History

Hurricane Katrina made landfall on August 29, 2005, causing all manner of destruction and loss of life. Lessons learned from this disaster led to changes in Federal Laws and national policies, including on the subject of animals. The Pet Evacuation Standards (PETS) Act, which conditioned FEMA funding upon state pet evacuation planning, was sponsored by the American Bar Association (ABA) Tort Trial & Insurance Practice Section (TIPS), then supported by the ABA House of Delegates, and passed by Congress on October 26, 2006. What was the Department of Homeland Security’s National Response Plan, which did not include animals, became the National Response Framework, including animals, on March 22, 2008.

Hurricane Katrina was the catalyst for these changes, as well as an act originating from the National Conference of Commissioners on Uniform State Laws (NCCUSL), which came to be known as the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA), after the ABA House of Delegates unanimously approved it on August 9, 2006. Creating and passing UEVHPA was NCCUSL’s post-Katrina top priority. The act facilitated the portability of medical and veterinary licenses across state lines in times of disasters, thereby helping increase first responder capability. More information is available at: http://nccusl.org/Update/. Barbara J. Gislason serves as the ABA TIPS Advisor to this Committee and both initiated and drafted the language for the portability of veterinary licenses.

In the meantime, the leaders of the ABA TIPS Animal Law Committee, which had only been created the year before Hurricane Katrina made landfall, became the “go to” people for legal questions related to Animal Law issues in a disaster situation, in a context where one of the affected states on the gulf coast, Louisiana, was subject to the Napoleonic code and not common laws.

At the time of Hurricane Katrina, although some cities, states, and regions had well developed Animal Law committees and sections in their bar associations, like Michigan and New York, and Animal Law courses were being taught at many law schools, including Harvard, Lewis and Clark, Northwestern, Stanford, UCLA, Columbia and Duke, and a few textbooks were just becoming available, there was limited understanding around the country, and certainly in the practicing bar and judiciary, about what Animal Law was, much less how to consider the intersection of Animal Law with Emergency Management and Public Health Law.

For example, people knew there were Good Samaritan laws, but did these apply to saving animals, even by veterinarians? With regard to laws for breaking and entering homes, were there exceptions for search and rescue teams aware of animals inside? Once a pet was saved, could this animal be moved out of state, without any tracking information left or photographic images available? If the original owner could locate an animal, could they get it back? How did the original owner’s rights compare to those who had newly bonded with the animal, or paid for extraordinary veterinary care? When, if ever, would the best interests of the animal be considered by the courts?

Barbara Gislason, the TIPS Animal Law Committee Chair, launched and directed the ABA TIPS Animal Disaster Relief Network on September 11, 2005, and later, convened the ABA TIPS Select Legal Panel on January 10, 2006. The Network collaborated with other nonprofits, bar associations and law schools for FAQs (with ALDF taking the lead) and led two years of teleconferences on disaster related issues, published reports, and updated electronic directories. Network participants included representatives from 80 bar associations, state nonprofits, law schools and government entities, including the United States Department of Agriculture, United States Department of Homeland Security, and the Centers for Disease Control, and State Animal Response Teams (SARTs).

The ABA-TIPS Select Legal Panel on Emergency Management Regarding Animals was convened by Barbara Gislason in 2005 and was composed of a broad spectrum of professionals who had distinguished themselves post Katrina, or who had relevant subject matter expertise. The panelists were:

