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Table of Significant Animal-related Cases from 2009

Rebecca F. Wisch


Animal Legal & Historical Center
Publish Date:
2010
Place of Publication: Michigan State University College of Law
Printable Version

Table of Significant Animal-related Cases from 2009

Below are the significant animal law cases (state and federal) for 2009. The cases are listed alphabetically by case name for federal cases and by state for state cases. Please see the following link for the previous year:

 

2008 Significant Animal Law Cases

 

 

Federal Cases

State Cases


Animal Welfare Institute v. Martin, 588 F.Supp. 110 (D.Me.,2008)
. Plaintiffs moved for an emergency temporary restraining order to enjoin the DIFW from allowing the use of Conibear traps for the remainder of the State’s trapping season. The Court denied Plaintiffs’ motion, finding that Plaintiffs failed to show a causal connection between the State’s regulation of the trapping and any Endangered Species Act violations resulting from the lynx’s death.

Alaska:

Luper v. City of Wasilla, 215 P.3d 342 (Alaska,2009). Plaintiff appealed a grant of summary judgment in favor of the City of Wasilla, Alaska's enforcement action over zoning ordinances. The City denied plaintiff's application for a use permit in 2005 to run an eighteen-dog kennel. Plaintiff argued on appeal that Wasilla's former three-dog limit infringed on her property rights in both her land and her dog. This court agreed with the lower court that the provision here bore a "fair and substantial relationship" the government purposes of controlling dog noise, reducing dog odor and pollution, and preventing loose dogs. 

 

 

Californians for Humane Farms v. Schafer, Slip Copy, 2008 WL 4449583 (N.D.Cal.). Plaintiff, a nonprofit ballot committee established to sponsor Proposal 2, a State ballot initiative that would result in prohibiting the tethering and confinement of egg laying hens and other farm animals, brought an action against Defendant alleging a violation of the APA after Defendant approved a decision by the American Egg Board to set aside $3 million for a consumer education campaign to educate consumers about current production practices. The Court granted Plaintiff’s motion for preliminary injunction, finding that Plaintiff was likely to succeed on the merits, direct harm to Plaintiff was likely to occur if the injunction was not granted, and that the public interest would be served by granting the preliminary injunction.

Arizona:
Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272, 2009 WL 4980337 (Ariz. Ct. App. 2009)
, review denied (May 20, 2010). The main issue on appeal is whether a pet owner is entitled to recover emotional distress and loss of companionship damages over the death of his or her pet. The court felt that it would be inappropriate to expand Arizona common law to offer broader compensation for the loss of a pet than for the loss of a human.

 
Center for Biological Diversity v. Chertoff, Slip Copy, 2009 WL 839042 (N.D.Cal.). Plaintiff brought an action against Defendant, the United States Coast Guard, alleging that Defendant violated the ESA by failing to consult with the NMFS to ensure that Defendant’s activities in the Santa Barbara Channel and other shipping lanes off the California Coast would not harm the continued existence of threatened and/or endangered species after Defendant amended Traffic Separation Schemes ("TSS") and a number of blue whales were subsequently struck by ships and killed. On the parties’ cross motions for summary judgment, the Court dismissed Plaintiff’s claims pertaining to Defendant’s implementation of or actions under the TSS in the approaches to Los Angeles – Long Beach and granted Defendant’s motion for summary judgment.

California:

McMahon v. Craig, 97 Cal.Rptr.3d 1502 (Cal.App. 4 Dist.,2009). Plaintiff appealed a demurrer granted by the trial court on her claim of intentional infliction of emotional distress and portions of her complaint struck that sought damages for emotional distress and loss of companionship. On appeal, this court held that an owner cannot recover emotional distress damages for alleged veterinary malpractice. The court found that it would be incongruous to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated, while not imposing such a duty on a doctor to the parents of a child receiving treatment.

 

 


Center for Biological Diversity v. Henson, Slip Copy, 2009 WL 1882827 (D.Or.)
. Defendants brought a motion to stay concerning the Oregon Department of Forestry’s Habitat Conservation Plan promulgated in 1995 and their Incidental Take Permit obtained in 1995, which allows incidental taking of Northern Spotted Owls for sixty years in connection with timber harvest in the Elliot State Forest. The District Court granted Defendants’ motion, finding that the potential harm and likelihood of damage to Plaintiffs if the action is stayed is low.

Florida:

City of Delray Beach v. St. Juste, 989 So.2d 655 (Fla.App. 4 Dist.,2008). The city of Delray Beach appealed from a judgment for damages in favor of appellee plaintiff, who was injured by two loose dogs. The theory of liability was based on the city's knowledge, from prior complaints, that these dogs were loose from time to time and dangerous. The court concluded that decisions made by the city's animal control officer and police to not impound the dogs were discretionary decisions, and therefore the city was immune.

