Stream access laws in New York and Montana

The public’s right to access streams and other flowing waters is different in every state, depending on each jurisdiction’s particular combination of constitutional, statutory, and judicial public trust rules. These laws impact not only public use, but also the private property rights of riparian owners, and they can have far-reaching effects on conservation measures and economic development related to recreational tourism. To illustrate the breadth of these rules, consider the very different stream access laws in New York and Montana. Continue reading

Criminalizing attendance at cockfights doesn’t violate the First Amendment, court rules

A Connecticut court ruled this week that a law criminalizing attendance at animal fights doesn’t violate the First Amendment rights of free assembly and free association.

The defendant in the case had $900 in cash on him when he was arrested at a cockfight in Waterbury. He was charged with a general gambling offense and two counts of animal cruelty—the first for acting as a spectator and the second for wagering on the cockfight. Not content to accept these charges, he filed a lawsuit claiming that the spectator law violated his constitutional rights under the First and Fourteenth Amendments.

The right of peaceable assembly is just as fundamental as the First Amendment rights of free speech and free press, but its protection doesn’t extend to every assembly of people, and it obviously excludes assemblies that are intended to incite violence or promote crime. The defendant contended that he wasn’t partaking in an unlawful activity by attending the cockfight, but merely assembling with others who may or may not have been actively involved in the cockfight. The court didn’t buy this argument though, concluding that, “as a spectator at a cockfight, an individual is engaged in promoting and facilitating the existence of the unlawful conduct.”

The right of association protects intimate relationships and expressive activities encompassed by the First Amendment (e.g., speech, assembly, and religious exercise). Attending a cockfight didn’t fall within either of these protections, the court held. It didn’t share any of the traditional markers of intimate associations, like being limited to a relatively small number of people, being highly selective, or excluding others from critical aspects of the relationship. Nor did it involve any expressive association protected by the First Amendment, as the spectators weren’t engaged in some broader public discourse about cockfighting.

The defendant also claimed that the law was unconstitutionally “overreaching,” but the court dismissed this argument because it only applied to people who knowingly acted as spectators at animal fights. The law was generally valid, the court continued, because it was rationally related to the state’s objective of eliminating animal cruelty. After all, “without the knowing presence of spectators, much of the ‘sport’ of cockfighting would be eliminated.”

In his final claim, the defendant argued that the law violated his right to equal protection because it punished spectators at cockfights but not spectators of other illegal conduct. The court disagreed, reiterating that the law had a rational relationship to the state’s interest in preventing animal cruelty and that it only had to be reasonable to survive the defendant’s equal protection challenge.

State v. Bonilla, 2011 Conn. App. LEXIS 469 (Sep. 13, 2011).

Courts in Colorado, North Carolina, and Tennessee have also upheld laws criminalizing attendance at animal fights. People v. Bergen, 883 P.2d 532 (Colo. App. 1994); State v. Arnold, 147 N.C. App. 670 (2001), State v. Tabor, 678 S.W.2d 45 (Tenn. 1984).

Seventh Circuit approves warrantless taxidermy searches

The Seventh Circuit held last week that the Fourth Amendment permits warrantless searches of taxidermy businesses. The case, United Taxidermists Association v. Illinois Department of Natural Resources, was commenced in 2005 after a taxidermist who was frustrated with the state’s periodic warrantless inspections formed the United Taxidermists Association and persuaded 30 other Illinois taxidermists to join his cause (although more than 600 declined his invitation).

The taxidermists challenged the Illinois Wildlife Code in particular, which requires them to be licensed and to keep detailed written records regarding all animals and animal parts that they receive. These records must also correspond to tags attached to each animal in their possession, and all “taxidermy records” must be open to inspection at all times by officials from the Department of Natural Resources.

The Seventh Circuit agreed with the state that these provisions are constitutional under the Supreme Court’s holding in New York v. Burger, which allows reasonable warrantless inspections of closely regulated commercial businesses. A search is considered reasonable under Burger if it meets three requirements:

  1. there must be a substantial government interest in the regulatory scheme;
  2. the warrantless inspection must be necessary to further that scheme; and
  3. limitations on the inspection must ensure a constitutionally adequate substitute for a warrant.