Attorneys

• Dr. Sarah Babcock, Attorney and DVM, AVMA/AAAS Science and Technology Policy Fellow, U.S. Department of Homeland Security
• Amy Breyer, Founding Chair and Chair, Chicago Bar Association’s  Animal Law Committee
• Dana Campbell, Senior Attorney, Animal Legal Defense Fund
• Jim Carr, ABA House of Delegates Representative, Vice-Chair ABA TIPS Animal Law Committee,  First Assistant Attorney General, State of Colorado, Department of Law
• Debra A. Cohn, Washington Counsel, American Medical Association
• David Favre, Professor, Michigan State University College of Law, Editor-In-Chief, Animal Law and Historical Web Center
• Bee Friedlander, Past Chair, State Bar of Michigan’s Animal Law Section
• Barbara Gislason, Founding Chair and Chair, ABA TIPS Animal Law Committee, Director, ABA TIPS Animal Disaster Relief Network, TIPS Advisor to NCCUSL
• Kenneth J. Goldsmith, Legislative Counsel, ABA Governmental Affairs Office
• Kristina Hancock, Chair-Elect, ABATIPS Animal Law Committee, Senior Counsel, Luce Forward
• Holly Hazard, Executive Director, Doris Day Animal League
• Martha McPhee, President, Animal Humane Society of Minnesota
• Phil Pierson, Legislative Analyst, American Humane Association
• Melissa Seide Rubin, Vice President of Field and Disaster Services, HSUS
• Andrea Spehar, Research Assistant Professor, College of Public Health, U of South Florida
• Ledy VanKavage, Sr. Director of Legal Training & Legislation, ASPCA
• Hon. Ben Zvenia, Vice-Chair, ABA TIPS Animal Law Committee, Appellate Justice &  Judge Pro Tem for the Lummi Nation Tribal Court System and So. West Intertribal Court of Appeals 

Advisors

• Dr. Jack Casper, DVM, Director, Maryland State Animal Response Team
• Lynn Crabb, Senior Analyst, American Red Cross
• Terri Crisp, Founder and President, Noah’s Wish
• Dr. Kevin M. Dennison, DVM, Director, Colorado State Animal Response Team, Colorado Veterinary Medical Foundation, Founder of the National Alliance of State Animal and Agricultural Emergency Program (NASAAEP)
• Chester A. Gipson, Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture
• Dr. Cindy Lovern, DVM, Assistant Director, Scientific Activities Division, American Veterinary Medical Association
• Capt. Stephanie Ostrowski, Epidemiologist, Special Liaison for Animal Issues, Hurricane Katrina, Centers for Disease Control and Prevention (CDC)
• Dr. Renee Poirrier, DVM, Director, Louisiana State Animal Response Team

• Jeremiah Strack, George Washington University Law School

The panel recognized that in disasters, both human and animal populations become dislocated, and there was conflicting information about what laws and orders were in effect, which contracts were valid, and whether either was uniquely impacted in the disaster context. There were questions about whether animals fit into the legal category of surrendered, lost, or abandoned and if replevin actions would work.

For those pets that were rescued, the rights and responsibilities of those who took them were far from clear, including ownership, possessory rights, and the application of best interests standards. The problems of recovery and title were amplified when pets crossed state lines because of Conflicts of Laws, lack of information about the recovered animal’s home state, and inability to identify the animal. The litigation resulting from the above described problems was recently detailed in “Pets in the Eye of the Storm: Hurricane Katrina Floods the Courts with Pet Custody Disputes” by Megan McNabb, Animal Law Vol. 14:71.

The panel sought to create an example of a useful law that would enable states to plan for their future responsibilities should disaster strike. Professor David Favre, a former law school Dean and expert on the subjects of Property Law and Animal Law, was the principal drafter of the prototype.

After multiple teleconferences on the subject of hold periods and the intricacies of implementing them, the panel approved an example of a state act governing emergency hold periods for disaster animals on or about March 1, 2006. When AVMA’s Cindy Lovern asked that this proposal not be acted upon until May, 2006, giving the AVMA the opportunity for comment, her request was granted. No comments were forthcoming.

The proposal was also distributed by panel advisor Dr. Kevin Dennison as an attachment to the National Alliance of State Animal and Agricultural Emergency Program’s (NASAAEP) monthly minutes, and this distribution did not evoke further comment. NASAAEP membership, both then and now, includes members of the American Veterinary Association, State and Federal Departments of Agriculture, the American Red Cross, animal non-profits and emergency managers.

Within the ABA itself, there has been a deliberative process of evolving the substantive ideas adopted be the TIPS Select Legal Panel and approved by the TIPS Council to address concerns raised by the ABA Section of Science and Technology, and by the ABA Special Committee on Disaster Response and Preparedness, a Committee formerly chaired by ABA past President Tommy Wells and current ABA President Carolyn B. Lamm, and a Committee of particular importance to incoming ABA President Stephen N. Zack, who has attended Special Committee meetings. From the prototype, Professor Favre and Gislason created the “Model Act Governing Standards for the Care and Disposition of Disaster Animals.”

