Bears

Summary: The Labor Cassation Chamber of the Supreme Court of Justice decided on an action of ‘tutela’ filed by la Fundación Botánica y Zoológica de Barranquilla, Fundazoo against the Civil Chamber of the Supreme Court, Luis Domingo Gómez Maldonado, Corpocaldas and others. The Plaintiffs argued that the Defendants had violated their rights to due process and right to defense, as well as the principle of legality and contradiction, when the Defendant ordered the transfer of the spectacled bear ‘Chucho’ from the Barranquilla zoo to a natural reserve in Narino. Plaintiff sought to leave without effect Decision AHC4806 2017 that granted habeas corpus to ‘Chucho’, the spectacled bear, allowing the bear to stay at the Barranquilla Zoo, which according to Plaintiffs, is able to provide Chucho with all the requirements for his well being, including veterinary care, food, companionship and infrastructure. The Labor Chamber decided for the Plaintiff and left without effect the decision of the Civil Chamber of the Supreme Court, arguing that the Civil Chamber had ruled based on norms that did not apply to the specific case, to a point that the effects of such application had resulted in an interpretation that completely deferred to what the legislative had intended. The Civil Chamber, the court said in its reasoning, wrongly applied the procedure of habeas corpus, which led to the violation of the due process of law of the Plaintiffs, as ‘Chucho’ has no legal capacity to be a party in a legal procedure. The labor chamber explained that from a constitutional view, the granting of habeas corpus for the protection of animals was not proper, as it is established to protect the right to freedom of persons, which is the basis for a society. For that reason, it can only be attributable to human beings that can be individualized. This rules out the other beings to use this mechanism, including legal persons, as it would erode the real essence of this legal mechanism, the court stated. Furthermore, the magister judge states that the legal treatment that has been given to animals corresponds to the sentients beings, which implies their protection, rather than persons. This means that humans have the responsibility to respect animals, but does not imply that animals can fight for their freedom through the mechanism of habeas corpus, in these cases the defense of animals cannot be resolved by giving them the status of persons, but rather through judicial mechanisms such as popular actions (for the protection of collective and diffuse rights and interests), or with preventive material apprehension

Summary: (Original case in Spanish below; English translation attached as pdf). The Supreme Court of Justice rules in favor of the spectacled bear, ‘Chucho’, granting him the habeas corpus after the bear’s attorney challenged the lower court decision that denied it. Chucho is a 22 year old spectacled bear that was born and raised in semi-captivity. He lived for 18 years in a natural reserve in the city of Manizales with his sister. After his sister died, Chucho became depressed and started escaping. The environmental authorities thought that it would be in the best interest of the bear to relocate him, for which they decided to move him to a zoo in the northern of Colombia. Unfortunately, the living conditions of Chucho were diminished, as he went from living in semi-captivity to living into a smaller area. Attorney Luis Domingo Maldonado filed an habeas corpus in representation of the bear that was denied on first instance by the civil chamber of the Superior Tribunal of Manizales. Attorney Luis Domingo Maldonado argued that the current legal system did not have a specific proper mechanism that allowed the taking of immediate and urgent measures to protect the rights of animals as sentient beings to retire them for centers of captivity when they have spent their lives in natural reserves. He also used as examples the precedents from Brazil and Argentina where a chimpanzee and an orangutan were granted habeas corpus. Attorney Maldonado sought that the court order the immediate and permanent relocation of Chucho to the natural reserve ‘La Planada’, located in the Department of Narino. The Civil Chamber reversed the decision on first instance, and ordered the relocation of Chucho from the zoo in Barranquilla to a more appropriate location of semi-captivity conditions. In its reasoning, the magistrate judge stated that animals are entitled to rights as sentient beings, not as humans, and that the idea is to insert a morality of respect to counter a global ecological public order where the tendency of men is to destroy the habitat. After long considerations, the chamber stated that it is necessary to modify the concept of ‘subject of rights’ in relation with nature, understanding that who is subject of rights is not necessarily correlatively-bound to have duties. “The legal, ethical and political purpose is the unavoidable need to create a strong conscience to protect the vital environment for the survival of men, conservation of the environment and as a frontal fight against the irrationality in the man-nature relationship.”

Summary: Defendant appeals his conviction for unlawfully killing three grizzly bears in violation of the federal Endangered Species Act (ESA). The killing of the bears occurred on May 27, 2014 at defendant's residence in Ferndale, Montana ("bear country" as the court described). In the morning, defendant discovered bears had killed over half of his chickens maintained in a coop. Later that evening, the bears returned, heading toward the coop. Defendant's children, who were playing outside at the time, headed inside and defendant proceeded to scare the bears away with his truck. Later that night, the bears returned and were shot by defendant. According to testimony by enforcement officers, defendant gave two different accounts of what happened that night. Ultimately, defendant was charged for killing the bears in violation of the ESA and convicted by a magistrate judge after raising an unsuccessful self-defense argument. On appeal, defendant argued: (1) he should have been tried by a jury; (2) the magistrate judge did not correctly identify the elements of his offense, and that error was not harmless; and (3) the case should be remanded for a trial by jury in the interest of justice. With regard to (1), that he was entitled to a jury trial because the offense was serious, rather than petty, the appellate court rejected the argument. The possibility of a five-year probation term and $15,000 restitution did not transform the crime, which had a maximum 6-month imprisonment, into a serious offense. On the second and third arguments, the court agreed that magistrate erroneously relied on a self-defense provision from a federal assault case that required the "good faith belief" to be objectively reasonable. The court held that the "good faith" requirement for § 1540(b)(3) should be based on a defendant's subjective state of mind. Then, the ultimate question becomes whether that subjective good faith belief was reasonably held in good faith. Said the Court, "[u]nder the Endangered Species Act, the reasonableness of a belief that an endangered animal posed a threat is likewise strong evidence of whether the defendant actually held that belief in good faith." As a result, the appellate court found the error by the magistrate in rejecting defendant's self-defense claim was not harmless. As to whether defendant is entitled to a jury trial on remand, the court found that the outcome of the prior proceedings conducted by a magistrate do not constitute a showing of bias or partiality. Thus, he is not entitled to trial by jury. The conviction was vacated and proceedings remanded.

