Friday, August 22, 2014

Yelling at the Umpire: What the Unanimous Decision of the Supreme Court in Florida v. Harris Is Coming to Mean to Law Enforcement in the United States

Criticizing a 9-0 decision of the United States Supreme Court, one without even a concurrence, without the hint of disagreement along the bench, is a little like yelling at the umpire.  You know you’re not going to change the call.  You just hope that the ump looks at the next pitch a little more carefully. 

When the Supreme Court issued Florida v. Harris on February 19, 2013, we found some reason to be hopeful that the Court’s decision would not lead to a decline in the standards of training and testing of narcotics detection dogs, and that field records would continue to be maintained for administrative purposes even though their relevance in criminal prosecutions was largely sidelined by the Court’s perspective.  Justice Kagan, after all, had written that the defendant could “contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty.”  Also, she acknowledged that field records “may sometimes be relevant.” She had referred to the possibility of undermining the government’s assertion of probable cause from the dog’s alert by providing evidence that the dog had been cued by the handler to alert, though by declaring field records largely irrelevant she had made it difficult for the defense to gather some of the most important evidence that might support a cueing argument. 

We did not expect at the time Harris was handed down that some prosecutors would begin recommending field records be minimized, maintained no longer than necessary for administrative purposes, or worse yet destroyed so that statistics could not easily be gathered that might show that dogs were alerting in far more instances than the probabilities of drug use among the population would suggest were likely.  We did not expect that Justice Kagan’s words would be seen by law enforcement as confirming that there was no easier way to get into a car than to call for a drug dog, reliable or not.  As long as the dog gets there in an hour or so, there is probable cause.

We have been provided a copy of a dash cam video by a reporter with a major newspaper in which a deputy sheriff can be heard explaining to a ride-along, as the officer waits for the arrival of a K-9 team to conduct a sniff of a car he has pulled over on an Interstate, that the safest bet is not to try to justify a search based on circumstantial evidence but rather just to wait for the dog because that makes it easy for the courts, they don’t really need to hear anything else.  The stop involved was on a drug corridor on the side of an Interstate where cash is more often found, as in fact happened, not on the side where the drugs usually move.  The money was the real purpose of the stop.  There was not even any intent to make an arrest, rather just a desire to get the motorist to say that the money was not his, that it had been abandoned, so that it could be forfeited without further protest and thereby supplement the coffers of local, state, and federal law enforcement agencies.  Our analysis of the video suggests the very real possibility of intentional cueing. 

The Supreme Court has effectively blessed a shakedown industry that is becoming popular with certain elements in law enforcement across the country.  We explain why this is happening in an article that appeared in the latest issue of the Journal of Animal and Natural Resource Law of Michigan State University. 

John Ensminger and L.E. Papet 

Thursday, August 14, 2014

Service Dog Barred from International Flight; After Pre-Trial Ruling Opens Way for Monetary Damages, Parties Settle

Traveling with a dog or cat to Canada is easy as long as you have a veterinarian’s certificate stating the animal has been vaccinated against rabies within the last three years, unless the dog or cat is younger than three months, in which case it must be in good health when it arrives.  As to assistance dogs, a Canadian government website for travelers explains that if the animal is certified as a guide, hearing, or other service dog, there are no restrictions on the user being accompanied by the dog while in Canada.  A website of the Canadian Food Inspection Agency explains that certification for a service dog consists of documentation “by a recognized organization.”  If the service dog was self-trained, or not trained by a “recognized organization,” it could still travel as a pet as long as the owner had proof of rabies vaccination.  Presumably most travelers with service dogs make some kind of effort to get a relatively official looking letter stating that the dog is capable of providing services related to a disability.

Although no certification requirement will apply to a domestic destination, flying with a service dog into Canada is not much different from flying with one from New York to Los Angeles.  An airline in either instance must accept as evidence that an animal is a service animal (1) the credible verbal assurances of the individual with the disability who uses the animal, (2) the presence of harnesses, (3) tags, or (4) identification cards or other written documentation. In the Department of Transportation’s Draft Technical Assistance Manual on Nondiscrimination on the Basis of Disability in Air Travel (explaining to airline personnel regulations finalized in 2008), airlines are told the following regarding the placement of service animals in cabins:

“You must permit a service animal used by a passenger with a disability to accompany the passenger on his or her flight…. In addition, you must permit a service animal to accompany a passenger with a disability to the passenger’s assigned seat and remain there if the animal does not obstruct the aisle or other areas that must remain unobstructed to facilitate an emergency evacuation…. The service animal must be allowed to accompany the passenger unless it poses a direct threat to the health or safety of others or presents a significant threat of disruption to the cabin service.”

