AN OVERVIEW OF LAWS IMPACTING ANIMALS IN WEST VIRGINIA

For Defense Trial Counsel of West Virginia Annual Meeting 2018 By Karen Kahle Steptoe & Johnson PLLC Wheeling WV

The human spirit is not dead. It lives on in secret.... It has come to believe that compassion, in which all ethics must take root, can only attain its full breadth and depth if it embraces all living creatures and does not limit itself to mankind. ~Albert Schweitzer, Novel Peace Prize address, "The Problem of Peace in the World Today"

INTRODUCTION

The constellation of laws impacting animals is broad. It typically reflects the moral and ethical fabric of the time and the jurisdiction to which it applies. The primary focus of this article is to provide a broad, surface-level overview of the laws impacting animals in West Virginia, beginning with a brief history of such law in general. This article does not include a discussion of tort claims for damages arising from injury or death to animals.

British barrister Jeremy Bentham is credited as the driving force behind the birth of animal laws. A footnote in his pioneering piece, Introduction to the Principles of Morals and Legislation (1780), became the rallying cry for those who sought legal protection for animals: “The question is not, Can they reason?, nor, Can they talk? But Can they suffer?”1 Alleviation of physical suffering remains the driving force behind modern animal laws, although a growing number of advocates would expand this to include alleviation of mental suffering.

The first British law was enacted by Parliament in 1822 and prohibited cruel treatment of certain farm animals, subject to monetary fines and imprisonment.2 In 1824, the Royal Society for the Protection of Animals (RSPA) was formed in London.3

STATE ANTI-CRUELTY LAWS IN THE U.S.

Inspired in part by the RSPA, New Yorker Henry Bergh founded the American Society for the Prevention of Cruelty to Animals (ASPCA) in 1866.4 Because of his social and political connections, Bergh was able to influence the New York legislature to amend an antiquated 1829 animal law to become the first anti-cruelty law in the United States with some ‘teeth.’5 Through Bergh’s continuing efforts, this law was expanded even further by 1867. Among other things, it

1 Favre, David (2002). Overview of Historical Animal Law Materials. Retrieved from https://www.animallaw.info/article/overview-historical-materials 2 Id. 3 Royal Society for the Prevention of Cruelty to Animals (n.d.). Our history. Retrieved from https://www.rspca.org.uk/whatwedo/whoweare/history 4 American Society for the Prevention of Cruelty to Animals (n.d.). History of the ASPCA. Retrieved from https://www.aspca.org/about-us/history-of-the-aspca 5 Id. provided anti-cruelty protections to “any living creature,” it outlawed animal fighting, and it required provision of sufficient food and water for ‘impounded’ animals.6

During the following years, other states began enacting similar laws.7 Of note is that the first animal protection law applicable to what is now West Virginia was actually passed by the Virginia legislature almost two decades earlier - in 1849. Section 14 of the chapter titled Offences Against Morality and Decency provided that “[i]f a free person cruelly beat or torture any horse, or other beast, whether his own or that of another, he shall be fined not exceeding fifty dollars.”8

On December 22, 1875, the West Virginia Legislature enacted AN ACT to prevent cruelty to animals. Similar to the new anti-cruelty laws springing up in other states, this one deemed cruelty to animals a misdemeanor, made failure to supply impounded or confined animals with water and food a misdemeanor, and provided immunity (“it shall be lawful”) for any person to enter into any pound or yard to supply food and water to impounded or confined animals.9

By 1907, every state had anti-cruelty laws.10 By 2014, every state had deemed certain anti-cruelty violations as felonies.11

FEDERAL LEGISLATION OVERVIEW

Although industrial animal (factory) farming began in the mid-1920s and really took off in the 1940s (as vitamins A and D and antibiotics were discovered and soon added to farm animal feed), it was not until 1958 when the Humane Methods of Slaughter Act was first enacted. In essence, it required packers selling to the U.S. government to anesthetize or stun animals prior to slaughter.12

In 1966 both the Laboratory Animal Welfare Act (AWA) and the Endangered Species Preservation Act were enacted.13 The AWA set minimum standards for care and housing of dogs, cats, primates, rabbits, hamsters and guinea pigs on the premises of dealers and laboratories. Although the AWA has been amended over the years to include all warm-blooded animals, unbelievably, rats, mice and birds are specifically excluded from the definition of

