Service Animals & Support Animals

Service Animals & Support Animals

By: Andrew Skomorowsky

Service animals and emotional support animals are a mix of hard-working animals with specific training, and trusted companions to humans who benefit from their affection and proximity.  They also become points of contention and litigation, and at times the punchline of jokes.[1]

Yet the United States government appears to be taking these animals seriously. A 2018 Advance Notice of Proposed Rulemaking (ANPRM) by the Department of Transportation (DOT) states: “The Department recognizes the integral role that service animals play in the lives of many individuals with disabilities and wants to ensure seamless access to air transportation for individuals with disabilities while also helping to deter the fraudulent use of animals not qualified as service animals.”[2]

One argument against the presence of service animals aboard aircraft is that theoretically, the animal could become a hazard itself in case of an emergency.  But the Department of Transportation resoundingly refutes this:

B. FAA Review of NTSB[3] Part 121 Accident Reports. The FAA has reviewed all available NTSB accident reports for part 121 commercial aircraft accidents with at least one fatality occurring between January 1, 1990, and November 28, 2007. The FAA found no information that the presence of a service animal or its placement or location on an airplane negatively impacted an airplane evacuation or a particular individual's emergency exit from an airplane.

C. FAA Review of NTSB Safety Reports. The FAA also reviewed NTSB Safety Report 01/01, Survivability of Accidents Involving Part 121 U.S. Air Carrier Operations, 1983 Through 2000, and NTSB Safety Study 00/01, Emergency Evacuation of Commercial Airplanes, and again found no information that either the presence of a service animal or its placement or location on the airplane negatively impacted an airplane evacuation or a particular individual's emergency exit from an airplane.

Department of Transportation Flight Standards Information Management System (FSIMS) 8900.1 Volume 3 Chapter 33 Section 6. Safety Assurance System: Operations “Cabin Safety”

But what about the now-infamous emotional-support peacock (named Dexter, according to the article cited above)?  The DOT has this to say about him:

4) Unusual Service Animals. As stated in the DOT guidance issued on May 9, 2003, unusual service animals pose unavoidable safety and/or public health concerns and airlines are not required to transport them. Snakes, other reptiles, ferrets, rodents, and spiders fall within this category of animals. The release of such an animal in the aircraft cabin could result in a direct threat to the health or safety of passengers and crewmembers. For these reasons, airlines are not required to transport these types of service animals in the cabin, and carriage in the cargo hold will generally be in accordance with company policies on the carriage of animals.

Department of Transportation Flight Standards Information Management System (FSIMS) 8900.1 Volume 3 Chapter 33 Section 6. Safety Assurance System: Operations “Cabin Safety” (emphasis added)

But herein lies a problem: in a conflict between a passenger with a service animal’s right to travel, and another passenger’s right to be unmolested by a large and notoriously attention-getting bird[4], who wins?  In some cases, documentation can be required by an airline to demonstrate that the animal in question is in fact a service animal.[5] 

If a passenger seeks to travel with an animal that is used as an emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you current documentation (i.e., no older than one year from the date of the passenger's scheduled initial flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker including a medical doctor specifically treating the passenger's mental or emotional disability) stating the following:

(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders--Fourth Edition (DSM IV);

(2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger's destination;

(3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

(4) The date and type of the mental health professional's license and the state or other jurisdiction in which it was issued.

14 C.F.R. § 382.117 (Lexis Advance through the February 20, 2019 issue of the Federal Register. Title 3 is current through February 1, 2019)

The practical upshot of this is, that passengers with an emotional need for a support animal are subject to stricter scrutiny than a passenger with a “purely” physical limitation requiring animal support.

And while some passengers might be amused by the presence of an emotional-support peacock, what if we pull the classic law-school scenario and change the facts: make it an emotional-support cobra instead.  What result? We don’t have to imagine it – Hollywood has already done so for us.[6]

Service animals blur the distinction between pet and partner; in many cases these animals undergo extensive testing and training prior to being paired with a human who benefits from their hard work.  Emotional support animals further blur the line due to their “softer” task set – but their work is no less important than helping a blind person navigate a city sidewalk.  And because reasonable people can disagree, there will always be preferences for companionship that are at best mysterious to the larger population.  Perhaps we all just need to see with different eyes.

[1] “‘Emotional support peacock’ barred from United Airlines plane,” BBC.com, (January 31, 2018), found at: https://www.bbc.com/news/world-us-canada-42880690 (last visited February 24, 2019).

[2]U.S. Department of Transportation Seeks Comment on Amending Regulations Concerning Service Animals on Flights,” Department of Transportation, (May 16, 2018).

