Thinking Out Loud About Prop. B

Normally, I do not like to write a blog without sufficient time to consider all the parameters, but time is something I do not have as Election Day is fast approaching. And here is my dilemma.

Last week, I released a blog entitled, “Puppy Mills, Pet Overpopulation, and Lessons from Proposition B.” In order to write that blog, I read Proposition B and Missouri’s existing statute (the Animal Care Facilities Act), I spoke to both anti-puppy mill crusaders and Missouri dog advocates, I considered my own experience in other states and as a shelter director, and I read the materials provided by attorneys from a panel on Litigating an End to Puppy Mills held at the No Kill Conference in 2009. In addition to offering a step-by-step guide to shutting down puppy mills, I included a subsection on “Lessons Learned from Proposition B” that argued that despite its problems, Proposition B deserved a reluctant “yes” vote.

The reluctance came from three primary reasons: 1. HSUS should have been stronger right out the gate, perhaps even with a law banning puppy mills altogether, 2. HSUS wrote a poorly crafted initiative with sufficient loopholes that will allow circumvention of its precepts, and 3. HSUS, Best Friends, and the ASPCA, the primary supporters of Proposition B, have not committed to using their immense resources (almost $300 million in combined annual revenues) to prevent dogs over the numerical limit of 50 from being killed, although they have the financial wherewithal to do so. I wrote that, as a result, dog lovers were left with a Hobbesian choice.

After I posted the blog, I received an e-mail suggesting that, in some cases, Prop. B weakens existing law. And so I read Missouri’s Department of Agriculture implementing regulations for the 1992 Animal Care Facilities Act line by line.  After doing so, it appears to me that this is true. For example, ACFA applies to facilities with 3 or more intact dogs, while Prop. B applies to those with 10 or more. Both require veterinary care, though Prop. B has a minimum of once a year for the latter, while ACFA requires “an attending veterinarian” and “regular visits.” Prop. B requires dogs to be fed once per day (24 hours), while ACFA requires it two times per day (every 12 hours).

On the other side, however, Prop B is stronger than ACFA by limiting the amount of litters a dog can have in a given time frame and by imposing a numerical limit of 50 dogs (ACFA is silent on both of these). It also makes all violations a misdemeanor, instead of an administrative penalty (a low fine similar to a parking ticket), which most provisions of ACFA are in Missouri with the exception of violations of the Federal Animal Welfare Act.

In short, while I loathe puppy mills and I would vote to shut them down today, that is not what Prop. B does. And I very much doubt that Tony La Russa and other celebrity supporters of Prop. B spent time reading the existing regulations, thinking about loopholes, or the unintended but foreseeable initial killing the law will result in. HSUS, no doubt, painted the picture for Tony La Russa and other celebrities in clear-cut bright-lines: you are either for puppy mills or against them. Who could possibly be for them?

But there are nagging questions keeping me up at night: Why weaken any provision of existing law? What will happen to the dogs over the 50-dog limit? And was Prop. B a cookie-cutter solution that didn’t take into account existing law? When your strategy for preventing the killing of dogs over the 50-dog limit is to suggest you will convince abusive puppy millers to voluntarily sterilize the dogs and turn them into cherished house pets as HSUS has stated, yes, it is very possible HSUS didn’t do their homework.

HSUS, however, says that, “The problem is not just a lack of enforcement, but the lack of good, clear legal standards that facilitate enforcement. Prop B : not only provides new, easily understandable criminal penalties for mistreatment, it does so without wiping out or eliminating the existing laws and penalties.” And while Prop. B specifically says its provisions “are in addition to, and not in lieu of, any other state and federal laws protecting animal welfare,” it is a fundamental canon of statutory construction that a newer law trumps an older one that covers the same conduct, so this statement as to state law, appears to be untrue.

I e-mailed HSUS to ask for clarification on these issues and I received a reply as follows:

Existing laws are pretty vague and riddled with loopholes, and the problems at mills persist in spite of the regs on the books.   For example, existing regs appear to prevent dogs at these facilities from being exposed to extreme temperatures (above 85 and below 50 or, in some cases, 45).   However, this reg is consistently ignored by some facilities and it is so ineffective that many facilities don’t even know it’s on the books.   Prop B will take this standard and make it enforceable, basically for the first time.   There are similar problems with the existing regulations governing exercise and veterinary care. It is way too common to see dogs at these facilities who’ve never been outside their tiny cages and suffer without treatment of illness or injury. Proposition B simplifies these issues, and makes them enforceable.

On the one hand, HSUS makes a valid point. ACFA does, for example, hedge on some of the requirements, while Prop. B does not.   While ACFA gives the “attending veterinarian” discretion on the issue of what constitutes sufficient exercise, Prop. B requires “constant and unfettered access to an outdoor exercise area.” As to HSUS’ specific example, the regulations have a temperature requirement identical to Prop. B, but they add a caveat that they don’t apply if the dogs are “acclimated” to higher or lower temperatures. How do you enforce that before the harm occurs? And how do you acclimate a dog to those temperatures without violating the law in the first place?

On the other, in many cases it does seem this is largely an enforcement issue, as much of the neglect and abuse found in puppy mills is already illegal in Missouri, but the laws against them are not being enforced. HSUS says they are just “consistently being ignored” and “many facilities don’t even know it’s on the books.” I don’t doubt it. Enforcement falls to the state Agriculture Department and like any Ag department, enforcement is weak to non-existent and this same department will also “enforce” Prop. B’s provision preventing dogs from being outside when the temperature falls below or rises above the same temperature thresholds.

