NEW MEXICO

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The Emerging Field of Animal Law

Animal Law Section, State Bar of New Mexico !!!!"#$%"&'()$*+#,"-!"!#$%$&'!()*(!!!!*!!! Success is never alone

Share yourEarn success one year by mentoring of free CLE a credits.new member.

New members will be sworn in September 25, 2012.

For more information on signing up to receive one year of free CLE credit in exchange for a one-year mentorship, contact Jill Anne Yeagley, [email protected] or (505) 797-6003, or visit http://www.nmbar.org/Attorneys/Mentorship/mentorship.html.

!"#$%&'()&'%*+ ,&-(."/)#+'+".%"*,

(!!"#$%"&'()$*+#,"-!"!:8;!()*( By Helga C. Schimkat nimal law is a growing area of law that many lawyers have brushed up against without even thinking of the matter as “animal law.” AEssentially, animal law is the substantive body and practice of law that a!ects non-human animals (referred to for the sake of simplicity as “animals” for the balance of this article) and the interests of humans with respect to animals. Animal law is similar to "elds of law such as children’s law, wherein many types of law a!ect or relate to a particular grouping of individuals.

#e practice of animal law may involve such diverse areas of law as torts, contracts, criminal, administrative, regulatory, municipal, trusts and estates, property and constitutional. Speci"c examples include prosecuting cruelty cases, defending dog bite cases, drafting a pet trust provision in someone’s estate plan, pursuing a tenant’s rights against a landlord with respect to a pet, and resolving a contract dispute be- tween an adopter and the rescue group from which a pet was adopted.

Animal lawyers are also involved in public policy and may pursue fed- eral and state legislation and local ordinances that a!ect animals, such as wildlife conservation and endangered species laws, dangerous dog statutes, and creating life-long sanctuaries for the country’s captive chimpanzee population. Other animal law lawyers get involved with litigation that a!ects the well-being and rights of animals.

Law regarding animals a!ects many animals and thus also the people who have an interest in the how animals are treated in our society. For W5!( 5 ()05‘5, '-.#' 8)' example: 5R55 15 2#)]-5 ,' ,-5 )1( 5 )0 ,5 g8m5 '#&&#)(5 ,'5 (#'&-5 #(5 for biomedical research. #e report does not list the laboratory- hffm65),#(!5.)5." 5, -/&.-5) 5." 5(#. 5.. -5 *,.' (.5 bred mice and birds that the Institute may have because the federal of Agriculture’s 2007 Census of Agriculture, New Mexico State Animal Welfare Act, which governs most aspects of biomedical and County Data, February 2009 (http://www.agcensus.usda. , - ,"65) -5().5, +/#, 5." '5.)5 5&#-. 85 !)0I/&#.#)(-IhffmC65#(&/#(!5g8m5'#&&#)(5" 5) 5..& 5(5 ghl6fff5-" *85
(#'&-5#(5!,#/&./, 5, 5." 5-/$ .5) 5(/' ,)/-5 (35&13 ,-5(5, &. 5& !&5* ,-)(( &51),%5)(5(#'&5&15#--/ -5 state laws. through various employers. Quite a number of state and local agen- 5R55 (5 hfgg65 ." 5 -.. ]-5 (#'&5 -" &. ,-5 .))%5 #(5 ggn6fff5 .-5 (5 cies are involved on a regular basis in animal law matters. #ey in- dogs and euthanized 55,000 of them due to “shelter overpopu- &/ 65')(!5)." ,-65." 5),5) 5 . ,#(,35 ##( 65." 5
(#'&5 lation,” according to a Feasibility Study: Creating a Fund to Aid " &. ,#(!5),65." 5' 5)''#--#)(65." 5 #0 -.)%5),65." 5 Low-Income Households in Sterilizing, Vaccinating and Spaying  *,.' (.5 ) 5
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..),( 35  ( ,&]-5 Ń 65 (5 &15 or Neutering their Companion Animals65 (/,35 hj65 hfgh65 35 ( ), ' (.5 .5 &&5 & 0 &-A)/,.-65 (#'&5 )(.,)&5 )Ń ,-65 *,)- /- ."#-5/."),5 ),5." 5 15 2#)5
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(#'&K" &. ,#(!K ,0# -8-*2C85 / 5 .)5 ." 5 engage in animal law, as described earlier, as do lawyers with non- -.. ]-5
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.65*-- 5#(5hffm65M5mm7g7g5 .5- +85 pro"t organizations that handle animal issues such as animal shelters,  
5gomn65.")- 5(#'&-51 , 5 /."(#4 5/( ,5." 5-/* ,0#- advocates for animal causes, and business associations for commercial sion of a licensed veterinarian or by a licensed euthanasia techni- interests. cian, which was not necessarily the case in each shelter before that law was enacted. Animal law also makes the papers a lot and provides for heated de- 5R55Ļ 5 )0 & 5  -*#,.),35  - ,"5 (-.#./. 5 #(5
&/+/ ,+/ 5 bate. For example, every year at least a few cases involving severe dog reported in its Annual Report of Research Facility for the USDA’s maulings or killings make the news. In some states or communities, Animal and Plant Health Inspection Service65 )0 ' ,5 gj65 hffn5 those situations led to the passage of “dangerous dog” acts or even (http://www.humanesociety.org/assets/pdfs/animals_laboratories/ , 7-* #ŀ5& !#-&.#)(85 15 2#)5*-- 5." 5(! ,)/-5)!5 /-K, *),.-I( 17' 2#)IhffnK/-K((/&K&)0 & K, - ,"K
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5gomn65(5'), 5."(5)( 5 #(-.#./. 8* C65.".5#.5"5jih5()(7"/'(5*,#'. -65ifm5 ,, .-65 attempt has been made to designate some breeds as automatically gnf5,#.-65gmh5)!-5(5on5!/#( 5*#!-5#(5/- 5),5/( ,5#.-5)(.,)&5 continued on page 5 !!"#$%"&'()$*+#,"-!"!:8;!()*(!4! Protecting Animals Can Make Us a Safer Society: Examining the Link Between Animal Abuse and Human Violence By Laura E. Sanchez