[3] Author’s note: The National Transportation Safety Board (NTSB) is an independent federal agency tasked in pertinent part with investigating aircraft accidents.

[4] Peacocks, as it turns out, have a well-deserved reputation for being excellent guard animals.  See “Meet Percival the peacock: Defender of chickens, protector of the farm”, Mashable.com, (October 8, 2016) found at https://mashable.com/2016/10/18/percival-the-peacock-chicken-defender-australia/#oY7V4.sN7kqm (last visited February 24, 2019).

[5] DOT FSIMS 8900.1, D(3).

[6]Snakes on a Plane,” (2006) IMDB.com, found at: https://www.imdb.com/title/tt0417148/, (last visited February 24, 2019).

Lax Animal Shelter Laws Promotes Animal Hoarding

Lax Animal Shelter Laws Promotes Animal Hoarding 

By: Kelsey Noel

Today animal shelters and rescues play an important role in helping disadvantaged animals get a second chance with a forever family. There are shelters like the Humane Society, which are widely known and respected in the community. However, a different and more recent group of animal rescues has become pervasive in our communities. Well-intentioned people have started using animal rescues as a way to feed their destructive animal hoarding behavior.

Currently, the Kentucky statutes that determine animal shelter eligibility are 201 KAR 16:080 and 258.119. Both of these statutes lay out the stricter requirements in operating a certified animal shelter that receives funding from state taxes that are county specific.[1] These shelters are required to keep detailed information about the animals they are housing, get the Board of Veterinary Examiners certificate, DEA certification for euthanasia drugs, board inspection, an onsite manager, purchases made by the organization, and compliance with all disposal requirements.[2] 

However, in order to operate an animal rescue all that is needed is for the individual to fill out an incorporation form available on the Kentucky Secretary of State’s website located at http://sos.ky.gov. Animal rescues that don’t receive funding by the state will incorporate as a non-profit organization and aren’t subjected to the same rigorous standards that county groups have to follow. For example, an “animal sanctuary” in Kentucky was charged with 179 counts of animal cruelty for failing to vaccinate their animals.[3] This shelter in particular housed 139 dogs and 40 cats and was incorporated as a non-profit.[4] Also, a recent 2016 study into Kentucky animal shelters across the state, which included some “regional facilities”, indicated that “57 percent violated three or more provisions of Kentucky’s animal shelter laws.”[5]

Individuals who operate these types of rescue shelters are dangerous to animals. Well-intentioned people “who consider themselves rescues or sanctuaries” usually “make up ‘virtually all’ of animal hoarding cases involving more than 50 animals.”[6] Even when rescues start out as legitimate businesses many of those operators “find themselves both unable to recognize their limitations and unable to let go of the animals in their care.”[7] This mentality causes the “hoarders” to “really believe that only they know what’s best for these animals, and there is no other recipient of these animals that can provide the quality of care that they think they’re providing.”[8]

Because these locations are operating under a rescue name, it becomes more socially acceptable for them to house several animals. However, because they are housing so many animals, this leads to massive issues of neglect. Stricter regulations on who is eligible to create a rescue should be implemented with more oversight to protect our animal community. Individuals operating an animal rescue should be held to the same standards as licensed animal shelters, daycares, and other regulated industries. They should be inspected more regularly, be limited, even as a non-profit, to hold only so many animals at one time, retain records with the same privacy standards as other agencies, and go through proper training on how to care for animals of differing nutritional and medical needs. The fees from the training programs and licenses can help fund the oversight needed to ensure that these rescues are properly caring for the animals. Animal hoarding is animal abuse and should actively be discouraged.

[1] 201 KAR 16:080; KRS 258.119.

[2] Id.

[3] Bill Estep, Operator of no-kill animal shelter charged with 179 counts of animal cruelty, Lexington Herald Leader (Mar. 8, 2018),  https://www.kentucky.com/news/state/article204094144.html.

[4] Id.

[5] Bill Estep and Will Wright, ‘Worst in the nation.’ Many Kentucky animal shelters substandard, violate law, Lexington Herald Leader (May 7, 2018), https://www.kentucky.com/news/state/article210451784.html.

[6] Bethany W. Adams, When animal rescue isn’t, Animal Sheltering isn’t (2018),  https://www.animalsheltering.org/magazine/articles/when-animal-rescue-isnt.

[7] Id.

[8] Id.