The taxidermists conceded that the warrantless inspection of written taxidermy records was supported by the state’s substantial interest in protecting wildlife, but they argued that there was no corresponding interest supporting the search of taxidermy tags. As the court explained, however, Burger’s first prong requires a substantial government interest in the regulatory scheme as a whole. Accordingly, there was no basis for requiring separate justifications for searching written records as opposed to taxidermy tags, and the state’s interest in protecting wildlife was sufficient to satisfy the first Burger requirement.

The taxidermists’ next argument was that warrantless searches failed the third prong of the Burger test because the statute didn’t define exactly which “taxidermy records” were subject to inspection and, as a result, failed to give sufficient notice of the property to be searched. But the court found this interpretation to be overly narrow and explained that if the Illinois legislature had intended the term “taxidermy records” to mean only written records, it would have explicitly said so in the statute. The court also pointed out that the taxidermists’ interpretation was inconsistent with the statute’s organization and that “removing the tagging requirement from the breadth of inspections also would frustrate the purpose of the Code: regulating the capture and possession of wildlife.”

Finally, the court rejected the taxidermists’ claim that the statute gave inspectors too much discretion because it allowed “any peace officer” to conduct searches. Although broad, the court found this provision to be reasonable and noted that equally broad inspection regulations have been upheld in other jurisdictions.

Washington court refuses to find a bailment in stray cat case but accepts claims based on conversion, trespass to chattels, and fraud

Damiano v. Lind, 2011 Wash. App. LEXIS 2000 (Aug. 25, 2011), involved “a dispute between next door neighbors over the disappearance of a cat named Boo.” The cat’s owner, Ms. Damiano, heard Boo meowing from the vicinity of Mr. Lind’s garage on the morning of the its disappearance but when she confronted Mr. Lind, he denied seeing the cat. He later admitted to a police officer, however, that he had trapped a cat meeting Boo’s description in a live trap under his porch and later released it. He explained that he used the trap to catch skunks and that he didn’t know that the cat belonged to Ms. Damiano when he released it. Boo was never found.

The Damianos filed a lawsuit against the Linds, alleging claims of bailment, negligence, malicious injury to a pet, trespass to chattels, conversion, outrage, gross negligence, and fraud. The trial judge dismissed all of the charges on summary judgment. On appeal, the court affirmed dismissal on most of the counts but held that it was error to dismiss the claims for conversion, trespass to chattels, and fraud.

Regarding the bailment claim, the court held that in Washington (unlike Vermont), a person who finds a stray pet is under no obligation or involuntary bailment requiring him to return the pet instead of releasing it. Nor is there any general duty of care to return a stray pet such that the Linds could have been held negligent for failing to reunite Boo with his owners. The court also rejected the Damianos’ claim of malicious injury to a pet because there was no proof of either mailce or injury, as well as their claim of outrage, because the evidence was insufficient to prove either extreme and outrageous conduct or an intention to inflict emotional distress.

Because the neighbor admitted that he had trapped the cat and released it, however, the court held that the Damianos had raised sufficient questions of fact to merit a trial on their claims of conversion and trespass to chattels. Both of these torts, the court explained, require an act of willfull interference with a chattel, without any justification, that deprives the owner of possession or use. The court emphasized that these claims do not require a showing of bad faith or an intent to deprive, and held that Mr. Lind intentionally interfered with the Damianos’ right of possession by trapping Boo. Mr. Lind’s asserted justifications were found to be insufficient, as he failed to provide evidence that cats in general, or Boo in particular, were “specially injurious” to his property such that they could be considered abatable public nuisances, and he did not have the necessary state permits for trapping skunks or other wild animals.

The court also found that there was sufficient evidence to support the Damianos’ cause of action for fraud, as Mr. Lind falsely denied seeing a cat when Ms. Damiano confronted him about hearing Boo in his garage. The court held that Ms. Damiano had a right to rely on Mr. Lind’s statement that he not seen Boo and that she did, in fact, rely on this statement during the following weeks as she continued to search for her lost cat.

How to fight criminal charges when you get caught with a crocodile in your bathtub

While I can’t say for sure, I’m guessing that there aren’t too many cases out there that involve a missing child, his father’s ex-boyfriend, a well-secured house in one of the richest towns in the country, a suspicious couch, a suspicious cot, and a six foot crocodile being kept in the bathtub.