 


Center for Biological Diversity v. Kempthorne, 607 F.Supp. 2009 1078 (D.Ariz.,2009)
. Cross motions for summary judgment on Plaintiffs’ claim against Defendants, the Secretary of the Interior and the U.S. Fish and Wildlife Service, alleging that the Secretary’s failure to designate critical habitat and prepare a recovery plan for the jaguar was unlawful under the ESA. The Court granted Plaintiffs’ found that Defendants’ determination that designation of a critical habitat would not be prudent must be set aside because it did not appear to be based on the best scientific evidence available as required by the ESA, and that Defendants’ determination not to prepare a recovery plan must also be set aside.

 

Center for Biological Diversity v. Kempthorne, Slip Copy, 2008 WL 4543043 (N.D.Cal.). In an action alleging multiple violations of the ESA, the APA, and NEPA pursuant to Defendants’ final rule designating the polar bear as threatened and promulgation of a special rule under section 4(d) of the ESA, Defendants Kempthorne and the United States Fish and Wildlife Service brought a motion to transfer the case to the United States District Court for the District of Columbia. Intervenor-Defendant Arctic Slope Regional Corporation brought a separate motion to transfer the case to the District of Alaska, and Intervenor-Defendant Alaska Oil and Gas Association filed a motion with the Judicial Panel on Multidistrict Litigation (MDL Panel) seeking to transfer the case to the D.C. District Court. 

Georgia:

Huff v. Dyer, 678 S.E.2d 206 (Ga.App.,2009). Plaintiff was injured from being bitten by defendants' dog who was chained to the bed of their pickup truck. Plaintiff sued defendants, claiming that they failed to warn her of their dog's dangerous propensities and that they committed negligence per se by violating the state's strict liability statute (OCGA § 51-2-7) and the Hall County Animal Control Ordinance. The court noted that OCGA § 51-2-7 relieves a plaintiff from producing evidence of a dog's vicious propensity based on evidence of a violation of an ordinance that restricts dogs from running at large. In this case, there was no evidence that the Dyers' dog was “running at large.”  

 

Kringle v. Elliott, 686 S.E.2d 665 (Ga.App.,2009). The plaintiff, on behalf of her then seven-year-old son, brought an action against the defendant Elliot for injuries the child sustained resulting from a bite by defendant's golden retriever. The plaintiff appealed the trial court's granting of defendant's motion in limine to exclude evidence that the plaintiff argues created an inference of a vicious propensity because the dog attacked other animals in the past. The proffered evidence showed in part that the golden retriever once brought his owner a dead kitten, though the owner was unsure upon examination of the kitten whether the dog had killed it or was merely "retrieving" it.

 

 

Citizens for Better Forestry v. U.S. Dept. of Agriculture, 632 F.Supp.2d 968 (N.D.Cal.,2009). Plaintiffs Citizens for Better Forestry brought an action against the USDA alleging failure to adhere to certain procedures required by NEPA and the ESA after Defendant promulgated regulations governing the development of management plans for forests. The Court granted Plaintiffs’ motion for summary judgment and denied Defendant’s motion for summary judgment, finding that Plaintiffs had standing, that Defendant did not comply with its requirements under the NEPA, and that Defendant did not comply with its requirements under the ESA because Defendant did not prepare an adequate Biological Assessment.

Indiana:

Price v. State, 911 N.E.2d 716 (Ind.App.,2009). Appellant-defendant appealed his conviction for misdemeanor Cruelty to an Animal for beating his 8 month-old dog with a belt. Price contended that the statute is unconstitutionally vague because the statute's exemption of “reasonable” training and discipline can be interpreted to have different meanings. The court first noted that Price admitted to grabbing his dog by the back of the neck to immobilize him, and then repeatedly struck the dog with a belt in the face and stomach as the dog cowered in the corner. The court held that a person of ordinary intelligence would also know that these actions are not “reasonable” acts of discipline or training.

 


Colorado Wild Horse and Burro Coalition, Inc. v. Salazar, 639 F.Supp.2d 87 (D.D.C.,2009). In this action, the plaintiffs (associations organized to protect wild horses and one equine veterinarian) challenged the decision of the BLM to remove all the wild horses from the West Douglas Herd Area in Colorado. Plaintiffs argued that the BLM's decision violated the Wild Free-Roaming Horses and Burros Act. Defendants countered that BLM's decision was a reasonable exercise of BLM's discretion and was thus entitled to Chevron deference. This Court held that BLM's decision to remove the West Douglas Herd exceeded the scope of authority that Congress delegated to it in the Wild Horse Act.

Louisiana:

Gonzales v. Kissner , 24 So.3d 214 (La.App. 1 Cir.,2009). This Louisiana case concerns an action for personal injuries sustained by an animal control officer who was mauled about the head and neck by defendants' dog while investigating a complaint of an attack by the dog from the previous day. The dog's owners argued on appeal that the trial court failed to apply the Professional Rescuer's Doctrine, sometimes referred to as the “fireman's rule." Because under the facts here, where the dog had previously escaped after being confined in the house and the defendants failed to properly lock the house and/or restrain the dog, the court did not find that Ms. Gonzales' recovery for injuries was barred by the Professional Rescuer's Doctrine.