(5 365 /%5))5 !()..51-5,- !e Link , -. 5#(55!,/ -)' 5- 5#(5 ,&#(5)(5 Research supports the notion that healthy chargesI of killing and dismembering, then relationships between humans and ani- eating, his alleged lover. #e incident was mals enhance physical and psychological taped and posted on the Internet, includ- health and teach us how to understand an- #(!5 )).! 5) 5 !()..5 .#(!5(5*)-- other being and how to express compas- g sibly having sex with parts of his victim. -#)(65 '*."365(5(/,./,#(!85/.5 ),5." 5 (35(#'&5.#0#-.-5"5&)(!5-/-* . 5 past several decades, there has also been .".5 !()..51-5(! ,)/-5 . ,5" 5"5 documentation of a link between domestic posted similar videos in the past two years violence, child abuse, elder abuse and ani- 2 showing him killing kittens. As grisly and mal abuse. When domestic violence exists, shocking as this act of violence was, the companion animals are often caught in connection between animal cruelty and the cycle of family violence. Perpetrators -/- +/ (.5"/'(50#)& ( 5#-5",&35( 185 who commit violent acts against their  ,#&5%#&& ,5 Ŀ ,35"' ,5&)0 5.)5#-- partners will often commit animal abuse, sect animals and had a history of impal- including killing, harming, or threaten- 3 ing dogs’ heads, frogs and cats on sticks. ing family pets. Women caught in the  .1 (5gomn5(5goog65"' ,5%#&& 5gm5 cycle of violence will hesitate to leave an males, molesting many of them, dismem- abusive partner because the animals have bering them, and keeping their body parts been threatened with harm. In some cases, in the refrigerator. From police reports, we children will defend or attempt to protect %()15.".5 5/(351-5 ), 5.)51#.- their companion animals by intervening in ness animal cruelty by his grandfather. He domestic disputes, thus placing children in &. ,5 %#&& 5 ii5 1)' (85 0#5  ,%)1#.465 greater danger. Animal abuse in the home the “Son of Sam,” poisoned his mother’s has also been an indicator of potential *,% .5)/.5) 5$ &)/-385 5&. ,5-").5gi5 child abuse, and studies suggest that abus- young men and women, leaving six people ers of the elderly population may correlate dead and at least two with permanent dis- W5#()44)5‘5, '-.#' 8)' with those who also abuse animals. abilities. Ļ 5&#(%5#-5 0# (.85
(#'&5,/ &.35#-5().5$/-.5)/.5." 5(#'&-5#(- While these repugnant tales are the most infamous and may seem volved. Evidence suggests this may be a signal of a deeper and more .))5,, 5.)5-/!! -.55*,)& '5 ),5)/,5)''/(#.365." 5 15 2#)5 violent problem, whether as an act of abuse and control over victims State Police "les are full of many local examples of the connection be- through their cherished pets, or as a red $ag when a young person tween animal abuse and human violence. #e problem is particularly tortures animals and must get help to prevent an escalation to human prevalent in households that su!er from domestic violence. According violence. to the American Humane Association (AHA),45 mg5 * , (.5 ) 5 * .7 owning women entering women’s shelters reported that their batterer What Can We Do About !is Problem? "5.", . ( 65#($/, 5),5%#&& 5 '#&35* .-5 ),5, 0 (! 5),5.)5*-3")- #e AHA explains what advocates can do for battered women with logically control victims, and 32 percent reported their children had pets.55 "(! -5 -5 -#'*& 5 -5 #(!5 +/ -.#)(-5 )/.5 * .-5 (5 ." #,5 hurt or killed animals. Sixty-eight percent of battered women reported 1 & , 5 .)5 -" &. ,5 #(.% 5 +/ -.#)((#, -5 (5 ,#-%5 -- --' (.-5 (5 0#)& ( 5.)1,-5." #,5(#'&-651#."5nm5* , (.5) 5." - 5#(# (.-5)- help bring awareness. Advocates can also work with animal shelters, /,,#(!5#(5." 5*, - ( 5) 5." 51)' (5(5mk5* , (.5#(5." 5*, - ( 5 veterinarians, and rescue groups to establish “safe haven” foster care of the children to psychologically control and coerce them. programs for the animal victims of domestic violence. Some women’s shelters around the country are already building kennels at their facili- Ļ#-5,.#& 5 2'#( -5." 5, -)/, -50#&& 5#(5 15 2#)5.)5,#- 5 ties. Other e!orts include making provisions for pets in safety plan- awareness about this issue, including an upcoming Annual Conference ning strategies, helping clients prove ownership of their animals, and on the Link Between Animal Cruelty and Human Violence. #is confer- helping victims retrieve animals left behind. Additionally, the AHA ence will educate and train representatives from various government says including animals in abuse prevention orders can make a signi"- departments and antiviolence organizations on the cycle of violence cant di!erence. Finally, the AHA recommends establishing commu- in our society impacting both people and animals. #is article also nity coalitions against family violence that include humane societies, reviews state laws that could be changed to permit cross-reporting 
-5B)# .35 ),5." 5, 0 (.#)(5) 5,/ &.35.)5
(#'&-C65(#'&5 ')(!5&15 ( ), ' (.65(#'&5)(.,)&5)Ń ,-65-" &. ,-5(5' (.&5 control agencies, and veterinarians, and using these coalitions to train health and social work professionals. volunteers on how animal abuse cases are investigated and prosecuted and to train the community about domestic violence issues.