Based upon the recommendation of Special Committee member and former Chair of the TIPS Section Sandy McCandless, past FEMA General Council (under Bill Clinton), Special Committee member, and co-author with Otto Hetzel of The Legal Guide to Homeland Security and Emergency Management for State and Local Governments, Ernie Abbott, and with input from other Special Committee members from the gulf coast, the length of the prototype act was shortened, and the format changed to be consistent with other ABA model and uniform laws.

Current Special Committee Chair Jim Baillie entertained a motion from American Bar Fellows President David Houghton that the Special Committee co-sponsor the Model Act if Special Committee members Sandy McCandless and Ernie Abbott and Special Committee Liaison from both TIPS and the Family Law Section, Barbara Gislason, could reach consensus on a revised report to the ABA. This goal was achieved, and the Standards for the Care and Disposition of Disaster Animals Model Act  Report comes before the ABA House of Delegates sponsored by TIPS, co-sponsored by the ABA Special Committee on Disaster Response and Preparedness, and with revisions consistent with concerns expressed by the ABA Section of Science and Technology. Jim Carr, a member of the ABA TIPS Animal Law Committee, and the Senior TIPS Delegate to the ABA House of Delegates, championed passage of this groundbreaking Model Act and achieved a unanimous vote.

The Model Act is as follows:

AMERICAN BAR ASSOCIATION

TORT TRIAL AND INSURANCE PRACTICE SECTION

REPORT TO THE HOUSE OF DELEGATES

RECOMMENDATION

RESOLVED, that the American Bar Association approves the Model Act Governing Standards for the Care and Disposition of Disaster Animals, dated February 2010 and recommends its adoption by state legislative bodies.

AMERICAN BAR ASSOCIATION MODEL ACT GOVERNING STANDARDS FOR THE CARE AND DISPOSITION OF DISASTER ANIMALS (February 2010)

Section 1. Short Title

This Act may be cited as the “Standards for the Care and Disposition of Disaster Animals.” 

Section 2. Purpose

The purpose of this Act is to provide certainty of ownership for disaster animals by providing an owner with a specific time frame by which the owner must reclaim companion animals following a declared federal major disaster, and to provide an animal shelter with specific guidelines as to how long disaster animals must be held prior to their disposition. 

Section 3. Definitions

As used in this Act:

(1) “Animal Shelter” means: a physical facility or entity, including those utilizing private homes, operating for the purpose of providing temporary or long term shelter to lost, unwanted or abandoned animals, that is recognized and approved by the state or local authority. For the purposes of this Model Act, the singular, as in “Animal Shelter,” shall include the plural, as in “Animal Shelters,” and vice versa.

(2) “Disaster Animals” means domesticated companion animals that have become separated from an owner as the result of a Major Disaster.  Disaster animals include those found on private property or running at large, as well as, owner surrendered or relinquished companion animals. Feral animals are excluded from this Act.

(3) “Companion Animals” mean domesticated animals, such as a dog, cat, bird, rabbit, rodent, or turtle that are traditionally kept in the home for pleasure rather than for commercial purposes, can travel in commercial carriers, and be housed in temporary facilities. Companion animals do not include reptiles (except turtles), amphibians, fish, insects/arachnids, farm animals (including horses), and animals kept for racing purposes or animals held by a registered research facility under the federal Animal Welfare Act.  Feral animals, animals covered by the federal Animal Welfare Act or by regulations issued under that act, and any other animals held for use in or used in research are excluded from this Act.

(4) “Owner” means the person having title to companion animals.

(5) “Feral Animals” means animals that do not have an owner.

(6) “Holding Period” means the length of time that disaster animals are cared for by an animal shelter or fostered out by a shelter.

(7) “Reclaim” means the taking back of possession of disaster animals by the owner or an agent of the owner.

(8) “Major Disaster” means a major disaster or emergency declared by the President of the United States under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288, as amended.

(9) “Tracking Information” means available information about the owner, physical description and health history of the disaster animal, photographs of the disaster animals, information about where the disaster animals were found and transported to, recommended course of treatment, and communications with an owner, including holding period extension by contract.

(10) “Approved Website” means a website approved by the state veterinarian.

