Oregon State Bar Bulletin — FEBRUARY/MARCH 2008



Americans are notoriously passionate about their pets and never more so, apparently, than last year. Pet ownership reached a historic high in 2007 with more than 71 million — or 63 percent — of U.S. households owning at least one pet. These were mostly dogs and cats, but there were plenty of fish, birds, rodents, reptiles and horses standing in as favored companions.

The American Pet Products Manufacturers Association’s (APPMA) annual pet ownership survey also found that pet spending has more than doubled from $17 billion in 1994 to over $40 billion last year. That spending extends well beyond the basics like food and veterinary care: More than half of all pet owners purchased a gift for their beloved beasts in 2007. Christmas was the biggest gift-giving holiday, but pet owners also shelled out the big bucks on Easter, Halloween, Valentine’s Day and Hanukkah, according to the survey.

Bob Vetere, APPMA president, says Americans are willing to spend billions to spoil their animals because they consider their pets as best friends or, in many cases, as children. Baby boomers-turned-empty nesters and young couples who put off having kids to pursue careers are leading the pet-pampering pack.

"Over the past two decades we have come to realize people consider pets a part of the family and treat them accordingly," Vetere says. "That has led to the evolution of everything from new and improved services and travel accommodations to food and medicines, all of which make spending time with our pets more enjoyable and help fuel the continued rise in pet ownership."

This evolution includes a growing array of legal services — and legislation — related to animals. Oregon, a national leader on both fronts, pioneered the use of legislation to protect animals. In 1914, McCallister v. Sappingfield resulted in the "special value" law, making Oregon one of the first states in the nation to allow owners to recover more than simply the "market value" of an animal that had been harmed or killed.

Pamela Frasch, general counsel for Portland’s Animal Legal Defense Fund since 1996, has seen a dramatic shift in legal protection for animals over the last 10 to 15 years. In 1995, Oregon was among the first states to pass a law making animal cruelty a felony.

"When I first starting working in this field, there were about seven states that had felony anti-cruelty laws and now there are 43. That’s a huge sea change in attitude right there," she says. "I think we’ll see the continued development of anti-cruelty laws. I also think we’re going to see more laws focused specifically on companion animals. Many people view their pets as members of the family, and we’re seeing more trusts for animals and more custody disputes over animals."

Frasch, a law professor at Lewis & Clark College’s Northwestern School of Law, also has seen a growing number of students interested in practicing animal law during her decade of teaching there. Lewis & Clark, a national model of animal law curriculum, was the first college in the country to publish an animal law review and give rise to a student-organized chapter of the Animal Legal Defense Fund. It is home to the National Center for Animal Law, which Frasch will head in August through a partnership between the ALDF and the center.

Frasch also is a member of the Oregon State Bar’s newly formed Animal Law Section. The section’s roster includes Waldport attorney Scott Beckstead, who began practicing animal law in 1991, and says most of his cases involve animal death and injury claims. In one of his cases, a Curry County jury awarded Beckstead’s client a six-figure victory after his four dogs were poisoned by a neighbor who claimed the dogs barked excessively.

"We were able to obtain a jury verdict of over $135,000 and that was at the time, and I believe it still is, the largest jury verdict of its kind in history," he says.

Other common disputes involve animal purchases and adoptions. Beckstead currently represents a Coos County party who adopted a pregnant horse only to learn the horse’s original owner had promised the foal to someone else. Malpractice suits against veterinarians also make up a significant part of his practice.

In Beckstead’s view, while the law has evolved to embrace greater sensitivity toward animals, there is a need to consistently and fairly compensate people for their loss.

"Judges and courts are more inclined to recognize the human-animal bond in handling cases that involve people’s companion animals," he says. "Still, judges are a conservative lot so they tend not to stake out a radical position if there’s not ample support for it. I think most lawyers would prefer to see legislators enact laws that offer greater support for people who have lost an animal."

Beckstead expects legislators to eventually implement incremental changes that give animal owners greater legal standing.

A Snowball’s Chance
As Oregon’s body of animal law evolves, Portland attorney Geordie Duckler knows one thing remains the same: It’s never boring. Duckler has practiced for 20 years, the last five of which have focused specifically on animal law.

In one of his first cases, Duckler obtained damages from Meier & Frank when an $800 African gray parrot perished after a crew from the now-defunct department store chain used toxic chemicals to clean the parrot owner’s carpets.

Exotic visitors to Duckler’s office include a lynx and an alligator. In a case that went to the Oregon Court of Appeals, the alligator’s owner hired Duckler to argue that the toothy reptile should be allowed to remain in its Beaverton home.

"For obvious reasons the judge was not interested in having an alligator in the courtroom, but the case involved a nuisance act so I had to show that it wasn’t dangerous," he says. "The client brought it to my office — I can still see it walking down the hallway — and we videotaped my four-year-old daughter sitting nose-to-nose with this five-and-a-half-foot-long alligator to prove that it wasn’t dangerous."

And, of course, there’s Snowball. The Oregon Department of Fish and Wildlife confiscated the infamous deer and her offspring, Bucky, from Jim Filipetti and his family last year because Oregon law prohibits capturing a wild animal and keeping it as a pet. The family found Snowball, who is genetically deformed, as a fawn and raised her at their Molalla home.

"I love this case for various reasons and it’s not going away anytime soon," Duckler says, adding the case is now before the state appeals court and probably will take about a year to be resolved. "The fight really began early about getting that deer back… and now we just have to hang on to that win."