mary but also uphold a responsibility to the larger society that may 1#&&5 5" &5!#(5."#-53 ,5)(5 *.85gm5.5." 5" ,.)(5
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85 Airport Hotel. #is conference will bring together concerned pro- “Social workers should promote the general welfare of society… --#)(&-65#(&/#(!5(#'&5)(.,)&5)Ń ,-65(#'&5-" &. ,5-.Ŀ65.- should advocate for living conditions conducive to the ful"llment .),( 3-65)' -.#50#)& ( 51),% ,-65$/0 (#& 5$/-.# 51),% ,-65&15 (- of basic human needs and should promote social, economic, politi- ), ' (.5)Ń#&-65-)#&51),% ,-65(5(3)( 5#(. , -. 5#(5-.)**#(!5 cal, and cultural values and institutions that are compatible with the 0#)& ( 5#(5)/,5-)# .385 -)/, -5, 50#&& 5#(5 15 2#)5.)5)(- , .#)(5) 5-)#&5$/-.# 8_5See /& 5gl8li8gl8gi5
8 tinue educating ourselves and the community about #e Link, but we need more committed citizens to participate. Recently, a story in the Albuquerque Journal described two kittens that were pulled from a dumpster; one was dead and the other had its eyes Cross-Reporting Changes in the Law '.. 5-"/.51#."5*#(.85B
 )/,(&65Kittens in Dumpster; 1 Dead,  ,.#(5*,.-5) 5." 5&15(5*,)0# 5)-.& -5.)5 /&&35& ,.#(!5&15 (- Other’s Eyes Painted Shut65 /( 5gh65hfghC5
50 . ,#(,#(51-" 51"#. 5 ), ' (.5)/.5." 5(! ,-5*)- 5350#)& (.5* ,* .,.),-85/,, (.&365 paint from the surviving kitten’s eyes, revealing swelling and abrasions privacy laws in counseling or social work services prevent reporting on the kitten’s eyelids; the condition of his eyesight remained uncertain of suspected animal abuse. Health care professionals are obligated to .5." 5.#' 5) 5." 5,.#& 85
(#'&5,). .#)(5) 5 15 2#)5)Ŀ , 55 report suspected child abuse, and counselors and therapists are per- $2,500 reward for information leading to the arrest or prosecution of mitted to override con"dentiality rules if the patient’s family is in .")- 5, -*)(-#& 65(5." 5
..),( 35 ( ,&]-5Ń 5/,! 5." 5*/&#5 imminent danger. However, these same professionals are not able to .)5&&5#.-5(#'&5,/ &.35").&#( 5Bnmm7kjn7lhliC85)(.#(/ 5 Ŀ),.-5 report admitted animal abuse, even when it is a sign of other violent like these aimed at the community to report incidents of animal abuse . ( (# -85 ,.#(5"(! -5)/&5 5' 51#."#(5." 5&15.)5* ,'#.5 could very well prevent humans from su!ering a similar fate. ,)--7, *),.#(!5')(!5&15 ( ), ' (.65(#'&5)(.,)&5)Ń ,-65(#- mal shelters, and mental health and social work professionals. ),5'), 5#( ),'.#)(650#-#.5
(#'&5,). .#)(5) 5 15 2#)5Bwww. apnm.org)5),5
(#'&5,). .#)(5). ,-5Bwww.apvnm.org). A few states have already moved forward to try to change the law to help prevent this type of continued animal abuse and, when it is suspected, enable professionals to prevent associated violence against Endnotes "/'(-85 (5hffm65 #( 5' ( 5#.-5&1-5.)5#(&/ 5(#'&5)(.,)&5 5gĻ 5 ()/0 ,5 /(65 /( 5 l65 hfgh95 http://www.vancouversun. )Ń ,-5')(!5.")- 5 1")5 '35 , *),.5 1" (5 ." 35 "0 5 5 , -)(& 5 )'I( 1-I /%‰))‰ !()..‰'% ‰ #,-.‰)/,.‰** ,( ‰ ,& cause to suspect that an incapacitated or dependent adult has been or #(IlmigknlI-.),38".'&8 #-5.5-/-.(.#&5,#-%5) 5/- 65( !& .5),5 2*&)#..#)(85B #( 5 0#- 5 2Ļ 5 )(., &5 4 .. 65 35 ig65 hfgh95 http://www.montrealga- ../. -5#.& 5hh5MijmmC5Ļ.5&151-5&-)5' ( 5.)5* ,'#.5)." ,5 4 .. 8)'I. "()&)!3I ‰%#.. (-‰*),(‰-,3‰#!#.&‰.,#&IlmfjhhoI " &."5, 65-)#&51),%65),5&15 ( ), ' (.5)Ń#&-5.)5, *),.5, -)(- story.html. able suspicion of animal cruelty, abuse or neglect to the local animal 3See http://www.pet-abuse.com/pages/abuse_connection.php and http:// )(.,)&5)Ń ,5),5.)5." 5-.. ]-5(#'&51 & , 5*,)!,'85#'#&,&3655 '#(( -).8*/&#,#)8),!I#-*&3I1 IhfflIfmIflI(#'&%#&& ,-I8 &151-5 (. 5#(5)(( .#/.5&-.53 ,5.".5, +/#, -5(#'&5)(.,)&5 4http://www.americanhumane.org/interaction/support-the- )Ń ,-5 (5 -)#&5 1),% ,-5 1#."5 ." 5 .. 5  *,.' (.5 ) 5 "#&, (5 bond/fact-sheets/animal-abuse-domestic-violence.html. and Families to share information on cases of suspected animal abuse. 5See http://www.americanhumane.org/interaction/support-the-bond/ )1 0 ,65 ." 5 )(( .#/.5 &15 1)(].5 '% 5 (#'&5 )(.,)&5 )Ń ,-5 fact-sheets/animal-abuse-domestic-violence.html. mandated reporters of child abuse, like teachers and doctors. West #,!#(#5(5 &&#()#-5, 5&-)5')(!5." 5-.. -5.".5"0 5"(! 5-.. 5 About the Author &15.)5, +/#, 5,)--7, *),.#(!8 /,585(" 465 8865 88
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Animal Law: What Is It and Why Do We Care? continued from page 3 “dangerous,” which is commonly referred to as breed-speci"c legisla- /,." ,'), 65 .5 & -.5 gjg5 &15 -"))&-5 #(5 (5 (5 ." 5 8865 #(- .#)(5B- 5-# ,65*! 5mC85." ,5(#'&5&15#--/ -5.".5* ,#)#&&35 &/#(!5." 5(#0 ,-#.35) 5 15 2#)5"))&5) 5 165)Ŀ ,5B),5"0 5 '% 5." 5( 1-5#(5 15 2#)5#(&/ 550,# .35) 5"),- 5#--/ -5B 8!865 o!ered) courses in animal law (www.aldf.org). Law students can even 5* ,'#.5, +/ -.5 ),55-&/!". ,")/- 65 !, !#)/-5"),- 5,#(!5#(/-.,35 *,.##*. 5#(5." 5.#)(&5
(#'&5 15)'* .#.#)(-65),!(#4 5 "5 conditions, and starvation and neglect), dog and cock"ghting cases, 3 ,535." 5 (. ,5 ),5
(#'&5 15./# -5.5 1#-5;5&,%5 15 individual animal cruelty cases, trapping on public lands, and the re- "))&85Ļ 5 0 (.5)(-#-.-5) 5." 5 !#-&.#0 5, .#(!5(5 )3#(!5 #(.,)/.#)(5) 5." 5 ((! , 5!,351)& 5#(5-)/." ,(5 15 2#)85 )'* .#.#)(65." 5&)-#(!5
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** &&. 5 )).5)/,.5)'* .#.#)(85#(&&365 1#-5;5&,%5 15"))&51#&&5
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(#'&5 !&5 (- 5/(5B1118& 8),!C65 15 1 &)' 5#.-5ŀ,-.5&--5 ),5(5 8 85#(5(#'&5&15."#-5 &&85 2#)5#-5().5&)( 5#(5"0#(!5(5(#'&5&15- .#)(5),5)''#.. 5 About the Author 1#."#(5#.-5-.. 5,5--)#.#)(85 (5 .65 15 2#)5#-5." 5hj."5-.. 5 Helga C. Schimkat is an activist, writer and lawyer who focuses on animal with such a section (as well as fourteen regional or local sections or and environmental issues in New Mexico. She is a founder and chair of the )''#.. -C850 (5." 5
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(#'&5 15 Animal Law Section of the State Bar of New Mexico, writes a monthly col- )''#.. 85 umn, “Animals Matter,” for !e Santa Fe New Mexican and has an Animal Law 101 column on dogtime.com/cattime.com. !!!!"#$%"&'()$*+#,"-!"!#$%$&'!()*(!!!!=!!! Ļ 5  ]-5 (()/( ' (.5 .)5 , - instate the APF chimps into ac- tive research helped generate mo- mentum to protect chimps from research, such as by the introduc- .#)(5 ) 5 ." 5 , .5
* 5 ,). .#)(5 (5 )-.5 0#(!5
.5 #(5 hfgg65 85 nfg65gghth5)(!, --5BhfggC651"#"5 would ban all invasive research on chimpanzees. In response to 5 )(!, --#)(&5 #(+/#,365 ." 5  5 , +/ -. 5 ." 5 "#!"&37, -* . 5 (-.#./. 5 ) 5 ##( 5 (5 ." 5 .#)(&5 - ,"5)/(#&5.)5)(- duct a collaborative assessment examining the scienti"c necessity of chimpanzees in biomedical and behavioral research.3

