U.S. Supreme Court Decides Dusky Gopher Frog Case

By John M. Simpson.

On November 27, 2018, the U.S. Supreme Court issued its decision in a closely watched Endangered Species Act (ESA) case involving the U.S. Fish & Wildlife Service’s (FWS’s) designation of “critical habitat” for an endangered species known as the “dusky gopher frog” (Rana sevosa).  Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. ___, No. 17-71 (Nov. 27, 2018). The Court reversed the Fifth Circuit’s decision which had upheld the FWS designation. Continue reading “U.S. Supreme Court Decides Dusky Gopher Frog Case”

New York Court of Appeals Tosses Kaporos Animal Cruelty Case

by John M. Simpson

On November 14, 2018, the New York Court of Appeals affirmed the dismissal of a mandamus petition seeking to enforce certain state animal cruelty laws against the practice of Kaporos.  The Alliance to End Chickens as Kaporos, et al. v. New York City Police Dep’t, et al., No. 126 (N.Y. Nov. 14, 2018).   The Court of Appeals ruled that the “extraordinary remedy” of mandamus was not available because “[e]nforcement of the laws cited by plaintiffs would involve some exercise of discretion …” and plaintiffs “do not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome.”  Id., slip. op. 2, 3 (citations omitted). Continue reading “New York Court of Appeals Tosses Kaporos Animal Cruelty Case”

Voters Approve Two Key Animal-Related Ballot Initiatives

By John M. Simpson.

Two animal-law-related measures of note were passed during the recent mid-term elections.

Proposition 12.  In California, voters approved Proposition 12 which establishes new standards for the confinement of certain farm animals.  The measure sets new minimum requirements for farmers as to space for egg-laying hens and calves raised for veal (to be adopted by 2020) and for breeding pigs (to be adopted by 2022).  The standards apply, not only to eggs, pork and veal produced in California but also to such products imported into the state and produced elsewhere. Continue reading “Voters Approve Two Key Animal-Related Ballot Initiatives”

“Animal Rights Extremism” Targeted in Trump Administration Counterterrorism Strategy

by John M. Simpson

Somewhat lost in the din of current news reporting on the Supreme Court appointment controversy,  was the release of the Trump administration’s National Strategy for Counterterrorism of the United States (Strategy) on October 4.  That document makes specific reference to “animal rights extremism” as a “persistent” domestic security threat.  Continue reading ““Animal Rights Extremism” Targeted in Trump Administration Counterterrorism Strategy”

Seventh Circuit Rejects Horseback-Riding Injury Claims on Equine Immunity Grounds

by John M. Simpson.

The U.S. Court of Appeals for the Seventh Circuit recently decided two consolidated appeals affirming the rejection of personal injury claims by two individuals injured while riding horseback in Wisconsin.  Both plaintiff’s claims were barred by the Wisconsin “equine immunity” statute.  Wis. Stat. § 895.481(2).  Dilley v. Holiday Acres Properties, Inc., Nos. 17-2485 & 17-2970 (7th Cir. Sept. 25, 2018).

In the first case, the plaintiff (Dilley) had been injured during a trail ride when the horse Dilley was riding interacted with another horse, reared and threw her.   Dilley, an adult in her sixties, had no horseback-riding experience and had been provided by the trail company with its most docile horse, an animal that it usually made available to children.   Affirming the summary judgment issued against Dilley by the court below, the Seventh Circuit held that Dilley’s personal injury claims fell squarely within the scope of Wisconsin’s equine immunity statute, which broadly immunizes from civil liability a person’s

“acts or omissions related to his or her participation in equine activities if a person participating in the equine activity is injured or killed as the result of an inherent risk of equine activities.”

Wis. Stat. § 895.481(2).   While Dilley argued that the defendant’s alleged negligence was avoidable and therefore not an inherent risk of horseback riding, the court disagreed:  “the statute’s enumeration of immunized risks includes the ‘potential for a person participating in an equine activity to act in a negligent manner.'”  Slip op. at 7.

Nor was the court persuaded that any of the statutory exceptions to equine immunity applied:

♦     While immunity does not apply where the provider of the horse fails to make “a reasonable effort” to determine the ability of the rider to safely ride or to safely manage the horse provided, Wis. Stat. § 895.481(3)(b), there was no dispute “that [defendants] asked Dilley about her experience, learned that she had none, and accordingly paired her with Blue, the most docile horse in their stable and the one usually assigned to small children.”  Slip op. at 10.

♦     While immunity does not cover a “willful or wanton” disregard for personal safety, Wis. Stat. § 895.481(3)(d), “[n]othing in the record supports a finding that [defendants] were aware (or should have been aware) of a ‘strong probability’ that Dilley would be harmed.”  Slip op. at 12.

♦     While immunity does not apply when the injury stems from equipment or tack that the operator who provided it knew or should have known was faulty, Wis. Stat. § 895.481(3)(a), Dilley’s only complaint was that “no one adjusted her stirrups,” not that “her stirrups — or any other equipment or tack — were defective in any way.”  Slip op. at 12.

In the second case, the plaintiff (Brown), whose case was dismissed on the pleadings, was injured in a collision with another horse during a riding lesson conducted by the defendant stable owner.  Brown brought her own horse and rode him during the lesson.   Brown argued that her case fit with in the section 895.481(3)(b) immunity exception for a defendant’s failure to safely manage the horse provided because the defendant had control over the other horse that had caused the collision.  The court rejected this argument because the defendant did not provide plaintiff with a horse:  “A horseback-riding student who brings his own horse for a lesson supplies the horse; the instructor does not.”  Slip op. at 13.  Brown in fact “pleaded herself out of the exception” by affirmatively pleading in her complaint that she “provided her own horse to be used in the private lesson.”  Id.

Florida Supreme Court Gives Green Light to Greyhound Ballot Initiative

by John M. Simpson.

On September 7, 2018, the Supreme Court of Florida reversed a lower court decision that had enjoined, from inclusion on the November 2018 Florida ballot, a proposed amendment to the Florida Constitution on the ground that the ballot language was clearly and conclusively defective.  Department of State v. Florida Greyhound Ass’n, Inc., No. SC18-1287 (Fla. Sept. 7, 2018).  The measure — Amendment 13 — would, if adopted, prohibit commercial dog racing in Florida by gaming or pari-mutuel operations in Florida and would prohibit wagering on dog races within Florida.   The Supreme Court ordered “that Amendment 13 appear on the ballot for the November 2018 general election” and ordered that “[n]o motion for rehearing will be allowed.”  Slip op. at 21. Continue reading “Florida Supreme Court Gives Green Light to Greyhound Ballot Initiative”

APHIS to Involve Attending Vets Directly in Inspections

by John M. Simpson.

In a recent letter and an accompanying video directed at veterinarians, the Deputy Administrator for Animal Care of the USDA Animal and Plant Health and Inspection Service (APHIS), Bernadette Juarez, described a new initiative that will involve attending veterinarians more directly in APHIS inspections of persons and entities licensed under the Animal Welfare Act. Continue reading “APHIS to Involve Attending Vets Directly in Inspections”

Endangered Species Act Case Founders on Lack of 60-Day Notice

By John M. Simpson

A federal district court in New Hampshire recently dismissed a citizen suit making novel claims under the Endangered Species Act (ESA) because the plaintiff could not prove that he had provided the required 60-day notice to the defendants prior to suit.  Strahan v. Nielsen, 2018 WL 3966318 (D.N.H. Aug. 17, 2018).  Continue reading “Endangered Species Act Case Founders on Lack of 60-Day Notice”