislative attention and are the focus of this Article. [FN27] Part II will set forth the necessary background and definitions for the problem. To increase adoptions, legislation is needed to require animal control authorities to work with rescue organizations. Part III discusses some of the non-legislative efforts that have encouraged organizations to work together. Part IV analyzes the limited legislative measures that have been taken in this area, scrutinizes the concerns that have been raised about such legislation and sets forth guidelines for new legislation. In the area of sterilization, legislation has been implemented in some states, but such legislation is flawed and should be revised. Part V evaluates the current state of sterilization legislation and provides recommendations for changes. Part VI considers the future of non-lethal strategies in pet population control. [FN28]

*2067 II. Background and Definitions


A. Historical Background

It is necessary to briefly describe the historical background and structure of the animal welfare movement in order to understand the relationship between the entities today. Anticruelty statutes began passing in great numbers in the 1860s. [FN29] In 1866, the New York legislature granted the charter for the American Society for the Prevention for Cruelty to Animals (ASPCA). [FN30] The ASPCA and other humane organizations (collectively “humane societies”) participated in many activities in the area of animal welfare, including education and veterinary care. [FN31] One of the activities that most humane societies took on early in their history was contracting with municipalities for the enforcement of anticruelty laws and other public duties. [FN32] The purpose was to have some enforcement of laws that would not otherwise be enforced. [FN33] Another duty taken over by these humane societies was the euthanasia of diseased or homeless animals. [FN34] For example, the ASPCA took over the management of New York City's animal shelters in 1894 and performed the animal control function until 1994. [FN35] By taking on the role themselves these organizations believed the euthanization could be done in a more humane manner. [FN36] Humane societies would receive a fee or tax exemption for their role-there was therefore an economic benefit as well. [FN37] It is important to note that the emphasis for many early humane societies was the protection of horses *2068 rather than cats and dogs. [FN38] At that time the economic value of horses was established, and the role of dogs and cats in society was substantially different than it is today. [FN39] Over time, these organizations began to focus on companion animals. [FN40]
 
This public-private partnership has survived to the present time, although not always without controversy. A recent New Jersey case that illustrates one of these tensions is Gerofsky v. Passaic County Society for the Prevention of Cruelty to Animals. [FN41] The Gerofsky case is useful because it discusses the role of SPCAs in law enforcement, and it specifically references a process that New Jersey went through to consider the role of private groups in the public arena. [FN42]

 
There was a complicated procedural history, involving the relationship between the state and county SPCAs, but the core issue in Gerofsky was whether the county prosecutors had the authority to supervise a county SPCA's law enforcement activity. [FN43] Through a directive, a county prosecutor had suspended the members of the county SPCA's law enforcement functions. [FN44] After negotiations, the county prosecutor set up requirements for the county SPCA members to carry out animal cruelty investigations under the prosecutor's supervision. [FN45] The state SPCA applied to the court for an order to revoke the certificate of authority of the county SPCA. [FN46] The Gerofsky case concluded that the county prosecutors had the constitutional and statutory authority to supervise all law enforcement in the county, including SPCA members that exercise law enforcement powers. [FN47]
 
Another example of the difficulties inherent in the public-private partnership occurs because the history of animal control, as one researcher describes, is an ad hoc response with “limited attention paid to the development of systematic programs of efforts during those years.” [FN48] The *2069 result is the lack of long term statistics to measure any progress in this area. [FN49]
 
There are many different ways jurisdictions structure the relationship between the government and the private party. [FN50] In some jurisdictions, the county or city provides the building and the nongovernmental organization runs the operation. [FN51] In other jurisdictions, the nongovernmental organization may contract with municipalities for housing animals. [FN52]

B. Innovations in Animal Sheltering

There have been several innovations in the animal sheltering system. In 1923, the American Veterinary Medical Association (AVMA) approved standards for sterilization surgeries for dogs and cats, providing the first step in combating pet overpopulation. [FN53] In the 1970s, the level of sterilization of pets was still quite low, with only 10% of pet dogs and 1% of pet cats sterilized. [FN54] In contrast, currently more than 70% of pets today *2070 are sterilized. [FN55] Although the sterilization rate is improving, given the birth rate of dogs and cats, even a relatively small number of intact animals can have a large impact on a community's pet population rate. [FN56]
 
Another major change is in how shelters view themselves. The emphasis on “numbers euthanized” has not always been an issue, even for humane societies. [FN57] There is a psychological deterrent in adopting animals from a facility where euthanasia occurs. [FN58] Governmental organizations whose historical focus has been on animal control have recently reinvented themselves as animal care and control. [FN59] Dingy, unattractive shelters discourage people from coming to adopt animals. [FN60] Providing a more welcoming atmosphere for adoptions is an important part of this message. Renovating or building new facilities so that potential adopters will feel comfortable is part of this changing atmosphere. [FN61] In addition, having trained personnel that match adopters with the right animal to ensure long-term success is important in the adoption process. [FN62]

 
The North Shore Animal League illustrated the idea of “high volume” adoption early in its history, and it now promotes itself as the “largest pet *2071 adoption agency in the world.” [FN63] The pet supply store PETCO Animal Supplies, Inc.'s (PETCO) decision to display animals from local shelters rather than sell animals from breeders was another major innovation in the adoption process. [FN64] The PETCO adoption process assists in the adoption of pets by a variety of organizations each month. [FN65]
 
PetSmart, Inc., another pet supply company, encourages local rescue organizations to work together as a network. PetSmart actively promotes its adoption activities and nearly three million pets have been adopted through its program. [FN66]

 
Perhaps the most significant innovation is the development of the Internet and the ability of people to search for animals online. Petfinder.com is the largest site in the United States. [FN67] In 2003, the “adoption partners” on Petfinder.com “found homes for more than 1.5 million animals.” [FN68] There are over 8000 animal placement organizations that utilize Petfinder.com. [FN69]
 
The use of sites such as Petfinder.com for adoptions enables organizations that do not have traditional shelters to place animals. Recently, a sociologist found that these so called “independent animal rescue organizations” using foster homes are successful in finding homes using the Internet. Dr. Angela Garcia is quoted as stating that “[w]hile the SPCAs and traditional shelters still process the majority of stray and surrendered dogs, the impact of virtual shelters is increasing and may at *2072 some point overtake the traditional shelters.” [FN70] Another commentator believes it is possible that shelterless organizations may place more animals in homes than conventional shelters, although the shelterless organizations may often be working in partnership with shelters. [FN71] Obviously, if more animals are being placed through these “independent” or shelterless organizations, it makes sense to facilitate their appropriate use.

 
Finally, it is important to recognize the importance of the no-kill movement in these issues. The term may be used loosely by organizations that are sensitive to the fact that the public does not like the idea of animals being euthanized, [FN72] but for those organizations that are serious about changing the way that shelters operate, there is a Declaration of the No Kill Movement in the United States that sets forth a Statement of Rights and Guiding Principles. [FN73] The first issue in the Statement of Rights is that “[s]heltered animals have a right to live.” [FN74] The fourth issue in the Statement of Rights is that “[a]nimal protection groups, rescue groups, and No Kill shelters have a right to take into their custody animals who would otherwise be killed by animal shelters.” [FN75] The mandate for the transfer of animals is also emphasized in the Guiding Principles [FN76] and No Kill Standards. [FN77]
 
There are controversies over the use of no-kill terminology. Shelters that are required to accept all animals may use the term “open admission” to describe themselves in contrast to organizations that may be more selective in their admissions and are no-kill. [FN78] This, of course, presumes that a no-kill organization must be more selective in its admission process, *2073 which is not the view of no-kill movement proponents. [FN79] While there have always been some no-kill shelters, [FN80] the numbers have grown substantially in recent years with one estimate that there were approximately fifty no-kill shelters in the 1980s and about 250 in 2004. [FN81] Of course, this is just a small percentage of the 5000 shelters and other organizations that are involved in the placement of animals today. [FN82]

 
The issue of euthanasia numbers and status of an organization as a no-kill facility should not be understated. One of the significant barriers to cooperation (and apparently communication) between animal welfare organizations is the division in philosophies on euthanasia. [FN83]
 
Even with the recent innovations in sheltering and adoption, the percentage of animals that are acquired through adoption from shelters and humane societies still remains low. The percentage of dogs adopted through these types of organizations is only 16%, compared with 44% of dogs being acquired through a private party or breeder. [FN84] The percentage of cats obtained through shelters and humane societies is similar at 15%, but a significant percentage of cats were acquired by adopting a stray. [FN85] The goal is to increase the number of animals acquired through shelters and rescue organizations. And, of course, to make certain that these animals are sterilized so as to not contribute to the overpopulation problem in the future.

C. Definitions

For purposes of this Article, the definitions of the participants in the process will be as follows: “animal control” will refer to any governmental entity housing animals, while “humane society” will refer to any nongovernmental entity that has entered into any agreement with a jurisdiction to take on the obligations of animal control, including the care, housing and euthanization of animals. Together, animal control and humane society entities will be referred to as “shelters.” “Rescue organization” refers to any other nongovernmental entity, regardless of whether it is foster home-based or has a facility.

*2074 III. Non-Legislative Solutions-Why Can't We All Get Along?

In an ideal world, legislation mandating the transfer of animals from shelters to rescue organizations is unnecessary. Unfortunately, in the area of animal welfare, serious conflicts within the community can be detrimental for the animals. [FN86]
 
There are many examples where organizations are unable to work together. Conflicts exist between shelters and rescue organizations, and between different types of entities. In one very well-publicized case, a young cat was involved in a custody battle that involved Hampton Virginia's Animal Control, the People for the Ethical Treatment of Animals (PETA) and a private no-kill shelter named The Cat Corner. [FN87] Although the facts are in dispute, it is clear that the city's animal control department was unresponsive to a cat stuck in a tree. [FN88] With the two private organizations on the scene, there was a dispute over who would retain custody over the rescued feline. [FN89]

A. Asilomar Accords

Perhaps the best-known nationwide effort to meet on common ground is the “Asilomar Accords” (Accords). [FN90] In August 2004, a group of local and national groups with varying philosophies met to discuss and draft accords with the goal of “significantly reducing the euthanasia of healthy and treatable companion animals in the United States.” [FN91] The Accords's first Guiding Principle states that the mission of the organizations involved in creating the Accords is “to work together to save the lives of all healthy and treatable companion animals.” [FN92]
 
The Accords do not support legislation mandating the transfer of animals to organizations, but encourages the creation of “community coalitions” and states that they are committed to the belief that “the only true solution is to work together.” [FN93] In addition, the Accords set forth “a uniform method for collecting and reporting shelter data.” [FN94] The apparent intent of the Accords is to achieve harmony in an area where there has been conflict in the past. In fact, one of the Guiding Principles asks *2075 community coalitions “to discuss language and terminology which has been historically viewed as hurtful or divisive by some animal welfare stakeholders (whether intentional or inadvertent), identify ‘problem’ language, and reach a consensus to modify or phase out language and terminology accordingly.” [FN95]

 
Not all animal welfare organizations supported the Accords. An example of an organization that has been highly critical of the Accords is No Kill Solutions. No Kill Solutions is an organization that describes itself as having one goal: “to help individuals, shelters, rescue groups, animal control agencies and municipalities create No Kill communities.” [FN96] The No Kill Solutions perspective is set out in a position paper entitled, “Does the Road to No Kill Lead Through Asilomar?” [FN97] The answer to that question is found on the first page of that paper, where it bluntly states “[i]t does not.” [FN98] No Kill Solutions disparaged the Accords process for a lack of representation of no-kill groups at the meeting. [FN99]
 
No Kill Solutions is especially critical of the reporting model used in the Accords. [FN100] According to No Kill Solutions, the model used allows for inaccurate and misleading reporting and the categories allow shelters to “‘spin’ the numbers to make it appear a shelter is doing a better job than it is actually is.” [FN101] For the purposes of this Article, the most important criticism of the Accords is that there was no right specifically provided in the Accords to allow rescue groups to take into their own custody animals facing euthanasia in animal control facilities. [FN102]

 
It is never a bad idea to try to build coalitions. The intent of the participants drafting the Accords was a good one. Given the history of conflict between the participants in the animal welfare community, it may be difficult for the current generation to develop national accords that bring every organization into the fold.

B. Other Non-Legislative Avenues

Some rescue organizations have not waited for national coalition building and have organized on their own. For example, in Wisconsin one *2076 coalition of animal shelters, humane societies and rescue organizations has formed to share information and strengthen the bond among these groups in that state. [FN103] Breed rescue groups also provide contact information in a book format to each of the general humane societies and animal shelters across the state to facilitate the transfer of animals to the rescue organizations. [FN104]
 
Another well-known non-legislative avenue of coalition building is called “No More Homeless Pets in Utah.” No More Homeless Pets in Utah is a program of Best Friends Animal Society. [FN105] Best Friends Animal Society is well known for its large companion animal sanctuary in Angel Canyon, Utah, and its recent activities rescuing animals affected by Hurricane Katrina. [FN106] No More Homeless Pets in Utah is a “coalition of rescue groups, shelters and veterinarians working together to end the euthanasia of homeless dogs and cats statewide, and to promote humane alternatives for feral cats.” [FN107] This program includes a mobile spay/neuter clinic, spay/neuter vouchers, a pet adoption center and super adoption events. [FN108] Funding for the initiation of this project was made possible by a grant from Maddie's Fund. [FN109]

 
Maddie's Fund is a foundation that provides grants to communities and veterinary schools to first “create programs that guarantee loving homes for all healthy shelter dogs and cats throughout the country,” and then to “save the sick and injured pets in animal shelters nationwide.” [FN110] Currently, Maddie's Fund is active in the following locations: Alachua County, Florida; Baldwin County, Alabama; Maricopa County, Arizona; Mobile, Alabama; New York City; and Tuscaloosa, Alabama. [FN111] In order to receive funding, Maddie's Fund grant guidelines look to projects that are “for comprehensive, community-wide projects that will guarantee a home *2077 for every healthy shelter dog and cat in the target community within five years and for every treatable shelter dog and cat within ten years.” [FN112] Maddie's Fund specifically wants to “support collaborations of rescue organizations working together with animal control shelters, traditional shelters, and private veterinarians.” [FN113] Maddie's Fund has made a significant impact on the animal welfare movement. With the considerable resources of Maddie's Fund as incentive, a coalition may be easier to form and maintain. The reality is that even Maddie's Fund is limited in its resources and cannot accomplish everything without legislative support.
 
Smaller geographic areas have formed coalitions that have focused on the reduction of euthanasia of animals without outside support. One example is the Metroplex Animal Coalition (MAC) in Texas. [FN114] MAC defines itself as “an alliance of 501(c)3 animal welfare organizations in Collin, Dallas, Denton, and Tarrant counties, in the state of Texas, whose members have joined together in order to reduce the killing of dogs and cats in municipal animal shelters and humane societies.” [FN115] There are over forty members of MAC, including canine breed rescue organizations, feral cat groups and humane societies. [FN116]

 
With these types of initiatives as examples, why is it necessary to have legislation mandating the transfer of animals to rescue organizations? Quite simply, not every shelter is willing to work with the community as the organizations described herein. There is evidence that in some cases, rescue organizations are made subject to additional requirements before animals are released to them that make it difficult, if not impossible, for them to take animals that are then euthanized. [FN117] As discussed below, without a legal mandate that the shelter must transfer animals, volunteers from rescue organizations may be hesitant to report abuses at a shelter in the fear that the shelter will stop working with their organization. Finally, when a clear and unambiguous statutory provision is in place, it pushes shelters to work with the community because the legislature has articulated a standard that the shelter must meet.

*2078 IV. Legislative Solutions


A. The Potential Problems with Rescue Organizations: Keeping the Animals and the Public Safe

There have only been a few states that have adopted language that have mandated the transfer of animals to rescue organizations. In California, the opponents of the legislation raised several potential problems with rescue organizations and this type of legislation. This Part will focus on those issues and other issues that may be raised in the future. The first is the issue of “over facilitation” or a shelter's funneling of animals to inadequate rescue organizations. This also is raised as an issue of a hidden hoarder problem. The second issue is the general issue of the relationship between animal control or humane societies and the rescue organizations, specifically that rescue organizations make unreasonable demands on the organizations or make irrational complaints against shelters. The third issue is the perception that some rescue organizations simply take animals from shelters and resell them for profit. The fourth and final issue is that rescue organizations will take any animal regardless of the public safety risk posed by the animal. The discussion of these issues will also illustrate the need for legislation in this area.

1. Inadequate Rescue Organizations/Hidden Hoarder Problem

During the debate on the California legislation, concerns were raised about the lack of provisions in that bill insuring that rescue organizations had “facilities and staffing to care for the animals going to them.” [FN118] Another concern that was raised is that “collectors” will take animals from shelters. [FN119] These issues are distinct. In the first situation, a rescue organization can simply fail to meet minimal standards of care. Just as with any other individual who houses or cares for companion animals, a rescue organization must meet state standards for animal welfare and anti-cruelty.
 
The much more complicated issue is that of an animal hoarder. [FN120] There has been increased attention paid to these cases in recent years. [FN121] *2079 Hoarding appears to have a psychological basis. [FN122] Although there is no systematic reporting of cases, the following criteria can be used to determine whether there is a problem with animal hoarding. First, there is generally more than the typical number of companion animals in the household. [FN123] The second factor is the inability to provide minimal standards of care, with the impact of this resulting in illness or death to the animals. [FN124] The final criteria is that the person denies that he or she is not able to provide minimal care, and that there is a negative impact on the animals, household, or other human members of the household. [FN125]

 
There have been a few recent studies examining animal hoarding. [FN126] One study found that a majority of hoarders were female and about half of the hoarders lived in single person households. [FN127] There are anecdotal reports which indicate that employed animal hoarders are able to live a double life until their homes are investigated. [FN128] Cats and dogs are the animals that are most frequently involved in hoarding cases. [FN129]
 
If an animal is kept by a hoarder, the animal is very likely to be receiving substandard care. One study found that in 80% of hoarder cases animals were found dead or in poor condition. [FN130] From a public policy perspective, there are other issues relating to hoarders. Hoarding has obvious health and safety implications for the individual and community. [FN131] In addition, hoarders frequently acquire additional animals *2080 through breeding, adding to the companion animal overpopulation problem. [FN132]

 
It has been reported that there is a “growing trend of hoarders identifying themselves as directors of sanctuaries and rescue groups.” [FN133] There have been several hoarding cases associated with well-known rescue organizations. [FN134] Even in the aftermath of Hurricane Katrina there were highly publicized problems with one facility where some of the rescued dogs were sent. [FN135] Some critics of the no-kill movement hypothesize that that movement (and thus the increase in rescue organizations that are no-*2081 kill) have increased the incidence of hoarding. [FN136] The study that discussed this hypothesis did not find that the no-kill movement could be held responsible for the increase in hoarding cases. [FN137] There was an increase in cases attributed to rescuers, but the researcher attributed that to the fact that many former breeders switched to breed rescue (changing categorization) and to increased awareness of the problem. [FN138] The problem, of course, is that the hoarder self-identifies as a rescuer.
 