Bourbon and its Connection to Kentucky's Environment

Bourbon and its Connection to Kentucky’s Environment

By: Sydney Wininger

As a state that has fostered the growth of the alcohol industry and better yet, a state dependent upon the growth of the bourbon industry, alcohol production is a big deal in the state of Kentucky.  In fact, the bourbon industry is a $8.5 billion industry in Kentucky.[1] With the bourbon industry becoming increasingly popular, a question that might arise is what, if anything, does the production of bourbon have to do with Kentucky’s environment?

The very beginning of the bourbon production process begins with resources taken directly from the environment. The first step of the process is the grain selection process.[2] It is up to each distillery to determine the best mixture of grains, but in order to be considered a Kentucky bourbon whiskey, the corn content must be at least 51%.[3]

The next Kentucky resource that is sourced for bourbon production is fresh spring water. The spring water is used “so the starch in the grain can be cooked and the developing sugar extracted” (Bourbon-Water). The need for fresh spring water, led to many distilleries being built “near springs that yielded enough water” (Bourbon-Water). Next, the yeast management portion begins. The yeast used in bourbon production are strains of yeast that are native to both Tennessee and Kentucky.[4] The yeast is selected and then the fermentation process begins.[5]

After the fermentation process comes distillation, which takes place in column stills. A still is “an apparatus used to distill liquid mixtures by heating to selectively boil and then cooling to condense the vapor.”[6] At the bottom of the stills, a product called setback accumulates.[7] The setback includes all of the product that was extracted during the distilling process.[8] The remaining liquid is dried off, and then the dried product is sent back into the environment for farmers to use as animal feed.[9]

After the setback is carted off, it is time to fill the bourbon barrels. Bourbon barrels are produced from Oak trees and can only be used once to age bourbon.[10] After the barrels are filled, the barrels are sent for storage. Most brands store the barrels in warehouses with temperature controlled climates. [11] In 1996, the infamous Heaven Hill Warehouse fire occurred in which seven warehouses and the Heaven Hill distillery were lost to fire.[12] The fire pushed its way down to the river, and burned on the river for the rest of the night.[13] Luckily, during the fire, there were no injuries or loss of life. But to prevent the possibility of future warehouse fires, many companies have installed sprinkler systems into their warehouses[14], potentially saving both lives and preventing future damage to the environment surrounding the warehouses.

According to the 2012 issue of Land Air & Water, some of the top environmental challenges faced by the bourbon industry are: “waste-to-energy options, reuse of waste products, staying current on federal requirements, energy, water and land conservation surrounding their historic properties, and improving internal and external communications.”[15] In 2011, the inaugural Sustainable Spirits Summit was held and representatives from Kentucky’s distilleries were able to meet and discuss their environmental successes and challenges.[16]

With the cooperation of companies from across the state, these companies can continue to work together to help the spirits industry protect and preserve Kentucky’s natural resources.

[1] America’s Official Native Spirit, Bourbon Culture, Bourbon Facts, https://kybourbon.com/bourbon_culture-2/key_bourbon_facts/ (last visited Nov. 11, 2018).

[2] Whisky.com, Information, Bourbon-Grain Selection and Mixture (Mash Bill), https://www.whisky.com/information/knowledge/production/overview/how-bourbon-whiskey-is-made/bourbon-grain-selection-and-mixture-mash-bill.html (last visited Nov. 11, 2018).

[3] Id.

[4] Whisky.com, Information, Bourbon- Yeast Management, https://www.whisky.com/information/knowledge/production/overview/how-bourbon-whiskey-is-made/bourbon-yeast-management.html (last visited Nov. 11, 2018).

[5] Whisky.com, How Bourbon Whiskey is Made, https://www.whisky.com/information/knowledge/production/overview/how-bourbon-whiskey-is-made.html (last visited Nov. 11, 2018).

[6] Vinepair, How Distilling Works, https://vinepair.com/spirits-101/how-distilling-works/ (last visited Nov. 11, 2018).

[7] Whisky.com, Information, Bourbon-Animal Feed, https://www.whisky.com/information/knowledge/production/overview/how-bourbon-whiskey-is-made/bourbon-animal-feed.html (last visited Nov. 11, 2018).

[8] Id.

[9] Id.

[10] Whisky.com, Information, Bourbon-Filling of the Barrels,

https://www.whisky.com/information/knowledge/production/overview/how-bourbon-whiskey-is-made/bourbon-filling-of-the-barrels.html (last visited Nov. 11, 2018).

[11] Id.

[12] Distillery Trail, Vintage Aerial Coverage of 1996 Heaven Hill Distillery Fire,

https://www.distillerytrail.com/blog/live-aerial-coverage-1996-heaven-hill-distillery-fire/ (last visited Nov. 11, 2018).