6 Favre, David & Tsang, Vivien (1993). The Development of the Anti-Cruelty Laws During the 1800’s. 1993 Det. C.L. Rev. 1. Retrieved from https://www.animallaw.info/article/development-anti-cruelty-laws-during-1800s 7 Id. 8 Va. Code Ch. 196, Section 14 (1849). 9 W. Va. Code Ch. LXXIV, Sections 1-7 (1875). 10 Finsen, Lawrence & Finsen, Susan (1994). The Animal Rights Movement in America: From Compassion to Respect. Twayne Publishers. Citation retrieved from https://en.wikipedia.org/wiki/Timeline_of_animal_welfare_and_rights_in_the_United_States 11 The National Humane Education Society (2014). Felony Animal Cruelty Laws in All 50 States. Retrieved from https://nhes.wordpress.com/2014/03/ 12 Wikipedia (n.d.). Timeline of animal welfare and rights in the United States. Retrieved from https://en.wikipedia.org/wiki/Timeline_of_animal_welfare_and_rights_in_the_United_States 13 Id. animals!14 This void means that 95% of laboratory research animals have no protections whatsoever.15 In addition, the U.S.D.A. has been sharply criticized for under-enforcement of the AWA as well as the Humane Slaughter Act, over which it also has enforcement authority. Finally, the West Virginia law criminalizing cruelty to animals specifically exempts humane use of animals and activities regulated under the AWA.16

Numerous other pieces of federal legislation have been enacted and/or amended since the 1970s but will not be mentioned here as they are do not have significant impact in West Virginia. Largely as a result of frustration with laxity of federal and state laws and their enforcement, entities such as the Animal Legal Defense Fund (ALDF) have formed since the late 1970s, advocating for stronger laws and better enforcement of those in existence, and aiding and supporting criminal prosecutions for acts of cruelty against animals.17

WEST VIRGINIA STATE LAW OVERVIEW

West Virginia Code applicable to animals is spread among various chapters and includes laws pertinent to the following: hunting and fishing; livestock (protection from companion animals as well as laws pertaining to slaughter); companion animal anti-cruelty and responsibilities; and remedies for vicious companion animals. The Code also creates and describes the duties of humane officers and dog wardens, and sets out other agencies and groups with enforcement responsibilities.

The first part of this article provides a categorical discussion of the issues addressed in West Virginia Code impacting animals, while the second part of the article provides a quick reference to the pertinent Code sections.

ANIMAL LAWS BY GENERAL CATEGORIES

LIVESTOCK

West Virginia Code provides protections to livestock and even stronger protections to its owners. Some of these laws come at a high cost to dogs, as well.

As a general principle, an owner or keeper of any dog permitted to run at large is strictly liable for any damages inflicted by the dog upon the person or property of another. The Code provides details on how to determine and recover damages when livestock is the type of property damaged. Moreover, a dog seen “chasing, worrying, wounding or killing” livestock may be

14 Animal Welfare Institute (2018). Rats, Mice & Birds. Retrieved from https://awionline.org/content/rats-mice- birds 15 Id. 16 W. Va. Code Section 61-8-19(f). 17 Miller, Greg (2011). The Rise of Animal Law. 1 April 2011, Vol. 332 Science. Retrieved from https://www.sciencemag.org killed; to that end, a landowner may at any time carry an uncased gun on his or her property while caring for his/her livestock.18

The Code section criminalizing cruelty to animals exempts lawful acts of livestock, poultry, gaming fowl, wildlife or game farm management.19

It constitutes a misdemeanor to harbor a dog known to have worried, chased or killed livestock; not only that, but Code provides that the owner or keeper of a dog known to have worried, wounded, chased or killed livestock SHALL kill or have the dog killed within 48 hours of receiving reliable notice of the dog’s activities.20 If a bear damages livestock, a complaint may be lodged with the Department of Natural Resources, and a DNR police officer may capture and destroy the bear.21 Further, there is a Bear Damages Fund22 from which livestock (and other) damages caused by bear may be recovered.

Code provides that humane techniques (defined as rendering insensible to pain by single blow, gunshot, electrical or chemical means; by following certain ritual requirements of Jewish or other faith; or by following methods approved by USDA) must be used in commercial slaughterhouses.23 Violation of the law is a misdemeanor.24 It would be interesting to see whether any violations have ever been charged let alone resulted in convictions.

