Chapter 9 Katrina, Katrina

• Library: Pet Law & Custody: Establishing a Worthy & Equitable Jurisprudence for the Evolving Family (ABA) (2017 Ed.)

Chapter 9 Katrina, Katrina

"Think occasionally of the suffering of which you spare yourself the sight."

—Albert Schweitzer

In this chapter, we will take a close look at how ground operations worked following Hurricane Katrina, what legal questions arose, what role the American Bar Association played, and how carefully judicial officers struggled to make decisions in ensuing pet custody disputes. The legal decisions following Hurricane Katrina are emblematic of the shift in how companion animals are viewed in our legal system.

HURRICANE KATRINA SEQUENCE OF EVENTS

Before Hurricane Katrina made landfall, Governor Kathleen Blanco had already declared a state of emergency, forecasting that the Lake Pontchartrain levee near New Orleans could be toppled or breached. For the first time in the history of the city, Mayor Ray Nagin issued a mandatory evacuation order and the Federal Emergency Management Agency (FEMA) was authorized "to identify, mobilize and provide at its discretion, equipment and resources necessary to alleviate the impacts of the emergency."¹ The National Weather Service warned that in the event of a category four or five hurricane, most of the area would be uninhabitable for weeks, if not longer. Eighty thousand people were stranded in the city, beyond those trapped at the Superdome. There were also 50,000 stranded pets.

When the levee toppled and breached following the arrival of the category five hurricane, President George W. Bush, Department of Homeland Security Secretary Michael Chertoff, and FEMA Director Michael Brown were slow to comprehend what was unfolding or to offer adequate assistance. Even when Brown ordered 1,000 employees to be deployed to help affected citizens, there was poor communication between the White House and those in New Orleans. Looting escalated, and people began to die at the Superdome. The National Guard finally arrived in Louisiana, Mississippi, Alabama, and Florida.

Hurricane Katrina, perhaps more than any other event in American history, signified the inability of local, state, and federal governments to function during a crisis.² What happened was not forgotten and set the stage for professionalizing the command and control structures between local, state, and federal governments to work together. The concept of the role of a first responder became popularized.

Plight of Animals

With regard to the plight of animals and those who loved or tried to rescue them, news outlets showed them stranded on rooftops and trapped in dangerous waters. The public saw the faces of frightened, starving, and dying animals. Humans were risking their lives to protect their pets. The National Guard reported that an estimated "30 to 40 percent of the people who refuse to leave the affected areas are staying because they want to take care of their pets."³

Nonprofits such as the Humane Society of the United States (HSUS) and Best Friends Animal Society persevered against impossible odds. HSUS could barely maintain the perimeter of its own operation, where it lacked space, food, water, and support to take in countless numbers of rescued animals.⁴ HSUS's rescue operation was in jeopardy from day to day because land use was at issue. Beyond understanding what law applied, there were widespread questions of who had the authority to issue an order, how a valid order would be disseminated, and how the order would be enforced.

Not only did Hurricane Katrina cause everyone to understand how we lacked an effective command and control center structure in a disaster context, but also we specifically recognized that companion animals had gained a new place in the American value system. Companion animals were, for a majority of pet owners along the Gulf Coast, more than just a piece of furniture. They were family.

News Stories

According to HSUS, 60 percent of the pet-owning public regarded their pets as family members as the 2005 hurricane season approached.⁵ New York Newsday reported that a man and his 16-year-old Dachshund Chihuahua mix survived for five days in a tree;⁶ the rescuers saved the man but left his dog behind.

CNN showed an image of parents and their children on a roof with their family dog; the rescuers took the humans but left the family dog.⁷ Anderson Cooper interviewed a blind woman who refused to evacuate for ten days without her service animal.⁸ Because of Cooper, the woman was evacuated with her seeing eye dog. A little boy boarding a bus carrying a small white dog named Snowball began sobbing "uncontrollably" and then sank to his knees, vomiting, when Snowball was snatched from his arms by a police officer.⁹ The little boy was forced to board the bus without Snowball.