Since the hoarder self-identifies as a rescuer (when that person clearly is not), the easiest solution is to make certain that there are laws combating the problem of hoarding. Illinois was the first state to have a specific statute dealing with animal hoarding. [FN139] The Illinois statute utilizes the criteria discussed above to determine whether a person is a hoarder. [FN140] If a person fits the hoarding criteria and fails to provide minimal care to each of the animals under his or her care, [FN141] the Illinois statute allows the court to order the convicted person to undergo a psychological or psychiatric evaluation and any treatment at the convicted person's expense. [FN142]

2. Rescue Organizations Make Unreasonable Demands and Make Unjustified and Irrational Complaints Against Shelters

Another problem identified during the process of adopting the Hayden Bill (the California legislation) was that some shelters felt that some rescue organizations made unreasonable demands on them in connection with the transfer of animals. One issue that was identified in the legislative record is the idea that allowing rescue organizations to take animals would “create a ‘cherry picking problem’ whereby rescue societies and adoption organizations could frequently remove all easily adoptable animals from *2082 the shelters, leaving only unadoptable animals in the shelters.” [FN143] The argument continues that shelters “need to be able to retain some of the easily adoptable animals so that they can entice the public to visit shelters. Higher numbers of visitors results in more frequent adoptions of less easily adoptable animals.” [FN144] If legislation only requires shelters to release animals that are scheduled to be euthanized, the “cherry picking” of adoptable animals is no longer an issue. In practice, rescue organizations are most often given access to animals that the shelter does not have the resources to care for, do not do well in a shelter environment, or are not likely to be placed easily. [FN145]
Another issue that may be raised is that rescue organizations make unreasonable demands on shelters, such as asking that the shelter give the rescue organization additional time to get to the shelter or to allow the adoption process near closing time. It would make sense that there would be tensions between organizations, relating to access to animals. In a situation where a shelter is willing to voluntarily transfer an animal to a rescue organization, it needs a prompt reply as to the interest of the rescue organization in order to determine whether other arrangements should be made. [FN146] On the other side, a rescue organization, often times made up solely of volunteers with full time jobs, may find it difficult to send a representative to the shelter within the time available. [FN147] The better the relationship between the rescue organization and the shelter, the less likely this will be a problem. [FN148]
 
One of the reasons that it is necessary to require the transfer of animals to rescue organizations (rather than merely promoting the transfer) is that *2083 without a legal mandate, rescue organizations may be coerced into keeping silent about problems that they see in a shelter in order to continue to receive animals from a shelter. [FN149] As discussed above, one of the hallmarks of animal control is that it has been done on an ad hoc basis with minimal resources. [FN150] As more people from the community become involved and interested in animal welfare issues, it is not surprising that they raise issues about what they see in their local shelters. [FN151] As pressure from the community grows, the state responds, as illustrated by reports in New Jersey. [FN152] That said, there has been a perception that rescue organizations make unjustified and irrational complaints against shelters.

 
Even former supporters or partners of an organization can become critics. [FN153] An example is the Michigan case of Phillips v. Ingham County. [FN154] Phillips was an Assistant Prosecutor for Ingham County who helped establish and became President of Friends of the Ingham County Animal Shelter. [FN155] Phillips became concerned that the sale of animals to Class B dealers was being done incorrectly. [FN156] Given the controversy regarding the sales to Class B Dealers, the county had a policy allowing an owner to redeem animals “marked” to be sold to the dealers if a claim by the owner was made and if certain costs were paid. [FN157] Phillips came to *2084 believe that this county policy allowing redemption of animals was not being followed, and she independently set up a sting (not in any official capacity) whereby another woman misrepresented that she owned a cat transferred to a Class B Dealer. [FN158] The women acting as the purported owner was able to redeem the cat, but the director of the county shelter was suspicious and investigated further, leading back to the set-up with Phillips. [FN159]
 
The court case arose in the aftermath of the sting, when Phillips brought an action against the county and county officials asserting a First Amendment retaliation claim and a host of state law claims against the county and county officials. [FN160] All of Phillips's claims were ultimately dismissed on motions for summary judgment; [FN161] however, this case is illustrative of the conflict that can occur when there are allegations that policies are not being followed. As the court in Phillips stated: “The moral rectitude of what was done and why are matters which can and should continue to fill debates among activists, ethicists, theologians and philosophers. Given the determination shown of the parties of this suit, it is clear that these kinds of debates are by no means over.” [FN162]

 
Regardless of the difficulties that individuals have working together, the unfortunate reality is that there are serious problems in some shelters across the country. A report commissioned by Miami-County, Florida, found that “the county shelter in Medley was in deplorable condition and that its handling of animals was ‘appalling.”’ [FN163] An another example is in California, where a civil grand jury found that, in addition to providing inadequate care of the animals and inappropriately using funds, a county animal control department had euthanized healthy animals before they had been held for the requisite number of days specified by California law. [FN164] *2085 The Humane Society of Louisiana found that cats in the Assumption Parish Animal Shelter were treated with “extreme neglect,” including the fact that they were kept in humane traps for up to fifteen days and had no access to a litter box. [FN165]
 
Representatives from rescue organizations are in shelters on a daily basis. Accordingly, if there are problematic conditions at shelters, it would make sense for rescue organization personnel to issue more complaints than would the general public.

3. Rescue Organizations Will Take Animals and Resell Them for Profit

A third concern that has been raised is that rescue organizations could take animals from animal control entities and humane societies and resell them for profit. [FN166] In theory, profit could be made from the sale of the animals for research or through adoption fees obtained from individuals. This potential problem appears to be minimal and fairly easy to resolve by enacting legislation requiring the rescue organization to have either section 501(c)(3) status under the Internal Revenue Code, or be licensed by the state department of agriculture. If a rescue organization is a section 501(c)(3) entity, it could be subject to legal sanctions based on fraudulent misrepresentation if it sells animals for research purposes. [FN167] Given the expenses that are incurred by legitimate organizations prior to adoption, including housing and veterinary costs, it is unlikely that most animal welfare organizations are able to make a profit. However, as a safegaurd, the record keeping required of a section 501(c)(3) entity is sufficient to monitor any potential problems. [FN168]

 
If a rescue organization chooses to be licensed by a state department of agriculture (rather than electing section 501(c)(3) status), the safeguard of IRS record-keeping requirements do not apply. However, the state *2086 department of agriculture has other record-keeping options that it may impose on the rescue organization, including maintaining a record of the “sale” of all the animals over the past twelve months. [FN169] It is difficult to conceive of a situation where a rescue organization that is taking animals that are otherwise to be euthanized and adopting them out will be able to make a profit. If that were the case, no animals would be euthanized, and animal control and humane societies would all be profit-making organizations-which would eliminate the need for rescue organizations at all. Worries that rescue organizations will make profits seem especially far-fetched in situations where a rescue organization is required to pay the animal control or humane society all (or even part) of the adoption fee. [FN170] Finally, it is important to note that one of the reasons that animal control and humane societies work with rescue organizations, especially breed specific rescue organizations, is that it saves the shelters money. [FN171] It seems to be an odd problem if other organizations are able to make a profit from the adoption of what are presumably difficult to adopt animals. If a shelter is able to place an animal, they will do so without working with a rescue organization. [FN172]

4. Rescue Organizations Will Take Any Animal Regardless of Public Safety Concerns

The fourth issue that has been raised is that rescue organizations will take any animal, regardless of the public safety risk posed by the animal. [FN173] The public safety risk can be due to disease, but is most often thought of in the case of dangerous dogs. Due to the threat to the public from dog bites, beginning in the late 1970s a number of jurisdictions adopted statutes covering dangerous dogs. [FN174] Courts have consistently upheld the language *2087 of well-written dog statutes as a legitimate exercise of jurisdictions' police powers. [FN175] A discussion of liability for damages caused by animals is beyond the scope of this Article; however, there is nothing in the proposed legislation that would negate any of the laws or ordinances dealing with this liability. Using these existing laws, two things would happen. The first occurs if an animal, usually a dog, is deemed to be dangerous under a local ordinance. In that case it would be euthanized pursuant to the standards set forth in that ordinance. If an animal is truly dangerous-in other words, it has committed one or more acts that render it “dangerous” according to the ordinance definition-it would not be eligible for release to a rescue organization.

 
The second circumstance occurs if an animal is in a shelter and is scheduled for euthanasia, and does not appear to be temperamentally suited for adoption pursuant to the shelter's standards. As the rescue organization or individual keeping the animal would be legally liable for any damage caused by an animal, it would appear to be unlikely for rescue organizations to take on animals that they believe have true temperament problems. [FN176] The difficulty lies in the fact that an individual ultimately must determine whether the animal is “adoptable.” There is no universal agreement on the definition of adoptability among all shelters and rescue organizations. Much depends on the resources of the organization and the needs of the animal. It is possible that the animal may require a special placement, such as a household with no other animals or children, or special training. [FN177] Rescue organizations with sufficient time, experience *2088 and resources can take animals that may fail standard temperament testing in a shelter environment and place them into an appropriate home after a period of fostering. [FN178] The liability structure currently in place would appear to negate the potential likelihood of this problem becoming a significant issue. [FN179]

B. The Existing Legislation

This Part will discuss the legislation itself, first analyzing the language in the statutes of California and Illinois, and then discussing the language in other state statutes that relate to interactions with rescue organizations. It is noteworthy that California statutory law states: “It is the policy of the state that no adoptable animal should be euthanized if it can be adopted into a suitable home. . . . It is [also] the policy of the state that no treatable animal should be euthanized.” [FN180]

1. California

California Food and Agricultural Code section 31108 mandates the release of dogs (with a parallel provision for cats found at section 31752 and other animals at section 31753) prior to euthanasia to animal rescue or adoption organizations. [FN181] The animal rescue or adoption organization must be a nonprofit organization under § 501(c)(3) of the Internal Revenue Code. [FN182] The provision allows for shelters to enter into cooperative *2089 agreements with animal rescue or adoption organizations. [FN183] In addition to any required spay or neuter deposit, the shelter may in its discretion assess a fee not exceeding its standard adoption fee for animals released to an animal rescue or adoption organization. [FN184]

2. Illinois

Illinois amended its statute in 2005 to require animals to be transferred to other organizations. [FN185] The statutory section now provides that a dog or cat must first be scanned for a microchip, and if a microchip is present, the registered owner must be notified. [FN186] Once contact has been made or attempted, “dogs or cats deemed adoptable by the animal control facility [FN187] shall be offered for adoption, or made available to a licensed humane society or rescue group. If no placement is available, it shall be humanely dispatched . . . .” [FN188] The facilities may only release dogs or cats to individuals representing rescue groups with licenses or foster care permits issued by the Illinois Department of Agriculture, or to individuals representing an out-of-state nonprofit organization. [FN189] The licensing process by the Illinois Department of Agriculture is set forth in the state's Animal Welfare Act. [FN190]
 
As already discussed, there was a substantial resistance to the adoption of the California provision. [FN191] In contrast, there appeared to be very little resistance to the amendments to the section of the Illinois statute that essentially accomplished the same goal. [FN192] The language of the Illinois Act originated with the ASPCA and the Humane Society of Central Illinois, *2090 who consulted with other interest groups. [FN193] The language providing for the transfer of animals to humane societies and rescue organizations was part of a much larger bill and other provisions became the focus of the legislature. [FN194]

 
There are a few other states that specifically allow, but do not mandate the transfer of animals to humane societies or rescue organizations. [FN195] Examples include a Texas code provision which provides that cruelly treated animals must be sold at auction, or, if they are unable to be sold, they may be humanely destroyed or given to a nonprofit shelter. [FN196] It is more common to find language such as the South Carolina code provision that allows for the animal to be disposed of by adoption, euthanasia or transfer to any organization established for the purpose of caring for animals. [FN197]
 
The issue is not that shelter personnel have bad motives or want to euthanize animals, but past history has shown that in some cases in some areas shelters have not worked with rescue organizations. Since it is a death sentence for the animals if personnel of a shelter do not wish to work with rescue organizations to transfer animals, legislation is needed to mandate cooperation in this area. This legislation works to the benefit of all the parties involved. The animals transferred to rescue organizations *2091 have an opportunity to be adopted and shelters can focus their energies and resources on their other obligations.

C. Proposed Legislation

With California and Illinois leading the way, the path should be easier for states adopting language mandating the transfer of animals from shelters to rescue organizations. States should keep the following issues in mind when they are drafting their provisions.
 
First, as apparent in the existing language, it seems clear that some shelters believe they have an interest in keeping the most “adoptable” animals on hand to encourage adoptions from their own facilities. Although an argument may be made that certain rescue organizations may be better able to place certain breeds because of the knowledge of the particular needs of those animals, it does not seem realistic that legislation will be passed that would mandate the transfer of animals that otherwise would not be put up for adoption. Certainly, language clarifying that every available animal must be up for adoption or transferred should be part of any such statute.

 
Including imprecise language such as “deemed adoptable” in a provision is problematic. Given that a strength of rescue organizations is the ability to take the time and resources to rehabilitate an animal, such language may lead to many animals being euthanized that rescue organizations could place. Existing law should control the impulse of any rescue organization to take any animal that might be dangerous to the community and truly vicious animals would not be eligible for adoption under local dangerous dog ordinances. [FN198] The terminology used in California law defining “treatable” is useful in this discussion. [FN199] Treatable animals are “any animal that is not adoptable but that could become adoptable with reasonable efforts.” [FN200] It is precisely the efforts of the rescue organizations that are at issue. The issue of what is a “reasonable *2092 effort” should be left up to the rescue organization. If a rescue organization has the resources to treat an animal, the organization should be allowed to do so. The best option is to not have limiting language in the provision, allowing the rescue organizations to determine whether they wish to expend the resources to rehabilitate an animal.

 
It is important to make certain that all shelters that take in animals be included in the provision to transfer animals. In other words, regardless of the status of a shelter as a public or private entity, if a shelter has a contract to provide animal control services to a jurisdiction, it should be subject to the terms of the provision. A step further would be to require any shelter that is euthanizing healthy animals, [FN201] regardless of their status as an animal control service provider, to make such animals available to rescue organizations. [FN202]
 
As discussed above, opponents of the California provision had concerns as to the suitability of some rescue organizations. To ensure that rescue organizations had some stability and were a true organization, California utilized § 501(c)(3) status as a proxy. [FN203] In contrast, Illinois uses the licensing authority of its Department of Agriculture. As seen in the recent amendments to the Illinois statute [FN204] there are valid reasons for both provisions to be included as alternatives for a rescue organization.

 
A source of potential conflict between shelters and rescue organizations is the possibility of shelters using their statutory enforcement powers to inspect facilities in a way that is burdensome on rescue organizations. [FN205] By providing for the licensing to be done by the state *2093 department of agriculture, and having any inspections be done by state, rather than local officials, the possibility of a shelter with police power putting pressure on a rescue organization to keep quiet about poor conditions at the shelter may be minimized.
 
Since the purpose of this provision is to increase adoptions, rescue organizations who now have additional licensing requirements, should receive something in return. The additional rights or benefits that should be provided to the rescue organizations will differ depending on the circumstances of each state.

 
One aspect of sheltering that has increased is the use of foster homes. For many rescue organizations without a physical facility, their ability to care and place animals is limited to the number of foster homes in their organization. A challenge for many people involved in rescue work is the limit that many jurisdictions place on the number of companion animals that can be kept on each residential property. As with other statutes relating to the regulation of companion animals, these statutes have been contested frequently but such lawsuits have generally been unsuccessful. [FN206] Allowing for a waiver of the application of such limitations for foster homes [FN207] would support the ability of rescue organizations to provide temporary shelter to these animals. [FN208] Local nuisance laws are still available if a jurisdiction finds that a foster home is caring for the animals in a way that negatively impacts the rest of the community. [FN209]
 
The interaction between state and local governments differ by jurisdiction but generally, state legislatures have delegated the power to regulate in this area to local governments. [FN210] Since the establishment of these pet limit laws, along with other zoning regulations that have been delegated to the local governments, in most cases requiring local governments to provide for an exemption to the pet limit laws based on a property owner's status as a foster care provider would necessitate serious changes to the structure of a state's laws. [FN211] Local jurisdictions are free to *2094 adopt their own provisions that would grant this right and given the benefits of foster care to the sheltering community, [FN212] local jurisdictions should be encouraged to take such action.

 
Another benefit that might be provided is reduced or eliminated adoption fees for rescue organizations that take animals. Some shelters will waive or reduce their fees while others will not when they are releasing animals to rescue organizations. [FN213]
 
The key to the adoption of any statute is to keep it simple. The point is not to imply at all shelters refuse to work with all rescue organizations, but to make certain in those cases where there has been a lack of cooperation in the past, there is a legal mandate to require shelters to release animals to rescue organizations in the future.