[13]Whisky.com, Information, Bourbon-Storage, https://www.whisky.com/information/knowledge/production/overview/how-bourbon-whiskey-is-made/bourbon-storage.html (last visited Nov. 11, 2018).

[14] Whisky.com, How Bourbon Whiskey is Made, https://www.whisky.com/information/knowledge/production/overview/how-bourbon-whiskey-is-made.html (last visited Nov. 11, 2018).

[15] Mary Jo Harrod, Bourbon and the environment: A recipe for a great combination(2012), Land, Air & Water, http://eec.ky.gov/Land%20Air%20%20Water%20issues/Summer%202012.pdf (last visited Nov. 11, 2018).

[16] Id.

Lowering Meat Production is Just the Veganning: 60% of wildlife lost calls for intervention on a global scale

Lowering Meat Production is Just the Veganning: 60% of wildlife lost calls for intervention on a global scale

By: Kathryn Waller  

In college I studied abroad in India and was surprised at some of the lifestyle differences that Indians had adopted for environmental conservation. For example one night we went to dinner with our student group and our Indian professor. He ordered food for us and despite our pleas, he refused to order any meat options. He reasoned that we had meat last night for dinner. This made no sense to me, as I eat meat two to three times a day in America but this rationing of meat may be a necessary step to save civilization.

            A recent report by the World Wildlife Foundation found that “humanity has wiped out 60% of mammals, birds, fish and reptiles since 1970, leading the world’s foremost experts to warn that the annihilation of wildlife is now an emergency that threatens civilization.”[1] The decimation of the animal population is a result of the growing consumption of food and resources by the global population.[2] Mike Barrett, the executive director of science and conservation at WWF explains that, “This is far more than just being about losing the wonder of nature, desperately sad thought that is. This is actually now jeopardizing the future of people. Nature is not a ‘nice to have’- it is our life support system.”[3]

            This rapid shortening of the animal population is a result of natural habitats being destroyed to create farmland, the killing of animals for food, chemical pollution and the spread of invasive species and diseases as a result of global trade.[4] The most drastic killing of wildlife has occurred in South and Central America, with an 89% drop in vertebrate populations.[5]  Barrett explains that “It is a classic example of where the disappearance is the result of our own consumption, because deforestation is being driven by ever expanding agriculture producing soy, which is being exported to countries including the UK to feed pigs and chickens.”[6]

            While it would take 5-7 million years for the world’s wildlife to recover there are steps society can take to halt the destruction and start taking steps to recovery.[7] The best place to start is by eating less meat. Its been discovered that “meat and dairy production is responsible for 60 percent of agriculture’s greenhouse gas emissions, while the products themselves providing just 18 percent of calories and 37 percent of protein levels around the world.”[8] The lead scientist on the study, Joseph Poore suggested that the best thing society could do to save the environment is go vegan.

            Forcing all of humankind to give up meat, cold turkey is an impossible feat, a conservation effort would be more widely accepted. A notable effort that has had success is the tiger conservation, that has resulted in the first increase in the tiger population in 100 years.[9] This increase was a result of 13 countries coming together at a high level and setting goals and guidelines.[10] The mass extinction of the animal population is a global problem that would likely have to be addressed with a Multilateral Environmental Agreement. These agreements often take the form of treaties and follow a UN format.[11] This will likely occur at the UN’s Convention on Biological Diversity in 2020.[12] While it would be a more effective solution to begin rationing meat like my professor did in India, it is unlikely that cultures could shift that fast. A place to start would be to limit the amount of farmland that can be cleared each year as this destroys ecosystems that animals rely on and to reduce or limit the cattle industry as cattle require the most space and produce a substantial amount more greenhouse gasses than other livestock.[13] 


[1] Damian Carrington, Humanity has wiped out 60% of animal populations since 1970, report finds,The Guardian, (Oct 29,2018) https://www.theguardian.com/environment/2018/oct/30/humanity-wiped-out-animals-since-1970-major-report-finds.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Olivia Petter, Veganism is ‘Single Biggest Way’ to Reduce Our Environmental Impact on Planet, Study Finds, Independent, (June, 1 2018), https://www.independent.co.uk/life-style/health-and-families/veganism-environmental-impact-planet-reduced-plant-based-diet-humans-study-a8378631.html.

[9] Wild tiger population rising for first time in 100 years, CBS, (April 10, 2016) https://www.cbsnews.com/news/worlds-wild-tiger-population-rising-for-first-time-in-100-years/

[10] Id.

[11] International Environmental Agreements Database Project, University of Oregon https://iea.uoregon.edu/ (last visited Nov. 2, 2018).