But there is a significant difference in Prop. B from ACFA, and here is where enforcement is more likely to occur under Prop. B. ACFA makes a violation an administrative penalty and it can only be enforced by the Department of Agriculture. That is a recipe for non-compliance. While violations of the Federal Animal Welfare Act are made a misdemeanor by ACFA, they also could only be enforced by the Department of Agriculture since the Act specifically gives sole jurisdiction to the Department. Prop. B, by contrast, makes all violations a misdemeanor. If that means that police and animal control officers can also enforce the law, it is much more likely they will be enforced. And, if that is true, the fact that Prop. B  weakens some of the protections under existing law is sloppy and unconscionable, but if the existing regulations aren’t being enforced (mostly),  what good are they anyway?  If the new, in some ways weaker and in other ways  stronger protections, are more likely to get enforced, then on balance it  makes sense to have them, right? But it still does not answer the questions: why weaken any provision of ACFA? Why not write the strongest possible bill? And what will happen to the dogs over the numerical limit of 50?

Prop. B will be voted on in a few days and it is likely to pass, as 69% of Missourians in a recent poll were in favor of it, and it has broad support across party lines. So in that sense, the only real issue for this election is what will happen to the dogs? HSUS could and should have put prohibitions against killing them into the law. They didn’t, and they put Missouri dog lovers in the very ugly position of choosing between two evils: continued puppy mill abuse on the one hand; and, on the other, the killing of those dogs. And despite what HSUS should have done but didn’t, what HSUS should always do, but doesn’t, there is at least some opportunity for redemption as it is not too late to put a safety net in place.

Whether one is created is up to  HSUS, the ASPCA, and Best Friends, organizations which do not have a good track record on standing up for the animals when that is what the situation calls for. Even as I write these words, I fear I already know the answer because it requires them to actually spend the money they raise. But since Prop. B does not go into effect for one full year after passage, I am going to reiterate my calls to HSUS, ASPCA, and Best Friends to do what is right. They are ethically and duty bound to use their combined nearly $300 million in annual income to save the dogs over the 50-dog limit.

A Hurricane Katrina Response Effort

If Proposition B passes, HSUS, the ASPCA, and Best Friends must come together in a massive, Hurricane Katrina-type rescue effort* to save and find homes for the victims of Missouri puppy mills who will face almost certain death in facilities which are over the 50-dog limit when they are sent to Missouri’s killing shelters, are killed by puppy mills themselves, or when they are sold at auction only to be killed later.

That means HSUS, ASPCA, and Best Friends must set up kennels, building or renting space for them if they have to. It means they must put together a network of foster homes, a plan for provision of needed veterinary care, a nationwide adoption campaign, even a 1-800 number for puppy millers to call to surrender the dogs (at no cost and with no questions asked to encourage relinquishment), as well as a system to save them at the auctions and kill shelters. It means they must call on animal lovers and rescuers from all over the country to join them in their Missouri base camps to help provide care for and assistance in adopting out the dogs. In times of dire risk for animals, the vibrant network of individuals and small organizations doing rescue across this country have risen to the occasion and the challenge. We’ve done it before, we can do it again, especially given the abundant resources available (assuming HSUS, Best Friends, and the ASPCA don’t continue to hoard that money) to make it happen.

Given that they have the power to prevent mass killing, given that they have the immense and unlimited resources to do so, and given that they are actively fundraising on this issue, they are ethically obligated to spend the money donated to them for the care of animals which, now, they simply stick in their bank accounts. HSUS, for example, only spends ½ of one percent on direct animal care. Best Friends rescues only 600 animals a year despite $40 million in annual support, while many rescue groups and shelters save several times that number of animals despite taking in roughly one to two percent of what Best Friends does. And the ASPCA takes in over $120,000,000 per year but sends cats with URI to the local pound (that kills them) because they don’t want to spend the money treating them. That has to stop.

They have the power to save not one, not ten, not 100, not even 1,000 puppy mill dogs. But as many dogs as need protection after years of neglect, isolation, and abuse, and who face death as a result of Prop. B. But right now, the HSUS plan is simply to try and convince abusive puppy millers to turn the dogs into cherished pets. In other words, HSUS does not care that Prop. B will result in initial killing. Killing the victims, which occurs in shelters every day with their blessing and killing victims of cruelty, is standard operating procedure for HSUS. Rescuing an animal from cruelty only to put the poor creature to death is unconscionable and completely avoidable. When we put in place plans to rescue dogs from abuse, we must also put in place a safety net to actually save any lives that are at risk as a result of our actions.

The $300,000,000 dollar question is this: Will dogs be killed because of Prop. B? And the answer is only if HSUS, the ASPCA, and Best Friends fail to act. In other words, only if they allow it to happen. The country is watching.

To be continued:

* After Hurricane Katrina, both HSUS and the ASPCA raised tens of millions of dollars, but ended up hoarding the money and abandoning the animals who needed help, which resulted in investigations of both by the Attorneys General of Louisiana and Mississippi. When I speak of a Hurricane Katrina response, I am not suggesting they commit the same kind of fraud. I am suggesting that they do what other groups, like Muttshack Rescue did, and that is actually rescue and save the animals.