V. Spay or Neuter Your Pet!

Any plan that aims to reduce the level of euthanization of animals must reduce the number of animals coming into the system. This is why it is necessary to mandate sterilization of animals coming into the community from shelters and rescue organizations. There are widely varying estimates on the percentage of animals that are spayed and neutered nationwide. Research in 1999 using a cross sectional study of cats and dogs in the State of Texas found that only approximately 30% of animals were sterilized. [FN214] Owned animals are obviously more likely to be sterilized, and estimates are much higher with 73% of owned dogs and 86% of owned cats spayed or neutered in 2004. [FN215] In some cities more than 90% of pet dogs and cats are sterilized. [FN216] Even the American Kennel Club (AKC), which “opposes the concept of breeding permits, breeding bans or mandatory spay/neuter of purebred dogs,” [FN217] also encourages purebred dog rescue groups to spay and neuter dogs, prior to being placed with a new owner. [FN218] The AKC further “encourages pet owners to spay or neuter their dogs as a responsible means to prevent accidental breedings resulting in unwanted puppies.” [FN219]
 
*2095 A recent study, though limited in scope, found that females and more highly educated people were more likely to spay or neuter their animals. [FN220] There is clearly a much broader cultural acceptance for sterilizing animals than in the past, as illustrated by the statement of one expert that “[f]or the majority of pet owners, it's just what you do . . . .” [FN221] Unfortunately even a small percentage of intact animals can make a significant difference in the overpopulation problem. “[I]n six short years, one female dog and her offspring can give birth to up to hundreds of puppies. And in seven years, one cat and her young can produce hundreds of kittens.” [FN222]

 
Obviously, significant education and resources need to be offered in the community, to encourage the sterilization of animal. This type of program varies by the community. [FN223] For example, one model that has been successful uses a mobile veterinary clinic to provide services to low-income residents. [FN224] Several states have also recognized the importance of this issue and have established programs not only to educate but also to fund low cost sterilization services. Examples include a new program in Illinois which enables dog and cat owners who are either eligible for the Food Stamps Program, the Social Security Disability Program or are managing a feral cat colony, to sterilize their pets for a co-pay of only $15. [FN225] In a similar program in New Hampshire, eligibility can be based on whether the animal was acquired through a shelter. [FN226]
 
Many of these programs, including the program in Illinois, are funded, in part by the sale of pet friendly license plates. [FN227] There are other *2096 proposals to promote the sterilization of animals including a proposed bill in the state of Hawaii that would provide for a tax deduction for an individual taxpayer for expenditures related to sterilization of the taxpayer's dog or cat. [FN228]

 
Another alternative is to revise existing laws to provide incentives to owners to sterilize their animals. For example, municipalities could amend existing ordinances regulating companion animals. Dog registration programs are very common. [FN229] Providing for differential licensing-requiring a substantially higher fee for intact animals over sterilized animals-provides an incentive for owners to spay or neuter their pets.
 
One study found that pre-adoption neutering increased the likelihood that dogs would be adopted from a shelter. [FN230] In this program, the School of Veterinary Medicine at the University of California, Davis sterilizes shelter dogs through a student surgery program and then the dogs are offered for adoption at the shelter. [FN231] Ultimately, intact male dogs were least likely to be adopted, followed by intact females dogs. [FN232] Not surprising, euthanization rates for the intact adults were higher than that of the juveniles (with an estimated age of less than one year). [FN233]

 
Through legislation, most states have recognized the reality of the need to control pet overpopulation through the mandating of sterilization, at least in the case of animals that are acquired through adoption from animal control or a shelter. The language from the Arkansas, California, Illinois and Texas statutes will be used for comparison purposes. There are several other states with similar language. [FN234]
 
*2097 In Arkansas, organizations that are supported in whole or in part by public funds cannot release any dog or cat over two months old that has not been sterilized “unless . . . a promise to spay or neuter the animal has been signed by the person acquiring the animal.” [FN235] For counties with a population over 300,000, unless the animal is medically compromised, animals must be sterilized prior to leaving the facility. [FN236] The failure of the new owner to comply with the signed agreement is deemed to be a violation of the statute and upon demand of the facility, the animal must be returned to the organization. [FN237] Violations of the section are misdemeanors *2098 punishable by a fine of not less than one hundred nor more than five hundred dollars. [FN238]

 
In California, effective on January 1, 2005 “no public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall sell or give away to a new owner any dog [or cat] that has not been spayed or neutered.” [FN239] There are limitations on this provision, allowing for a deposit to be used if a veterinarian certifies that it would be detrimental to the health of the animal to be sterilized at the time [FN240] and the provisions do not apply to counties with populations under 100,000 persons. [FN241]
 
The Illinois provision is similar but allows for the option of a written contract whereby the person wishing to adopt agrees to have the service performed within thirty days. [FN242] In addition, the Illinois statute requires that the animal be microchipped. [FN243] The breach of the agreement is a violation of the statute and may result in seizure and impoundment of the animal. [FN244]

 
In Texas, the provisions apply to public or private animal pounds, shelters or humane organizations, collectively referred to as “releasing agencies.” [FN245] The releasing agency must sterilize the animal or the new owner must sign an agreement to have the animal sterilized. [FN246] The new owner is required to send the releasing agency a letter to confirm sterilization of the animal [FN247] or to notify the releasing agency if the animal dies [FN248] is lost or stolen. [FN249] It is the responsibility of the releasing agency to file a complaint against the new owner if the required letter is not received by the time set forth in the statute. [FN250] The releasing agency can then *2099 reclaim the animal from the new owner. [FN251] Violation of the chapter by the new owner is also a criminal offense punishable as a Class C misdemeanor. [FN252] The chapter does not apply to counties with populations of 20,000 or less or municipalities with populations of 10,000 or less. [FN253]
 
There are a few issues with the limitations of most of the existing sterilization statutes. The first is the scope of the language. In most states, statutory provisions only apply to animals that are being adopted, not to animals that are being released back to their owners. [FN254] From a public policy perspective, an argument can be made that it is precisely the animals that are running at large that need to be sterilized. In fact, proposed legislation in New Jersey mandates the sterilization of animals prior to the release back to their owners (subject to certain exemptions), [FN255] and recent amendments to the Illinois Code provide that a dog found running at large a second or subsequent time must be sterilized within thirty days of being reclaimed. [FN256]

 
As seen by the statutory language discussed above, it is also common to exempt counties with small populations from sterilization laws. Of course, there are resource issues for every jurisdiction. The increasing presence of state pet overpopulation fund programs, [FN257] however, should begin to lessen legislative pressures to excuse these counties from the application of these laws. Further creativity in producing funding for sterilization could help eliminate the county exemption issue. One example of creative funding would be an incentive program that gives tax credits to veterinarians who provide sterilization services to shelters. [FN258][ep [sic]
 
*2100 Perhaps a more obvious problem is that there are still several statutes that have exceptions to the sterilization provision that appear to allow for a potential adopter to essentially choose to “opt out” of the act. In Louisiana, for example, the
sterilization requirements . . . do not apply to a dog or cat that is claimed by an adopter who executes a written agreement obligating the adopter to care for the adopted dog or cat and all of its offspring and pays the fee set by the releasing agency, which fee shall be in addition to the set adoption fee. [FN259]
 
This appears to allow the releasing agency to essentially sell the right to breed the animal. In Montana, the language is even more straightforward-the provisions of its sterilization law do not apply when the shelter “at its discretion, chooses to accept an adoption fee of not less than $50 from a person who wishes to adopt an animal for breeding purposes.” [FN260] Thus, in Montana, there is not even any written agreement obligating the adopter to care for the offspring of the animal. In Missouri, the statutory exemption hinges on the type of dog and the purpose for which the dog is going to be used. Specifically, sterilization is not required where the dog is “of a breed regularly used for lawful hunting or livestock production or management, as specified by rules of the department, to be used in the practice of livestock production or management or the practice of lawful hunting.” [FN261]

 
Many of the current state sterilization provisions include language that permits the delay of a sterilization procedure or deposit forfeiture if the animal is immature. Maturity is generally deemed to occur at six months of age. It is only after this point in time that the clock starts to run on the contract to sterilize (a thirty-day period, or even longer). [FN262] Although the *2101 logic behind this may seem sound, it is not in line with current veterinary theory. Of course, a sterilization procedure should not be done on any animal that is medically compromised and many of the statutory provisions have this as a separate exception to the time periods provided. It is also true that early age sterilization of dogs and cats has been controversial in the past. However, scientific studies continue to report the benefits of early age neutering. [FN263] The American Veterinary Medical Association has issued a policy statement that supports “the concept of early (prepubertal, eight to sixteen weeks of age) spay/neuter in dogs and cats in an effort to reduce the number of unwanted animals of these species.” [FN264] Although there are concerns with pediatric sterilization including the risk of disease transmission at the veterinary clinic, such a risk is not applicable if the animal is already in a shelter environment (which is already a high risk environment for disease transmission). [FN265] Several studies have shown that animals that are sterilized very young “have lives that are as long and *2102 healthy as any other.” [FN266] It is not uncommon for humane societies and adoptive organizations to have firm policies mandating sterilization prior to adoption. [FN267]
 
As with sterilization contracts for older animals and allowing a younger animal to be adopted without prior sterilization, the issue is noncompliance. As one expert states “[e]ven in programs where adopters pay for the spay/neuter AHEAD of time, 20% of pets who are adopted intact are not fixed by the time they're old enough to reproduce, which can happen as young as four months of age for some female cats.” [FN268]

 
The need for mandatory sterilization prior to release from an organization rather than a contract is illustrated by the lack of compliance with the provisions. The Arkansas statute now requires shelters (although only in certain counties) to sterilize rather allowing for a written contract because “experience has shown that less than fifty percent (50%) of persons who receive animals from shelters subject to an agreement to subsequently sterilize those animals, comply with their agreement. Attempts to enforce those agreements place an intolerable burden upon the enforcement effort.” [FN269]
 
Based on this information, the ideal practice is for every animal to be sterilized prior to leaving any shelter or rescue organization. [FN270] If this is *2103 not feasible, the animal could be picked up directly from the veterinary clinic doing the sterilization procedure. [FN271] Given the fact that sterilization procedures can be done as early as eight weeks of age, the issue may be if the animal is too young for sterilization perhaps it is too young to be adopted. [FN272]

 
Perhaps the next generation of these statutes is seen in the proposed legislation in Virginia. The Virginia proposal not only includes microchipping (which is a positive step) it also requires that all releasing agencies including dealers and pet stores must sterilize before the animal is released to a new owner. [FN273] There is an exemption to the sterilization requirement for sales to someone who intends to breed only once and not for profit. [FN274] The reaction of the AKC has been swift and it has publicly opposed the bill. [FN275] It is difficult to see how this bill, as initially proposed, can be successful with the AKC's opposition in place. The Virginia statute still includes the same issue of allowing for an agreement and deposit to sterilize rather than requiring sterilization itself-which will likely result in a substantial percentage of noncompliance with the provisions.
 
It is certainly a positive step that many states have recognized the importance of sterilization to control the pet population. While recognizing that political realities differ in each state, based on the information available to date, the following changes are recommended. First, if a state does not currently have a provision mandating sterilization of animals adopted from all shelters and rescue organizations, such a provision should be adopted. Regardless of the public policy implications, it may be unlikely for broader sterilization measures to be adopted on a wide basis in the near future. [FN276] Notwithstanding that, such a measure *2104 should provide that owned animals that have been found at large be sterilized as well as those to be adopted by the public. [FN277]

 
Second, as discussed above, the best practice would be for all animals to be sterilized prior to being adopted [FN278] given that there is compelling evidence that contracts and voucher programs are not fully effective. [FN279] The problem is that there is a risk that by requiring sterilization prior to release, in some jurisdictions without a history of support for sterilization, it may actually lead to pressure to euthanize more animals. As an interim measure, these contracts or voucher programs may stay in place but should be strengthened in the following manner. Given the evidence regarding the safety of pediatric sterilization, the usual period of time for the sterilization clock to begin to run for young animals should be dropped from six months to four months. [FN280] In addition, the penalties for the violation of the sterilization agreement should be strengthened in many states. If not already included, one penalty for violation should be to allow the releasing entity to seize the animal, and any offspring. As important as it is to encourage compliance with sterilization contracts, the penalties for noncompliance should be in line with other state law. It is a difficult balancing act-to emphasize the importance of the contract without discouraging a potential adopter from adopting an animal from a shelter or rescue organization-and instead purchasing one.
 
The final issue is that the significant loopholes must be closed in the provisions. First, the jurisdictions with smaller populations that are exempt from or have lesser standards should be brought in line with the state mandate. Second, the specific loopholes allowing an adopter to “opt out” of sterilization should be eliminated.

 
Sterilization efforts cannot happen without financial support. The funding programs discussed above are imperative if shelters are going to be able to implement state laws that will require spaying and neutering of animals. In order for the pet population problem to be brought under *2105 control, it is necessary for sterilization programs to be brought out into the community. Only when the human population is educated about the need for sterilization and fulfills its obligations can the pet population problem be brought under control.

VI. Conclusion

The final prong of the non-lethal methods of pet population control relies on the on the retention of animals in homes. By freeing up resources, one thing that shelters can focus on is reuniting lost animals with their owners. [FN281] Microchipping promotes the reuniting of animals with their legal owners, in a lost and found situation. Microchipping, as part of a mandatory sterilization program is one way to promote the use of this system.
 
Another use of resources is to provide for additional training and education to the public. Studies have shown that up to one-third of the dogs and cats that enter shelters are relinquished by their owners. [FN282] A leading cause of relinquishment is behavior problems. [FN283] By providing for behaviorialists and lower cost training opportunities, fewer animals will need to enter into the shelter system. Research shows that animals are subject to a variety of psychological stressors during their time in shelters. [FN284] There is evidence that shows that dogs find shelters stressful. [FN285] Another study concluded that at least one “serious behavioral problem can be expected during the first month of adoption for 50% of kittens adopted at a young age from a humane society into a home.” [FN286] “Dogs obtained from shelters and then relinquished make up about 20% of the population of the dogs of shelters.” [FN287]

 
*2106 Certainly, better shelter design is an interim measure that can help minimize the impact on the animals in the system. [FN288] It is unrealistic in many communities to take on renovation or building of new facilities. The facilitation of animals to foster programs in order to get them out of the shelter environment as quickly as possible is good for the animals and beneficial to the shelters' bottom lines.
 
In the area of increasing adoptions, this Article has focused on mandating the transfer of animals to rescue organizations. Other creative ways to encourage the adoption of animals include, providing a tax deduction to those who adopt an animal from a shelter or rescue organization and providing for an additional tax on the sale of animals from pet stores or breeders increasing the price of such animals with such a fee being allocated to the state pet overpopulation fund. [FN289]

 
As this Article has shown, in order to implement non-lethal strategies to combat pet overpopulation legislation is needed to encourage shelters to work with rescue organizations and to make certain that an increased percentage of animals are sterilized.
 
There will always be limited resources available. What has become clear in the last decade is that it is possible for significant changes to be made in the animal population problem in the United States. Through education, collaboration and with legislative standards in place the euthanization levels in the United States can continue to decline which is better for the animals and better for the communities where we live. It is possible to become a no-kill nation-we just need to take the necessary steps to make it happen.
 

 
[FNa1]. Professor of Law, Valparaiso University School of Law; LL.M. University of Iowa, 1995; J.D. University of Richmond, 1992. The Author wishes to thank her administrative assistant Melissa Mundt for her invaluable assistance and Professor Taimie Bryant for sharing her ideas and knowledge about this area of the law. This Article is dedicated to all the people who work every day in their communities to save the animals.

[FN1]. For a discussion on the domestication of animals and the changing role of animals in the United States, see Gail F. Melson, Why the Wild Things Are: Animals in the Lives of Children 19 (2001) (discussing the use of animals in therapy with children); Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals, 74 U. Colo. L. Rev. 181, 188-95 (2003) (examining the domestication of dogs and cats and the evolution of the human relationship with companion animals in America). There are many factors that contributed to the development of this new paradigm in the relationship between people and companion animals. Melson cites the effects of urbanization, industrialization, and isolation of modern society as reasons for the new relationship. See Melson, supra, at 25-31; see also Leslie Mann, Pet's Domain Includes the Hearth as Well as the Heart, Chi. Trib., Apr. 2, 2000, at F1, available at LEXIS, News Library, CHTRIB File (reporting on the changing perspective of dogs as utility animals to dogs as members of families).

[FN2]. Alan M. Beck & Aaron Honori Katcher, Between Pets and People: The Importance of Animal Companionship 41 (1996) (citing the analogous treatment of children and companion animals). Although sometimes companion animals are viewed as child substitutes, pets are actually included in the majority of households with children. Melson, supra note 1, at 17 (stating that pets live in “at least 75% of all American households with children”); see also Sandra Block, Pet Insurance Can Save Owners From Wrenching Decisions, USA Today, Feb. 19, 2002, at 3B, available at LEXIS, News Library, USATDY File (citing to survey that found that 78% of people “[t]hink of their pets as their children”).

[FN3]. See Am. Pet Prods. Mfrs. Ass'n, 2003-2004 APPMA National Pet Owners Survey, at xxxiv (2004) [hereinafter APPMA] (reporting that in a recent poll 70% of people with dogs and 62% of people with cats agreed with the statement that the companion animals in their households were like children or family members); see also Aaron H. Katcher, How Companion Animals Make Us Feel, in Perceptions of Animals in American Culture 121, 123 (R.J. Hoage ed., 1989) (discussing studies that find that pets are viewed as “members of the family”).

[FN4]. APPMA, supra note 3, at xxxiv (finding that for 96% of dog owners and 88% of cat owners the benefits of ownership include companionship, love, company and affection); Katcher, supra note 3, at 123 (citing to the studies that show that fewer people are having children and that there are fewer children in families); Karen Dawn, Best Friends Need Shelter, Too, Wash. Post, Sept. 10, 2005, at A23, available at LEXIS, News Library, WPOST File (discussing the issue of people “refusing to be evacuated simply because ‘they won't leave their pets”’); Shepherd Pittman, America's Furry Families, Wash. Times, Oct. 11, 2005, at A2, available at LEXIS, News Library, WTIMES File (analyzing the increase in pet ownership in the United States and the relationship that people have with their animals).

