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AMERICAN BAR ASSOCIATION
TORT TRIAL AND INSURANCE PRACTICE SECTION
REPORT TO THE HOUSE OF DELEGATES
RECOMMENDATION
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RESOLVED, That the American Bar Association approves the following
Model Act Governing “Emergency Holding Periods for Disaster Animals”,
dated August 2009, and recommends its adoption by state legislative bodies.
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AMERICAN BAR ASSOCIATION MODEL ACT GOVERNING
EMERGENCY HOLDINGS PERIODS FOR DISASTER ANIMALS
(August 2009)
Section 1. Title
This Act may be cited as the " ABA Model Act Governing Emergency
Holding Periods for Disaster Animals”
Section 2. Purpose
The purpose of this Act is to provide certainty of ownership of disaster
animals by requiring owners with a specific time frame by which they must
recover their animal after a declared disaster or evacuation; and to provide
animal shelters with specific guidelines as to how long a disaster animal
must be held prior to disposition of the animal by an animal shelter.
Section 3. Definitions
As used in this Act:
(1) “Animal Shelter” means: a government or private organization
with a physical facility operating for the purpose of providing
temporary or long term housing to lost, unwanted or abandoned
animals, and is recognized by the state or local authority as such an
agency, or an organization authorized by local animal control
authority or government authority to temporarily care for companion
animals.
(2) “Disaster Animal” means any domesticated companion animal [as
defined in code §{insert existing state law number}] , including but
not limited to dogs or cats who are kept inside or outside a home, that
have become separated from their owners as the result of a natural or
manmade disaster which affects residences as may be found either on
private property or running at large, as well as, owner surrendered or
relinquished animals. Feral animals are excluded from this Act.
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Section 4. Limitations
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Nothing in this Act shall diminish the right of an animal shelter or veterinary
clinic to refuse to admit an animal generally or disaster animal, specifically.
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Section 5. Triggering Events
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(1) Class #1 Disaster: City/County level disruption of residences
requiring companion animal owners to leave their residences for more
than 24 hours.
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(2) Class #2 Disaster: State declared emergency for a county or
portion of county requiring companion animal owners to leave their
residences for more than 24 hours.
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(3) Class #3 Disaster: Federally declared disaster for a county
requiring companion animal owners to leave their residences for more
than 24 hours.
Section 6. Extensions of Holding Period
(1) Any disaster animal taken from a disaster area or delivered to an animal
shelter by someone leaving a disaster area during or following a disaster as
described above will be kept by the animal shelter that receives the disaster
animal under the following schedule, unless the owner of the disaster animal
agrees otherwise in writing. After the holding period below has passed for
any disaster animal without notification from the owner expressing an
interest in taking back possession of the disaster animal, then the animal
shelter has full authority to dispose of the disaster animal as allowed under
non-emergency circumstances. Notwithstanding any other provision of law,
an owner who does not retake possession of their animal by the end of the
relevant holding period set out in this section plus any contractual extension
thereof, will be considered to have abandoned the animal.
(2) Holding periods:
(a) Class #1 event: For 14 days after the declaration of the emergency,
a disaster animal brought in to an animal shelter will be kept for 14 days
after the day of delivery to the animal shelter.
(b) Class #2 event: For 14 days after the declaration of the emergency,
a disaster animal brought in to an animal shelter will be kept for 21 days
after the day of delivery to the animal shelter.
(c) Class #3 event: For 30 days after the declaration of the emergency,
a disaster animal brought in to an animal shelter will be kept for 90 days
after the posting of pictures and information about the animal sufficient to
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give notice to an owner on an appropriate and easily accessible lost pets
website or six months after the arrival of the disaster animal if information is
not posted on a website. The requirements of sufficient notice and the
locations for posting on a website may be set by regulation by the
Department of X.{Identify the agency with disaster planning responsibility.}
(3) During the holding period, the shelter is fully authorized to provide
necessary veterinary care that is in the best interests of the disaster animal as
may be determined by a veterinarian. A disaster animal that exhibits
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.
(4) 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 a written record is kept of any placement. In no case shall such a
disaster animal be available for permanent adoption until after the holding
period as set out in this Act.
(5) If an owner of a disaster animal contacts an animal shelter about a
disaster animal but is unable to assume possession of the disaster animal by
the end of the applicable period described above, then the owner may
request the animal shelter keep the animal for up to an additional 30 days,
only if the owner is willing to pay the cost of care for the disaster animal
during the extended period. The animal shelter may request payment of the
fee before extending the holding period. If by the end of the extended period
the disaster animal has not been transferred to the owner, then the animal
shelter may treat the animal as one for which the holding period has expired.