[12] Damian Carrington, supra note 1.

[13] Damian Carrington, Avoiding meat and dairy is ‘single biggest way’ to reduce your impact on Earth, The Guardian, (May 31, 2018) https://www.theguardian.com/environment/2018/may/31/avoiding-meat-and-dairy-is-single-biggest-way-to-reduce-your-impact-on-earth.

“Snakes (Pigs, Squirrels, Dogs, Cats, Ducks, Peacocks, Hamsters, and Miniature Horses) on a Plane.”

“Snakes (Pigs, Squirrels, Dogs, Cats, Ducks, Peacocks, Hamsters, and Miniature Horses) on a Plane.” 

By: Shannon Tubbs 

            In a world where pets have become as near and dear to people as human children, the desire to have them with us any and everywhere we go is no surprise. Chances are, if you have flown on an airplane in the past few years, you have noticed an increasing number of furry friends both at the airport and on your flight. A story that recently made headlines in the news and on social media gave the term “flying squirrel” a very literal meaning. Cindy Torok, a woman boarding a Frontier Airlines flight from Orlando to Cleveland earlier this month, attempted to bring along her “emotional support” squirrel, but was told she could not do so. [1] The woman refused to comply when airline staff asked her to leave the aircraft, which resulted in a number of other passengers having to deplane so authorities could remove the woman and her squirrel. [2] When asked about the incident, Frontier gave a statement saying that the woman had told the airline she would be bringing an emotional-support animal, but did not tell them it would be a squirrel.[3] The airline made no apologies for adhering to their policy that “[r]odents, including squirrels, are not allowed on Frontier flights.”[4] Cindy’s daughter, Monica Torok, is upset and angry about the incident and voiced that she is “going to call the ADA (Americans with Disabilities Act) and talk to them and see what they have to say about it,” because her mother’s rights should not have been taken away.[5] While the Torok’s have every right to voice their outrage and hurt feelings, it appears that there is a strong argument for narrowly defining what does and does not qualify as a service or emotional support animal.

            The ADA defines service animals “as dogs that are individually trained to do work or perform tasks for people with disabilities.”[6]  The ADA also revised the ADA regulations to include “miniature horses that have been individually trained to do work or perform tasks for people with disabilities.”[7] However, the Air Carrier Access Act (ACAA) is also in existence and expands the definition of a service animal, regarding those allowed on flights, to “any animal that assists persons with disabilities by providing emotional support.”[8] Airlines are allowed to exclude animals for a number of reasons, including animals that are too large or heavy to be accommodated in the cabin, pose a threat to the health or safety of others, cause a significant disruption, or are prohibited from entry into a foreign country.[9] Although a person may have proper documentation from a physician stating that the person has a need for a psychiatric support animal, the ACAA specifically notes that “[a]irlines are never required to accept snakes, reptiles, ferrets, rodents, sugar gliders, and spiders.”[10]

            The issue surrounding the use of service and/or emotional support animals is that people are abusing the system. Sharon Giovinazzo, president and chief executive of World Services for the Blind and an Army veteran who lost her sight from multiple sclerosis, explains that people are brining untrained animals “masquerading as a service animal in what advocates for people with disabilities said had become a growing problem in the last few years.”[11] “Passengers pass off their pets as support or service animals so they can remain in the cabin instead of the cargo hold,” which in turn “could displace legitimate ones because most airlines limit the number allowed in a cabin.”[12] Further, an animal who is only a pet and has not been trained is much more prone to growl, bite, and have accidents under the stress of the situation.[13]

            So how do we cut down on fraud and ensure those who truly need service and support animals are accommodated? Republican Senator, Richard Burr has proposed legislation “to have the definition of a service animal under the Air Carrier Access Act match the one in the Americans with Disabilities Act,” which “would bar from flights animals whose sole function was to provide comfort or emotional support and require federal agencies to establish a standard of behavior training for animals that would be working on planes.”[14] While this may seem harsh to some people, the reality is that it is necessary to prevent abuse that ultimately discredits the use of service animals by people who truly have disabilities. 


[1] Lindsey Bever, A woman brought her 'emotional support' squirrel on a plane. Frontier wouldn't let it fly. The Washington Post (2018), https://www.washingtonpost.com/transportation/2018/10/10/woman-brought-her-emotional-support-squirrel-plane-frontier-wouldnt-let-it-fly/?utm_term=.1690a2f32e18 (last visited Oct 21, 2018).

[2] Id.

[3] Id.

[4] Id.