[FN5]. Am. Pet Prods. Mfrs. Ass'n, 2005-2006 APPMA Nat'l Pet Owners Survey, Industry Statistics and Trends, http://www.appma.org/press_industrytrends.asp (last visited Mar. 22, 2007); see also Maureen Jenkins, A Dog's Life; Pets Considered Part of the Family, Chi. Sun-Times, Sept. 2, 2005, at 68, available at LEXIS, News Library, CHISUN File (discussing day care and play groups for dogs and other activities that Chicago-area dog owners engage in with their dogs); Gregory Karp, Pet Project: Cut Spending Where Possible, Chi. Trib., Apr. 10, 2005, at C8, available at LEXIS, News Library, CHTRIB File (discussing luxury spending on pets and cost cutting tips); Coco Masters, Let's Pawty!; Petlane Combines Pet Products with Direct Sales to Educate Pet Owners and Entertain America's “New Kids,” Time, Apr. 11, 2005, at A20, available at LEXIS, News Library, TIME File (discussing a direct marketing company that sells pet accessories, toys, and treats); Deborah Wood, Pet Talk-Our Lives are Going to the Dogs and We Love It, Oregonian, Nov. 6, 2005, at O12, available at LEXIS, News Library, OREGNN File (discussing the changing relationship from “‘just a dog’ to a ‘fur kid”’ and the activities and money that Americans are spending with and on their animals).

[FN6]. Am. Veterinary Med. Ass'n, U.S. Pet Ownership & Demographics Sourcebook 99 (2002) (reporting that the total veterinary expenditures for 2001 was $18.94 billion); Margaret Graham Tebo, Pet Project: New ABA Committee on Animal Law Focuses on Post-Katrina Rescue Efforts, 91 A.B.A. J. 72, 72 (2005) (quoting Barbara Gislason, the chair of the Animal Law Committee of the Tort, Trial and Insurance Law Section of the American Bar Association); see also Jerry Gleeson, Dog-gone Expensive, J. News (Westchester Co., N.Y.), Dec. 26, 2001, at 1D, available at LEXIS, News Library, JNLNWS File (reporting on a survey by the American Animal Hospital Association that found that more that one third of the respondents said they “would spend any amount of money to save the lives of their pets. Eighteen percent . . . said they had spent more that $1,000 on veterinary care for their pets in the previous 12 months”). The amount of money spent on veterinary care has increased significantly in the last decade. See Veterinary Care Without the Bite, Consumer Rep., July 2003, at 12, 12 (stating that “[s]pending on veterinary services jumped to $18.2 billion in 2001, nearly triple the 1991 level”). The “demand for veterinary services has grown significantly faster than growth in the overall economy” for the period from 1980-1997, and growth through the year 2015 is expected to be considerably higher than the anticipated growth in total consumer expenditures. John P. Brown & Jon D. Silverman, The Current and Future Market for Veterinarians and Veterinary Medical Services in the United States: Executive Summary, May 1999, 215 J. Am. Veterinary Med. Ass'n 161, 164 (1999). The Executive Summary is derived from a comprehensive study of the veterinary profession that was commissioned by the American Veterinary Medical Association, American Animal Hospital Association, and Association of American Veterinary Medical Colleges. Id. at 161. Veterinarians specialize in areas of medicine such as dermatology, cardiology, dentistry, neurology, oncology, and ophthalmology. See American Veterinary Medical Association, Market Research Statistics, Veterinary Specialties, http:// www.avma.org/reference/marketstats/vetspec.asp (last visited Mar. 26, 2007). Holistic treatments are available as an alternative to traditional veterinary medicine. Bill Shein, It's a Dog's Life-and a Good One, Berkshire Eagle (Pittsfield, Mass.), Jan. 18, 2006, available at LEXIS, News Library, BERKEG File (discussing alternative therapies for animals). See generally Alt Vet Med, Complementary, Alternative, and Holistic Veterinary Medicine Articles, http:// www.altvet med.org/pages/articles.html (last visited Mar. 22, 2007) (providing articles and links to complementary and alternative veterinary medical information).

[FN7]. See American Animal Hospital Association, Pet Owner Survey News Release, It's Official, Pets Rule the Roost, http://www.aahanet.org/About_ aaha/About_PressKit_POSrelease.html (last visited Mar. 22, 2007). One reason for the regular visits to veterinarians is the requirement that dogs-and sometimes cats-be vaccinated against rabies pursuant to state law. See James F. Wilson, Law and Ethics of the Veterinary Profession 79-80 (1988). Unlike childhood vaccinations that are concentrated within the first few years of life, rabies boosters are required “every two to three years depending upon the jurisdiction.” Id. at 80. Individual jurisdictions set the frequency that rabies vaccinations must be administered. Id. Lawsuits alleging that particular statutes relating to the control of animals are beyond the police power of the jurisdiction have been unsuccessful. Orland Soave, Animals, the Law and Veterinary Medicine: A Guide to Veterinary Law 164 (4th ed. 2000). Note that what an owner means by visiting the veterinarian regularly may vary widely. One poll found that the average number of visits to a veterinarian per year for dogs was 2.7 and cats 2.3. APPMA, supra note 3, at xxiv. However, about “one-out-of-ten dogs were not taken to the veterinarian during the past 12 months.” Id. at 9. The percentage of cats that are not taken to the veterinarian during the past twelve months is much higher at 31%. Id. at 69.

[FN8]. Sandy Davis, Hard to Go, Advocate (Baton Rouge, La.), Sept. 7, 2005, at 1A, available at LEXIS, News Library, ADVOCT File (stating that “[p]ets appeared to be the No. 1 reason many of the estimated 10,000 residents still holed up in their flooded homes are refusing to leave”).

[FN9]. Robin Brown, Together They Stand; Pet-Lovers' Loyalty Becomes Even More Clear After Hurricane's Devastating Blows, News J. (Wilmington, Del.), Dec. 9, 2005, at 22A, available at LEXIS, News Library, NEWJNL File (citing researchers at the University of Colorado); see also Leslie Irvine, Providing for Pets During Disasters: An Exploratory Study, http:// www.colorado.edu/hazards/research/qr/qr171/qr171.pdf (last visited Apr. 13, 2007) (providing the 20% statistic and other information regarding research on disaster planning for pets). Another expert has stated that 30% of pet owners will not leave their homes without their pets. See Sharon Kiley Mack, Animal Rescue Team Plans State Crisis Response, Bangor Daily News (Me.), Oct. 19, 2005, at B1, available at LEXIS, News Library, BGRDLY File (quoting Bill Gentry, the head of North Carolina's State Animal Response Team).

[FN10]. See Charles Leroux, Orphans of the Storm, Chi. Trib., Dec. 7, 2005, at C1, available at LEXIS, News Library, CHTRIB File (citing to estimates by the Humane Society of the United States); Tom Spalding, Hoosiers Open Homes to Storm Pets, Indianapolis Star, Sept. 26, 2005, at 1B, available at LEXIS, News Library, INDYST File (quoting Rachel Querry, spokeswoman for the Humane Society of the United States). Note that estimates of the numbers of animals impacted by the storm varied widely, and reports were not always clear about what types of animals were affected and the location of the animals. For example, the statement was made that “more than 600,000 [pets] were left on their own in Hurricane Katrina's wake.” In New Orleans, A Pet Project: Saving Those Left Behind, Wash. Post, Sept. 18, 2005, at A19, available at LEXIS, News Library, WPOST File (stating estimates by the U.S. Humane Society). One estimate is that 200,000 animals died in the aftermath of Katrina. See Tricia Jones, Rescue Mission; Clark College Professor Spends Break Aiding Hurricane's Animal Victims, Columbian (Vancouver, Wash.), Jan. 15, 2006, at D1, available at LEXIS, News Library, COLMBN File (quoting Jane Garrison, founder of Animal Rescue New Orleans); Brenda Rindge, Jane Garrison; Animal Activist Still Rescuing Katrina's Other Victims, Post & Courier (Charleston, S.C.), Jan. 28, 2006, at F1, available at LEXIS, News Library, PSTCUR File (quoting Jane Garrison). Another estimate is thatwell over 100,000 pets perished in the aftermath of Katrina. See Joyce Maynard, The Dogs of New Orleans, S.F. Chron., Nov. 29, 2005, at E1, available at LEXIS, News Library, SFCHRN File (discussing rescue efforts in New Orleans eleven weeks after Hurricane Katrina).

[FN11]. Pam Firmin, It's Puppy Season: Katrina Sets Pets Free, and Shelters are Filling Up, Sun Herald (Biloxi, Miss.), Jan. 22, 2006, at B1, available at LEXIS, News Library, ALLNWS File (stating that Petfinder.com statistics show that “the number of animals rescued in the Gulf states after hurricanes Katrina and Rita topped 8,500”); Paul Purpura, Donation Comes to the Aid of Animal Rescue Group, Times-Picayune (New Orleans, La.), Jan. 31, 2006, at 1, available at LEXIS, News Library, NOTPIC File (quoting Laura Maloney, the executive director of the Louisiana SPCA: “More than 8,500 animals were rescued with the help of outside agencies”).

[FN12]. See Katie Schmitt, Hurricane-Displaced Animals Find Homes with U. Iowa-Area Residents, U. Wire (Iowa), Jan. 25, 2006, available at LEXIS, News Library, UWIRE File (quoting Christine Petersen, assistant professor of veterinary pathology and hurricane volunteer, that 20,000 animals were rescued); see also Sara Ivry, An Outpouring for Other Victims, The Four-Legged Kind, N.Y. Times, Nov. 14, 2005, at F24, available at LEXIS, News Library, NYT File (quoting Jo Sullivan, the American Society for the Prevention for Cruelty to Animals Senior Vice President for Development and Communication, that an estimated 13,000 to 15,000 animals were cared for by welfare and rescue groups).

[FN13]. See Laura Parker & Anita Manning, Trapped New Orleans Pets Still Being Rescued, USA Today, Oct. 6, 2005, at 1A, available at LEXIS, News Library, USATDY File (discussing the largest pet rescue operation in U.S. history and the costs, which includes the reconstruction costs of animal shelters in Louisiana and Mississippi). A great deal of money was raised to assist in the rescue effort. See Ivry, supra note 12 (stating that among other groups, the Humane Society of the United States received donations after Hurricane Katrina totaling $20 million, the American Society for Prevention for Cruelty to Animals received $13 million, and the American Humane Association received $1.6 million). The Humane Society of the United States reports on its website that it has spent or has committed to spending over $20 million on disaster relief efforts. See Humane Society of the United States, An Unprecedented Show of Kindness Toward Animals, An Unprecedented HSUS Disaster Response, http://www.hsus.org/hsus_field/hsus_disaster_center/disaster_press_ room/archives/2005_disaster_response/hurricane_katrina/unprecedent_show_of_ kindness.html (last visited Mar. 22, 2007).

[FN14]. See Jones, supra note 10 (quoting 10% figure given by Jane Garrison); Martin Savidge, Pet Reunions Rare After the Storms, MSNBC.com, Dec. 2, 2005, http://www.msnbc.msn.com/id/10300329/ (last visited Mar. 22, 2007) (citing to reunion rates of less than 15%).

[FN15]. See Schmitt, supra note 12 (quoting Christine Petersen, assistant professor of veterinary pathology and hurricane volunteer, that “nearly 20,000 animals were rescued after the hurricane, but only 5,000 to 6,000 were reunited with their original owners”).

[FN16]. Spadling, supra note 10 (discussing adoption of animals evacuated from Gulf Coast, but highlighting continuing local overpopulation problem).

[FN17]. Auburn University College of Veterinary Medicine, Maddie's Shelter Medicine Program, Spaying and Neutering Puppies and Kittens, http:// www.auburn.edu/~simslni/sheltermedicine/pediatricspayneuter.html (last visited Apr. 14, 2007). In fact, “[e]uthanasia kills more animals than any known ‘disease’ studied in veterinary medicine.” Auburn University College of Veterinary Medicine, Maddie's Shelter Medicine Program, Working with Veterinarians, http://www.auburn.edu/~ simslni/sheltermedicine/workingwithvets.html (last visited Apr. 14, 2007).

[FN18]. See Jennifer Fiala, Shelter Euthanasia Rates Drop to Historical Lows, DVM Newsmagazine, July 1 2003, http:// www.dvmnews.com/dvm/article/articleDetail.jsp?id=62249. The American Humane Association reported 17.8 million shelter deaths in 1985. Id.

[FN19]. Humane Society of the United States, The Crisis of Pet Overpopulation, http://www.hsus.org/pets/issues_affecting_our_pets/pet_ overpopulation_and_ownership_statistics/the_crisis_of_pet_overpopulation.html (last visited Mar. 19, 2007). It is difficult to measure the true rate of euthanasia because organizations are often not required to maintain records of the status of the animals entering and leaving a shelter. Fiala, supra note 18; see also John Wenstrup & Alexis Dowidchuk, Pet Overpopulation: Data and Measurement Issues in Shelters, 2 J. Applied Animal Welfare Sci. 303, 304 (1999) (discussing issues relating to current data collection process). In contrast to the difficulty in obtaining national statistics, Michigan state law requires all Michigan licensed animal shelters to collect admission and discharge data. See Mich. Comp. Laws Ann. § 287.339a (West 2006) (stating that animal shelters shall maintain records on the number of dogs, cats, and ferrets received, returned to owners, adopted and euthanized, that shelters shall prepare an annual report of these statistics). A recent study analyzing that data found that smaller shelters and privately owned shelters had lower euthanization rates than larger shelters. Paul C. Bartlett et al., Rates of Euthanasia and Adoption for Dogs and Cats in Michigan Animal Shelters, 8 J. Applied Animal Welfare Sci. 97, 100 (2005).

[FN20]. The specific number is 9589 animals.

[FN21]. Although statistics are dated, one estimate was that $500 million per year was spent on this form of animal control. See Joshua Frank, An Interactive Model of Human and Companion Animal Dynamics: The Ecology and Economics of Dog Overpopulation and the Human Cost of Addressing the Problem, 32 Human Ecology 107, 108 (2004), available at http:// www.springerlink.com/content/wr3604327413804r/fulltext.pdf; Merry Lepper et al., Prediction of Adoption Versus Euthanasia Among Dogs and Cats in a California Animal Shelter, 5 J. of Applied Animal Welfare Sci. 29, 30 (2002) (citing to a 1984 study when euthanasia rates were higher).

[FN22]. In the adoption of the provisions requiring sterilization of animals adopted from shelters in Arkansas, the legislative record indicates that the legislature took note that “[s]helter personnel suffer enormous psychological strain caused by the hidden costs to society of irresponsible pet owners.” Ark. Code Ann. § 20-19-103 (West 2006) (providing legislative history for Act 488, § 1 (1999)).

[FN23]. See Charlie L. Reeve et al., Employee Reactions and Adjustment to Euthanasia-Related Work: Identifying Turning-Point Events Through Retrospective Narratives, 7 J. Applied Animal Welfare Sci. 1, 21 (2004) (addressing various events discussed in interviews with shelter workers); Charlie L. Reeve et al., The Caring-Killing Paradox: Euthanasia-Related Strain Among Animal-Shelter Workers, 35 J. Applied Soc. Psychol. 119, 120 (2005) [hereinafter Reeve et al., Caring-Killing Paradox].

[FN24]. See Reeve et al., Caring-Killing Paradox, supra note 23, at 136 (providing a summary of researchers' findings).

[FN25]. Id.

[FN26]. These three prongs are commonly known in the animal welfare community. See, e.g., Auburn University College of Veterinary Medicine, Maddie's Shelter Medicine Program, Non-Lethal Strategies for Pet Population Control, http://www.auburn.edu/~simslni/sheltermedicine/nonlethal.html (last visited on Apr. 14, 2007). The issue of retention of animals in homes will be discussed briefly in the conclusion, but it involves issues that are largely beyond the scope of this Article.

[FN27]. By freeing up resources, more attention can be devoted to education, leading to higher retention rates. See infra notes 281-88 and accompanying text (discussing retention of companion animals in homes).

[FN28]. There are serious issues that are outside the scope of this Article. One such issue is the ongoing debate over the control of the feral cat population. Shawn Gorman & Julie Levy, A Public Policy Toward the Management of Feral Cats, 2 Pierce L. Rev. 157, 157 (2004). There are estimates that the number of feral cats is equal to the number of cats that are kept as pets in the United States. Compare No Kill Solutions, Do Feral Cats Have a Right to Live? 4 (2005), available at http://www.nokillsolutions.com/pdf/Feral% 20Cats.pdf (estimating that there are 100 million feral cats in the United States), with Am. Pet Prods. Mfrs. Ass'n, supra note 5 (estimating that there are 90.5 million domesticated cats in the United States). A variety of methods have been utilized to deal with free roaming cats. An example of one local ordinance that received significant publicity was in Akron, Ohio. To date, opponents of the Akron ordinance have been unsuccessful in having it overturned. Lisa A. Abraham, Foes of Cat Law Still Not Licked, Akron Beacon. J., Jan. 14, 2005, at B1. The Akron ordinance provided for trapping and euthanasia of cats that were “running at large.” City of Akron, Ohio Code of Ordinances § 92.01 (LexisNexis 2006). Cats that are identified as un-owned are evaluated to determine whether they are either unhealthy or feral-and therefore should be euthanized-or whether they should be transferred to the county facility for adoption. Id. § 92.152 (LexisNexis 2006); see also City of Akron: Cats At-Large, http://www.ci.akron.oh.us/Temporary_Pages/cats.htm (last visited Apr. 14, 2007) (describing Akron's animal control ordinance). The Akron ordinance received widespread publicity, in part because reports indicated that domesticated cats were immediately being euthanized rather than being transferred for potential adoption. Michael Sangiacomo, Akron Law to Trap, Kill Cats is OK, Judge Rules, Plain Dealer (Cleveland, Ohio), May 6, 2004, at B3, available at LEXIS, News Library, CLEVPD File; Michael Sangiacomo, Cat Lovers Pounce on Akron Plan to Kill Strays, Plain Dealer (Cleveland, Ohio), Apr. 12, 2002, at B6, available at LEXIS, News Library, CLEVPD File. In contrast, there are several well-known programs where feral cat colonies are maintained through what are referred to as trap, neuter and release (or return) programs. See, e.g., Alley Cat Allies, http://ww.alleycat.org (last visited Mar. 22, 2007) (discussing feral cats and programs). In these programs, feral cats are trapped by volunteers, sterilized, vaccinated, and then returned to the same geographic area where they were found. The theory is that these sterilized animals keep the population at a stable number. There are obvious philosophical differences supporting the policies dealing with feral cats that involve environmental and social policy issues, which are ancillary to the primary focus of this Article.