(6) If an animal shelter is holding other animals during a period described in
this Act then the provisions of this Act shall not apply to those animals.
(7) If an animal shelter becomes inoperative because of a disaster then all the
animals removed from the shelter shall be treated as disaster animals by
whoever takes custody of the animals, except that if records accompany the
animal showing that it was lawfully permissible to adopt out the animal
before the transfer, then that animal will not be treated as a disaster animal.
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(8) If an owner of a disaster animal has contacted the animal shelter
responsible for their disaster animal before the end of the holding period and
either the animal shelter or other possessor refuses to return the disaster
animal, then any animal adoption agreement will not be effective to transfer
title of the disaster animal until the dispute is settled or the passage of six
months from date of the notice from the owner. The filing of a law suit
before the end of the six months shall hold the transfer of title in abeyance.
The responsible animal shelter shall give written notice of the deadlines of
this section to any individual asserting ownership of a disaster animal if
possession is in dispute.
Section 7. Private Keeping of a Disaster Animal
Any individual, who is not working under the authority of an animal shelter,
who picks up or removes an animal from a disaster area, shall transfer the
disaster animal as quickly as reasonably possible to a working animal shelter
or veterinary clinic along with information about the location where the
animal was found. If the veterinary clinic keeps possession of the disaster
animal it shall notify a local animal shelter of the presence of the animal
along with identification information. A veterinary clinic shall transfer any
disaster animal in their control to an animal shelter within three days of
obtaining possession of the disaster animal unless agreement is reached with
an animal shelter allowing temporary placement of the animal with the
veterinary clinic.
Section 8. Removal of Disaster Animals
No disaster animal can 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. Anyone who knowingly removes a
disaster animal from the state without the permission of an animal shelter
and satisfying the requirements of this section is subject to a civil fine of
$1,000 for each animal removed.
Section 9. Euthanasia
This Act shall not limit an animal control authority or agent thereof from
humanely euthanizing an animal in accordance with existing state law.
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Section 10. Emergency Powers of State Authority
This Act shall in no way restrict or interfere with the general powers of the
State Veterinarian [or Department of Agriculture], including the power to
quarantine or restrict the movement of a disaster animal, or to exercise any
emergency powers provided by law.
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REPORT
Hurricanes, Gustaf, and Ike are the most recent reminders of the major disasters
that periodically strike American communities. The country also experiences
many smaller, but locally no less significant disasters such as fires, tornados,
and others. A common thread in such disasters is that both the human and
animal populations often become dislocated from the disaster area.
This recommendation is intended to address a problem that arises with animal
rescue operations. When disaster strikes, many companion animals, primarily
dogs and cats, are separated from their owners, abandoned, or otherwise
dislocated. The animals that survive usually end up in animal shelters which
quickly become overwhelmed.
Often, there are no guidelines for how long a shelter must keep an animal, how
and when it may adopt the animal out, or when it may otherwise move the
animal. At the same time animal owners encounter problems; their efforts to
find and reunite with their companion animals are also affected by the lack of
any guidelines as to how long an animal must be kept, when it can be adopted
out, and when it can be moved.
In the wake of Hurricane Katrina many owners found the location of their
companion animals only to discover that their companion animal had been
adopted by a new family, or even euthanized because of the lack of shelter
space or other problems. Many ownership disputes and much human and animal
suffering resulted from the lack of guidelines as to what shelters can do with
companion animals and how long they must keep a companion animal before
taking action.
The TIPS Animal Law Committee was instrumental in putting together an
Animal Disaster Relief Network following Hurricanes Katrina and Rita. The
Network includes most of the major animal organizations in the United States.
The Network subsequently formed a Legal Panel on Emergency Management
Regarding Animals (Appendix A). One of the issues the Legal Panel addressed
was the concern about disaster guidelines and rules for animal shelters,
including the general lack of mandatory minimum hold periods. The Legal
Panel’s primary conclusion was that every state and territory needs to have a
policy in place that provides rules and guidelines for animal shelters in disaster
situations, including mandatory minimum holding periods.
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To achieve that goal, the Legal Panel recommended that states and territories
adopt statutes setting forth mandatory minimum hold periods for animals caught
up in disasters. With input from major animal organizations in the United
States, the Legal Panel developed a model statute that could be used by the
states and territories in establishing guidelines and hold periods for disaster
animals. The Legal Panel’s recommended statutory language, The Model Act
governing "Emergency Holding Periods for Disaster Animals”, is set forth in
this recommendation.