HUNTING

The Code provides twenty seven enumerated descriptions of ‘unlawful methods of hunting and fishing and other unlawful acts,’ only a few of which appear designed to protect wildlife from unnecessary suffering. For example, you may not hunt, catch, etc. a wild animal by use of a ferret; arrows used for hunting must have at least two sharp cutting edges measuring more than ¾ of an inch; and poisoned arrows or those with explosive heads or shafts may not be used for hunting. The vast majority of ‘unlawful methods’ appear to promote safety of others (such as, may not hunt from a plane or automobile; may not use dynamite or poison in the water to catch fish; may not have both a gun and a bow & arrow in the woods at the same time). Still others appear directed to promote ‘fairness’ with other hunters (such as, you may not take any beaver or muskrat by means except trapping).25

The Division of Natural Resources has established trapping rules, many of which pertain to public convenience and safety, although certain types of restricted and/or prohibited traps and trapping methods seem to be at least partially (but not much) to decrease wildlife suffering:

18 W. Va. Code Section 20-2-6. 19 W. Va. Code Section 61-8-19(f). 20 W. Va. Code Section 19-20-18. 21 W. Va. Code Section 20-2-22a. 22 W. Va. Code Section 20-2-44b. 23 W. Va. Code Section 19-2E-5. 24 W. Va. Code Section 19-2E-6. 25 W. Va. Code Section 20-2-5. deadfalls (a heavy log or rock balanced precariously by an easily tripped trigger) are prohibited; foothold traps with a jaw spread of greater than 6 ½ inches may only be used underwater; body- gripping or killer-type traps with a jaw spread of more than 5 inches may only be used underwater; spring pole snares are prohibited; steel jaw traps with teeth are prohibited; snares must be made of multiple strand twisted steel cable; snares may not be used to take coyotes or furbearing animals.26

The Code section criminalizing cruelty to animals exempts lawful acts of hunting, fishing and trapping.27

Bald or American eagles, as well as golden eagles, are absolutely protected under West Virginia law.28

There is Code which provides some humane hunting parameters for bears. Crossbows, poisons, explosives, snares, steel traps or deadfalls may not be used to kill bears. Bears weighing less than 75 pounds, bear cubs and bears accompanied by cubs may not be killed.29

ANIMAL FIGHTING

Running an animal fighting venture is prohibited subject to criminal penalties. Depending upon the types of animals involved, it may be punishable as either a misdemeanor or a felony.30 Similarly, it is a misdemeanor to attend an animal fighting venture.31

COMPANION ANIMAL PROTECTIONS

Theft of a Companion Animal

It is a misdemeanor to recklessly or intentionally injure or kill a companion animal, and the owner has a right of action against one who does so.32 However, the law provides an exemption when a dog is killed while attacking a person, companion animal or livestock.33 It is a misdemeanor to steal a companion animal, but the thief of a dog may only be prosecuted if the dog is properly registered and assessed by the county as personal property.34

26 W. Va. CSR 58-53-3. 27 W. Va. Code Section 61-8-19(f). 28 W. Va. Code Section 20-2-5c. 29 W. Va. Code Section 20-2-22a. 30 W. Va. Code Section 61-8-19a. 31 W. Va. Code Section 61-8-19b. 32 W. Va. Code Section 19-20-12. 33 Id. 34 See note 32, supra. County Responsibility for Dogs

Each county in West Virginia is responsible for facilitating the impounding, care and humane destruction of dogs. Although most shelters also care for cats and some other species of companion animals, that is not required by law.35 Each county need not operate its own shelter; it can contract with other counties, municipalities or private organizations.36 A county commission-appointed dog warden is responsible for overseeing the shelter and ensuring compliance with laws relating to it.37

Each county sheriff must appoint a deputy to serve as the county’s humane officer, whose job is to generally oversee enforcement of anti-cruelty laws. The humane officer also has authority to act upon reasonable cause, subject to subsequent notice and hearing, to seize animals and take other such actions as may be necessary to prevent immediate harm to animals. If the sheriff and county commission agree, the dog warden may also serve as the county humane officer.38

When a dog is seized or impounded, proper notice must be given, and the dog must be held for at least five days prior to disposition.39 Disposition of dogs or cats may only be by adoption as pets or by humane destruction.40 This Code section was enacted in 1989, to prohibit the practice of county shelters selling dogs and cats to laboratories and research facilities. The Code provides specifics for how euthanasia must be carried out.41

Commercial Dog Breeding

A commercial dog breeder, defined as anyone who maintains eleven or more unsterilized dogs over one year of age for the exclusive purpose of active breeding (with some broad exemptions), must obtain a business license and a county operating permit. This Code section, enacted in 2013, contains a number of specific requirements to ensure comfort and well-being for the dogs. Commercial dog breeders must comply with applicable anti-cruelty laws, and no one who has ever been convicted of an animal cruelty violation in any jurisdiction may be licensed as a commercial dog breeder.42