While many of Duckler’s cases tend to involve the emotional aspects of pet ownership, other cases are simply about animals as material property. He currently represents a pig farm where the pigs were poisoned by a toxic substance called selenium in their feed. Duckler’s client is suing Land O’ Lakes Purina Feed in a product defect action and hopes to recoup the material value of the pigs.

Duckler says the wealth of issues involving animal law — and the process of figuring them out in the legal arena — continues to fascinate him.

"I love starting out with an odd set of facts and sorting them out through the trial process," he says. "Certainly over the last five years, I’ve seen the dynamic of the common law through the eyes of the court system and that it changes and grows. I like it that at every stage in litigation, I’m presenting novel issues in which more common law develops and more rules develop."

Duckler notes that he has seen a spectrum of human emotion and financial commitment, including those that border on excess, as part of his animal law practice.

"People are willing to spend an increasing amount of money on their animals for vet costs and other services, and they apparently are willing to spend more money on attorney expenses as well," he says.

In Pets We Trust
Pet owners not only are going to greater lengths to care for their animals in the here and now, but in the hereafter as well. Animals more commonly are included in wills and the estate planning process, and the popularity of pet trusts has skyrocketed over the last few years as owners seek ways to provide for and protect their animals after they die.

Oprah wrote her dogs into her will, and tobacco heiress Doris Duke left $100,000 in a trust for her pets. While few pets are destined to inherit a $12 million trust like Trouble, Leona Helmsley’s white Maltese, pet trusts aren’t just for celebrities anymore.

Salem attorney Eden Rose Brown began practicing animal law in 1990 and wrote honorary pet trusts until a statute passed in 2005 gave Oregon pet trusts more teeth. Another example of the state’s leadership in pet protection, the statute allows pet trusts to be enforced legally, thus protecting animals from abuses associated with honorary trusts. Among these abuses, designated caretakers sometimes euthanized animals so they could have the trust money, Brown says.

Brown’s business has grown exponentially as more people learn about pet trusts, and recent media attention has helped increase that awareness. She has drawn up pet trusts ranging from $1,000 to $2 million, and the average values seem to be rising.

"One of the interesting things we’ve seen is the amount people leave has increased substantially," Brown says. "Most of these people are wealthy baby boomers who don’t have children and their pets are their children. They don’t want the pets to be taken to the humane society or separated and adopted out. They want the pets to be cared for at home."

Along with dogs and cats, Brown has written trusts that provided for goats, llamas, horses and parrots. "Parrots bring up an interesting issue because they live so long, so that brought up the rule against perpetuity," she says, adding that while many states require pet trusts to dissolve after 21 years, Oregon’s law provides trust coverage for the duration of a pet’s life.

Humane societies increasingly are providing long-term care for pets whose owners have died, and Brown passes along such information to her clients while helping them write their wills and do their estate planning. Her trust portfolios include pet profiles that feature a photo of the pet as well as details about its daily care, food preferences and favorite toys. And she advises clients to carry a pet alert card in their wallet so police or paramedics can notify a caregiver if the owner has been in an accident.

While a growing number of animal owners are taking the idea of pet trusts seriously, Brown still encounters some ridicule from her colleagues in the legal profession.

"There tends to be some snickering when you mention pet trusts to lawyers, and I think it’s important that we do some educating about it because this is something that is important to people. It’s just like making sure a child is taken care of," she says.

Discipline Attracts Diverse Group
Lawyers will have an opportunity to learn more about pet trusts and other issues related to animal law through the OSB’s Animal Law Section. It is chaired by Newport attorney Laura Ireland Moore, current executive director of the National Center for Animal Law and director of the Animal Law Clinic at Lewis & Clark College.

Ireland Moore says the Animal Law Section provides a forum for people to learn more about animal law and stay abreast of the changes occurring within this quickly evolving legal sector.

"More people are incorporating animal law into their practice, and it’s actually really easy to do," she says. "For example, if someone does estate planning they can easily incorporate pet trusts. Or if someone practices family law, they can also deal with custody issues involving animals."

In her role as head of the National Center for Animal Law, Ireland Moore says the center’s objective is to support the enforcement of current laws protecting animals and help develop legislation that leads to stronger laws. Though pets in Oregon are well protected, agricultural animals often are overlooked.

"As a society we kind of have a schizophrenic attitude in the way we feel about dogs and cats and how we feel about cows and pigs, and that is reflected in the law," she says.

Last July, Oregon became the third U.S. state to ban keeping pigs in sow stalls or gestation crates, which have been criticized for being too small and prohibiting pregnant pigs from moving freely and resting comfortably. The six-year phase out appears to be part of a growing movement against factory farming, a practice that repeatedly arises as a hot-button topic in an animal law course the University of Oregon began offering this year.

"Factory farming is definitely an issue that is in the papers more often, and people are becoming more aware of the discrepancy and hypocrisy in the way we treat animals in factory farming compared to other animals," says law professor Rebekah Hanley. "I think there’s also a growing awareness of the devastating environmental impact of factory farming practices, the health issues related to pumping animals full of hormones and antibiotics, and the ethical issue of suffering that goes into factory farming."

Among the students in the UO animal law class is a chef who plans to open his own restaurant and wants to learn more about how animals are treated in the meat production process, Hanley says.

The backgrounds of the students in the UO animal law class intrigue Caroline Forell, who teaches the course with Hanley. Forell said the students range from people who hunt, were raised on farms and worked in primate labs, to those who are interested in environmental and wildlife law.

"I must say I love the diversity in our class," Forell says. "We have all these very diverse perspectives and it’s really interesting."

As more law schools begin adding animal law courses to meet the growing interest voiced by students, the makeup of the next generation of attorneys specializing in animal law should be as varied as the practice itself.

ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin.

© 2008 Melody Finnemore


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