Unfortunately, State v. Ryder isn’t nearly as interesting as it sounds. The majority opinion of the Connecticut Supreme Court held that there was no objectively reasonable basis for the police officer to believe that an emergency was taking place, and so his warrantless search of the house was illegal and the evidence he discovered—a crocodile in the bathtub—was fruit of the poisonous tree and had to be suppressed. Meanwhile, the dissent argued that the majority got it all wrong and omitted important facts that proved how the police officer’s claim of emergency circumstances was actually quite reasonable.

Even more unfortunately, neither of the opinions provided any answers regarding most important question in the case—why was there a freakin’ crocodile in the bathtub in the first place?!?!

The surprisingly interesting jurisprudence of weed ordinances

Lawns are one of the most ubiquitous landscapes in the United States and one of the most potent symbols of American suburbia. They serve as an ideal backdrop to the single family home,  providing just enough space to instill a feeling of privacy, and just enough greenery to foster a connection with nature. Lawns have unified the landscape and transcended social, political, racial, and religious divides like few things can. Michael Pollan, in this regard, compared their influence to the the interstate highway system, fast food, and even television. This deep cultural identification with lawns, he says, also explains “why lawn care is regarded as such an important civic responsibility.”

There’s another reason why lawns and lawn care have become imbued with such strong moral and civic qualities: the antithesis of a well-maintained lawn—the unkempt, uncontrolled, and overgrown yard—is as potent a symbol of failure and decay as the lawn is a symbol of hope and idealism. Few things can conjure feelings of abandonment, neglect, disinvestment, and dispair like a house being slowly consumed by the underbrush.

With symbolism this entrenched and powerful, it’s no wonder that conflicts over lawn maintenance incite people to file complaints, cut their neighbors’ lawns themselves, and even resort to violence.

Weed ordinances were developed long ago as a solution to these sorts of lawn problems, just as spite fence laws evolved to mediate boundary conflicts between vengeful neighbors. Although the earliest weed laws were agricultural measures, they were quickly adapted for use in cities and towns, where they were used to mandate minimum lawn care standards and prevent the growth of nuisance vegetation. The basic mechanism used in these ordinances—a maximum height limit for nonornamental vegetation, usually set somewhere around eight or twelve inches—has hardly changed over the last century.

In addition to protecting neatly maintained neighborhoods from the scourge of overgrown yards, weed ordinances have become the subject of a surprisingly interesting body of lawn care jurisdprudence. Given their widespread use and long historical pedigree, it’s not surprising that most courts uphold weed ordinances with little hesitation. But weed laws aren’t immune from constitutional attacks, and property owners sometimes win. So for the benefit of lawn enthusiasts and weed lovers alike, I now present to you an overview of the Law of Weeds.

Continue reading

The growing urban coyote problem and local management strategies

* This post is adapted from a longer article that can be accessed here.

Coyotes have been viewed as pests and a threat to livestock since American settlers first encountered them, and this hostility supported early government policies that usually focused on eradication. But despite decades of hunting, poisoning, and trapping programs, Canis latrans has proliferated and expanded its range, both geographically and ecologically. Once confined primarily to the plains and prairies of the West and Southwest, coyotes now inhabit urban, suburban and rural habitats throughout Alaska and the lower 48 states, as well as much of Canada and Mexico. In rural areas where larger predators such as wolves have been more successfully eradicated, coyotes have taken their place as apex predators, and in developed areas their intelligence and adaptability has allowed them to create new ecological niches in the urban and suburban landscape. “We consistently underestimate how adaptable coyotes are,” says Stanley Gehrt, one of the nation’s premier urban coyote biologists. “We’ve seen them sitting on the side of the highway. We think they’re listening and looking.”

Continue reading

Fence fights (and pirate fences)

A recent Slate article discussed a property dispute between Donald Trump and a Scottish couple who refuse to sell him their land for a golf course. Trump’s latest move in the fight was to build a fence around their house and then invoke an arcane law requiring them to pay for half of the costs. As the article explained, fence laws like this developed over the years as a response to problems with roaming livestock. In some places, laws were enacted requiring property owners to fence in their animals, but in places where free grazing was encouraged, the responsibility for fencing was often imposed on the people who wanted to fence out their neighbors’ animals. Since neither of these options is ideal, a third choice—cost sharing—was developed to prevent free riders and more evenly distribute costs. Unfortunately, as illustrated by the Trump dispute, cost sharing fence laws can also encourage harassment.

