Animal Law in Kansas: What Every Lawyer Should Know
| Citation | Vol. 91 No. 1 Pg. 38 |
| Pages | 38 |
| Publication year | 2022 |
January, 2022
Animal protection and regulations
By Katie Bray Barnett and Anna Yendes
I. History of Animal Law
Preventing the suffering of animals predates this country's founding.[1] In 1641, the Massachusetts Bay Colony had adopted its "Body of Liberties," which prohibited "any [t] iranny or [c]rueltie towards any [b]ruite creature which are usuallie kept for man's use."[2] In 1866, the American Society for the Prevention of Cruelty to Animals (ASPCA) was established by an act of the New York state legislature and granted legal authority to investigate and make arrests for animal cruelty. As early as the 1800s, courts were hearing animal cruelty cases.[3] Traditionally, we think of animal cruelty as an act perpetrated against a family pet, like a cat or a dog, but nearly all state statutes criminalizing such act define the victim as "any animal."[4] Kansas is like most other states and does not distinguish between animal species when criminalizing animal cruelty.[5]
While animal protection is what most people think of when referring to the practice of animal law, animal law actually reaches into nearly every practice area of the law. From the regulation of agricultural animals to the commercial selling of companion animals, and from local ordinances regulating the keeping of animals in densely populated areas, to the status of animals in probate matters, and finally to seeking damages for the loss of a pet through a claim of common law conversion, we see animal law permeate.
Kansas has been at the forefront of controversial laws regarding agricultural animals[6] and has lagged behind in companion animal regulations,[7] but has consistently ranked in the top 20 states with regard to animal protection laws.[8] Once Kansas enacted a felony animal cruelty statute in 2006, the ranking jumped significantly from one of the five worst states for animals to its current ranking of 22nd.[9]
II. Regulation of Animals
The treatment of animals within the state of Kansas is not solely enforced through the animal cruelty statute. Many other statutes and accompanying administrative regulations set parameters for not only the standard of care for animals, but also to protect the health, safety and welfare of people within the state.
a. Agricultural Regulations[10]
Agricultural production has historically been afforded protections that most other industries do not receive. One such protection has been the enactment of legislation known as "Ag-Gag" laws in various states. These laws are designed to limit information-gathering activities and penalize whistleblowers at animal production facilities. The first wave of "Ag-Gag" laws occurred in the 1990s and focused mainly on the protection of agricultural facilities from trespass and property damage. After 2011, a second wave of these laws was enacted, the main purpose being to limit investigation and information gathering.[11] These laws have long been criticized by many groups, including animal welfare advocates and legal scholars. Not only do these laws prevent animal production facilities from being publicly scrutinized for animal abuse, unsanitary or unlawful practices and mistreatment of non-citizen workers, but they also clash with the First Amendment of the U.S. Constitution.
Kansas's "Ag-Gag" law was enacted in 1990. This law, titled "Farm Animal and Field Crop and Research Facilities Protection Act," was the oldest of its kind in the United States.[12] In January 2020, sub-sections b, c, and d of KSA § 47-1827 were ruled unconstitutional violations of the First Amendment in the case Animal Legal Def. Fund v. Kelly, 434 F. Supp. 974 (D. Kan. 2020). These provisions made it illegal to take pictures or video inside a factory farm or slaughterhouse, which the Court said regulated speech. Because these provisions restricted speech based on its content, the Court applied strict scrutiny. The Court held that K.S.A. § 47-1827(b), (c) and (d) failed the test because there was no compelling interest asserted which was protected by these provisions, only that they were a "reasonable" way to protect the privacy and property rights of facility owners. U.S. District Court Judge Kathryn H. Vratil explained that those specific sections of the statute were underinclusive because they "do not prevent everyone from violating the property and privacy rights of animal facility owners - only those who violate said rights with intent to damage the enterprise conducted at animal facilities."[13] Kansas is the fourth state to have its "Ag-Gag" law ruled unconstitutional by a U.S. District Court.[14]
b. Zoos, Exotic Animals and Wildlife[15]
Wildlife statutes are found in KSA Chapter 32. Violations of the chapter are, unless otherwise specified, class C misdemeanors. KSA § 32-1031. Repeat violations can result in fines of not less than $250 and jail time not less than seven days in county jail. This chapter covers the Department of Wildlife, Parks and Tourism (Article 8); licenses and permits (Article 9); unlawful acts related to wildlife such as endangered species (Article 10); and dangerous animals (Article 13).