 


Creekstone Farms Premium Beef, L.L.C. v. Department of Agriculture, 2008 WL 3980533 (C.A.D.C.). Plaintiff, a supplier of beef products, brought an action against the USDA after the USDA denied Plaintiff’s request to purchase Bovine Spongiform Encephalopathy (BSE) testing kits. The United States Court of Appeals found that the USDA has authority under the Virus Serum Toxin Act (VSTA) to regulate the use of biological products; the USDA’s interpretation of VSTA allowing the USDA to deny an import permit based on the product’s intended use was not inconsistent with the regulation and was therefore entitled to deference by the Court.

Massachusetts:

Com. v. Erickson, 905 N.E.2d 127 (Mass.App.Ct.,2009). Defendant was found guilty of six counts of animal cruelty involving one dog and five cats after a bench trial. On appeal, defendant challenged the warrantless entry into her apartment and argued that the judge erred when he failed to grant her motion to suppress the evidence gathered in the search. The Court of Appeals found no error where the search was justified under the "emergency exception" to the warrant requirement. The court found that the officer was justified to enter where the smell emanating from the apartment led him to believe that someone might be dead inside.

 

Com. v. Zalesky, 906 N.E.2d 349 (Mass.App.Ct.,2009). Defendant was convicted of cruelty to an animal, in violation of G.L. c. 272, § 77. On appeal, the defendant contended that the evidence was insufficient to establish his guilt; specifically, that the state proved beyond a reasonable doubt that his actions exceeded what was necessary and appropriate to train the dog. A witness in this case saw defendant beat his dog with a plastic "whiffle" bat on the head about 10 times. The court found that defendant's behavior fell under the ambit of the statutes because his actions were cruel, regardless of whether defendant viewed them as such.

 

 

Defenders of Wildlife v. Tuggle, 607 F.Supp.2d 1095 (D.Ariz.,2009). In this case, plaintiffs challenged procedures for wolf control actions as part of the Mexican wolf reintroduction project by the USFWS. Plaintiffs claims centered on NEPA and ESA violations based on USFWS' adoption of a Memorandum of Understanding in 2003(MOU) and issuance of Standard Operating Procedure 13 (SOP). USFWS claimed lack of jurisdiction because they argued that neither the MOU nor SOP 13 was a final agency action. The Court found that the 2003 MOU and SOP 13 "mark the consummation of the agency's decisionmaking process in respect to wolf control measures."

Missouri:

State v. Fackrell, 277 S.W.3d 859 (Mo.App. S.D.,2009). Defendant appealed her conviction for animal abuse. When defendant's estranged husband stopped by her house in December of 2004, he noticed that the dog was very sick and offered to take the dog to the vet after defendant stated she could not afford a vet bill. Because it was the worst case the vet had seen in twenty-seven years of practice, he contacted law enforcement. Defendant challenged the sufficiency of the evidence on appeal; specifically, that she “knowingly” failed to provide adequate care. The court disagreed. Under MO ST 578.012.1(3), a person is guilty of animal abuse when he or she fails to provide adequate care including "health care as necessary to maintain good health."

 

 

Dias v. City and County of Denver, 567 F.3d 1169 (C.A.10 (Colo.),2009). The Tenth Circuit took up a challenge to Denver's breed-specific ban against pitbull dogs. The plaintiffs, former residents of Denver, contended the ban is unconstitutionally vague on its face and deprives them of substantive due process. The district court dismissed both claims under Federal Rule of Civil Procedure 12(b)(6) before plaintiffs presented evidence to support their claims. On appeal, the plaintiffs argue that the district court erred by prematurely dismissing the case at the 12(b)(6) stage. The Tenth Circuit agreed in part, finding that while the plaintiffs lack standing to seek prospective relief for either claim because they have not shown a credible threat of future prosecution, taking the factual allegations in the complaint as true the plaintiffs have plausibly alleged that the pit bull ban is not rationally related to a legitimate government interest. While the court stated that it was constrained to judge the merit of plaintiff's due process challenge, the district court erred in granting the 12(b)(6) motion based on the facts presented by plaintiffs. Thus, the portion of plaintiffs' case that raised the substantive due process challenge was remanded to the district court.

New Jersey:

LaPlace v. Briere, 962 A.2d 1139 (N.J.Super.A.D.,2009). A horse owner brought an action against the person who exercised his horse while the horse was being boarded at the defendant's stable. While the stable employee was "lunging" the horse, the horse reared up, collapsed on his side with blood pouring from his nostrils, and then died. On appeal of summary judgment for the defendant, the court held that the person who exercised horse could not be liable under the tort of conversion as she did not exercise such control and dominion over the horse that she seriously interfered with plaintiff's ownership rights in the horse. While the court found that a bailment relationship existed, the plaintiff failed to come forward with any additional evidence that established the horse was negligently exercised or that the exercise itself was a proximate cause of its death.