#e committee’s report, published

W5),(5.)$%)0#ê5‘5, '-.#' 8)' #(5  ' ,5hfgg65 ),'/&. 5( 15 restrictive criteria for chimpanzee research and found that the cur- By Julia Jarvis rent trend in biomedical research indicates a decreasing need for "#'*(4 -85Ļ 5 5, -*)( 5.)5." 5-./3535(()/(#(!55 (5 /( 5 hfgf65 ." 5 .#)(&5 (-.#./. -5 ) 5  &."5 B C5 .,(-- moratorium on funding new chimp research while it audits all its 4 ,, 5gj5"#'*(4 -5")/- 5.5." 5
&')!),)5,#'. 5#&#.35 currently funded chimpanzee research under the new criteria. #e B
C5.)5." 5)/."1 -.5.#)(&5,#'. 5 - ,"5 (. ,5#(5(5 result of this policy decision places the APF chimps in limbo; for
(.)(#)65 2-65 ),5 /- 5 #(5  *.#.#-5 5 , - ,"8g5Ļ 5  5 ." (5 now, they will not be re-introduced into research in San Antonio. announced its plan to close APF and transfer the remaining 200- plus chimpanzees to the same facility for research. #e announce- #ere are three potential outcomes for APF and its chimps. One, ' (.5,&&# 5*/&#5)$ .#)(85 (35 &.5 15 2#)]-5
#,5), 5 the chimps are retired and APF is converted to sanctuary status. "#'*-651"#"51 , 5ŀ,-.5/- 5-5, - ,"5-/$ .-5#(5." 5-* 5*,)- Two, the chimps are retired and transferred to an out-of-state sanc- gram and later in infectious disease research, had “done their ser- tuary and APF is closed. #ree, the chimps are placed into active 0# _5(5/,! 5 5.)5, .#, 5)Ń#&&35." 5
5"#'*-5/( ,5." 5 , - ,"5(5
5#-5&)- 85Ļ 5 5"-5().5#(#. 51" (5#.51#&&5 "#'*(4 5  &."5 '*,)0 ' (.5 #(. (( 5 (5 ,). .#)(5 make a "nal determination. In the meantime, the chimps remain at
.65jh58885M5hfg5et seq. (2000). APF awaiting their fate.