In fact, there are all sorts of fence laws intended to prevent and resolve these sorts of fence fights. Some of the most interesting are “spite fence” laws, which prohibit property owners from putting up fences mainly intended to annoy their neighbors.

Mill Pond Condominium Association v. Manalio provides a good example. The Manalios owned the Harbor Flag Shop in Wells, Maine, and after a dispute with the condo association about an easement, they developed an “excessive enthusiasm” for the “history of piracy and artifacts associated with piracy.” They also developed a “sincere interest in annoying the neighboring condominium owner,” and these interests converged in a variety of interesting fence decorations. As the court recounted:

Among the many signs, flags, posters, banners and displays affixed to the fence were a banner entitled Death Zone, No Prisoners with two skulls and crossbones, a sign for “Graveyard” pointing to the condominiums, Calico Jack displays with a skull and crossed swords, a sign “No trespassing, Violators will be shot, Survivors will be shot again.”, and two posters of primates with titles “Those Neighbors!” and “Lala la la la la la”.

The Maine spite fence law states that:

Any fence or other structure in the nature of a fence, unnecessarily exceeding 6 feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.

Since the Manalios’ fence was less than 6 feet tall, the court allowed them to keep all their signs up, as well as their flags, so long as they “do not become so closely spaced as to become ‘in the nature of a fence.'” The skulls and other things placed on top of the fence, however, rose above the 6 foot mark and had to be removed. Although Mr. Manalio argued that these were just decorations for the store and claimed that “he was from New Jersey he could find cheaper and better ways of harassing his neighbors,” the court had no trouble finding that their purpose was to annoy the neighbors.

While the pirate theme is an interesting twist, it’s not all that extreme compared with other spite fence cases. Consider Gertz v. Estes, an Indiana case where a boundary line dispute devolved to the point that the Gertzes put up an 8 foot tall fence will nails protruding from the edges and security cameras pointed toward the Esteses’ property. The Gertzes were ordered to remove the fence under the Indiana spite fence law, even after they cut the top to keep it under 6 feet tall.

In a Virginia case, Berg v. Cline,  Mr. Berg installed surveillance cameras and motion-activated super bright flood lights after the Clines moved in next door, allegedly to stalk and intimidate them. In response, the Clines put up a 32 foot high fence, and then Berg sued them to take it down, threatening that he would just put up higher perimeter lights if they didn’t. The court, noting Mr. Berg’s bad behavior, refused to order the fence removed, despite its excessive proportions.

It’s an interesting question whether Trump’s fence could be considered a spite fence. Many spite fence laws only prohibit fences over a certain height, as in the pirate fence case, and these statutes would seem to allow an owner to use a cost sharing fence law to harass the neighbors. But sometimes the courts will find a spite fence even if it’s shorter than the legal limit, as with the nail-tipped fence in Gertz v. Estes.

Premises liability for injuries caused by wild animals

People get injured by wild animals all the time and in many different ways. When the injury occurs on someone else’s land, one issue that can come up is whether the victim can sue the property owner for damages.

Under the common law rule of animals ferae naturae, property owners are generally held immune from liability for these sorts of injuries. The rule only precludes strict liability, however, and property owners can still be found liable for negligence. Continue reading

Who owns wild animals?

If you’ve gone to law school, you’ve undoubtedly read the famous decision in Pierson v. Post, and you know that the question of who owns wild animals comes down to who catches them. If you haven’t gone to law school, or if your memory needs refreshing, the gist of what happened in the case is that a certain Mr. Lodowick Post was running his hounds in hot pursuit of a fox, when all of a sudden Jesse Pierson swooped in, killed the fox, and told Post to go shove it. This being 1805 and all, the New York Supreme Court of Judicature discussed a bunch of books written by old white men with names like Puffendorf, Bynkershoek and Barbeyrac, and after comparing their theories of property rights, the court decided that whoever captures the fox gets to keep it. So Mr. Pierson got to keep the fox, despite his poor sportsmanship, and Mr. Post was again told to go shove it.