[FN29]. See David Favre & Vivian Tsang, The Development of Anti-Cruelty Laws During the 1800s, 1993 Det. C.L. Rev. 1, 5 (1993); see also Gary L. Francione, Animals, Property, and the Law 42 (1995).

[FN30]. Favre & Tsang, supra note 29, at 13.

[FN31]. William J. Shultz, The Humane Movement in the United States, 1910-1922, at 29-38, 40 (Samuel McCune Lindsay ed., 1924) (discussing activities of representatives in society).

[FN32]. See Frank Backus Williams, The Administration of the Law for the Prevention of Cruelty to Animals, in Legislation for the Protection of Animals and Children 7, 8 (Samuel McCune Lindsay ed., 1914).

[FN33]. See id. at 7-8.

[FN34]. Schulz, supra note 31, at 40.

[FN35]. Stephen Zawistowski et al., Population Dynamics, Overpopulations and the Welfare of Companion Animals: New Insights on Old and New Data, 1 J. of Applied Animal Welfare Sci. 193, 194, 201 (1998).

[FN36]. Id. at 194.

[FN37]. Williams, supra note 32, at 8.

[FN38]. Zawistowski et al., supra note 35, at 193.

[FN39]. Id. at 193-94; see also Huss, supra note 1, at 192-94 (discussing the changing role of companion animals in American society).

[FN40]. Zawistowski et al., supra note 35, at 194.

[FN41]. Gerofsky v. Passaic County Soc'y for the Prevention of Cruelty to Animals, 870 A.2d. 704, 710 (N.J. Super. Ct. App. Div. 2005).

[FN42]. Id. at 706-07. In New Jersey, a State Commission of Investigation and a Task Force appointed by the Governor issued reports that were critical of the current operations of the SPCAs and recommended “either repeal or substantial modification of the statutes that confer law enforcement authority upon these private groups.” Id. at 706.

[FN43]. Id. at 707.

[FN44]. One of the stated concerns was that the members were in violation of gun laws. Id. at 708.

[FN45]. The new memorandum of understanding required the members to complete courses in firearms, animal control investigations, and a background check. Id. at 708.

[FN46]. Gerofsky, 820 A.2d at 709. The basis of the state SPCA application is the directive suspending the law enforcement functions of the county SPCA. Id. at 708-09.

[FN47]. Id. at 711.

[FN48]. Zawistowski et al., supra note 35, at 195 (discussing history of animal control).

[FN49]. Id.

[FN50]. In Kentucky, the Bowling Green Warren County Humane Society describes itself and its funding as follows:
The Humane Society is an independent, non-profit agency contracted by Warren County to operate the animal shelter, which we moved into in 1983. The Humane Society is not a department of city or county government. The city and county own the shelter building. The Humane Society receives funds from city and county governments to operate the shelter. This funding is used to pay for management/employee salaries, utility bills, cleaning supplies/chemicals, euthanasia solution, cat litter, fuel for rescue vehicles and building repairs/maintenance. Humane Society DONATIONS are used to pay for medical care of sick and injured animals, animal cages, incidental supplies such as food/water bowls, dog/cat treats, canned cat/dog food, dog/cat toys, supplies for fund raisers and education/outreach programs. Hill's Pet Products donates dog, cat, kitten and puppy food.
The Humane Society's mission is to provide a clean comfortable shelter for homeless, abused, lost and impounded animals of our community; to place as many of these animals as possible in loving and responsible homes and humanely euthanize those not adopted; to investigate complaints of animal abuse/neglect; and to educate the public about responsible care of companion animals, ESPECIALLY SPAY/NEUTER!
Bowling Green Warren County Humane Society, http:// www.petfinder.com/shelters/KY18.html (last visited Feb. 27, 2007).

[FN51]. Id.

[FN52]. See, e.g., Blue Mountain Humane Society of Walla Walla, http:// www.bluemountainhumane.org (last visited Mar. 25, 2007) (describing funding sources for the Humane Society in Walla Walla, Washington, including some small municipal contracts for housing animals); Dubuque Regional Humane Society, http://www.dbqhumane.org/onlinedonations.cfm (last visited Feb. 14, 2007) (discussing funding for the Humane Society in Dubuque, Iowa, which has contracts to house animals from two counties and the city of Dubuque); Larimer Humane Society, http://www.larimerhumane.org/about/index.cfm (last visited Mar. 25, 2007) (providing information about funding sources for the Human Society in Larimer, Colorado, but stating that the funding from the Animal Protection and Control contracts does not help with rehabilitation or adoption expenses).

[FN53]. Merritt Clifton, Who Invented No-Kill?, Animal People, Sept. 2005, available at http://www.animalpeoplenews.org/05/9/whoinventedNoKill9.05.htm. It was not until 1957, when the Friends of Animals opened a low cost clinic, that sterilization for pets became affordable for people in the United States. Id.

[FN54]. Id.

[FN55]. Merrit Clifton, What Has No-Kill Accomplished?, Animal People, Sept. 2005, available at http:// www.animalpeoplenews.org/05/9/whathasnokillaccomp9.05.htm; see also infra notes 72-83 and accompanying text (discussing role of no-kill movement).

[FN56]. See infra notes 214-22 and accompanying text (discussing sterilization issues and the birth rate for dogs and cats).

[FN57]. Zawistowski et al., supra note 35, at 194 (discussing the ASPCA's annual report in 1895, which “felt itself successful in its management of New York City's animal shelters because the ASPCA euthanized more animals than had previous authorities”). The reasoning behind the ASPCA's belief was that it eliminated the previous bounty system, and thus the animals that were euthanized were true strays and were euthanized in a more humane manner than under the previous system. Id.

[FN58]. Lee Anne Fennell, Commentary, Beyond Overpopulation: A Comment on Zawistowki et al. and Salman et al., 2 J. Applied Animal Welfare Sci. 217, 224 (1999).

[FN59]. See Julie Richard, Gimme Shelter: Responding to Public Pressure, It's Now Animal Care & Control, Best Friends Mag., May/June 2005, at 14 (discussing changes made at the San Antonio Animal Control Shelter and other city and county shelters in response to the growing no-kill movement).

[FN60]. Fennell, supra note 58, at 222-24 (discussing the physical characteristics of shelters that discourage adoptions).

[FN61]. Elizabeth Weinstein, Animal Shelters Upgrade Creature Comforts, Wall St. J., Apr. 19, 2005, at B1, available at LEXIS, News Library, WSJNL File (discussing changing aesthetics and architecture in San Francisco and San Antonio shelters). Some planners have made efforts to locate shelters near retail stores. Id.; see also Carol Guzy, Washington Area Rescue League: A Place of Dignity, Bark, Jan./Feb. 2007, available at http:// www.thebark.com/ezine/features_specialFeatures/Wash_Animal_League_Guzy_40.html; Lucinda Schlaffer & Paul Bonacci, ARQ Architects, Design for Shelter Animals in a No-Kill World, http://www.maddies.org/organizations/shelter_nokill_ designs.html (last visited Mar. 25, 2007) (discussing the importance of a comfortable waiting area for people who are in the shelter to adopt animals).

[FN62]. Erica Solvig, Shelter's Goal: Get Pets Homes, Desert Sun (Palm Springs, Cal.), Jan. 15, 2006, at A1, available at LEXIS, News Library, DESSUN File (discussing opening of new county animal shelter and the hiring of adoption coordinators to help make matches). Claims of animal cruelty in 2004 prompted an audit of this shelter, and an animal control officer of this county was fired after he was videotaped dragging a dog rescued from Hurricane Katrina across the pavement at Palm Springs International Airport. Id.

[FN63]. Clifton, supra note 53 (citing to statistics from the 1940s and 1950s); North Shore Animal League, The Beginnings, http:// www.nsalamerica.org/about/the_beginnings.html (last visited Mar. 25, 2007).

[FN64]. PETCO.com, Think Adoption First, http:// www.petco.com/Content/Content.aspx?PC=taf&Nav=113 (last visited Mar. 25, 2007). There are now over 850 PETCO locations nationwide. PETCO.com, Store Locator, http://www.petco.com/petco_Page_PC_storelocator_Nav_110.aspx (last visited Mar. 25, 2007).

[FN65]. PETCO.com, Store Adoption Events, http:// www.petco.com/Content/StoreAdoptions.aspx?PC=storeadoptions&Nav=114&= (last visited Mar. 25, 2007) (discussing the partnerships that PETCO stores have with local organizations).

[FN66]. PetSmart.com, Pet Adoption Center, http:// www.petsmart.com/adoptions/index.shtml (last visited Mar. 25, 2007) (citing over 2.8 million pets adopted as of March 4, 2007, partnering with over 3400 humane organizations).

[FN67]. Press Release, PETCO, PETCO Announces Industry Leading “Think Adoption First” Initiative, Kick-Off of New Effort Will Include National Pet Adoption Weekend, August 28-29, (Aug. 20, 2004), available at http:// www.petco.com/Content/PressRelease.aspx?PC=pr082004&Nav=146&= [hereinafter PETCO, Think Adoption First] (discussing the Think Adoption First initiative, but also discussing Petfinder.com generally). Petfinder.com “went national” in 1998. Press Release, Petfinder.com, Petfinder.com Gives Shelter Pets New Byte, available at http://www.petfinder.com/press.html [hereinafter Petfinder.com, Shelter Pets]; see also Alex L. Goldfayn, PetFinder Provides a Simpler Selection, Chi. Trib., Nov. 19, 2005, at C4, available at LEXIS, News Library, CHTRIB File (discussing use of Petfinder.com to adopt animals and the average of 200,000 animal listings per day on the site).

[FN68]. PETCO, Think Adoption First, supra note 67.

[FN69]. Petfinder.com, Shelter Pets, supra note 67.

[FN70]. M.M., Internet Adoption Programs Work, DogFancy, Jan. 2006, at 8. Dr. Garcia is a professor at the University of Cincinnati. Angela Cora Garcia, Virtual Animal Shelters and the Humane Society: How the Internet is Transforming Pet Adoption (paper presented at the American Sociological Association Meetings, Philadelphia, PA, Aug. 15, 2005) (on file with Connecticut Law Review).

[FN71]. Clifton, supra note 53 (discussing invention of no-kill).

[FN72]. Posting of Nathan Winograd, NMHP Forum, nmhpforum@bestfriends.org (Jan. 16, 2006, 1:41 PM) (on file with Connecticut Law Review) (stating that to “get community support, to get community funding, to stave off community resentment, a lot of agencies have adopted the language of No Kill, but not the programs and services that save lives”). Mr. Winograd is the Founder and Director of No Kill Solutions. Id.

[FN73]. Declaration of the No Kill Movement in the United States, http:// www.nokilldeclaration.org/pages/1/index.htm (last visited Mar. 24, 2007).

[FN74]. Id.

[FN75]. Id.

[FN76]. Id. (“Public shelters work with humane animal adoption organizations to the fullest extent to promote the adoption of animals and to reduce the rate of killing”).

[FN77]. Id. (providing “[r]escue group access to shelter animals”).

[FN78]. Francis Battista, Curtain Call! How Act Three of the No More Homeless Pets Drama is Set to Play Out, Best Friends Mag., Mar./Apr. 2005, at 46 (discussing no-kill movement). Those organizations may then use the term “limited admission” to refer to no-kill shelters. Id.

[FN79]. Examples include SanFrancisco, California and Tompkins County, New York. Liz Szabo, Kinder, Gentler Animal Shelters, USA Today, July 26, 2004, at 1D, available at LEXIS, News Library, USATDY File (discussing successes in no-kill movement). For information on the transformation of the Tompkins County SPCA from a traditional shelter environment to a no-kill facility, see Nathan J. Winograd, Building a No-Kill Community 3-5, 8-13, 16 (2002), available at http://www.nokillsolutions.com/pdf/BNKC.pdf.

[FN80]. Battista, supra note 78.

[FN81]. Szabo, supra note 79.

[FN82]. Id.

[FN83]. See Clifton, supra note 55.

[FN84]. APPMA, supra note 5, at 5.

[FN85]. Id. at 81 (stating that 34% of cats were acquired as a stray). The percentage of cats acquired from breeders and private parties only totaled 11%. Id.

[FN86]. Elizabeth Hess, Gimme Shelter, Bark, Spring 2002, at 72 (discussing disputes between rescue organizations and New Year's Center for Animal Care and Control). But see Szabo, supra note 79 (discussing recent changes in New York City including the Mayor's Alliance of NYC's Animals, a coalition “that intends to make New York a ‘no-kill city’ within five years”).

[FN87]. Beverly N. Williams, Custody Catfight Brews Between PETA, Hampton City Officials, Daily Press (Va.), Feb. 18, 2005, at A1.

[FN88]. Id.

[FN89]. Id.

[FN90]. See Asilomar Accords 1, available at http:// www.asilomaraccords.org/2004-accords5.pdf.

[FN91]. Id. at 1.

[FN92]. Id. at 2.

[FN93]. Id.

[FN94]. Id. at 3.

[FN95]. Id.

[FN96]. E-mail from Nathan J. Winograd, Founder and Director of No Kill Solutions, to Rebecca J. Huss, Professor of Law, Valparaiso University School of Law (Sept. 23, 2005, 7:53 PM CDT) (on file with Connecticut Law Review).

[FN97]. No Kill Solutions, Does the Road to No Kill Lead Through Asilomar?: A No Kill Perspective on the Asilomar Accords (2005), available at http:// www.nokillsolutions.com/pdf/Asilomar%20position%20paper.pdf.

[FN98]. Id. at 1.

[FN99]. Id. at 5. According to the No Kill Solutions categorization, only 22% of the participants would be considered no-kill groups. Id.

[FN100]. Id. at 4.

[FN101]. Id.

[FN102]. Id. at 8.

[FN103]. Wisconsin Dog Rescue, Mission & Ethics, http:// www.widogrescue.com/missionethics.html (last visited Mar. 25, 2007) (stating that their “mission is to better serve homeless, stray, and unwanted pets by creating and strengthen the bond between reputable rescues and quality shelters in WI”); Telephone Interview with Michele Ambrose, President, Midwest Dachshund Rescue Organization (Oct. 1, 2005) [hereinafter Ambrose Interview].

[FN104]. Ambrose Interview, supra note 103.

[FN105]. Best Friends Animal Society, About Best Friends, http:// www.bestfriends.org (last visited Mar. 25, 2007).

[FN106]. Id.

[FN107]. No More Homeless Pets in Utah, http:// www.utahpets.org/nmhpbasicinfo.html (last visited Mar. 25, 2007). The description continues that the “program places a strong emphasis on increasing the numbers of both adoptions and spay/neuter surgeries throughout the state.” Id.

[FN108]. Id.

[FN109]. No More Homeless Pets in Utah, Maddie's Fund, http:// www.utahpets.org/mf.html (last visited Mar. 25, 2007).

[FN110]. Maddie's Fund, About Us, http:// www.maddies.org/aboutus/background.html (last visited Mar. 25, 2007); Maddie's Fund, Funded Projects, http://www.maddies.org/projects/index.html (last visited Mar. 25, 2007).

[FN111]. Maddie's Fund, Funded Projects, Community Projects, http:// www.maddies.org/projects/comm_proj.html (last visited Mar. 25, 2007).

[FN112]. Maddie's Fund, Grant Guidelines, Community Grants, http:// www.maddies.org/grant/comm_grants.html (last visited Mar. 25, 2007).

[FN113]. Id.

[FN114]. Metroplex Animal Coalition, About Us, http:// www.metroplexanimalcoalition.com/about.html (last visited Mar. 25, 2007).

[FN115]. Id.

[FN116]. Metroplex Animal Coalition, MAC Members Groups, http:// www.metroplexanimalcoalition.com/members.html (last visited Mar. 25, 2007).

[FN117]. Taimie Bryant, The Uncertain Present and Future of the Hayden Shelter Reform Legislation of 1998, at 9 (2004), available at http:// www.nokillnow.com/ReprintStories/Bryant.pdf (discussing additional requirements including a rule that essentially would require rescue group “to have volunteers on site all the time”).

[FN118]. Sarah A. Balcom, Legislating a Solution to Animal Shelter Euthanasia: A Case Study of California's Controversial SB 1785, 8 Soc'y & Animals 1, 10 (2000). Additional concerns were that rescue organizations that did not meet standards would not be identified or reported, and that rescue organizations would not have the same screening procedures for their adopters. Id.

[FN119]. Taimie Bryant, Hayden Law: An Analysis, http:// www.nokillnow.com/lawmaddiesfundnokill.html (last visited Mar. 25, 2007).

[FN120]. The preferred term to describe the behavior is now “hoarding” rather than collecting. As described by the Hoarding of Animals Research Consortium website, “[c]ollecting describes a benign hobby, not a pathological situation. The characteristics of ‘animal hoarding’ are much more consistent with what is described in the medical and psychiatric literature about other forms of hoarding than collecting.” The Hoarding of Animals Research Consortium, http://www.tufts.edu/vet/cfa/hoarding/hoardqa_dt.htm. (last visited Mar. 25, 2007).

[FN121]. Carrie Allan, Opening the Closed Door: Strategies for Coping with Animal Hoarders, Animal Sheltering, July-Aug. 2004, at 15, available at http:// www.animalsheltering.org/publications/magazine/back_issues/asm_jul_aug_ 2004.pdf (discussing problems of animal hoarding and strategies used by animal control and humane societies to combat the problem); Arnold Arluk et al., Press Reports of Animal Hoarding, 10 Soc'y & Animals 113 (2002) (exploring the emotional themes used by the press to describe animal hoarding and finding that they present an inconsistent view of the problem); Jessica Tremayne, Can You Identify Animal Hoarders? New Legislative Push Binds Practitioners to Report Cases, DVM Newsmagazine, Feb. 2005, at 12 (discussing hoarders' self identification and new legislation in California-Cal. Bus. & Prof. Code § 4830.7 (West 2005)-requiring veterinarians to report suspected animal abuse or cruelty to the appropriate law enforcement agency).