Ļ 5  ]-5 (()/( ' (.5 1-5 5 -/,*,#- 5  /- 5 '(35 "5 ." 5 Endnotes 5g &- 5#'*, --#)(5.".5&&5) 5 15 2#)]-5 ),' ,5
#,5), 5"#'*-5 Why are there so many chimpanzees in New Mexico? Retrieved "5 (5, .#, 85
5&#..& 5"#-.),35 2*&#(-5." 5)( /-#)(85 (5goom65 35k65hfgh65 ,)'5http://www.apnm.org/campaigns/chimps/time- ." 5
#,5), 5.,(- ,, 5)1( ,-"#*5) 5&')-.5lff5"#'*-5.)5." 5 line.php. 2 )/&-.)(5)/(.#)(5B)/&-.)(C655*,#0. 5, - ,"5 #&#.35&). 5 A summary of the history of the chimpanzees in Alamogordo, NM. in Alamogordo.25 (5hfff65." 5 5.))%5/-.)35) 5hnn5"#'*(-  .,# 0 5 3gh65hfgh65 ,)'5www.savethechimps.org. 3 4 -5 ,)'5 )/&-.)(5  . ,5 - ,#)/-5 (5 , * . 5 0#)&.#)(-5 ) 5 ." 5 5  5B (-.#./. 5) 5 ##( C85hfgg85Chimpanzees in biomedi-
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.65m58885M5hgig5et seq85BgoofC85Ļ 5/,, (.5 cal and behavioral research: Assessing the necessity.5-"#(!.)(6595
5"#'*-5, 5.")- 5.% (5/,#(!5." 5- #4/, 8535hffh65)/&-.)(5 Ļ 5.#)(&5
 '# -5, --8 4  ' 5#(-)&0 (.5(5.,(- ,, 5)1( ,-"#*5) 5#.-5, '#(#(!5hll5 5),'(65 ' -65B 85go65hfggC85^& 0.#)(5) 5." 5"#'*5 "#'*-5.)5()(7*,)ŀ.50 5." 5"#'*-651"#"5 !(55"#!"&37*/- 35 -"* 5 - ,"8_5 .,# 0 5 35h65hfgh65 ,)'5http://www. licized campaign retiring and relocating the chimps to three-acre (3.#' -8)'IhfggIghIhfI-# ( I, )!(#.#)(7) 7"#'*-7-7, &- -(./,35#-&(-5#(5&),#8535." 5 (5) 5-/'' ,5hfgg650 5." 5 tives-may-reshape-research.html?pa "#'*-5"5, &). 5&&5) 5#.-5"#'*-5.)5&),#85Ļ 5*/&#5 #." ,5 forgot about the remaining APF chimps or assumed they were also About the Author , .#, 85  ( 65 1" (5 ." 5  5  !(5 .,(- ,,#(!5 "#'*-65 '(35 /&#5 ,0#-5#-55(.5 5&13 ,65/,, (.&35*/,-/#(!5(5 885#(5*-3- were surprised to learn that federally-owned research chimps still chology. She is a board member of the Animal Law Section of the � 5#(5 15 2#)8 .. 5,5) 5 15 2#)5(5"#,5) 5." 5- .#)(]-5*.#0 5
(#'&5 )''#.. 8

>!!!!!"#$%"&'()$*+#,"-!"!#$%$&'!()*( By Simone M. Seiler

nimals, especially dogs, are a liabil- insurers and insureds as policyholders ity hazard for insurance companies, are unlikely to inform their insurance Aand di!erent companies use di!erent company when they bring home a new approaches for underwriting animal- (#'&65 0 (5 # 5 ." #,5 #(-/, ,5 , +/#, -5 related risks. According to the Insurance such disclosure. Information Institute, dog bite claims accounted for more than one third of all Insurers also avoid insuring “danger- dollars paid out on homeowners insur- ous” dog breeds by writing exclusions ( 5 *)&## -5 #(5 hfgg5 B"..*9II1118###8 into their policies speci"cally excluding org/issues_updates/dog-bite-liability. coverage for those breeds. In these sce- ".'&5B -- 5 35hh65hfghCC85 (-/, ,-5 narios, the extent of insurance coverage *#5)/.5(50 ,! 5) 5qho6iol5* ,5)!5 and the duties of the insured are sub- #. 5&#'5#(5hfgg65.).&#(!5( ,&35qjmo5 stantively raised for the "rst time when million nationwide. Insurers need a an insured makes a dog-related claim. clear understanding of the risk they are #is scenario may be disastrous for the insuring while policyholders need to #(-/, 5(5." 5#($/, 5*,.351" (5." 5 understand that honesty and diligence insurer denies coverage of an incident. in communicating with their insurer is key to coverage should the unthinkable Some insurers avoid covering an indi- happen. vidual dog they have determined to be a *,)& '535, +/#,#(!551#0 ,5) 5#(-/,- Homeowners insurance applications, ance when there is a legal determination which help an insurer evaluate the risks that a dog is dangerous or an individual ." 35 , 5 #(-/,#(!65 ) . (5 #(&/ 5 +/ -- dog has a history of biting. Some insur- tions about the number and breeds of ers issue coverage despite dog-related dogs on a property, fencing, exposure W5 (#&/ 5‘5, '-.#' 8)' risk, using application information to to children and history of behavioral calculate a higher premium for house- problems. Some insurers will not insure a property with more than holds with “dangerous” breeds or large numbers of dogs. While this four dogs, under the assumption that a dangerous “pack mentality” approach is more expensive for the insured at the outset, a dog- ' ,! -85 (35#(-/, ,-5"0 5-#(!& 5)/.5)!5, -5-5*,)( 5.)5 related claim is more likely to be covered. Another option for dog #.#(!5(5/-#(!5- ,#)/-5#($/,385Ļ - 5, -5) . (5#(&/ 5
%#.-65 owners is to purchase separate insurance to cover their dog-related
&-%(5 &'/. -65
' ,#(5.Ŀ),-"#, 5. ,,# ,-65)2 ,-65")15 liability. #e bottom line is that homeowners need to be proactive ")1-65 ) ,'(5 *#(-" ,-65  ,'(5 -" *" ,-65 , .5 ( -65 in discussing all animals in their households and their insurance masti!s, pit bull terriers, Rottweilers, Siberian huskies, and wolf coverage with their insurance agents and reviewing their policies to dogs, and even mixes of the foregoing breeds. identify potential coverage issues.