 

 

Folkers v. City of Waterloo, Iowa, 582 F.Supp.2d 1141 (N.D.Iowa,2008). Plaintiff brought civil rights action against the City of Waterloo, Iowa (City) alleging procedural and substantive due process violations after Animal Control Officers seized Plaintiff’s dog and detained the dog for one hundred days while an appeal was pending. On Plaintiff’s motion for partial summary judgment, the Court found that the Fifth Amendment Due Process Clause did not apply to Plaintiff’s claim. The Court also found that Plaintiff’s right to procedural due process under the Fourteenth Amendment was satisfied by the post-deprivation hearing provided Plaintiff.

New York:

Humane Soc. of U.S., Inc. v. Brennan, 881 N.Y.S.2d 533 (N.Y.A.D. 3 Dept.,2009). Petitioners, various organizations and individuals generally opposed to the production of foie gras submitted a petition to respondent Department of Agriculture and Markets seeking a declaration that foie gras is an adulterated food product by law. The respondent Commissioner of Agriculture and Markets refused to issue a statement to the requested declaration. This court held that petitioners lacked standing because they did not suffer an injury within the zone of interests protected by State Administrative Procedure Act §§ 204.

 

People v. Jornov, 881 N.Y.S.2d 776 (N.Y.A.D. 4 Dept.,2009). This New York case stems from an attack on Philip Mueller and his dog by Defendant-Appellant Jornov's "two pit bull-terrier mixed breed dogs.” During proceedings in City Court, the court determined that defendant's dogs were dangerous dogs and directed that they be euthanized. The Supreme Court, Appellate Division, Fourth Department, affirmed the finding that the dogs were dangerous under Agriculture and Markets Law § 121 and Agriculture and Markets Law § 350[5] because there was clear and convincing evidence that the dogs attacked a companion animal and behaved in a manner that a reasonable person would believe posed a serious and imminent threat of serious physical injury or death. However, under the amended version of the statute, a judge or justice may not automatically direct humane euthanasia or permanent confinement of a dangerous dog where none of the aggravating circumstances are present.

 

People v. Lewis, 881 N.Y.S.2d 586 (N.Y.Sup.App.Term,2009). Defendants were charged in separate informations with multiple counts of injuring animals and failure to provide adequate sustenance. Plaintiff appealed the lower court’s decision to grant Defendants’ motion to suppress evidence obtained when a special agent of the ASPCA approached one of the defendants at his home upon an anonymous tip and inquired about the condition of the animals and asked the defendant to bring the animals outside for inspection, while the incident was videotaped by a film crew for a cable television show. The Supreme Court reversed the lower court’s decision, finding that Plaintiff met its burden of establishing that the defendant voluntarily consented to the search.

 

Save the Pine Bush, Inc. v. Common Council of City of Albany, 865 N.Y.S.2d 365 (N.Y.A.D. 3 Dept.,2008). An Organization dedicated to the protection of the Karner Blue Butterfly and other species that live in an area of land used as a nature preserve brought challenge against the City Common Council’s approval of a Developer’s rezoning application for the land. This Court held that the Organization had standing to bring suit because the Organization showed the existence of an actual injury different from that of the general public due to the Organization’s regular use of the preserve, at least one member’s nearby residency to the preserve, and the Organization’s historic involvement in the protection and preservation of the preserve. 

 


Friends of Animals v. Salazar, 626 F.Supp.2d 102(D.D.C.,2009). Plaintiffs brought an action against the Fish and Wildlife Service of the Department of Interior alleging that Defendants unlawfully promulgated a rule under the ESA exempting three endangered antelope species from the import, take, and other prohibitions under the ESA. On the parties’ cross motions for summary judgment, the District Court granted Defendants’ motion in part and denied their motion in part, finding Plaintiffs lack representational standing with respect to wild antelope and antelope in captivity, but have organizational standing under Section 10(c) of the ESA.

North Carolina:

Kitchin ex rel. Kitchin v. Halifax County, 665 S.E.2d 760 (N.C.App.,2008). Defendant dog owners appealed from a decision of the County Board of Health that ruled their dog could not be returned home because of the dog's potential exposure to rabies as result of attacking a raccoon (the dog was scheduled for euthanization). After the Board denied the owners' appeal, they filed a complaint against county which contained motions for preliminary and permanent injunctions to prevent dog's quarantine and for class certification. The Court of Appeals held that the owners' appeal of Board's decision to quarantine dog was moot because dog had already been returned home.

 

State v. Maynard, 673 S.E.2d 877 (N.C.App.,2009). Defendant challenged her conviction for violating that city ordinance that limited the number of dogs greater than five months of age that can be kept on premises within the city limits. The ordinance limited this number to three. After conviction, defendant appealed the constitutionality of the ordinance, arguing that it was “arbitrary and without any justification” and “fails to stand upon a rational basis.” This Court disagreed. The legislative enactments have a presumption of constitutionality and the town of Nashville enacted the ordinance for the purpose of reducing noise and odor problems.