The Tort Trial and Insurance Practice Section urges adoption of this
Recommendation calling for states and territories to adopt a statute to
establish disaster guidelines for animal shelters and mandatory
minimum hold periods for companion animals following disasters.
Respectfully submitted
Timothy Bouch, Chair
Tort Trial and Insurance Practice Section
August 2009
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GENERAL INFORMATION FORM
Submitting Entity: Tort Trial and Insurance Practice Section
Submitted By: Timothy W. Bouch, Chair
1.
Summary of Recommendation(s). This Recommendation is intended to address a
problem that arises with animal rescue operations in disasters, when many companion
animals, primarily dogs and cats are separated from their owners, abandoned, or
otherwise dislocated. The animals that survive usually end up in animal shelters with
uncertain results because the animal shelters become overwhelmed with animals and
there is often no guidelines for how long a shelter must keep an animal, how and
when they may adopt the animal out, or when they may otherwise move the animal.
2.
Approval by Submitting Entity. Approved by the Council of the Tort Trial and
Insurance Practice Section on January 29, 2009.
3.
Has this or a similar recommendation been submitted to the House or Board
previously? No.
4.
What existing Association policies are relevant to this recommendation and how
would they be affected by its adoption? Not applicable
5.
What urgency exists which requires action at this meeting of the House? It has
been established that the fate of companion animals has affected the life and
health of concerned and loving owners. Providing a set of procedural rules that
establish mandatory minimum hold periods for companion animals following
disasters provides certainty to shelters and owners in search of companion
animals. The next hurricane season begins June 1.
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Status of Legislation. (If applicable.) Not applicable
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Cost to the Association. (Both direct and indirect costs.) Not applicable
8.
Disclosure of Interest. (If applicable.) Not applicable
9.
Referrals.
This Report and Recommendation is referred to the Chairs and Staff Directors of all
ABA Sections and Divisions.
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10.
Contact Persons. (Prior to the meeting.)
a) James F. Carr
1525 Sherman Street, 5th Floor
Denver, Colorado 80203-1714
303-866-5283-O 303-513-0026-Cell
jim.carr@state.co.us
b) Hervey P. Levin
Law Offices of Hervey P. Levin
6918 Blue Mesa Drive
Dallas, Texas 75252
972-733-3242-O 972-896-4312-Cell
hervey@airmail.net
c) Janice Mulligan
Mulligan & Banham
2442 4th Avenue, Suite 100
San Diego, CA 92101-1609
619/238-8700/cell phone 619-977-4444
jfmulligan@yahoo.com
11.
Contact Person. (Who will present the report to the House.)
James F. Carr
1525 Sherman Street, 5th Floor
Denver, Colorado 80203-1714
303-866-5283-O 303-513-0026-Cell
jim.carr@state.co.us
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EXECUTIVE SUMMARY
1.
Summary of the Recommendation
This Recommendation calls for states and territories to adopt a statute to
establish guidelines for animal shelters and mandatory minimum hold
periods for companion animals following disasters.
2.
Summary of the Issue that the Resolution Addresses
The Recommendation is intended to address a problem that arises with animal rescue
operations in disasters, when many companion animals, primarily dogs and cats, are
separated from their owners, abandoned, or otherwise dislocated. The animals that
survive usually end up in animal shelters with an uncertain fate, because the animal
shelters become overwhelmed with animals and there are often no guidelines for how
long a shelter must keep an animal, how and when they may adopt the animal out, or
when they may otherwise move the animal.
In the wake of Hurricane Katrina, many owners found the location of their companion
animals, only to discover that their companion animal had been adopted by a new
family, or even euthanized because of the lack of shelter space or other problems.
Many ownership disputes and much human and animal suffering resulted from the
lack of guidelines as to what shelters can do with companion animals and how long
they keep a companion animal before taking action.
3.
Please Explain How the Proposed Policy Position will Address the Issue
The recommended model statute can be used by the states and territories in
establishing guidelines and hold periods for disaster animals, providing a safe harbor
for shelters and greater certainty for owners concerning the time periods available to
them to seek, find and recover their companion animals. It does not require any
government agency to accept the financial or physical burden of disaster animals. It
does not change the legal status of animals already in government control but is an aid
for those animal shelters that voluntarily accept responsibility for disaster animals.
This is done by providing clearer guidelines on what should be done by the holding
agency to allow the owners to find their animals and stating how long to hold the
animals. The provisions also seek to limit difficulties experienced in the past by
requiring that the animals be kept in the state of the disaster for a minimum period
rather than having the animals scattered across the county.
4.
Summary of Minority Views or opposition which have been identified:
No minority or opposing view has been identified
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