Vicious Dogs and Dangerous Animals

A person who desires to keep a vicious dog for the purpose of protection may acquire a $10 license from the county assessor. The dog must be secured so as to prevent injury to those

35 W. Va. Code Section 19-20-7. 36 Id.; W. Va. Code Sections 19-20-6a, 8a. 37 See note 34, supra. 38 W. Va. Code Chapter 7, Article 10. 39 W. Va. Code Section 19-20-8. 40 W. Va. Code Section 19-20-23. 41 See note 38, supra. 42 W. Va. Code Section 19-20-26. lawfully upon the property.43 However, unlicensed dogs known by the owner to be vicious, dangerous or in the habit of biting or attacking persons may not be kept or harbored in this state and, moreover, a humane officer may obtain an order from a magistrate or circuit judge to have such a dog euthanized.44

The loose definition of ‘vicious dog’ in these 1981 Code sections was put to the test in 2015 when pit bull Tinkerbell’s death sentence was commuted by the Supreme Court in State v. Blatt.45

The 2014 Dangerous Wild Animals Act prohibits possession of a dangerous wild animal, except by those who possessed such animals when the law went into effect and who thereafter apply for and obtain a permit. The Act has four stated purposes, one of which is to prevent mistreatment of permitted dangerous wild animals. There are a number of onerous requirements to obtain a permit, including no prior convictions for animal cruelty and no prior revocations of similar permits in any jurisdiction. Dangerous wild animals include, but are not limited to, bears, big cats, canids, primates, constrictor snakes, venomous snakes, alligators and caimans.46

Anti-Cruelty

Cruelty to animals is a crime which may constitute either a felony or misdemeanor, dependent on the circumstances. Unless otherwise specified, these prohibited acts apply to all animals.

Code provides some specific acts/omissions which constitute criminal behavior (including abandonment of an animal; withholding shelter, medical treatment, proper sustenance; leaving an animal confined and unattended in a car when injury or death could result; baiting or harassing an animal to make it perform for amusement; cruelly chaining or tethering an animal; and using/training/possessing a domestic animal for the purpose of seizing/detaining/maltreating another domestic animal) and the broad mistreatment of an animal in a cruel manner. These violations are misdemeanors. Intentionally torturing, mutilating or maliciously killing an animal, or aiding/abetting the same, is a felony.47

In addition to fines and penalties, the convict forfeits all rights to the mistreated animal. Further, the convict may not possess, own or reside with ANY animal for five years (misdemeanor) or fifteen years (felony). Further, the Code provides for mandatory periods of

43 W. Va. Code Section 19-20-21. 44 W. Va. Code Section 19-20-20. 45 235 W. Va. 489, 774 S.E.2d 570 (2015). 46 W. Va. Code Chapter 19, Article 34. 47 W. Va. Code Section 61-8-19. incarceration and parole can only be considered if the convict completes psychiatric or psychological evaluation and, at the court’s discretion, anger management intervention.48

DAMAGES CAUSED BY ANIMALS

The owner of any dog permitted to run at large is strictly liable for any damages inflicted while the dog is running at large.49

Known as Felicity’s Law and enacted in 2014, West Virginia Code provides a private cause of action for humane destruction of a dog who has either attacked a person necessitating medical treatment of more than $2,000, or within the previous twelve months the dog attacked someone and caused personal injury.50

ANIMAL LAWS, BY WEST VIRGINIA CODE SECTION

Most but not all of these Code sections were referenced in the first part of this article.

Chapter 7, Article 10 – Humane Officers

Chapter 19, Article 2E – Humane Slaughter of Livestock

Chapter 19, Article 20 – Dog and Cats

Chapter 19, Article 20D – Private Cause of Action for Humane Destruction of a Dog

Chapter 19, Article 23 – Horse and Dog Racing

Chapter 19, Article 33 – Equine Rescue Facilities Act

Chapter 19, Article 34 – Dangerous Wild Animals Act

Chapter 20, Article 2 – Hunting

Chapter 61, Article 8 – Crimes Against Chastity, Morality and Decency

Section 19 – Cruelty to animals; penalties; exclusions

Section 19a – Animal fighting ventures prohibited

Section 19b – Attendance at animal fighting ventures prohibited; penalty

48 Id. 49 W. Va. Code Section 19-20-13. 50 W. Va. Code Chapter 19, Article 20D.