 


Friends of Animals v. Salazar, --- F.Supp.2d ----, 2009 WL 3953578 (D.D.C.). Friends of Animals (“FOA”) filed a Complaint against the U.S. Fish and Wildlife Service under the ESA and APA seeking declaratory and injunctive relief. At issue is the petition FOA filed with the FWS in January 2008 to list thirteen species of foreign macaws, parrots and cockatoos as threatened or endangered due to the caged pet bird trade. While the Court held that FOA's substantive claims must be dismissed as moot, it considered FOA's argument that an award of fees and costs is appropriate here because its suit served as the “catalyst” for FWS's subsequent remedial actions. The Court allowed FOA to file a motion for fees and costs and defendants to respond to such motion.

North Dakota:

State v. Brown, 771 N.W.2d 267 (N.D.,2009). Defendant appealed from a criminal judgment finding she violated the Cass County Animal Control Ordinance after her neighbors reported her barking dogs. Brown contended that the Ordinance constituted an unconstitutional delegation of power. The court disagreed, finding that Cass County adopted a home rule charter and thus had the power to create criminal penalties for violations of ordinances. The court held the words excessive, continuous, or untimely have a common understanding and are not vague.

 

 

Giaconia v. Delaware County Soc. for the Prevention of Cruelty to Animals, Slip Copy, 2008 WL 4442632 (E.D.Pa.). Plaintiff brought various claims against Defendants after Plaintiff’s cat was euthanized prior to the standard 72 hour waiting period.  On Defendants’ motion to dismiss, the United States District Court, E.D. Pennsylvania found that Defendants were not acting under color of law.  Because any and all claims for which the Court had original jurisdiction were being dismissed, the Court declined to exercise supplemental jurisdiction over Plaintiff’s State law claims. 

Ohio:

Youngstown v. Traylor, 914 N.E.2d 1026 (Ohio,2009). Defendant was charged with two misdemeanors after his unrestrained Italian Mastiff/Cane Corso dogs attacked a wire fox terrier and its owner. Defendant argued that YCO 505.19(b) is unconstitutional and a violation of his procedural due process rights. The Supreme Court of Ohio held that the Youngstown municipal ordinance was constitutional because it was “rationally related to the city's legitimate interest in protecting citizens from vicious dogs,” provided “the dog owner with a meaningful opportunity to be heard on the dog's classification,” and did not “label dogs as dangerous or vicious” solely based on their breed type.

 

 

Hoog-Watson v. Guadalupe County, Tex, 591 F.3d 431, 2009 WL 4828742 (5th Cir. 2009)
 Hoog-Watson challenged the warrantless seizure resulted in 47 cats and dogs being seized. On appeal, this Court found sufficient evidence to raise a genuine issue of fact as to whether the the requisite prior criminal proceeding took place, thereby precluding summary judgment. 

Pennsylvania:

Com. v. Kneller, 971 A.2d 495 (Pa.Super.,2009). Defendant appealed a conviction for criminal conspiracy to commit cruelty to animals after Defendant provided a gun and instructed her boyfriend to shoot and kill their dog after the dog allegedly bit Defendant’s child. The Superior Court of Pennsylvania reversed the conviction, finding the relevant animal cruelty statute was ambiguous, thus requiring the reversal under the rule of lenity. Concurring and dissenting opinions were filed; both agreed that the statute is unambiguous as to whether a dog owner may destroy his or her dog by use of a firearm when that dog has attacked, but disagreed as to whether sufficient evidence was offered to show that the dog in fact attacked the child.

 

 

Humane Society of U.S. v. U.S. Postal Service, 609 F.Supp.2d 85 (D.D.C.,2009). The question in this case centers on whether a response from the United States Postal Service (USPS) to the Humane Society of the United States (HSUS) qualifies as a "final agency action" for purposes of judicial reviewability under the APA. At issue is the HSUS's petition to the USPS to declare a monthly periodical entitled The Feathered Warriror unmailable under the AWA. While the term "proceedings" is largely undefined in the Act, the Court held that it would not limit the term to the post hoc meaning ascribed by the USPS that limits it to only "formal" proceedings. The court remanded the matter because Congress subsequently amended § 2156 of the Animal Welfare Act again, further defining issue of nonmailable animal fighting material.

South Carolina:

Harris v. Anderson County Sheriff's Office, 673 S.E.2d 423, (S.C.,2009). The court considered the meaning of the term "or" in the state's dog bite statute, SC ST 47-3-110, and whether that word allows a plaintiff to pursue a statutory claim against the owner of the dog while that dog is in the care of another. The facts concerned a veterinary assistant who sued a county sheriff's officer after she was bitten by a police dog while the dog was kenneled at the veterinary clinic where she worked. Based on a plain language reading of the statute, the Court concluded that the Legislature intended to allow a claim against the owner of the dog when another person has the dog in his care or keeping. 

 

 

In Defense of Animals v. Salazar, 675 F. Supp. 2d 89 , 2009 WL 4981172 (D.D.C. 2009). Plaintiffs, In Defense of Animals et al, attempted to obtain a preliminary injunction that would stop the defendants from implementing a plan to capture or gather approximately 2,700 wild horses located in western Nevada. The plaintiffs contended that the gather plan had to be set aside because the Bureau did not have the statutory authority to carry out the gather plan, and because the plan did not comply with the terms of the Wild Free-Roaming Horses and Burros Act. The Court denied the Plaintiffs request for an injunction.  