Some insurers will not write a policy or will cancel/non-renew the About the Author policy of households with dog numbers or breeds they have identi- #')( 5 85 #& ,5#-5(5..),( 35.5/'(65)15;5 ĉ(55#(5 "ed as dangerous. #is hard-line approach is problematic for both
&/+/ ,+/ 8

Breed-speci!c legislation would strictly regulate or ban ownership of dogs based on breed alone. Horri!c dog bite cases in the news periodically result in the introduction of breed-speci!c legislation. The pitbull-type/bully breeds tend to be the targets of such legisla- tion.

The fallout from breed-speci!c legislation has been tragic where it has been enacted. Instead of encouraging adoption, some shelters euthanize dogs of speci!c breeds as well as dogs that re- semble those breeds. Owners of targeted breeds must choose between moving out of the juris- diction, !nding new homes for their dogs outside of the jurisdiction, or deceiving the authorities in hopes that their dogs will not be discovered.

New Mexico has opted to continue to treat dogs as individuals rather than assuming collective guilt based on breed or body type. As a result, New Mexico has passed and amended its danger- ous dog statute, NMSA 1978, § 77-1A-1, et seq., to manage dogs who are prone to bite.

!!!!"#$%"&'()$*+#,"-!"!#$%$&'!()*(!!!!0!!! By Autumn Bergh While the AWA could be amended to include farmed animals, this would likely do little to improve the welfare of farmed animals and other ef- fects of IFAP facilities. #e 
65 1"#"5 ( ), -5 ." 5 AWA, historically has been lax in its enforcement, and this has interfered with states’ abilities to enforce their own anti-cruelty laws. #is is likely due to lack of resources and lack of interest in enforcing the AWA. However, even amending federal or state laws to include farmed animals 1)/&5  5 #(-/Ń# (.5 )(-# ,- ing that there is currently no agreed-upon de"nition of ani- mal cruelty. #is is particularly important for farmed animals since so many state anti-cruelty laws exempt customary hus- bandry practices that can be very

W5, ((5)(!5‘5, '-.#' 8)' painful for the animals.

he current overarching system of food animal production in (5 ." 5 golf-65 ." 5 ,' &&5 )''#.. 5  *),.5  ŀ( 5 (#'&5 ." 5 (#. 5 .. -5 (5  5 & & 5 -5^#(/-.,#&5 ,'5 (#'&5 welfare as including physical and mental well-being. #e commit- production”T (IFAP). #is system is a monoculture animal farming tee included veterinarians, animal scientists, and biologists in the #(/-.,35  0 &)* 5 ),5 ." 5 */,*)- -5 ) 5 Ń# (35 (5 3# &5 .".5 8 85 (5 ." 5 gomf-65 (5 #( * ( (.5 0#-),35 )35 -.&#-" 5 35 “encompasses all aspects of breeding, feeding, raising, and pro- ." 5,#.#-"5!)0 ,(' (.5)*. 5 ,.#(5(#'&51 & , 5*,#(#*& -5 cessing animals or their products for human consumption.”g #e it called the “Five Freedoms”— Freedom from Hunger and #irst; Environmental Protection Agency categorizes these industrialized , )'5 ,)'5#-)' ),.:5, )'5 ,)'5#(65 ($/,365),5#- - :5 , )'5 .)5 2*, --5 ),'&5  "0#),:5 (5 , )'5 ,)'5  ,5 (#'&5 ,'-5-5
-5B)( (.,. 5(#'&5 #(!5)* ,.#)(-C l or AFOs (animal feeding operations) for purposes of regulation.2 (5#-., --8 #ese principles became the basis for guidelines and codes of practice for various organizations around the world. #ere is currently no federal regulation of the day-to-day lives of the animals raised in the IFAP system to ensure that they are raised While the Five Freedoms may provide a helpful basis for the cre- humanely, and the federal Animal Welfare Act (AWA) categori- .#)(5) 5  ,&5& !#-&.#)(5*,). .#(!5 ,' 5(#'&-5#(5." 58865 cally excludes farmed animals.3 Some industries or companies have further guidance can be provided by laws in other countries. #e adopted their own standards, which are generally voluntary and European Convention for the Protection of Animals Kept for Farming monitored and enforced by the industry or company itself. #ere Purposes animal welfare law has speci"c provisions in each article has also been an increase in third-party certi"cation of humane that are meant to address the concerns of IFAP-type practices. For practices, which entails bringing in an independent party to verify 2'*& 65
,.#& 5i5, +/#, -5.".95 that certain animal welfare practices are being followed. #is earns the processor a label that lets customers know that the processor Animals shall be housed and provided with food, water and ' .-5." 5-.(,-5.".5"0 5 (5- .535." 5."#,5*,.385 3)(5 care in a manner which—having regard to their species and this, states and local governments may introduce their own regula- to their degree of development, adaptation and domestica- tions. It is general practice, however, that state animal anti-cruelty tion—is appropriate to their physiological and ethological laws either expressly exempt farmed animals from such laws or pro- needs in accordance with established experience and scien- vide exceptions for routine husbandry practices, such as the use of ti"c knowledge. battery cages for hens or gestation crates for sows, which it can be argued generally amounts to the same thing as an express exemp- Ļ#-5, +/#, -5.".5(#'&-5 5*,)0# 5().5$/-.5-/-#-. ( 5& 0 &-5 tion.4 #is control of standards by industry and lack of signi"cant of food and shelter, but with an environment that is scienti"cally  ,&5(5-.. 5& !#-&.#)(5#-5*,.#/&,&35.,)/&#(!5-#( 5on5* ,- shown to be appropriate for their natural behaviors. #e Swiss  (.5) 5&&5(#'&-5.".5"/'(-5#(. ,.51#."5#(5." 5885, 5 ,' 5 Animal Protection Ordinance has similar provisions, including 5 animals. continued on page 10