[FN122]. Lisa Avery, From Helping to Hurting: When the Acts of “Good Samaritans” Become Felony Animal Cruelty, 39 Val. U. L. Rev. 815, 835-38 (2005) (discussing theories for animal hoarding's psychological roots).

[FN123]. Gary J. Patronek, Hoarding of Animals: An Under-Recognized Public Health Problem in a Difficult-to-Study Population, 114 Pub. Health Rep. 81, 82, 84 (1999). Note that the number of animals does not define a hoarder; it is the inability to provide acceptable care that is key. Id.

[FN124]. Id.

[FN125]. Id.

[FN126]. Hoarding of Animals Research Consortium, Health Implications of Animal Hoarding, 27 Health & Soc. Work 125, 125 (2002) (discussing studies on animal hoarding).

[FN127]. Patronek, supra note 123, at 84.

[FN128]. Hoarding of Animals Research Consortium, supra note 126, at 125.

[FN129]. Patronek, supra note 123, at 84.

[FN130]. Id. Poor condition is described as being very malnourished, having poor hair/coat, or suffering from an obvious disease or injury. Id.

[FN131]. Randy O. Frost et al., Hoarding: A Community Health Problem, 8 Health & Soc. Care in Community 229 (2000) (discussing health concerns of hoarding and distinguishing between animal hoarding and other types of hoarding).

[FN132]. Patronek, supra note 123, at 84 (finding that unplanned breeding accounted for approximately 39% of acquired animals, while planned breeding accounted for 13%).

[FN133]. Colin Berry et al., Long-Term Outcomes in Animal Hoarding Cases, 11 Animal L. 167, 181 (2005) (stating that “the lines between hoarders who identify themselves as a rescue organization and those who do not may not be so clearly defined”). The following are just a few examples of cases where persons charged with animal cruelty appear to self-identify as a rescuer or rescue organization: Bogart v. Chapell, 396 F.3d 548 (4th Cir. 2005) (describing apparent hoarder case with 200 dogs and cats, where the person involved participated in animal rescue activities through several organizations and almost all the animals were euthanized); City of Parma v. Takacs, Nos. 84867, 84868, 2005 WL 678533, at *3 (Ohio Ct. App. 2005) (describing defendant's claim that she “cares for abandoned, abused, and neglected animals in the hopes of finding them good homes”); State v. McDonald, 110 P.3d 149, 150 (Utah Ct. App. 2005) (setting forth multiple counts of animal cruelty against a woman who had fifty-eight cats for the “apparent purpose of creating a ‘sanctuary’ for stray cats that she trapped in and around Salt Lake City”); William C. Bayne, Judge Orders Bond in Dog Case, Memphis Com. Appeal, Feb. 10, 2005, available at 2005 WLNR 1953074 (describing woman charged with animal cruelty relating to thirty-one dogs keeping twenty-six as part of her Mid-South Shepherd Rescue effort); Sara Lee Fernandez, City Takes Control of Seized Animals, Corpus Christi Caller-Times, Oct. 21, 2005, at B4, available at 2005 WLNR 17330325 (discussing decision by judge to award custody of seventy dogs and two birds seized from Coastal Bend Small Breed Rescue to Animal Care Services, and the ordering of a fine against Sisson, the woman in charge of the organization); Sara Lee Fernandez, Woman's 34 Dogs Turned Over to City, Corpus Christi Caller-Times, Jan. 19, 2006, at B1, available at 2006 WLNR 1252019 (reporting about hearing where animal cruelty inspector testified that the animals in Sisson's care were cruelly confined in unsanitary and unsafe conditions); Justin George & Amy Wimmer Schwarb, 140-plus Dogs, Cats Taken from Filthy Home, St. Petersburg Times, Feb. 5, 2005, at 3B, available at LEXIS, News Library, STPETE File (discussing woman who described herself as someone who worked or volunteered in animal rescue).

[FN134]. Clifton, supra note 55 (discussing several well-known hoarding cases and recent cases in the no-kill sheltering community).

[FN135]. Chandra Huston, Animal Sanctuary? Gruesome Scene Inside What is Supposed to be a Sanctuary for Animals: Authorities Discover 400-500 Dogs Living in Cramped, Filthy Conditions, Baxter Bull (Mountain Home, Ark.), Oct. 24, 2005, at 1A, available at LEXIS, News Library, BAXTER File (discussing the scene at the Baxter County Sheriff's Office discovered while serving a search warrant at the Every Dog Needs a Home (EDNAH) Animal Rescue and Sanctuary); Chandra Huston, EDNAH Owners: “We Know Every Name of Every Dog,” Baxter Bull (Mountain Home, Ark.), Oct. 25, 2005, at 1A, available at LEXIS, News Library, BAXTER File (responding to charges of animal cruelty, the owners of EDNAH said that hundreds of animal rescue organizations begged them to take in more dogs that were going to be destroyed after Hurricane Katrina). After the charges were filed, animal rescue organizations set up emergency shelters for the animals found on the property, in order to take care of them until a judge ruled that the dogs could be placed in approved facilities. Armando Rios, Judge to Let Dogs Out of EDNAH, Baxter Bull (Mountain Home, Ark.), Nov. 22, 2005, at 1A, available at LEXIS, News Library, BAXTER File (discussing the judicial orders allowing the dogs to be placed in outside facilities). The couple running the organization was found guilty of twenty counts of cruelty to animals and was ordered by the judge not to own any pets. Armando Rios, Couple Found Guilty of Animal Cruelty, Baxter Bull (Mountain Home, Ark.), Jan.17, 2006, at 1A, available at LEXIS, News Library, BAXTER File (discussing the misdemeanor convictions and the response of the spectators in the courtroom to the ruling of the judge).

[FN136]. Clifton, supra note 55 (comparing 688 cases occurring before September 1998 with the 217 cases occurring in the first half of 2005).

[FN137]. Id.

[FN138]. Id.

[FN139]. See 510 Ill. Comp. Stat. Ann. 70/2-10 (West 2007); Kate Thayer, Law May Cost Animals' Lives, Some Say, St. Louis Post Dispatch, Jan. 30, 2005, at D3, available at LEXIS, News Library, SLPD File (discussing the changes to Illinois law that some critics say “unintentionally blocked the flow of adoptive animals from Illinois to Missouri by bogging down the process with red tape”).

[FN140]. 510 Ill. Comp. Stat. Ann. 70/2-10.
A “companion animal hoarder” means a person who (i) possesses a large number of companion animals; (ii) fails to or is unable to provide what he or she is required to provide under Section 3 of this Act [510 ILCS 70/3]; (iii) keeps the companion animals in a severely overcrowded environment; and (iv) displays an inability to recognize or understand the nature of or has a reckless disregard for the conditions under which the companion animals are living and the deleterious impact they have on the companion animals' and owner's health and well-being.
Id. (emphasis omitted).

[FN141]. The minimal level of care is defined in 510 Ill Comp. Stat. Ann. 70/3 (West 2007) as “(a) sufficient quantity of good quality, wholesome food and water; (b) adequate shelter and protection from the weather; (c) veterinary care when needed to prevent suffering; and (d) humane care and treatment.”

[FN142]. The first conviction under this section results in a Class B misdemeanor. Id. A subsequent violation is a Class 4 felony. Id.

[FN143]. S. Bill 1785 Analysis, Arguments in Opposition (Cal. Aug. 24, 1998), available at http://info.sen.ca.gov/pub/97-98/bill/sen/sb_1751-1800/sb_ 1785_cfa_19980519_214739_sen_floor.html.

[FN144]. Id. The opponents of the Hayden Bill were also concerned that, if shelters were required to release animals to rescue organizations without charge, revenues would decrease. Id. This, of course, is not logical if the animal is scheduled to be euthanized, as there is an economic cost to euthanization and disposal of the animal.

[FN145]. For example, the Anti-Cruelty Society of Chicago transfers certain breeds directly to rescue organizations, including pit bulls and Italian greyhounds. Interview with David Dinger, Vice-President of Operations, the Anti-Cruelty Society, in Chicago, Ill. (Mar. 17, 2005) (on file with Connecticut Law Review) [hereinafter Dinger Interview]; Response by Tara Derby-Perrin, How Do You Counter Nay-sayers?, NMHP Forum, nmhpforum@bestfriends.org (Mar. 1, 2006) (on file with Connecticut Law Review) (stating in connection with the transfer program at the Philadelphia Animal Care and Control Association, where Ms. Derby-Perrin is the chief executive officer, that “we are able to ask them to go the extra mile and help us with the more difficult-to-place animals, animals that are treatable that we are unable to treat, and animals that we simply have trouble moving-animals that will show better in a different environment or be more readily placed in a different community”).

[FN146]. Dinger Interview, supra note 145 (discussing why a response is needed when a rescue organization is contacted about an animal).

[FN147]. See Telephone Interview with Thomas M. Flynn, Board Member, Dachshund Rescue of North America, Inc. (Oct. 4, 2005) (on file with Connecticut Law Review) (discussing generally the challenge in reaching all the possible dachshunds that may be in shelters and the difficult decisions that the rescue organization has to make to determine which animals to take into its organization).

[FN148]. See Ambrose Interview, supra note 103 (discussing the development of relationships with shelters and the need to be responsive).

[FN149]. Bryant, supra note 119 (“As frequent visitors to the shelters, rescuers saw systemic problems and inhumane treatment of animals, but their access to animals was conditioned on keeping their mouths shut.”).

[FN150]. See supra Part II.A (discussing history of sheltering).

[FN151]. See supra notes 72-83 and accompanying text (discussing development of no-kill movement).

[FN152]. State of N.J. Comm'n of Investigation, Societies for the Prevention of Cruelty to Animals 1, 159-65 (2000), available at http:// www.state.nj.us/sci/pdf/spca.pdf#search='new%20jersey%C20animal%C20control% 20criticism (criticizing the SPCA system in New Jersey and making recommendations on changes).

[FN153]. See Marni Pyke, Bureau Criticized for Its Animal Care, Chi. Daily Herald, Sept. 21, 2004, at 6, available at LEXIS, News Library, CHDLY File (discussing complaints by the People and Animals in Community Together Humane Society-who works with the county to help adopt animals-that the DuPage County, Illinois, animal control department failed to treat an animal for a painful ear condition, is run inefficiently, and was too quick to euthanize animals); see also City of Houston v. Levingston, No. 01-03-00678-CV, 2006 WL 2076034, at *1-2 (Tex. App. July 27, 2006) (whistleblower case of Levingston who served as senior veterinarian of the Bureau of Animal Regulation and Care of Houston, Texas, and who alleged multiple actions that rose to the level of animal abuse).

[FN154]. Phillips v. Ingham County, 371 F. Supp. 2d 918 (W.D. Mich. 2005).

[FN155]. Id. at 922.

[FN156]. Id. at 922-23. The director of the Ingham County Animal Shelter had interpreted Michigan law, in derogation of specific statutory language, to allow him to sell animals to Class B Dealers for re-sale to research institutions. Id. at 923. After the events of this case became public, the Lansing Board of Commissioners forbade future sales to Class B Dealers, but not direct sales to research institutions. Id. at n.2; see also infra note 194 and accompanying text (discussing issue of sales of animals to research institutions).
Under the federal Animal Welfare Act, the U.S. Department of Agriculture is responsible for licensing animal dealers who sell animals to laboratories. Class B dealers can obtain dogs and cats from “random sources” including animal pounds and shelters. In contrast, Class A dealers maintain their own breeding colonies. 9 C.F.R. §§ 1.1, 2.132 (2007).

[FN157]. Phillips, 371 F. Supp. 2d at 923.

[FN158]. Id. at 923-24.

[FN159]. Id. at 925.

[FN160]. Id. at 928-29. Phillips's state law claims including defamation, interference with business expectancies, malicious prosecution and abuse of process and intentional infliction of emotional distress were also all dismissed at the summary judgment level. Id. at 929-33.

[FN161]. Id. at 933.

[FN162]. Id.

[FN163]. Death by the Pound; Hidden from the Public and Cloaked in Euphemism, Regulated Execution of Dogs and Cats is a Routine Horror. Can a New Animal Services Director Make a Difference?, Miami New Times, Jan. 26, 2006, available at LEXIS, News Library, MIAMNT File (discussing report issued in 2004). This article also discusses conflicts between rescue organizations and the Miami-Dade County Animal Services shelter. Id.

[FN164]. Joel Hood, Report Rip Shelter, Da Financial, Ethical and Legal Woes, Panel Says, Modesto Bee, July 2, 2005, at A1 (discussing assessment of civil grand jury of county animal control department). The civil grand jury also called for the resignation of top officials of that department. Id. The euthanization of cats prior to the expiration of North Carolina's seventy-two hour impoundment period was the subject of litigation in 2005. Justice for Animals, Inc. v. Lenoir County SPCA, Inc., 607 S.E.2d 317 (N.C. Ct. App. 2005). In this case, Justice for Animals alleged that the Lenoir County SPCA's practice of euthanizing stray and feral cats without holding them for seventy-two hours caused “unjustifiable physical pain, suffering, and death.” Id. at 319. There was also testimony in this case by a former employee of the defendant, stating that the defendant's process to determine a cat's status as tame or feral was a “poke” test-someone would poke the cat with pen or pencil and if the animal responded aggressively it would be deemed wild and could be euthanized immediately. Id. at 318-19. This case was vacated in part (in connection with determining the application of the impoundment rule to feral cats), reversed in part, and remanded on issues of subject matter jurisdiction. Id. at 323.

[FN165]. John McMillan, Sheriff Disputes Complaints on Parish Animal Shelter, Advocate (Baton Rouge, La.), June 3, 2005, at B2, B5, available at LEXIS, News Library, ADVOCT File (discussing the results of a report containing the findings on the treatment of cats, and also finding that dogs in the Assumption Parish Animal Shelter were subject to “overcrowding conditions”).

[FN166]. The specific concern that was raised during the negotiations over the Hayden Bill was that rescue organizations would divert animals into research. Bryant, supra note 119.

[FN167]. Bryant, supra note 119; see also infra note 195 (discussing the issue of animals obtained from animal control facilities for research purposes).

[FN168]. Organizations that are formed under § 501(c)(3) of the Internal Revenue Code are required to file Form 990 on a yearly basis. Internal Revenue Service, Instructions for Form 990 and 990-EZ (2006), available at http:// www.irs.gov/instructions/i990-ez/index.html (follow “Purpose of Form” and “Who Must File” hyperlinks). The completed forms are available over the Internet on a variety of websites which require a paid subscription to view. See, e.g., Guidestar.org, http://www.guidestar.org/ (last visited Feb. 27, 2007) (providing services to donors, nonprofits, and others).

[FN169]. See, e.g., Illinois Department of Agriculture, Bureau of Animal Health and Welfare, Form AW-1, available at http:// www.agr.state.il.us/Forms/AnimalHW/AW-1.pdf.

[FN170]. This is not to say that there might not be issues with some fraudulent or problematic rescue organizations. Chances are, however, that in order to make a profit, a rescue organization would likely need to lower the standard of care in a way that would violate another law.

[FN171]. “We can save them money, save them space, reduce their holding cost and certainly save the life of many Goldens, and provide vet care that the shelters can rarely consider.” E-Mail from Jonathan Gibson, President of the Board of Directors of Golden Bond Bolden Retriever Rescue, to Rebecca J. Huss, Professor of Law, Valparaiso University School of Law (Nov. 15, 2005, 11:54 AM) (on file with Connecticut Law Review) [hereinafter Gibson E-mail].

[FN172]. Id. (“Some shelters are able to place in adoption most of the Goldens that they process, but usually without fostering. This allows the shelters to collect a fee that is usually several hundred dollars, not unlike our application and adoption fees.”).

[FN173]. See Death by the Pound, supra note 163 (quoting Sara Pizano, animal services director for Miami-Dade County: “[S]ome of the rescue groups were used to getting their way and would take animals that were really sick out into the general population”).

[FN174]. See David Favre & Peter L. Borchelt, Animal Law & Dog Behavior 202-06, 208-10 (1999) (discussing statutory provisions covering dogs and other animals worrying or harassing livestock); Christopher C. Eck & Robert E. Bovett, Oregon Dog Control Laws and Due Process: A Case Study, 4 Animal L. 95, 95-96 (1998) (discussing Oregon dog control laws that require the impounding and euthanasia of any dog found to be chasing, injuring or killing livestock); Mary Stanfield Bubbett, Comment, In the Doghouse or in the Jailhouse?: The Possibility of Criminal Prosecution of the Owners of Vicious Dogs in Louisiana, 49 Loy. L. Rev. 953, 972-73 (2003) (discussing increased dog owner liability in Louisiana and proposing increased criminal penalties); Anna Sibylle Ehresmann, Note, Smith v. Ruidoso: Tightening the Leash on New Mexico's Dogs, 32 N.M. L. Rev 335 (2002) (discussing New Mexican dog bite case and relevant statutory provisions).

[FN175]. Favre & Borchelt, supra note 174, at 202-03. Generally, the application of a dangerous dog statute requires that a dog first be identified as being a danger to the public-in the form of the dog biting or attacking a person or other animal. Id. at 203. Normally the action taken by the dog must be unprovoked. Id. The identification of the dog as dangerous causes the possession by the owner to become conditional-sometimes subject to keeping the dog confined or on leash at all times, as well as providing proof of minimum insurance coverage if the dog causes injuries. Id.; Soave, supra note 7, at 176. If the owner does not follow the strict provisions of the law or the dog causes injury, there can be criminal sanctions against the owner as well as seizure of the animal. Favre & Borchelt supra note 174, at 202-06. Some statutes make it extremely difficult to regain custody of an animal once it has been confiscated. Id. The ultimate penalty for the dog that has caused harm is euthanasia. Id. at 203. The state has clearauthority to kill a dangerous dog. Id.