 

 

 

 

 

 

 

 

 

 

 

 

 

Texas:

Loban v. City of Grapevine, 2009 WL 5183802  (Or. A.G. Dec. 31, 2009) (Not Reported in S.W.3d)

Appellant Jason Loban appeals the trial court's judgment awarding appellee City of Grapevine $10,670.20 in damages. In 2006, Appellant's dogs were declared "dangerous" under the City's municipal ordinance. On appeal, Appellant argued that the trial court's award of damages to the City should be reversed because the City did not plead for monetary relief, the issue was not tried by consent, and there was no evidence to support the award. This Court agreed.

 

Mouton v. State, 2008 WL 4709232 (Tex.App.-Texarkana). Defendant was convicted of cruelty to an animal, and sentenced to one year in jail, based upon witness testimony and photographs depicting several dogs in varying states of distress. On appeal, the Court of Appeals of Texas found that the trial court did not err in denying Defendant’s motions for a directed verdict or for a new trial to the extent that both motions challenged evidentiary sufficiency, and that ineffective assistance of counsel had not been shown, because the Court could imagine strategic reasons on Defendant’s counsel’s part for not calling a particular witness to testify on Defendant’s behalf, and for allowing Defendant to testify in narrative form during the punishment phase. 

 

Vavrecka v. State, 2009 WL 179203, 4 (Tex.App.-Hous. (Tex.App.-Houston [14 Dist.],2009). Defendant appealed a conviction for cruelty to animals after several dogs that appeared malnourished and emaciated with no visible food or water nearby were found on Defendant’s property. The Court of Appeals found that Defendant waived any error with respect to her motion to suppress evidence by affirmatively stating “no objection” to the admission of evidence. Finally, the Court’s denial of evidence of Defendant’s past practice and routine of caring for stray animals and nursing them to health did not deprive Defendant of a complete defense.

  


In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 627 F.Supp.2d 16 (D.D.C.,2009).
Plaintiffs Safari Club International brought this action under the APA challenging the FWS's legal determination that the listing of the Polar Bear as "threatened" under the Endangered Species Act was a final agency action. This listing essentially created a ban on the import of sport-hunted polar bear trophies that would otherwise be legal under the MMPA. This Court found that the action challenged by SCI and SCIF is final agency action for purposes of judicial reviewability. The Court rejected the notion that language in the final rule that describes how once a marine mammal at issue is “depleted,” the MMPA further restricts the issuance of permits, was mere preamble.

 

Vermont:

Goodby v. Vetpharm, Inc. 974 A.2d 1269 (Vt.,2009). This Vermont case answered whether noneconomic damages are available when a companion animal dies due to negligent acts of veterinarians and a pharmaceutical company, and also whether a claim for negligent infliction of emotional distress (NIED) is allowed for the death of a pet. The Vermont Supreme Court answered both questions in the negative. Plaintiffs' cats died after taking hypertension pills produced by defendant pharmaceutical company Vetpharm, which contained a toxic level of the medication (20 times the labeled dose). While the plaintiffs and amici urged the court to adopt a special exception to recover noneconomic damages for the loss of their personal property (to wit, the cats), the court found that to be a role more suited to the state legislature. With regard to the NIED claim, the court held that plaintiffs were never in the "zone of danger" necessary to establish a claim.

 


Kollman Ramos v. U.S. Dept. Of Agr., 322 Fed.Appx. 814 (C.A.11)
. Petitioner sought to have the Court set aside a Default Decision and Order of a United States Department of Agriculture Judicial Officer concluding that Petitioner had willfully violated multiple provisions of the AWA, including knowingly operating as a dealer without a license by delivering for transportation, or transporting, two lions for exhibition without a valid license to do so, causing injury to two lions that resulted in the death of one of the lions, and lying to investigators about Petitioner’s actions. 

 

Virginia:

Settle v. Commonwealth, 685 S.E.2d 182 (Va.,2009). The defendant-appellant, was convicted of two counts of inadequate care by owner of companion animals and one count of dog at large under a county ordinance, after Fauquier County Sherriff's officers were dispatched to his home on multiple occasions over the course of one calendar year in response to animal noise and health and safety complaints from his neighbors. The Court of Appeals of Virginia held that: (1) because the forfeiture of dogs was a civil matter the Court of Appeals lacked subject matter jurisdiction and was not the proper forum to decide the case; (2) that Settle failed to join the County as an indispensible party in the notice of appeal from conviction for the county ordinance violation; and (3) that the evidence was sufficient to identify Settle as the owner of the neglected companion animals.

 


Levine v. Vilsack, 587 F.3d 986 (9th Cir.,2009)
. Animal advocates filed a lawsuit against the Secretary of the United States Department of Agriculture (USDA) challenging the USDA's interpretive rule excluding chickens, turkeys, and other domestic fowl from the Humane Methods of Slaughter Act (HMSA). The United States Court of Appeals for the Ninth Circuit held that the Plaintiffs-Appellants lacked standing to challenge the USDA's interpretive rule and vacated and remanded the case to the district court. 