?!!!!!"#$%"&'()$*+#,"-!"!#$%$&'!()*( By Yolanda Eisenstein

)'*(#)(5(#'&-5, 5(5#(. !,&5*,.5) 5)/,5� -85)!-5 are trained to protect us and warn us of danger; they !/#  5 ." 5 &#(5 (5 ,#(!5 " ,5 .)5 ." 5 -#%85)5 &')-.5 mi5 million homes throughout the country, animals give uncon- ditional love and companionship.g So when a beloved com- panion is killed unnecessarily through the negligence of a shelter worker or veterinarian, what monetary value should  5*& 5)(5.".5)!>5Ļ.5#-5." 5+/ -.#)(5 5-% 5(35 Turner, Fort Worth attorney and longtime animal advocate. His recent landmark case, Medlen v. Strickland,2 has reverber- ated throughout the animal community.

So what happened? "#& 5." 5 & (5'#&351-51365
0 ,365." #,5'#2 5, 5 dog, escaped from their home. When they returned, Jeremy & (51 (.5.)5),.5),."5
(#'&5 ,0# -5(5 )/(5.".5 ." 35"5*#% 5/*5
0 ,385Ļ 5-" &. ,51(. 5qnf5 ),5),- #(!5(5)." ,5- ,0# -651"#"5 & (5#5().5"0 51#."5"#'85 When he returned the next day, they told him that Avery had to be microchipped and that the veterinarian was not there. A -" &. ,5 '*&)3 5--/, 5 & (5.".55-#!(51)/&5 5*& 5 on Avery’s crate indicating that he had an owner and was ().5.)5 5 /."(#4 85*)(5, ./,(#(!51#."5." #,5"#&, (65." 5 & (-51 , 5#( ),' 5.".5
0 ,35"5 (5 /."(#4 5." 5 W5.3(5&-%#%"5‘5, '-.#' 8)' day before. liability where property is destroyed unless it involved the use of a motor vehicle.l5)5 5#5(5)* (5, ),-5.5, +/ -.5.)5#-)0 ,51")5 What laws control in this case? ./&&35 /."(#4 5
0 ,385Ļ 5 #.35 , /- 5 '35 , +/ -.5 (5 0 (5 Animals are legally property. #ere is no statutory law in Texas on asked the attorney general for an opinion, which was decided in my damages speci"cally related to the wrongful death of companion favor. In the interim, I "led suit against the manager of the shel- animals, so the measure of damages is controlled by Heiligmann v. 3 ter, claiming negligent implementation of policies and procedures. Rose, 55- 5 ,)'5gnog85Ļ 5Heiligmann court stated that the value Eventually, after several motions to dismiss and appeals, I "led suit of a dog “may either be market value, if the dog has any, or some !#(-.5 ,&5 .,#%&(65 ." 5 (#'&5 )(.,)&5 )Ń ,5 1")5 ./&&35 special or pecuniary value to the owner, that may be ascertained by 4 euthanized Avery. reference to the usefulness and services of the dog.” Other states have similar cases. In Wilcox v. Butt’s Drug Stores, Inc., the Supreme !e trial court dismissed your case, so it was the appeals court that issued )/,.5) 5 15 2#)5-* #ŀ&&35-.. 5.".5- (.#' (.&5'! -5 the opinion you were hoping for? 1 , 5().50#&& 5/.5),,)1 5&(!/! 5 ,)'5." 5/*, ' 5)/,.5  -65 5"0 5 (5.,3#(!5.)5,#(!55- 5&#% 5."#-5)( 5/*5)(5** &5 of Oregon in "nding that “the owner of a dog wrongfully killed for years. I knew that my legal argument was valid, but more im- is not circumscribed in his proof to its market value, for, if it has *),.(.&35.".5#.51-5." 5,#!".5."#(!5.)5)85)(.,,35.)51".5-)' 5 no market value, he may prove its special value to him by showing 5 people have heard, the court did not overrule Heiligmann; the court #.-5 +/&#.# -65 ",. ,#-.#-65 (5 * #!, 85 85 85 8_ #e Texas courts found that the opinion never stated that the only measure of dam- have interpreted Heiligmann to mean that the measure of damages ages was market value. #e court also found that Heiligmann should is purely market value. However, nothing in Heiligmann speci"- be interpreted in light of recent court cases, which have held that cally rules out sentimental damages and there have been a num- certain property, such as trees, may have sentimental value. If trees ber of property cases since then that support it. For example, you can have sentimental value, why shouldn’t our companion animals? can receive sentimental damages for a photograph, so you could be awarded sentimental damages for a photograph of your dog, but !is case drawn the attention of the American Kennel Club and received not for your dog. coverage from as far away as Australia and South Africa. Why has it generated such attention? We are all aware of the immunity issue in suits against government Legally, lawyers are interested because it’s not an outlandish award agencies. How did that play into this case? - 5)(55 /&.5$/!' (.5),5 /&.35& !&5, -)(#(!85 .]-550&#65 #e procedural issues in this case have gotten very complicated. 1 &&7, -)( 5- 5- 5)(5-)&#5& !&5 0# ( 85 /- 5) 5.".65 -#&&365 5%( 15.".5 51-5*,)"##. 5 ,)'5-/#(!5." 5#.35/( ,5 animal-related organizations and businesses have taken notice. ." 5 2-5),.5&#'-5
.651"#"5-3-5.".5#.# -5, 5#''/( 5 ,)'5 continued on next page !!!!"#$%"&'()$*+#,"-!"!#$%$&'!()*(!!!!@!!! !e American Veterinary Medical .% 5/*5." 5#--/ 5) 5'! -5#(5hfgi5 Association and various animal servic- or later. es and product providers have come out strongly against the case. What is their Endnotes argument? 5g American Pet Prod. Ass’n, Primarily their position is based on Industry Statistics and Trends Bhfgg7 public policy arguments. #eir briefs ghC65 "..*9II1118' ,#(* .*,)- argue that the possibility of senti- ucts.org/press_industrytrends.asp. mental damages will result in in- 2 Medlen v. Strickland, (353 creased costs of veterinary care and 88i5kml5B 285
**8A),.5),."5 other services.m hfgg65* .85#& C8 3 Heiligmann v. Rose65ng5 285hhh65 Are they right? gl5885oig5B 285gnogC8 First of all, I believe it’s the legisla- 4 Id85.5hhl8 ture’s responsibility to address public 5 Wilcox v. Butt’s Drug Store, Inc., policy, not the courts’. Second, even in5 8 85 kfh65 ik5 8h5 omn5 BgoikC5 if their prediction is correct, it is not B+/).#(!5McCallister v. Sapping"eld, clear whether that is even a valid ar- mh5,85jhh65gjj585jih65jij5BgogjCC8 !/' (.85 (5 &# ),(#65 ,)*)-#.#)(5 l őŤ85ŕŢ85Şōŏ85ŧ5őř85śŐő5
ŚŚ. 2, which mandated more humane M5gfg8fhg5BgCB
C5B ,()(5gonlC8 standards for farm animals, passed 5m For the case history and 35 li5 * , (.5 ) 5 ." 5 0). 5  -*#. 5 briefs, go to http://www.supreme. the knowledge that the price of eggs )/,.-8-.. 8.28/-I)*#(#)(-I- 8 would increase. Also, the cost of vet- -*>#&#(! Žiihhf8 erinary care has increased signi"- 5n See5 ",#-.)*" ,5 , (65 !e cantly, based in part on the value we, Future of Veterinary Malpractice as guardians, place on our animals.n I Liability in the Care of Companion expect the cost of veterinary care and W5 .,# 5, 0 5‘5, '-.#' 8)' Animals65 gf5
(#'&5 gli5 BhffjC everything else to go up regardless (presents an analysis of veterinary of the outcome of this case. #e law malpractice and costs). must keep pace with the way society values its companion animals, 9 Industry Trends65-/*,65(). 5g8 1"#"5#-5 0# ( 535." 5 .5.".5 0 (5#(5#Ń/&.5 )()'#5.#' -5 owners spent over $50 billion on food, veterinary care, grooming, About the Author ),#(!65(5)." ,5*,)/.-5(5- ,0# -5#(5hfgg89 )&(5#- (-. #(5#-5(5..),( 351#."5(5(#'&5&15*,.# 5#(5 &&-65 2-85" 5#-5(5$/(.5*,) --),5#(5(#'&5&15.5 5 So what’s next?  '(5"))&5) 5 185" 5#-5"#,7 & .5) 5." 5
' ,#(5,5 Ļ 5/*, ' 5)/,.5) 5 2-5#-5.%#(!5,# -5,#!".5()165(5 5 2* .5
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(#'&5 15)''#.. 5(5*, -# (.7 & .5) 5 that regardless of the court’s decision, the Texas Legislature will ." 5 2-5/'( 5 !#-&.#)(5 .1),%85