Summary: In 2013, Plaintiffs visited Defendants' zoo, the Cherokee Bear Zoo, in North Carolina where they observed four bears advertised as grizzly bears in what appeared to Plaintiffs as substandard conditions. As a result, Plaintiffs filed a citizen suit in federal district court alleging the Zoo's practice of keeping the bears was a taking of a threatened species under the federal Endangered Species Act (ESA). In essence, Plaintiffs contend the Zoo's conduct was a form of harassment under the ESA, and so they sought injunctive relief. After denying the Zoo's motions for summary judgment, the district court held a bench trial where the court ruled against Plaintiffs on the issue of the Zoo's liability under the ESA. The manner in which the bears were kept did not constitute a taking for purposes of the ESA. On appeal to the Fourth Circuit, this Court first found Plaintiffs established Article III standing for an aesthetic injury. Second, the Court agreed with the district court that evidence showed these bears were grizzly bears. While the Defendant-Zoo's veterinarian testified at trial that they are European brown bears, the collective evidence including expert testimony, veterinary records, USDA reports, and the Zoo's own advertising justified the lower court's conclusion that the bears are threatened grizzly bears. As to the unlawful taking under the ESA, the Fourth Circuit vacated the lower court's holding and remanded the case to district court. The legal analysis used by the court was incorrect because the court did not first determine whether the Zoo's practices were "generally accepted" before it applied the exclusion from the definition of harassment. The lower court based its conclusion on the fact that the Zoo met applicable minimum standards under the Animal Welfare Act (AWA) and did not explore whether these standards were "generally accepted." Affirmed in part, vacated and remanded.

Summary: This Georgia states that except as otherwise provided in this Code, any person may lawfully possess native wildlife which have been accidentally killed by a motor vehicle. However, the person taking possession of a bear accidentally killed by a motor vehicle shall notify a law enforcement officer within 48 hours after taking possession of the bear; and this Code section shall not authorize any person to take possession of any animal of a species designated as a protected species under Article 5 of this chapter or under federal law.

Summary: Any person driving a motor vehicle who collides with a deer or bear may, upon compliance with relevant provisions, keep the deer or bear for his or her own use. The person shall immediately report the accident to a conservation police officer or other law-enforcement officer. If the officer believes that the deer or bear was killed by the collision, he shall award the animal to the person claiming the deer or bear, and shall give the person a certificate to that effect.

Summary:

In this case, Brian F. Charette filed an appeal after he was sentenced to six months of imprisonment and ordered to pay $5,000 in restitution for shooting and killing a grizzly bear in violation of the Endangered Species Act. Charette argued three issues on appeal: (1) that the trial court's denial of a jury trial violated his constitutional rights; (2) that the trial court erred in defining the elements of his charged offense; and (3) that the trial court erred in denying Charette's Rule 29 motion for a judgment of acquittal. The court found that the trial court did not err in denying a jury trial because Charette’s offense was considered a petty offense because it carried a maximum sentence of six months. For all crimes that are considered petty offenses, the Sixth Amendment right to a trial by jury is not triggered. Lastly, the court addressed Charette’s Rule 29 motion which calls for an acquittal if the essential elements of the offense are not proven beyond a reasonable doubt. In order for someone to be convicted of knowingly taking an endangered species the government must prove beyond a reasonable doubt, that: (1) the defendant knowingly killed the animal; (2) the animal was engendered; (3) the defendant had no permit to kill the animal; and (4) the defendant did not act in self-defense or defense of others. Charette argued that the government failed to prove that he did not have a permit to kill the grizzly bear. The court ultimately found that the government did prove this element on the basis that Charette told officers that he did not report shooting the bear because he did not want to deal with the “hassle.” The court found that it was reasonable to believe that had Charette had a permit to kill the grizzly bear, he would not have found reporting it to be a hassle and therefore the government sufficiently established this element. As a result, the court affirmed the lower court’s decision. 

Summary: Question 1 is a citizen initiated referendum that will be appearing on the November 4, 2014 ballot. The referendum seeks to prohibit the use of dogs to hunt or pursue bear, the use of bait to hunt or attract bear, and the setting of a trap to hunt or capture bear. There are certain exceptions for scientific and research purposes and for public safety.

Summary: This Maine citizen initiated was defeated in the November 2004 election (only 47% voted "yes"). The question posed to voters asked voters, "Do you want to make it a crime to hunt bears with bait, traps or dogs, except to protect property, public safety or for research?" Per the Maine Bureau of Corporations, Elections, and Commissions summary, the initiated bill was to prohibit the use of bait to hunt or attract bear, the use of a dog to hunt or pursue bear and the use or setting of a trap to hunt or capture bear except under certain circumstances (such as by state or federal employees to kill or capture depredating bears or by commercial timber operators).

Summary: This Alaska ballot measure was defeated in the November 2004 election. It would have made it illegal for a person to bait or intentionally feed a bear for purposes of hunting, viewing, or photographing the bear. A person who violated this proposed law would have been guilty of a Class A misdemeanor, punishable by up to one-year imprisonment and a fine of up to $10,000. It failed with only 43.3% of the vote.