The beauty of this rule is that it’s easy to apply: whoever captures or kills the fox gets to keep it.* The problem with the rule of capture was that it incited frontier hunters and trappers to kill as many wild things as they could. Free taking policies, moreover, which were established as an alternative to British land monopolies, gave American hunters the right to roam freely even on private lands. Coupled with poor enforcement of the limited game laws that existed, the whole system just encouraged poaching, and exploitation went on as if wild animals were an inexhaustible resource. But before too long, wealthy sportsmen started to notice problems: all manner of wild things were starting to disappear, and some—like the heath-hen and passenger pigeons—were wiped out altogether.

To stop the extinction of species and preserve game hunting for the wealthy elite, sportsmen’s associations were formed and lobbied for regulations that would exclude poor and subsistence hunters. Seasons were further restricted, efficient hunting techniques were banned, and license fees were established that were too high for the poor to afford. At the same time, fish and game agencies (funded by the license fees that only the wealth could pay) were created to enforce regulations that local officials would not. And while the British elite had secured wildlife resources for themselves by giving property owners control over the wildlife found on their land (rather than letting pesky Piersons sneak in and take it), American sportsmen didn’t contest the rule of capture. Instead, they justified restrictive hunting regulations on the basis of a state “ownership” interest in wildlife, saying that wildlife was a common resource that had to be preserved against the poor and hungry masses.

The U.S. Supreme Court ruled on the issue in Geer v. Connecticut, a case that upheld a state law making it illegal to export game birds. Quoting a Minnesota court decision, the Court explained that “the ownership of wild animals, so far as they are capable of ownership, is in the State, not as a proprietor but in its sovereign capacity as the representative and for the benefit of all its people in common.” This is really a variation of the public trust doctrine, which says that common resources like navigable waters cannot be “owned” by individuals, but are instead held in trust by the state for the benefit of all its residents. So even though the state ownership rule was created as a way for wealthy sportsmen to take control of wildlife resources, their motivations were rooted in the conservation movement.

Nearly a century later, in 1979, the Supreme Court overturned Geer in a case called Hughes v. Oklahoma. The case was about another ban on wildlife exports, and this time, the Court ruled that it was unconstitutional under the Commerce Clause, which prohibits interstate discrimination in commerce. In reaching this result, the Court explained that the “state ownership” language was nothing more than an antiquated legal fiction. But the Court was careful to emphasize that the states still had the power to protect, conserve and manage wild animals, so long as their regulations didn’t violate the Commerce Clause or other constitutional provisions.

Even though the Supreme Court made it pretty clear that states don’t own wild animals, a lot of states pretty much ignored this and continued to rely on the “fiction” of common ownership. Consider the Oregon wildlife statute, which says that “Wildlife is the property of the state.” A group of game ranchers in Oregon recently wanted to know exactly what that meant—whether, in particular, it meant that they didn’t actually “own” the elk, ibex, water buffalo and other animals raised on their property and either born in captivity or purchased from license holders. The Oregon Court of Appeals decided the case in April, and the judges held that, yes, the state “owns” wild animals, but only in a sovereign sense, and not in a proprietary sense. In other words, the state owns wildlife insofar as it can regulate hunting and conservation, but doesn’t own it in the way that you or I can own a fox after we’ve captured it. It’s the same legal fiction, still on the books.

So who owns wild animals? The best answer is probably either nobody or everybody, at least until the wild animal is captured, and then the first person to get the fox still wins as long as he complies with all the hunting regulations. Maybe the Texas parks and wildlife law says it better by emphasizing that wild animals aren’t owned by the state itself, but “are the property of the people of this state.”

* If you’re a law professor, disregard this statement. Obviously the rule of capture is very, very complicated because the meaning of “capture” isn’t really clear and there are just so many ways that you can maybe-capture a fox.

Additional references:

Thomas A. Lund, Early American Wildlife Law, 51 N.Y.U. L. Rev. 703 (1976).

Thomas Lund, Nineteenth Century Wildlife Law: A Case Study of Elite Influence, 33 Ariz. St. L.J. 935 (2001).

Michael C. Blumm and Lucus Ritchie, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673 (2005).