[FN176]. It is important to note that temperament testing is controversial, and it is difficult to determine whether an animal in a stressed shelter environment is reacting in a true manner. See Nathan Winograd, Temperament Testing in the Age of No-Kill, available at http:// www.nokillsolutions.com/pdf/Temperament%20Testing.pdf (discussing temperament testing in a shelter environment); Dinger Interview, supra note 145 (stating that the Anti-Cruelty Society does its own temperament testing, and that a significant majority of the rescue groups that it works with will not take an animal that does not pass a temperament evaluation).

[FN177]. Gibson E-mail, supra note 171 (discussing the role of the foster family and stating that “[o]ur foster families figure out whether a Golden has the ability to live safely with young children and we don't put a Golden, such as a stray for which we have no history, in a family with infants or other children less than about six”).

[FN178]. See id. (“We are beginning to understand that one real issue is what to do with dogs with aggression tendencies, from mild to severe. Most aggressive dogs are automatically put down, which has been the conventional way of operating for a long time. But for [Golden Retrievers], at least, the aggression is often fear based and can be cured, but it requires a lot of time, sometimes a year.”). Mr. Gilbson's e-mail continued by discussing the need for training people who purchase or adopt dogs. Id.

[FN179]. Another issue that is beyond the scope of this Article is the current debate regarding discrimination among different types of animal breeds, most often seen in the area of canines. Unless a local ordinance specifically governs a specific breed, there does not appear to be any justification for treating a rescue organization dealing with that breed differently than others. See generally Larry Cunningham, The Case Against Dog Breed Discrimination by Homeowners' Insurance Companies, 11 Conn. Ins. L.J. 1 (2004) (discussing the actuarial data available on dog bites and dog breed discrimination by insurers); Devin Burstein, Comment, Breed Specific Legislation: Unfair Prejudice & Ineffective Policy, 10 Animal L. 313, 326-27 (2004) (arguing that breed specific legislation is based on flawed policy grounds); Karyn Grey, Note, Breed-Specific Legislation Revisited: Canine Racism or the Answer to Florida's Dog Control Problems?, 27 Nova L. Rev. 415 (2003) (discussing dangerous dog legislation in Florida and concluding that breed specific legislation is not an effective method for Florida's dog control problems); Lynn Marmer, Comment, The New Breed of Municipal Dog Control Laws: Are They Constitutional?, 53 U. Cin. L. Rev. 1067 (1984) (discussing the enactment and constitutionality of pit bull regulations); Heather K. Pratt, Comment, Canine Profiling: Does Breed-Specific Legislation Take a Bite Out of Canine Crime?, 108 Penn. St. L. Rev. 855 (2004) (discussing the responsibilities of owners of dangerous dogs and acknowledging that more breed specific legislation will likely be passed).

[FN180]. Cal. Civ. Code § 1834.4 (Supp. 2007).

[FN181]. See Cal. Food & Agric. Code §§ 31108(b), 31752(b), 31753 (Supp. 2007).

[FN182]. Id. This provision could be difficult for smaller rescue organizations to meet.

[FN183]. Id.

[FN184]. Id.

[FN185]. Illinois Public Health and Safety Animal Population Control Act, § 11, 2005 Ill. Comp. Stat. Ann. Adv. Legis. Serv. *7 (codified as amended at 510 Ill. Comp. Stat. 5/11 (LexisNexis 2007)).

[FN186]. 510 Ill. Comp. Stat. 5/11 (LexisNexis 2007). This requirement makes sense given that the provision later requires the microchipping of animals. See id.

[FN187]. The words “pound” and “animal control facility” are used interchangeably in the statute, see id., and mean “any facility approved by the Administrator for the purpose of enforcing this Act and used as a shelter for seized, stray, homeless, abandoned, or unwanted dogs or other animals.” Id. § 5/2.18.

[FN188]. Id. § 5/11. The “dispatch” must be made pursuant to Illinois's Humane Euthanasia in Animal Shelters Act. Id.; see also id. § 72/1.

[FN189]. Id. § 5/11.

[FN190]. See 225 Ill. Comp. Stat. Ann. 605/3 (LexisNexis 2007).

[FN191]. See supra Part IV (discussing potential problems with rescue organizations).

[FN192]. I searched the LexisNexis “All News” database on March 24, 2006, using the search terms “Public Health & Safety Animal Population Control Act.” Only one of the seven search results mentioned the change that would mandate the transfer to rescue organizations. See Sarah Casey Newman, Forum Will Focus on Holistic Pet Health, St. Louis Post-Dispatch, May 28, 2005, at 37, available at LEXIS, News Library, SLPD File (reporting that the Illinois Senate had passed the Illinois Public Health & Safety Animal Population Control Act, which requires that Shelters “offer animals they deem adoptable for placement [with a rescue organization] prior to euthanasia”).

[FN193]. E-Mail from Ledy VanKavage, Sr. Director of Legal Training & Legislation, National Outreach, ASPCA, to Rebecca J. Huss, Professor of Law, Valparaiso University School of Law (Feb. 27, 2006, 12:16 PM) (on file with Connecticut Law Review).

[FN194]. See Ill. 94th General Assem., H.R. Debate, 32nd Legis. Day, at 125 (Mar. 13, 2005), available at http:// www.ilga.gov/house/transcripts/htrans94/09400032.pdf (discussing House Bill 315, which became the Illinois Public Health and Safety Animal Population Control Act). In the debate, there was no mention of the provision requiring the transfer of animals to humane societies or rescue organizations. See id. The focus of the debate was on the financing of the provision through a proposed increase in the cost of the rabies vaccination. Id. at 126-27. This is further illustrated by the later debate that occurred after the Bill was amended to remove the provision requiring the increased rabies vaccination fee. See Ill. 94th General Assem., H.R. Debate, 41st Legis. Day, at 22 (Apr. 15, 2005), available at http:// www.ilga.gov/house/transcripts/htrans94/09400041.pdf (stating that the bill was now being supported by the Illinois Veterinarians Association).

[FN195]. An issue that must be left for a future article is the use of domesticated animals that have been obtained from animal control facilities for research. There are a few states that either allow for, or mandate the use of, these domesticated animals for research. See, e.g., Colo. Rev. Stat. § 35-42.5-101 (2006) (describing the duties and restrictions for pounds and shelters that provide animals for experimentation, including prohibiting the practice known as “red tagging,” in which relinquished animals are isolated without allowing them the opportunity for adoption). The Colorado statute also mandates that an owner who is relinquishing his or her animal must be told that the pound or shelter provides dogs or cats to facilities for experimentation. Id.; see also Ohio Rev. Code Ann. § 955.16 (LexisNexis 2007) (providing that any dog that is not redeemed or required to be donated to a nonprofit special agency for service dogs may be sold to a nonprofit Ohio institution engaged in teaching or research of human or animal diseases).

[FN196]. Tex. Health & Safety Code Ann. § 821.024 (Vernon 2007).

[FN197]. S.C. Code Ann. § 47-3-60 (2006); see also 3 Pa. Stat. Ann. § 459-302(c) (West 1995 & Supp. 2006) (providing that after forty-eight hours an unlicensed dog may be humanely killed or given to a humane society or association for the prevention of cruelty to animals); Utah Code Ann. § 77-24-1.5(2)(a)(i)-(ii) (2006) (providing that the final disposition of animals may be placement in an adoptive home, transfer or euthanasia).

[FN198]. The no-kill movement recognizes that some animals should not be released to the public. These include animals for “whom euthanasia is the most humane alternative” and vicious animals. Maddie's Fund, Defining No-Kill, What is No-Kill?, http://www.maddies.org/nokill/nokill_define_what.html (last visited Feb. 20, 2007). The ability to take a poorly socialized animal and through behavior modification enable the animal to be adopted into the community is one thing that rescue organizations can devote time and resources if shelters cannot take on this task themselves.

[FN199]. Cal. Food & Agric. Code § 17005 (West 2005). Healthy (adoptable) animals are defined as:
[T]hose animals eight weeks of age or older that, at or subsequent to the time the animal is impounded or otherwise taken into possession, have manifested no sign of a behavioral or temperamental defect that could pose a health or safety risk or otherwise make the animal unsuitable for placement as a pet, and have manifested no sign of disease, injury, or congenital or hereditary condition that adversely affects the health of the animal or that is likely to adversely affect the animals health in the future.
Id.; see also Maddie's Fund, supra note 198 (discussing definition of no-kill).

[FN200]. Cal. Food & Agric. Code § 17005 (West 2005).

[FN201]. For example, because of a lack of space.

[FN202]. In this case, the point is that no healthy or treatable animal should be euthanized if there is an organization that is willing and able to take such an animal, regardless of where the animal was originally located.

[FN203]. See supra Part IV.B.1 (discussing California statute).

[FN204]. The Illinois statute now allows representatives of out-of-state organizations that are organized as non-profit organizations to take animals. 510 Ill. Comp. Stat. 5/11 (2005); see Thayer supra note 139, at D03 (discussing changes to the Illinois Animal Control Act in 2003 that required organizations that obtain animals from shelters be licensed by the Illinois Department of Agriculture and the perception that out of state rescue organizations were illegible for such licenses).

[FN205]. There have been recent cases where animal caretakers appear to be the target of shelters. In Ritzel v. Penn. Society for the Prevention of Cruelty to Animals, the plaintiff “cared for a variety of animals, many of which had been abandoned by others.” No. 04-2757, 2005 U.S. Dist. LEXIS 1904, at *1 (E.D. Pa., Feb. 9, 2005). The plaintiff called the SPCA because sheep had been shot by paintballs and during the visit the officer recommended the plaintiff use a particular farrier. Id. at *2-3. The plaintiff alleges that the officer, who had previously lauded plaintiff's efforts to care for his animals, became accusatory because he declined to use the services of the recommended farrier, with whom plaintiff suggests the officer was engaged in a “personal relationship.” Id. The plaintiff was charged but found not guilty of several animal cruelty charges, and sued for a variety of claims. In this case, summary judgment on several of these claims, including the punitive damages, were denied. Id. at *18. In another case, a self proclaimed “advocat[e] of alternative dog rescue organizations” who was charged but found not guilty of animal cruelty charges, sued an animal protection organization in Ulster County over seizure of the animals. Fabrikant v. French, 328 F. Supp. 303, 306-07 (N.D.N.Y. 2004). The court found the actors were not acting under color of law, as the requisite elements of a § 1983 claim were not met. Id. at 312.

[FN206]. Rebecca J. Huss, No Pets Allowed: Housing Issues and Companion Animals, 11 Animal L. 69, 109, 111-15 (2005) (discussing the validity of municipal ordinances and restrictive covenants).

[FN207]. See, e.g., Ill. Dep't of Agric., Bureau of Animal Welfare, Form AW-1, available at http://www.agr.state.il.us/Forms/AnimalHW/AW-1.pdf (providing for the licensing of Foster Homes in the State of Illinois).

[FN208]. Allowing for an increased number of animals in licensed foster homes is another option, although it would be more difficult to implement on a case by case basis.

[FN209]. Huss, supra note 206, at 115-19 (discussing application of nuisance law in companion animal cases); see also San Francisco SPCA, Animal Rights and Protection, Pet Limit Laws Unnecessary, Pet Limit Laws: Closing the Door to Loving Homes, http://www.sfspca.org/advocacy/pdf/pdf_catrights/pet_limits.pdf (last visited Feb. 20, 2007) (discussing the San Francisco SPCA's opposition to pet limit laws as unnecessary, arbitrary, and obtrusive).

[FN210]. Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law 47 (2003) (discussing the states' delegation of power to regulate land use to local governments).

[FN211]. This issue is quite complex and is heavily dependent on the status of the state laws including the type of enabling act adopted by the state and whether local governments in that state have independence by virtue of home rule powers conferred by a state constitution or a state statute. Id. at 47-51.

[FN212]. For example, foster care saves a local jurisdiction the costs of the care of an animal in a municipal shelter.

[FN213]. Ambrose Interview, supra note 103.

[FN214]. Jane C. Mahlow, Estimation of the Proportions of Dogs and Cats that are Surgically Sterilized, 215 J. Am. Veterinary Med. Assoc. 640, 640 (1999).

[FN215]. APPMA, supra note 3, at 9, 84 (citing spay/neuter statistics).

[FN216]. Clifton, supra note 55.

[FN217]. Canine Legislation Position Statement: Breeding Restrictions, Am. Kennel Club, Apr., 2005, http://www.akc.org/canine_legislation/position_ statements.cfm.

[FN218]. Canine Legislation Position Statements: Purebred Dog Rescue, Am Kennel Club, Apr., 2005, http://www.akc.org/canine_legislation/position_ statements.cfm.

[FN219]. Canine Legislation Position Statements: Spaying and Neutering, Am. Kennel Club, Apr., 2005, http://www.akc.org/canine_legislation/position_ statements.cfm. Note that according to the AKC “[s]payed or neutered dogs are not eligible to compete in conformation classes at a dog show, because the purpose of a dog show is to evaluate breeding stock.” Conformation, A Beginner's Guide to Dog Shows, Am. Kennel Club, http:// www.akc.org/events/conformation/beginners.cfm.

[FN220]. Joshua M. Frank & Pamela Carlisle-Frank, Sterilization and Contextual Factors of Abandonment: A Study of Pet Overpopulation, (Found. for Interdisciplinary Res. & Educ., Rensselaer Polytechnic Inst., Working Paper), available at http://www.firepaw.org/wpsandc.html. This study surveyed households in upstate New York. Id. The top reason respondents listed (33.3% of those relevant respondents) for not spaying or neutering the animal was that the person may use the dog for breeding. Id.

[FN221]. Fiala, supra note 18.

[FN222]. Humane Society of the United States, Solving the Pet Overpopulation Problem (2006), http://www.hsus.org/pets/issues_affecting_our_pets/pet_ overpopulation_and_ownership_statistics/solving_the_pet_overpopulation_ problem.html.

[FN223]. See, e.g., Regan Loyola Connolly, Group Inspired to Explore Mobile Spay-Neuter Clinic, Leaf-Chron. (Clarksville, TN), Aug. 25, 2004, at 1A, available at LEXIS, News Library, ALLNWS File (discussing new mission of Clarkville Humane Society of focusing on sterilization to reduce pet overpopulation and reduce the euthanization rate); Spay/Neuter Resources, Best Friends Animal Soc'y, http:// www.bestfriends.org/nomorehomelesspets/resourcelibrary/snindex.cfm.

[FN224]. Claudia Kawczynka, Taking it to the Streets, Bark, Fall 2001, at 30, 30 (on file with Connecticut Law Review) (discussing mobile spay/neuter program in Los Angeles).

[FN225]. 510 Ill. Comp. Stat. 92/25 (2006 Supp.) (discussing eligibility to participate in the Pet Population Control Fund); see also supra note 28 (discussing feral cats).

[FN226]. N.H. Rev. Stat. Ann. § 437-A:3 (West 2006) (providing New Hampshire residents may participate in the program if they adopt an eligible dog or cat from a shelter and pay a fee of $40).

[FN227]. Ga. Code Ann. § 4-15-1 (2005) (establishing dog and cat reproductive sterilization support program and issuing license plates promoting program); 510 Ill. Comp. Stat. 92/45 (2005) (setting forth provisions of Pet Population Control Fund); Ohio Rev. Code Ann. § 955.201(B) (West 2006) (setting forth provisions of the “Ohio pet fund” including establishing eligibility criteria for organizations and individuals and allowing the issuance of license plates to raise funds); Tenn. Code Ann. § 55-4-290 (2005) (providing for the issuance of animal friendly license plates with the proceeds to be placed in a special fund to provide low cost spay and neutering services); Va. Code Ann. § 46.2-749.2:7 (2005) (providing for special license plates to support sterilization program for dogs and cats).

[FN228]. H.R. 2631, 2006 Leg., 23d Sess. (Haw. 2006) (amending chapter 235 to allow for a deduction from gross income during the taxable year).

[FN229]. Humane Soc'y of the U.S., Guide to Cat Law: A Guide for Legislators and Humane Advocates 3 (2002) (stating that an estimated 90% of cities and counties have had a dog registration program).

[FN230]. Jaime Clevenger & Philip H. Kass, Determinants of Adoption and Euthanasia of Shelter Dogs Spayed or Neutered in the University of California Veterinary Student Surgery Program Compared to Other Shelter Dogs, 30 J. of Veterinary Med. Edu. 372, 378 (2003) (comparing adoption or euthanization of dogs neutered at the University of California to a comparison group from the general shelter population).

[FN231]. Id. at 372. In contrast, dogs in the general shelter population are neutered only after being selected for adoption at a local veterinary hospital. Id. at 372-73.

[FN232]. Id. at 374.

[FN233]. Id. at 374, 377.