While it was reported that some officers shot pets, others left food and water for stranded pets. Other animals were taken out of harm's way and turned over to rescue groups such as HSUS, which had a contract with FEMA, or Best Friends Animal Society, a group that had local land.

DIFFICULT QUESTIONS

During Hurricane Katrina, difficult questions about the rule of law included these:

• How can ownership be proven or determined?
• What hold period, if any, applies in a disaster context?
• Although most states have Good Samaritan laws pertaining to rescuing humans, do these laws apply to rescuing animals?¹⁰
• Can veterinarians act as Good Samaritans under the law when other members of the public cannot?
• When is it legal to break and enter into a home to save an animal?
• How would anyone know if permission for entry to a house had been granted by the animal's owner?
• Is it legal to break windows in homes to implement feed and leave efforts?
• Once a pet is saved, can the pet be taken out of state?
• If the original owners locate their pet, can they get their pet back? Are decisions impacted by class?
• Can lost and found registries be required to divulge information?
• How do the original owner's rights compare to the rights of those who newly bonded with the animal and paid for extraordinary veterinary care?¹¹
• When can an animal be permanently re-homed?
• What if the new owners, pointing to evidence of scars, claim that the pet now in their care had been used for dog fighting or was otherwise neglected or cruelly treated?
• When, if ever, will the best interests of the animal be considered by the courts?

There were few readily available answers to these questions. The differences from state to state were significant, in part due to Louisiana's unique civil law system with roots in the Napoleonic Code, while the other 49 states' common law was largely derivative from English Common Law. It was difficult to sort out when to apply regular statutes and common laws and when to apply emergency laws and orders offered by various branches of government.¹²

In this chapter, there is commentary on the difficulty of answering some of the above questions. This commentary is presented to shed light on these difficult questions, and the discussion also reveals that in this century, we are only at the beginning of a long journey to sort out how we will decide the way companion animals will be treated in both emergency contexts and American jurisprudence.

SAVING KATRINA ANIMALS

Pit Bulls and Pit Bull mixes were common in the Gulf States impacted by Hurricane Katrina. When saved, many became known as "Katrina dogs."¹³ Rescue groups, as well as what have been called "rogue" groups who saved and received animals, varied as to whether they had procedures in place to trace the origins of these animals before they were transferred within their home state or out of state. Groups differed as to whether their goal was for the animals to be later reunited with their original owners or for them to stay with a foster or new owner. It was challenging to determine what laws to apply to each individual situation when there were competing legal claims.

Hold Periods

Where should rescue groups, with limited financial means and significant communication problems, place found animals with great medical and emotional needs? Did it make sense to apply the three-to-seven-day hold period, pursuant to a local ordinance, when the owner was separated from an animal because of a mandatory evacuation order and animal transport was circumscribed? Did hold periods make sense in a disaster context when owners were unable to travel and animals might die? One viewpoint was that after a certain date, the rescued animals could be sent out of state and re-homed.¹⁴

There was also the matter of people looking for lost pets and whether the rescue groups should or could disclose that they were alive and had been re-homed. It was in this context of cultural upheaval and who belonged in a family that for the first time in American history, the American Red Cross placed a link on its website to PetFinder, a national animal database. This had the effect of some of the animals' original owners being able to find their lost companion animals.

Who Owns Katrina Animals

Post-Katrina conflicts occurred between original pet owners and those who had contractual relationships with rescue groups who spent extensive time and effort to rescue and rehabilitate suffering animals. Many who received Katrina animals viewed themselves as fosters, particularly if they were working under a contract with Best Friends Animal Society. Other rescues believed they had title to a rescued animal and, therefore, had the power to transfer title of the animal to another rescue or to new owners. It was common for volunteers who went to the Gulf Coast to come back with a Katrina animal.

Defining Crime

Another challenging aspect regarding the animals left behind in the wake of Katrina was what those trying to save them were legally permitted to do. If a search and rescue team saw a stray dog in a window, was it necessary that they find a sheriff or other law enforcement official to assist with breaking the window to rescue the dog? If not, were the rescuers involved in a trespass to chattels or were they...