 

Washington:

State v. Overholt, 193 P.3d 1100 (Wash. App. Div. 3,2008). Defendant was convicted of several counts of second degree unlawful hunting of big game after a game agent followed vehicle tracks to Defendant’s home upon finding fresh cow elk gut piles, and Defendant showed the agent two cow elk carcasses hanging in Defendant’s shed.  On appeal, the Court found that because the agent was in fresh pursuit of criminal activity and did not enter Defendant’s property with the intent to obtain consent to search in order to evade a search warrant, the agent was not obligated to issue Ferrier warnings, and that suppressing the seized carcasses from evidence would not have altered the outcome of the case in light of the substantial evidence obtained prior to seizing the carcasses.


State v. Smith, 154 Wash. App. 272, 223 P.3d 1262, 2009 WL 5108382 (Wash. Ct. App. 2009). Defendant Smith appealed his conviction for first degree animal cruelty following the death of his llama based on ineffective assistance of counsel.


Maldonado v. Fontanes, 568 F.3d 263 (C.A.1 (Puerto Rico),2009).
At issue is the interlocutory appeal of the Mayor of Barceloneta, Puerto Rico based on the district court's denial of his motion to dismiss on the basis of qualified immunity. During raids at public housing complexes, plaintiffs' pets were seized and then killed by either being slammed against the side of a van or thrown off a 50-foot bridge. The court rejected the Mayor's contention that he is entitled to immunity because the substantive due process “shock the conscience” caselaw does not apply in situations of deprivation of property (here, pets).

 

 


Merced v. Kasson, 577 F.3d 578 (C.A.5 (Tex.),2009)
. Plaintiff José Merced, a Santeria priest, brought action against the City of Euless alleging that city ordinances prohibiting the keeping and slaughtering of animals prevented him from performing animal sacrifices essential to Santeria religious practice. The Court of Appeals reversed the decision in favor of the city. The court found that the city did not prove that the burden it placed on the plaintiff advanced a compelling interest and was the least restrictive means of doing so. The City's purported interest was further undermined by the fact that hunters are allowed to butcher dead animals at their homes. 

 

 


Midcoast Fishermen's Ass'n v. Gutierrez, 592 F.Supp.2d 40 (D.D.C.,2008)
. Plaintiffs sought review of the Department of Commerce’s decision to deny their petition for emergency action to address continued overfishing in the Northeastern multispecies fisheries by excluding midwater trawl vessels from groundfish closed areas. The District Court denied Plaintiffs’ motion, finding that Plaintiffs failed to show that the Agency blatantly ignored specific readily available information and that the record contained sufficient information to allow the Court to determine what process the Agency followed in making its decision.

 

 


Moden v. U.S. Fish and Wildlife, 2008 WL 4763025 (D.Or.)
. Plaintiffs filed claim against the USFWS alleging arbitrary and capricious agency action under the APA and failure to perform a nondiscretionary act under the ESA. The United States District Court granted Defendants’ motion to dismiss and denied Plaintiffs’ request for leave to amend, and Plaintiffs’ motion for summary judgment, finding that it lacked subject matter jurisdiction over Plaintiffs’ APA and ESA claims.

 

 


Oregon Natural Desert Ass'n v. Kimbell, Slip Copy, 2008 WL 4186913 (D.Or.)
. After filing a complaint challenging certain decisions by the United States Forest Service and the National Marine Fisheries Service authorizing livestock grazing within a national forest, Plaintiffs filed a Motion for Temporary Restraining Order and/or Preliminary Injunction seeking an order prohibiting the authorization of livestock grazing on certain public lands until Plaintiffs’ claims could be heard on the merits. The Court granted Plaintiffs’ motion, finding that Plaintiffs are likely to succeed on the merits of at least one of its claims, and that Plaintiffs made a sufficient showing that irreparable harm would likely occur if the relief sought is not granted. 

 

 


Range v. Brubaker, Slip Copy, 2008 WL 5248983 (N.D.Ind.)
. Plaintiff brought a civil rights action against Defendants employed by the City of South Bend, Indiana, part of the allegations being that Defendants unlawfully failed to interview Plaintiff for a position on the Animal Control Commission. During discovery, The United States District Court, N.D. Indiana, Fort Wayne Division granted Defendants’ motion for a protective order to bar the disclosure of the home addresses of the Commission’s volunteer members, finding that Defendants provided “a particular and specific demonstration of fact” such that Plaintiff’s discover of the Commission members’ addresses should be barred. 

 

 


Reams v. Irvin, 561 F.3d 1258 (C.A.11 (Ga.),2009)
. Plaintiff’s filed civil rights § 1983 action against Defendant, the Commissioner of the Georgia Department of Agriculture, based on the impoundment of forty-six horses and three donkeys from Plaintiff’s property. Plaintiff appealed the District Court’s decision for summary judgment, arguing that Defendant is not entitled to qualified immunity because Defendant failed to provide Plaintiff with an opportunity to be heard prior to the seizure of her equines. The United States Court of Appeals affirmed the lower court’s decision, finding that the risk of erroneous deprivation in this case was minimal in light of the State’s compliance with the standards and procedures.