Regulation of wildlife and exotic animals has once again become a subject of national interest over the last year as we all sat at home and binged on the Netflix series "Tiger King: Murder, Mayhem, and Madness." However, the Kansas Legislature was concerned with the consequences of negligent large cat ownership years before Joe Exotic and Carole Baskin captured America's attention. In August 2005, seventeen-year-old Haley Hilderbrand was killed while posing with a Siberian tiger for her senior pictures. The incident occurred at Lost Creek Animal Sanctuary in Mound Valley, Kansas.[16] This tragedy garnered national attention and was directly referenced by former Governor Kathleen Sibelius when she signed Article 13 provisions into law on April 17, 2006.[17]
K.S.A. § 32-1301(d) defines a "dangerous regulated animal" to include lions, tigers, jaguars, cheetahs, mountain lions and hybrids of these species. Bears, bear hybrids and all non-native venomous snakes are also specified.[18] Article 13 provisions apply not only to live animals, but also to any slaughtered parts of these animals. To possess a dangerous regulated animal, Kansas law requires a valid United States department of agriculture license, compliance with USDA regulations promulgated under the Animal Welfare Act and for the possessor to be free from a felony conviction or conviction of a crime in another jurisdiction that would be equivalent to a felony in Kansas.[19]
Article 13 requires any dangerous regulated animals to be registered, in writing, with the local animal control entity and gives them authority to inspect the premises where the animal is located. If the animal is sedated for any reason, it must be microchipped, and the microchip information sent to the animal control entity within 30 days.[20] In the event of an escape, local law enforcement must be notified immediately. Possessors of a dangerous regulated animal must maintain a written recovery plan in the event of an escape and keep on hand all necessary equipment to capture the animal (such as live traps). The possessor is then liable for any costs incurred by a city, state, or county agency resulting from the escape.[21] Perhaps one of the most important protections offered by Article 13 is the prohibition of contact between a dangerous regulated animal and any person who is not the possessor, a registered designated handler, or a veterinarian administering medical care.[22] This effectively prevents roadside petting zoos and photography opportunities with wild and exotic animals, like what happened to Ms. Hilderbrand.
Regulations regarding wildlife and exotic animals are created and published by the Kansas Department of Wildlife, Parks and Tourism.[23] K.A.R. 11-20-5 sets out specific caging requirements for dangerous regulated animals. K.A.R. 11-20-6 creates requirements for those applying to be a registered designated handler. These requirements include at least 200 hours of training and experience in care, feeding, handling and husbandry of the species (or a substantially similar species) for which the registration is sought, extensive documentation of this training, and at least two references from individuals who have personal knowledge of the completed training. For several years, advocates from the Humane Society of the United States and other animal welfare organizations have been pushing for the Kansas Legislature to include wolves and non-human primates to the list of dangerous regulated animals.[24] Reasons cited for this change emphasize the fact that these animals are not pets, they are wild animals. They can cause serious injury or death, can spread diseases to people, and pose dangers to first responders and communities. The most recent attempt to make these amendments was in 2021, but the bill died in committee. A renewed attempt will likely occur in 2022.[25]Currently, 12 Kansas counties and 40 cities ban the private ownership of these animals.
While Kansas has passed legislation curtailing certain dangerous practices involving exotic animals, private ownership of big cats remains a problem in the United States. Currently, there are no federal prohibitions on big cats u t being kept as pets or being handled by the public at exhibits. Across the nation, unsuspecting members of the public, like Haley Hilderbrand, are still allowed to pose with wild animals for pictures. Roadside zoos over-breed big cats and separate the cubs at birth to be used in the lucrative practice of "cub petting." No tracking takes place to determine what happens to these cubs when they become too big to be handled by paying customers.[26] The Big Cat Public Safety Act would fix...
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