[FN234]. Ariz. Rev. Stat. Ann. § 11-1022 (2006) (providing that dogs and cats shall not be released without sterilization unless there is no veterinary facility within a twenty-mile radius of the shelter or there is a medical contraindication); Conn. Gen. Stat. § 22-380f (2005) (providing no pound “shall sell or give away any unsprayed or unneutered dog or cat . . . unless such pound receives forty-five dollars from the person buying or adopting such dog or cat” and additionally providing vouchers to the person acquiring such animal for sterilization purposes); D.C. Code § 8-1807 (2006) (setting forth restrictions on releasing unsterilized animals); Fla. Stat. § 823.15 (2005) (providing very generally for the sterilization of dogs and cats released from any public or private animal shelter or allowing a written agreement with the adopter guaranteeing sterilization with penalties); Ga. Code Ann. §§ 4-14-3, 4-14-4 (2005) (providing for sterilization prior to release or written agreement for sterilization within thirty days with the penalty for noncompliance to be a misdemeanor with a fine not to exceed $200); Iowa Code § 162.20 (2004) (providing generally for sterilization prior to release on a written agreement that the new custodian shall have the dog or cat sterilized); Kan. Stat. Ann. § 47-1731 (2005) (providing for sterilization or written agreement and the deposit will be lost if not reclaimed upon proof of sterilization within six months); La. Rev. Stat. § 3:2472 (2005) (providing for sterilization or written agreement to sterilize within thirty days); Mich. Comp. Laws § 287.338a (2005) (providing that no shelter shall allow an adoption of a dog, cat, or ferret without an alteration or contract to alter within four weeks); Mo. Rev. Stat § 273.403 (2006) (providing for sterilization by veterinarian or agreement to sterilize within thirty days); Mont. Code Ann. § 7-23-4202 (2005) (providing that an animal must be spayed or neutered or agreement and deposit to be forfeited within thirty days); Neb. Rev. Stat. § 54-638 (2005) (providing for spaying or neutering or written agreement to do so within thirty days); N.M. Stat. Ann. § 77-1-20 (West 2005) (providing for sterilization prior to release or agreement to sterilize within thirty days); N.Y. Agric. & Mkts. Law § 377-a (McKinney 2005) (requiring dogs or cats be spayed or neutered prior to being released or within thirty days); N.D. Cent. Code § 40-05-19 (2005) (providing for sterilization or written agreement and deposit); Okla. Stat. tit. 4, §§ 499.2, 499.3 (2005) (providing that no dog or cat shall be released for adoption unless is it sterilized or there is an agreement to sterilize within sixty days of adoption with a minimum deposit of $10); 3 PA Cons. Stat. §§ 459-901-A, 459-908-A (2005) (providing for sterilization or agreement to sterilize and allowing the adopting agency to reclaim the animal if violation of the provision); S.C. Code Ann. §§ 47-3-480, 47-3-490 (Law. Co-op. 2005) (providing for sterilization prior to release or written agreement for sterilization within thirty days, remedies may include forfeiture of the animal and $200.00 in liquidated damages); Tenn. Code Ann. § 44-17-502 (2005) (providing that dogs and cats must be spayed or neutered or a written agreement to do so within thirty days); Utah Code Ann. §§ 10-17-102, 10-17-103 (2005) (providing that an animal shelter may not transfer an animal that has not be sterilized unless a written agreement has been executed agreeing to sterilize within thirty days); Va. Code Ann. § 3.1-796.126:1 (West 2005) (providing for sterilization or a written agreement to do so within thirty days with violators subject to civil penalties). There is recent similar legislative activity in other states as well. See, e.g., H.B. 252, S.B. 291, 2006 Leg. (Ala. 2006) (providing that animal shelters and humane societies must sterilize dogs or cats prior to sale or placement); N.J. Assembly Bill 1827 (2006) (requiring all cats and dogs released from shelters be sterilized).

[FN235]. Ark. Code Ann. § 20-19-103(a) (Michie 2006). There are exceptions to this rule if the animal is medically compromised and a veterinarian certifies to that fact. Id. § 20-19-103(c)(2).

[FN236]. Id. § 20-19-103(c)(1).

[FN237]. Id. § 20-19-103(b)(2).
In such case, the animal described therein shall be returned to the releasing agency upon demand. Ownership of the animal reverts to the releasing agency in such instance. No claim may be made by the owner to recover expenses incurred for maintenance of the animal, including the initial procurement cost.
Id.

[FN238]. Id. § 20-19-103(d).

[FN239]. Cal. Food & Agric. Code § 30503(a); accord § 31751.3(a) (West 2001) (the statutes were repealed of their own accord (sunset provisions), but were supplanted with substantially the same language on January 1, 2006. The current version once more adopted the original, pre-2006 language. Despite these changes the requirements on animal shelters remained the same throughout the statutes' permutations.).

[FN240]. Id. §§ 30503(b), 31751.3(b).

[FN241]. Id. §§ 30503(e), 31751.3(e). Note that there is an entirely different set of provisions that apply to counties in California with populations under 100,000 persons. See id. §§ 30520-30526 (providing for a spaying or neutering deposit for dogs and cats and providing that failure to comply for the sterilization agreement will cause the owner to forfeit the deposit and incur a fine).

[FN242]. 510 Ill. Comp. Stat. Ann. 5/11 (2004).

[FN243]. Id. The agreement to render the animal incapable for reproduction also includes having the animal microchipped. Id.

[FN244]. Id.

[FN245]. Tex. Health & Safety Code Ann. § 828.001(2) (Vernon 2003).

[FN246]. Id. § 828.002.

[FN247]. Id. § 828.005.

[FN248]. Id. § 828.006.

[FN249]. Id. § 828.007.

[FN250]. Id. § 828.008. The releasing agency must receive the letter before the expiration of the seventh day after the sterilization completion date agreed to under the agreement signed by the new owner. Id. This provision continues:
It is a presumption under this law that the failure of the new owner to deliver to the releasing agency a signed letter as required under Section 828.005, 828.006, or 828.007 is the result of the new owner's refusal to have the adopted animal sterilized. The new owner may rebut this presumption at the time of the hearing with the proof required under the above mentioned sections.
Id.

[FN251]. Id. § 828.009.

[FN252]. Id. § 828.010. Section 828.003 requires a statement to this effect on the sterilization agreement used by the releasing agency. Id. § 828.003.

[FN253]. Id. § 828.013(4)(A)-(B). The chapter also does not apply to dogs or cats that are claimed by persons who already own the animal; if the releasing agency is located in a jurisdiction that has an ordinance with standards that exceed those of the chapter; or to animals that are procured by institutions of higher learning for biomedical research, testing or teaching. Id. § 828.013(1)-(3).

[FN254]. See, e.g., Iowa Code Ann. § 162.20 (West 2006); Kan. Stat. Ann. § 47-1731 (2006); Tex. Health & Safety Code Ann. § 828.013 (Vernon 2003).

[FN255]. Assemb. 1827, 212d Leg., 2006 Sess. (N.J. 2006), available at http://www.njleg.state.nj.us/2006/Bills/A2000/1827_I1.pdf (providing an exemption from sterilization requirement if animal owner can provide documentation that animal is a show animal, owner is a professional licensed breeder, or sterilization would be detrimental to the health of the animal).

[FN256]. 510 Ill. Comp. Stat. Ann. 5/9 (West 2005). The provision continues by stating that “failure to comply shall result in impoundment.” Id.

[FN257]. See infra notes 223-28 and accompanying text (discussing various programs).

[FN258]. See, e.g., H.B. 1367, 2006 Sess. (Va. 2006), available at http:// leg1.state.va.us/cgi-bin/legp504.exe?061+ful+HB1367 (allowing for a nonrefundable credit to veterinarians performing sterilization procedures at no cost on animals from public pounds and shelters).

[FN259]. La. Rev. Stat. Ann. § 3:2475 (West 1990) (setting exceptions to sterilization requirements and stating that failure to comply “may give rise to a cause of action in a court of competent jurisdiction”).

[FN260]. Mont. Code Ann. § 7-23-4202 (West 1997).

[FN261]. Mo. Ann. Stat. § 273.405 (West 1992).

[FN262]. Conn. Gen. Stat. § 22-380e-380f (2005) (requiring adoptive pet owners to forfeit a $45 deposit if unsterilized adopted pet is not sterilized within sixty days of the adoption unless the animal is less than six months old at the time); D.C. Code § 8-1807 (West 1980) (requiring all female adopted animals over six months to be spayed and all male adopted animals to be neutered, and providing a deposit forfeiture exception for younger animals); Fla. Stat. Ann. § 823.15 (West 1980) (requiring sterilization within thirty days of the purchase or adoption or “prior to sexual maturity”); Ga. Code Ann. §§ 4-14-2, 4-14-3 (West 1994) (defining a sexually mature dog or cat as one that “has reached the age of 180 days or six months or more” and requiring sterilization within thirty days of sexual maturity); La. Rev. Stat. Ann. §§ 3:2471, 3:2472 (West 1990) (defining an adult dog or cat as one that “has reached the age of 180 days or six months or more” and requiring sterilization to be completed within thirty days of the adoption date or thirty days after the date estimated to be the date the animal becomes six months of age, but allowing for earlier sterilization if the releasing agency has a written policy recommending sterilization of certain infant animals); Mich. Comp. Laws Ann. § 287.338a (West 1998) (requiring sterilization within four weeks of the adoption or purchase date for animals six months or older or within four weeks of the animal's sixth month of life); Mo. Ann. Stat. § 273.403 (West 1992) (requiring sterilization to be completed within thirty days of the adoption date or thirty days after the date estimated to be the date the animal becomes six months of age, but allowing for earlier sterilization if the releasing agency has a written policy recommending sterilization of certain infant animals); Mont. Code Ann. § 7-23-4202 (West 1997) (requiring sterilization deposit to be forfeited if sterilization is not performed by the time the animal reaches six months of age or within thirty days of the adoption date, whichever comes first); Neb. Rev. Stat. Ann. § 54-638 (LexisNexis 2003) (requiring sterilization within thirty days of a puppy or kitten's sixth month of life, or, if the releasing entity has a written policy recommending earlier sterilization, the thirtieth day after such date); N.M. Stat. Ann. § 77-1-20 (West 1993) (requiring sterilization upon release or sterlization deposit accompanied by a promise to sterilize within thirty days in the case of animals over the age of six months or by the time the animal reaches six moths of age in the case of animals less that six months of age).

[FN263]. John C. Wright & Richard T. Amoss, Prevalence of House Soiling and Aggression in Kittens During the First Year After Adoption From a Humane Society, 224 J. Am. Veterinary Med. Assoc. 1790, 1795 (2004) (noting that “in light of the present results and the benefits of early-age gonadectomy cited elsewhere, . . . [there is] little evidence to recommend against shelters and practicing veterinarians continuing to neuter 6-to 13-week old kittens prior to adoption”).

[FN264]. Animal Welfare Policy Statements-Early-Age (Prepubertal) Spay/Neuter of Dogs and Cats, http://www.avma.org/issues/policy/animal_ welfare/spay_neuter.asp (last visited Mar. 20, 2007). The statement continues: “Just as for other veterinary medical and surgical procedures, veterinarians should use their best medical judgment in deciding at what age spay/neuter should be performed on individual animals.” Id. The American Animal Hospital Association's position statement is similar: “[t]o reduce the overpopulation problem in companion animals, the American Animal Hospital Association supports neutering of cats and dogs as early as eight to sixteen weeks of age in animal care and control facilities.” AAHA Guidelines, Position Statements & White Papers, Early Neutering of Companion Animals Position Statement, http:// www.aahanet.org/About_aaha/About_Position.html#neutering (last visited Mar. 20, 2007). Note that the American Animal Hospital Association position statement on early neutering was adopted in 1994. AAHA Guidelines, Position Statements & White Papers, http://www.aahanet.org/About_aaha/aAbout_Position.html (last visited Mar. 20, 2007).

[FN265]. Dave Sweeney, Veterinarian and Chief of Staff at No More Homeless Pets, Pediatric Spay/Neuter, (Feb. 29, 2003), http:// www.bestfriends.com/archives/forums/pediatric.html. Other issues such as risks of anesthesia can be dealt with through proper education and training. See id. Dr. Sweeny recommends that all dogs and cats been sterilized by twenty weeks, if not earlier. Id.

[FN266]. Richard Allen, The Truth About Juvenile Spay/Neuter, Best Friends Mag., Sept./Oct. 1999, at 36.

[FN267]. Best Friends Animal Sanctuary, the nation's largest sanctuary for abused and abandoned animals, states that “every organization or person that places animals in new homes must have them spayed or neutered before adoption. It's a policy that we never waiver from here at Best Friends.” Id. Other pet adoption agencies have similar policies. The Anti-Cruelty Society Adoptions, http://www.anticruelty.org/site/epage/35284_576.htm (last visited Mar. 20, 2007); Dachshund Rescue of North America, Inc. Adoption Process, http:// www.drna.org/vetcare.asp (last visited Mar. 27, 2007); MidWest Dachshund Rescue Adoption Process, http://www.mwdr.org/adopt.asp (last visited Mar. 20, 2007); PAWS Philadelphia Animal Welfare Society, http://www.pacca.us/adoptions.cfm (last visited Mar. 20, 2007); San Francisco SPCA, Adoption, http:// www.sfspca.org/adoption/adoption_program.shtml (last visited Mar. 20, 2007); SPCA Online, Spay/Neuter Information, http://www.spcaonline.com/spay-neuter.htm (last visited Mar. 20, 2007); Wayside Waifs: Adoption Process, http://www.waysidewaifs.org (click on the “Adoption” link on the left side of the screen) (last visited Mar. 20, 2007).

[FN268]. Posting of Ledy VanKavage, Esq. to Too young to fix = Too young for adoption, http://network.bestfriends.org/Blogs/PostDetail.aspx?bp=248 (Dec. 22, 2005, 01:27 EST). Ms. VanKavage is the Senior Director of Legal Training & Legislation, National Outreach for the ASPCA. See also American Humane Association, Animal Welfare Policy Statements, Pet Overpopulation (2006), available at http://www.americanhumane.org/site/DocServer/apsstatements.pdf? docID=101 (“American Humane Society supports the practice of prepubescent spaying and neutering as a feasible solution to decreasing pet overpopulation and the tragedy of resulting deaths.”).

[FN269]. See Ark. Code. Ann. § 20-19-103 (LexisNexis 2006) (discussing Acts 1999, No. 488). Note that even when vouchers are provided to a person to pay for the sterilization of an animal, compliance rates can be quite low. See Posting of Dr. Leslie Appel to http:// www.bestfriends.com/archives/forums/021604vets.html (Feb. 16, 2004) (“Some estimates are as low as only 40% success rate for people using vouchers nationwide.”).

[FN270]. Petfinder Library, Benchmarks of a Good Shelter, http:// www.petfinder.org/journalindex.cgi?/path=/ public/shelteroperations/yourlocalshelter/1.45.2.txt (last visited Feb. 20, 2007) (setting forth benchmarks from the ASPCA to evaluate a shelter). The ASPCA benchmarks state “[t]he first indication of a good animal shelter is mandatory sterilization of all animals. . . . No responsible shelter will adopt animals without making provisions for their sterilization. Ideally, all animals leaving a shelter should be sterilized prior to being sent into their new homes.” Id.; see also Wisconsin Dog Rescue, Mission & Ethics, http:// www.widogrescue.com/missionethics.html (last visited Feb. 20, 2007) (stating that a quality rescue and a quality shelter spay and neuter all animals prior to placement).

[FN271]. See VanKavage, supra note 268 (suggesting alternatives to allowing an intact animal into the community).

[FN272]. Id. (discussing pediatric spay/neuter and the fact that in her area of the country, Southwestern Illinois, veterinarians have been performing spaying and neutering on animals that are eight weeks of age or weigh two pounds for the last decade).

[FN273]. S. 55, 109th Cong. (2006).

[FN274]. Id. This is defined in the provision as a Hobby breeder. Id.

[FN275]. Virginia Considers Mandatory Spay/Neuter Bill!, Am. Kennel Club, http://www.akc.org/news/index.cfm?article_id=2765 (last visited Mar. 25, 2007).

[FN276]. That said, a law that allows jurisdictions to mandate the universal sterilization of a certain breeds of dogs has already been adopted in California. Cal. Health & Safety Code § 122331 (2005). Compare San Francisco Animal Care and Control, Pit Bull Ordinance, http://www.sfgov.org/site/acc_ index.asp (last visited Mar. 25, 2007) (discussing recent adoption of California law and ordinance in San Francisco that makes it illegal to own an intact pit bull or pit bull mix in San Francisco), with Kory A. Nelson, Denver's Pit Bull Ordinance: An Overview of the Court Rulings, http:// network.bestfriends.org/animallawcoalition/news/2455.html (last visited Mar. 25, 2007) (discussing the constitutionality of Denver Rev. Municipal Code § 8-55 banning pit bulls in the City of Denver, Colorado).

[FN277]. See supra notes 254-56 and accompanying text (discussing rationale for sterilization of at-large animals). In order for such a measure to be passed, it may need to provide for an exemption for animals that are registered as American Kennel Club or Cat Fanciers Association show animals as provided for in the proposed New Jersey provision. N.J. Assembly Bill 1827 (2006).

[FN278]. The responsibility for sterilization is passed to a rescue organization if an animal is transferred to it by a shelter.

[FN279]. As discussed above, even just one intact dog or cat can have a significant impact on the pet population. See supra note 222 and accompanying text (discussing estimated progeny from single breeding dog or cat).

[FN280]. Best Friends Animal Society, No More Homeless Pets Forum Pediatric Spay/Neuter, http://www.bestfriends.com/archives/forums/pediatric.html (last visited Mar. 20, 2007). Other issues such as risks of anesthesia can be dealt with proper information and training. Id. Note that if it is medically inadvisable to sterilize a particular animal, most states already include language allowing for a delay to be made in such a case.

[FN281]. Ninety percent of lost pets are never identified and recovered. Auburn University College of Veterinary Medicine, Maddie's Shelter Medicine Information and Protocols Microchip Information, http:// www.vetmed.auburn.edu/index.pl/microchip_information (last visited Jan. 24, 2007).

[FN282]. Auburn University College of Veterinary Medicine, Maddie's Shelter Medicine Information and Protocols Strengthen the Bond, http:// www.vetmed.auburn.edu/index.pl/strengthen_the_bond” (last visited Jan. 24, 2007).

[FN283]. Id.; see also David S. Tuber et al., Dogs in Animal Shelters: Problems, Suggestions, and Needed Expertise, 10 Psychol. Sci. 379, 381 (1999) (finding that behavior problems in dogs are one of the most common reasons that dogs are relinquished to shelters).

[FN284]. Tuber et al., supra note 283, at 379.

[FN285]. Id. at 380 (finding that the plasma levels of the stress related adrenal hormone cortisol were elevated in dogs in modern public shelters).

[FN286]. John C. Wright & Richard T. Amoss, Prevalence of House Soiling and Aggression in Kittens During the First Year After Adoption From a Humane Society, 224 J. Am. Veterinary Med. Ass'n. 1790, 1795 (2004). The Wright and Amoss study did not compare kittens acquired by other means with kittens acquired through humane societies. The authors of the study encourage education to adopters to reduce aggression to prevent abandonment of young kittens. Id.

[FN287]. Tuber et al., supra note 283, at 379.

[FN288]. Schlaffer & Bonacci, supra note 61 (discussing designs for shelters that minimize stress on animals).

[FN289]. See, e.g., 7 Maine Rev. Stat. § 3933 (2006) (providing that a “person maintaining a pet shop shall collect a surcharge of $25 on each cat or dog sold that has not been neutered and forward the entire surcharge to the department for deposit in the Companion Animal Sterilization Fund”).

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