(11) “Extension by Contract” means extensions of the mandated holding period based upon an agreement between the owner and animal shelter for an additional time period.

(12) “Shelter Animals” means companion animals living at an animal shelter before a Major Disaster.

Section 4. Provisions for Disaster Animals

(a) Disaster animals taken from a disaster area or delivered to an animal shelter following a Major Disaster will be kept by the animal shelter that receives the disaster animals according to the applicable holding period, unless the owner of the disaster animals agrees otherwise in writing. After the applicable holding period has passed for disaster animals, then the animal shelter has the authority to dispose of the disaster animals as allowed under state law when there is no Major Disaster, unless the owner has an extension by contract with the animal shelter for additional time.  An owner who does not retake possession of their disaster animals by the end of the applicable holding period plus any extension by contract thereof, has abandoned the disaster animals and any new owner shall have unencumbered title to the disaster animals.

(b)  Disaster animals brought to an animal shelter shall be kept for at least 30 days after the posting of a photograph and tracking information about the disaster animals on an approved website, and up to six months if required by the State Veterinarian.  The requirement for posting a photograph and tracking information on an approved website may be modified or eliminated as determined by the State Veterinarian.

(c) During the holding period, the animal shelter is fully authorized to provide or arrange for necessary veterinary health services that are in the best interests of the disaster animals as may be determined by a veterinarian. Disaster animals that exhibit ownership by the presence of a tag or identification chip or was removed from a private residence, including fenced adjacent land, may not be spayed or neutered without the written permission of the owner unless it is medically necessary as may be determined by a veterinarian.

(d) During the holding period an animal shelter may place a disaster animal in a private home or other animal shelter either in the state or out of the state so long as available tracking information is kept, and any transfer out of state is authorized by the state veterinarian. In no case shall title to a disaster animal be awarded to a new owner until after the holding period has expired, together with any extension by contract thereof.

(e) If an owner of disaster animals contacts an animal shelter about disaster animals but is unable to assume possession of the disaster animals by the end of the applicable holding period, then the owner may request the animal shelter to keep the disaster animals for up to an additional 30 days, if the owner is willing to pay the cost of care as established by the animal shelter for the disaster animal during the extension by contract. The animal shelter may require payment of the costs as a condition of extending the holding period. If by the end of the extension by contract the disaster animals have not been reclaimed by the owner, then the animal shelter may treat the holding period as expired. The animal shelter shall advise an owner of the dates of the required holding period and opportunity for extensions by contract, if any owner inquiry is made

(f) If an animal shelter becomes inoperative because of a Major Disaster, then all the companion animals removed from the animal shelter shall be treated as disaster animals by whoever takes control of the companion animals.  However, if records that accompany these shelter animals demonstrate that it was lawfully permissible to transfer title to the shelter animals before the Major Disaster those shelter animals would not be treated as disaster animals.

(g) If an owner of disaster animals has contacted the animal shelter responsible for their disaster animals before the end of the holding period to reclaim the disaster animals, but the animal shelter of the disaster animals refuses to return the disaster animals, then any transfer of title agreement by the shelter to a new owner is voidable by court order.

Section 5.  Private Keeping of Disaster Animals

Any individual, who is not working under the authority of an animal shelter, who takes possession of disaster animals, shall transfer the disaster animals as quickly as reasonably possible to an animal shelter along with available tracking information.

Section 6. Movement of Animals

(a) No disaster animals may be removed from the State without the permission of the State Veterinarian or by satisfying such requirements as might be established by the State Veterinarian.

(b) Except as provided above, anyone who knowingly removes disaster animals from the state is subject to a civil fine of up to $1,000 per offense.

Section 7.  Exemptions

(a) This Act shall not limit an animal control authority or agent thereof from humanely euthanizing an animal in accordance with existing state law.

(b) This Act does not impose any affirmative duty on an animal shelter to admit disaster animals.

(c) This Act shall not restrict or interfere with the general powers of the State Veterinarian [or Department of Agriculture] [Department of Health], including the power to quarantine or restrict the movement of disaster animals, or to exercise powers provided by law.

(d) This Act shall not be construed as preventing veterinary care for disaster animals either before or after they are brought to an animal shelter.

Section 8. Effective Date

This Act shall take effect July 1, 20xx.

Conclusion