 

 


Rivero v. Humane Soc. of Fayette County, Slip Copy, 2009 WL 18704 (W.D.Pa.)
. Plaintiffs brought action against Defendants under 42 U.S.C. § 1983 alleging Defendants violated their First and Fourth Amendment rights under the United States Constitution after Defendant dog control officers removed Plaintiffs’ dog from their home during an investigation into a report of a dead dog. The Court granted Defendant Township’s motion for partial summary judgment, finding that Plaintiffs’ allegations, standing alone, do not state a claim against Defendant-Township, and that Plaintiffs failed to provide any factual support for their state law claims. 

 

 


Rossi v. Mohawk and Hudson River Humane Soc., Slip Copy, 2009 WL 960204 (N.D.N.Y.)
. Petitioner-Debtor challenged the Bankruptcy Court’s denial of Petitioner’s application for a TRO and for a stay pending appeal after the Mohawk and Hudson River Humane Society seized 23 cats from Petitioner’s prior home for failure to provide proper sustenance/cruelty to animals and subsequently obtained a bond against Petitioner for the cost of providing animal care. The District Court denied Petitioner’s motion for leave to appeal requesting relief identical to that which was denied by the Bankruptcy Court, finding that the commencement of the criminal charges against Petitioner and the posting of security fall within the exception to the automatic stay under federal law. 

 

 


Rule v. Fort Dodge Animal Hosp., Inc., 604 F.Supp.2d 288, (D.Mass.,2009)
. The plaintiff brought this action against Defendants Fort Dodge Animal Health, Inc. and Wyeth Corporation, seeking economic damages suffered from the purchase and injection of her dog with ProHeart® 6 to prevent heartworm. The complaint alleged products liability/failure to warn, breach of implied warranty of merchantability, and violation of state deceptive business practices, among others. This Court found that Massachusetts law follows the traditional “economic loss rule,” where such losses are not recoverable in in tort and strict liability actions where there has been no personal injury or property damage. Here, the plaintiff was barred from recovering because she has not alleged any personal injury or property damage under her products liability claim.

 

 


U.S. v. William, Slip Copy, 2008 WL 4587250 (D.Virgin Islands)
. Defendants charged with unlawfully taking and possessing an endangered species in violation of the ESA filed motions to suppress all evidence, including undersized lobsters and a sea turtle seized in connection with their stop and arrest after they had been stopped on suspicion of being illegal immigrants. The District Court suppressed the evidence, finding that although the approaching police officer had reasonable suspicion to believe that criminal activity was taking place at the time the stop was made, the subsequent confinement of Defendants and search of their vehicle exceeded the limited purpose of the investigative stop.

 

 


Utah Animal Rights Coalition v. Salt Lake County, 566 F.3d 1236 (C.A.10 (Utah),2009)
. The plaintiffs filed this 42 U.S.C. § 1983 claim for alleged violations of their First Amendment rights to free speech and to peaceably assemble after the individual plaintiffs attempted to protest a circus in South Jordan, Utah. The district court entered summary judgment against the plaintiffs. On appeal, this court held that, without a showing of harm, the UARC did not meet its burden to demonstrate an injury in fact. With regard to the § 1983 action, this court ruled that the district court correctly determined that county officials were entitled to judgment as a matter of law.

 

 


Western Watersheds Project v. Dyer, 2009 WL 484438 (D.Idaho)
. The plaintiff, Western Watersheds Project (WWP), is an environmental group that brought this lawsuit to ban livestock grazing in certain areas of the Jarbidge Field Office (1.4 million acres of public land managed by the Bureau of Land Management in Idaho and northern Nevada). WWP alleges that continued grazing destroys what little habitat remains for imperiled species like the sage grouse, pygmy rabbit, and slickspot peppergrass (deemed “sensitive species” by the BLM).  After ten days of evidentiary hearings, the court found that three sensitive species in the JFO are in serious decline and that livestock grazing is an important factor in that decline. However, the court found that a ban on grazing was not required by law at this point since the Court was "confident" in the BLM's ability to modify the 2009 season in accordance with the Court's interpretation of the existing RMP.

 

 


Wildearth Guardians v. Kempthorne, 592 F.Supp.2d 18(D.D.C.,2008)
. In its suit for declaratory and injunctive relief alleging that Defendant-Secretary of the Interior failed to comply with his mandatory duty under ESA to make a preliminary 90-day finding on two ESA listing petitions brought by Plaintiff, Plaintiff moved for leave to amend its Complaint to include a new claim against Defendant stemming from Defendant’s denial of an additional petition. The United States District Court granted Plaintiff’s motion to amend the Complaint to clarify that only a total of 674 species are covered by the two non-emergency petitions, rather than the 681 as stated in the original Complaint, but denied Plaintiff’s motion for leave to supplement its Complaint with a new claim, finding that Defendant’s decision not to issue emergency listings is committed to agency discretion by law.

 

 

 

 

 

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