[5] Woman speaks out after mom booted from flight over "emotional support" squirrel. CBS News (2018), https://www.cbsnews.com/news/emotional-support-squirrel-daughter-of-woman-escorted-off-plane-speaks-out-frontier-airlines-flight-incident-2018-10-11/ (last visited Oct 21, 2018).

[6] Service Animals, ADA Requirements: Service Animals, https://www.ada.gov/service_animals_2010.htm (last visited Oct 21, 2018).

[7] Id.

[8] Service Animals (Including Emotional Support Animals), US Department of Transportation (2017), https://www.transportation.gov/individuals/aviation-consumer-protection/service-animals-including-emotional-support-animals (last visited Oct 21, 2018).

[9] Id.

[10] Id.

[11] Christopher Mele, Is That Dog (or Pig) on Your Flight Really a Service Animal? The New York Times (2018), https://www.nytimes.com/2018/05/01/travel/service-animals-planes.html (last visited Oct 21, 2018).

[12] Id.

[13] Id.

[14] Id.

Coal Ash - Elephant in the Courtroom

Coal Ash - Elephant in the Courtroom

By: Andrew Skomorowsky

Just as cigarette ash is what remains after a cigarette is burned, coal ash is the residue from the burning of coal. Coal, it will surprise no Kentucky readers to learn, is used in the production of electrical energy. Coal ash is toxic – it contains arsenic, boron, lead and mercury – all known carcinogens and capable of causing organ damage in humans.[1] A recently published article in The New York Times reports that approximately 110 million tons (2 x 1011 pounds) of coal ash is produced each year. 

The politics of energy production notwithstanding, Kentucky is very much involved in this problem. According to the Kentuckians for the Commonwealth (KFTC) website, Kentucky power plants generate 8.6 million tons of coal ash.[2]  Of that, KFTC, says, 4,800 tons are toxic metals.

To create a sense of the scale of the problem, consider the following: the website of the Louisville, Kentucky Zoo states that each of their two adult African elephants weighs approximately 5 tons.[3] Imagine the outcry if 960 dangerous elephants (combined, weighing in at approximately 4,800 tons) were roaming the Kentucky countryside, poisoning local water supplies.

Of course this is a ludicrous analogy, but the matter at its core is still valid. Elephants are dangerous, heavy animals.[4] Now, mentally construct an elephant made of toxic metals and drop it in the water supply.  If that seems too silly, imagine a pile of toxic metals the size and shape of an adult elephant. Now, do it 959 more times. This is what KFTC alleges occurs on a yearly basis.[5]

Whimsical pachyderm models aside, the potential for real harm to real people brought about legislation in the Sixth Circuit court. In Ky. Waterways All. v. Ky. Utils. Co., Plaintiffs contended that the Respondent was polluting groundwater, which then goes on to pollute a nearby lake.[6] (Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238 (6th Cir. Sep. 24, 2018)).

Plaintiffs’ argument was two-pronged; they argued first that the Respondent’s actions were in violation of the Clean Water Act (CWA). [7] The CWA is noted for its authority in the area of water pollution. The CWA is limited however, in that it does not “extend liability to pollution that reaches surface waters via groundwater.”[8] Because the Plaintiffs’ arguments included this vector for contamination, the CWA prong failed.[9]

The second argument proffered by the Plaintiffs was that the actions by the Respondent violated the Resource Conservation and Recovery Act (RCRA).[10] It is this prong that successfully earned the Appellate Court’s attention: “Top of FormBut RCRA does govern this conduct, and because the plaintiffs have met the statutory rigors needed to bring such a claim, the district court must hear it.”[11]

But initially, the RCRA argument met a strange fate in the District Court: while the initial lawsuit was being prepared, the Commonwealth of Kentucky’s Energy and Environment Cabinet entered into an agreement with the plant operator to mitigate the harm addressed by the lawsuit.[12] Aware of this agreement, the District Court determined that the Plaintiffs lacked standing with regard to their RCRA argument, specifically because the court could not redress a claim already being remedied by the Commonwealth.[13]

Accordingly, the Respondent filed for summary judgment for dismissal, which motion was granted.  The story does not end there.  An appeal was filed with the Sixth Circuit, and the Appellate court had a slightly different opinion.

The Appellate Court affirmed the dismissal of the CWA argument, agreeing with the District Court’s findings.[14] The RCRA argument got a second chance in the Appellate Court, however. On appeal the court held that while it was not unreasonable for the District Court to make the finding they did, that they were in error to do so.[15]

The Appellate Court held that there was no lack of standing in the District Court, and that the federal courts do in fact have jurisdiction in this case:

For the foregoing reasons, we AFFIRM the district court's dismissal of Plaintiffs' CWA suit. The CWA does not impose liability on surface water pollution that comes by way of groundwater. However, we REVERSE the district court's dismissal of Plaintiffs' RCRA claim. Plaintiffs have met the statutory requirements to bring that suit, and the district court must entertain it. The case is REMANDED for further proceedings on that claim.

Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238, at 34 (6th Cir. Sep. 24, 2018)

The dissent and concurrence in this case (by the same judge) would have the court go even further:

Because the majority's conclusion is contrary to the plain text and history of the CWA, I respectfully dissent from the majority's conclusion that Plaintiffs' CWA claim was properly dismissed. Meanwhile, I concur in the majority's determination that the district court erred by dismissing Plaintiffs' claim under the Resource Conservation and Recovery Act ("RCRA").

Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238, at 34 (6th Cir. Sep. 24, 2018)

From an environmentally-friendly perspective, both the majority opinion and this dissent and concurrence is a win-win (albeit in part nonbinding).  In an age of increasing concern for humanity’s impact on the environment, having even a minority of a panel of judges expressing well-founded concerns for the environmental impact of American industry is, not to put too fine a point on it, a breath of fresh air. At the same time, it is also, of course, only a drop in the bucket.

[1] https://www.nytimes.com/2018/09/21/us/coal-ash-spill-dam-breach.html

[2] http://kftc.org/campaigns/coal-ash

[3] https://louisvillezoo.org/africa/harry-frazier-family-elephant-encounter/caring-for-10000-pound-elephants/

[4] https://www.theguardian.com/environment/2017/mar/06/can-elephants-and-humans-live-together

[5] http://kftc.org/campaigns/coal-ash

[6] Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238 (6th Cir. Sep. 24, 2018)

[7] 33 U.S.C.S. § 1251 (LexisNexis, Lexis Advance through PL 115-253, approved 10/3/18)

[8] Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238, at 2-3

[9] Id.

[10] 42 U.S.C.S. § 6901 (LexisNexis, Lexis Advance through PL 115-253, approved 10/3/18)

[11] Ky. Waterways All. v. Ky. Utils. Co., at 3

[12] Id. at 14

[13] Id.

[14] Id. at 29-30

[15] Id. at 32

Animal Abuser Registries Gain Traction but is it Enough?

Animal Abuser Registries Gain Traction but is it Enough?
By: Kelsey Noel
 

In a society greatly divided by political issues, one area of common ground for most people is the anger they feel when horrific animal abuse cases become mainstream news. Each day more cases of pets being abused or negligently killed at groomers, celebrities involved in dog fighting, or viral videos of people abusing animals has been spreading all over the internet.[1] These stories and videos have sparked emotions across all communities. Each new story of abuse highlights how current laws fail animals. With the rise in social media and news coverage of these stories, it does not come as a surprise that many areas of the United States have decided to create animal abuser registries. There needs to be a greater movement by legislatures to increase and nationalize animal abuser registries in the United States.

The only state to adopt a statewide animal abuser registry was Tennessee, which implemented its registry in 2015.[2] In places where there is a lack of statewide regulation, local counties have passed ordinances to track animal abusers within county lines while others lack any laws at all.[3] For example, in Syracuse, New York “[t]he animal abuse registry requires convicted abusers to stay on there for 15 years.”[4] In addition, “many states require counseling for convicted abusers.”[5] The benefit of Tennessee and smaller counties trailblazing animal abuser registries is that it not only shows implementing these systems is possible but also establishes a framework that can be easily adopted by other states. 

However, despite the progress many states have made towards protecting the rights of animals, there is still much to achieve. Currently, 35 states still allow people who have been convicted of animal abuse to own pets.[6] Additionally, “laws preventing known animal abusers from adopting animals exist in only 15 states.”[7] In many instances, judges are limited on how long they can prevent an animal abusers from adopting another animal.[8] This means pets have little to no protection from being adopted by an animal abuser who would mistreat them. The lack of consistency in laws and registries creates a legal loophole for animal abusers to access animals in other states and counties. 

Many people are pushing for a movement to make pet abusers register in the same manner as sex offenders.[9] Currently, there is no national registry tracking animal abusers in the United States. The best many places can do is “use a ‘Do not adopt’ list to check on animal abuse convictions.”[10] A more reasonable approach to prevent this legal loophole is to establish a registry similar to the National Sex Offender Public Website established in 2005.[11] This site “links public state, territorial, and tribal sex offender registries from one national search site.”[12] Having a similar system would allow Humane societies, animal shelters, pet breeders, or other animal sellers the ability to protect their animals from becoming victims of abuse.

