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.