Industrial Farm Animal Production continued from page 8 Endnotes 5g 15 )''](5 )(5 (/-85 ,'5
(#'&5 ,)865 Ļ 5  15 -* #ŀ5, +/#, ' (.-5 ),5 ,.#(5(#'&-85),5 2'*& 65." 5- - ",#.& 5 ,/-.-5 (5 )"(5 )*%#(-5 &))' ,!5 "865 /..#(!5 tion for pigs provides that “Pigs shall be allowed ample rooting .5)(5." 5& 95 (/-.,#&5,'5
(#'&5,)/.#)(5#(5
' ,#8 time with straw, roughage, or other suitable material.” #ese ex- 2What is a CAFO?65885(0.&85,).85
! (365http://www.epa. amples provide a helpful framework to study alongside the Five !)0I, !#)(mI1. ,I )I#( 28".'5B -.5/*. 5)085hg65hfggC85 , )'-51" (5)(-# ,#(!5( 15& !#-&.#)(5#(5." 5885 3 #&#5 ---7&/(#(65Why Manure May Be the Farm Animal Advocate’s Best Friend: Using Environmental Statutes to Access Factory Farmed animals are the single largest group of animals with whom Farms65h5 85
(#'&5 85;5."#-5gmi65gmi5BhffmC8 "/'(-5#(5." 5885#(. ,.653 .5." 35"0 5()5  ,&51 & , 5*,). - 4 5
((5#&&65Combating Animal Cruelty With Environmental tions. State anti-cruelty protections vary and exemptions generally Law Tactics, 4 85
(#'&5 85go65hj5BhffnC:5Id865.5gmj8 preclude those anti-cruelty protections from applying to farmed 55 ---7&/(#(65supra65.5gmi8 (#'&-85, .#(!5  ,&5& !#-&.#)(5.".5 -.&#-" -55-#(!& 5 ŀ(#- tion of animal cruelty and which is in line with other countries’ ani- About the Author mal welfare laws is a necessary step to protecting farmed animals.
/./'(5  ,!"5 #-5 /,, (.&35 .. (#(!5 ." 5 (#0 ,-#.35 ) 5  15 2#)5"))&5) 5 185  ,5*,#',35#(. , -.-5, 5#(5 (#'&5&165 environmental law, and health law.

Articles printed in this publication are solely the opinion of the authors. Publication of any article in the New Mexico Lawyer is not deemed to be an endorsement by the State Bar of New Mexico or the Board of Bar Commissioners of the views expressed therein. The New Mexico Lawyer’s purpose is to provide an educational resource for all members of the State Bar on matters related to the justice system, the regulation of the legal profession and the improvement of the quality of legal services.

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