As more momentum grows within each state, the possibility of statewide or national registries becomes more attainable.[13] If a national system cannot be implemented, at the bare minimum, all states should adopt a system and set of laws requiring animal abusers to register if they move in the same way sex offenders are required to do. Owning a pet should not be treated as a right but a privilege. Preventing animal abusers from adopting pets ensures animals are more likely to end up in healthy forever homes.

[1]Dog groomer facing second animal cruelty charge after new allegations, Fox5 (Last visited Oct. 6, 2018, 7:40 PM), http://www.fox5atlanta.com/news/dog-groomer-facing-second-animal-cruelty-charge-after-new-allegations; Rene Rodriguez, Former NFL Quarterback Michael Vick sells Davie home –to another football player, Miami Herald (2018), https://www.miamiherald.com/news/business/real-estate-news/article218930310.html; Samantha Forester, Update: Second arrest of a juvenile girl in animal cruelty case, News Channel 6 (Last visited Oct. 6, 2018, 7:54 PM), http://www.newschannel6now.com/story/38206956/update-more-details-about-viral-cruelty-to-animal-video/.

[2]Animal Abuser Registries, National Anti-Vivisection Society (Last visited Oct. 6, 2018, 7:58 PM), https://www.navs.org/what-we-do/keep-you-informed/legal-arena/companion-animal-issues/animal-abuser-registries/.

[3]See Animal Abuser Registry, Onondaga County Sheriffs Office (Last visited Oct. 4, 2018, 5:30 PM), http://sheriff.ongov.net/animal-abuser-registry/

[4] Stephanie Stanavich, Syracuse fugitive wanted for failing to register for animal abuse, CNYCentral.com (2018), https://cnycentral.com/news/local/first-person-wanted-in-onondaga-county-animal-abuse-registry; See also Ononaga County, N.Y., Local Law No. 5-2017 (2017).

[5] WTH?! Convicted Animal Abusers Can Still Adopt Pets in 35 States  - Let’s Change This, One Green Planet (2018), https://www.onegreenplanet.org/news/convicted-animal-abusers-can-still-adopt-pets/; See Generally Animal Neglect, The Humane Society of the United States (Last visited Oct. 6, 2018), http://www.humanesociety.org/issues/abuse_neglect/qa/neglect_faq.html.

[6] Id.

[7] Id.

[8] Id.

[9] WFTX, CNN, Animal abuse registry gains momentum in Florida, ABC Action News (2018), https://www.abcactionnews.com/news/national/animal-abuse-registry-gains-momentum-in-florida.

[10] Id.

[11] About NSOPW, The U.S. Department of Justice NSOPW (Last visited Oct. 6, 2018 8:18 PM), https://www.nsopw.gov/en/home/about/; See also Sex Offender Registry Websites, FBI (Last visited Oct. 6, 2018 8:20 PM), https://www.fbi.gov/scams-and-safety/sex-offender-registry.

[12] Id.

[13] See note 9.

Forecastle

The Forecastle Festival celebrated another successful three-day weekend of music, art and activism on Waterfront Park in Louisville, KY. Here at The Forecastle Foundation, which rounds out the ‘activism’ arm of the Festival, we once again established a strong presence on festival grounds to communicate our environmental mission, encourage meaningful dialogue about sustainability, and discuss environmentally conscious ways festival-goers can help support our mission of “protecting and connecting the world’s natural awesome.” In addition to Foundation board members and volunteers, also present throughout the weekend were our naturally awesome conservation partners from Kentucky Natural Lands Trust, The Nature Conservancy of Kentucky, and Future Fund, to talk about local projects that we help fund and bring awareness to. Our friends from Tito’s Handmade Vodka also set up shop in the activation area to serve specialty cocktails featuring Guayaki Yerba Mate tea, with proceeds from each drink going toward critical conservation efforts made by Future Fund to preserve Floyds Fork. Speaking of beverages, we partnered with Sierra Nevada Brewing Company again and sold out of the custom crafted Chantey IPA, with proceeds from sales also benefitting The Forecastle Foundation. To top it all off, our infamous giant art wall created by incredibly talented local artists highlighted some of the ways festival goers can “sip ‘n support” the Foundation, and we sold all eight panels to lucky patrons. And of course, a festival activation wouldn’t be complete without a little bit of merch. This year we offered custom t-shirts, as well as ‘buff’ style bandanas, sold from an ice cold cooler to beat the July afternoon heat! (If you’re interested in a t-shirt or buff, email lauren@forecastlefoundation.org and we’ll be happy to make arrangements.)