Specifically as to seating, the Manual states: “For a passenger with a disability traveling with a service animal, you must provide, as the passenger requests, either a bulkhead seat or a seat other than a bulkhead seat.”

If the animal is an emotional support animal, the airline can insist on a letter on the letterhead of a licensed mental health professional, including a medical doctor, specifically treating the passenger’s mental or emotional disability stating (1) the passenger has a disability contained in the Diagnostic and Statistical Manual of Mental Disorders, (2) the passenger needs the service animal as an accommodation for air travel or for activity at the destination, (3) the provider of the letter is a licensed mental health or medical professional treating the individual for the mental or emotional disability, and (4) the date and type of license of the professional.

Particularly relevant to the case about to be described, the Manual provides:

“Note that carriers are required to carry service animals even if the animal may offend or annoy carrier personnel or persons traveling on the aircraft…. [I]f you refuse to accept an animal as a service animal, you must explain the reason for your decision to the passenger and document it in writing.”

As to destinations outside the U.S., the Manual tells airlines:  “You must promptly take all steps necessary to comply with foreign regulations such as animal health regulations, to permit the transportation of a passenger’s service animal from the United States to a foreign destination.”

Thus, Canadian and U.S. law make it easy to fly into Canada with a service dog and use the dog during the visit.  This was not to be true for one Florida couple, however, as a recent case describes.  Adler v. WestJet Airlines, Ltd., No. 13-62824, 2014 U.S. Dist. LEXIS 92332 (DC So. Dist. Fla., July 8, 2014). 

Flight from Fort Lauderdale to Toronto

Barry and Melissa Adler bought tickets from WestJet Airlines to fly from Fort Lauderdale to Toronto on September 18, 2012.  Melissa, according to an opinion by Judge James I. Cohn of the federal district court for the Southern District of Florida, “suffers from numerous medical conditions and must be accompanied by a service animal.”  She sought advance approval from WestJet to bring her four-pound Yorkshire terrier on the flight and received a form letter from WestJet, in which the dog is described as an emotional support animal.   

(If I were advising an airline on such a letter, I would recommend that it explicitly state that, if the dog caused a significant disruption in cabin service, it might have to be removed from the cabin.  The Manual provides that a service animal "must be allowed to accompany the passenger unless it poses a direct threat to the health or safety of others or presents a significant threat of disruption to the cabin service." Such a statement could help deter people making bogus service animal claims to get their pets into the cabin and could remind people whose service animals are not fully trained or which might not react well to the stress of a flight that they should perhaps put the animal in cargo.  If this letter is standardly sent in response to requests to travel with emotional support animals, it is not clear why it does not ask for a supporting letter from a medical or mental health professional, though an airline certainly does not have to request such a letter. It is also possible that WestJet has several form letters for service animal requests. The complaint does indicate that written documentation was supplied by the Adlers prior to receipt of the letter from WestJet.)

According to the complaint, Melissa had specifically requested, and had been assigned, an aisle seat for herself and the dog.  On the day of the flight, the Adlers arrived at the gate with their boarding passes but “were told that WestJet’s senior flight attendant felt that Melissa’s dog would disturb other passengers.  WestJet thus moved the Adlers from their reserved seats to another pair of seats where the flight attendant thought the Adlers would cause less disruption.”

The court’s description continues:

“The Adlers boarded the airplane and took their newly assigned seats…. While waiting for take-off, Melissa took various medications, including some meant to induce sleep.... Melissa soon fell asleep with her dog on her lap….  While Melissa slept, Barry remarked to the flight attendant who had required them to change their seats that Melissa's dog was not causing any disturbance…. The flight attendant responded that she was uncomfortable with the Adlers and their dog being on the airplane…. The flight attendant informed Barry that the aircraft would return to the gate, and that the Adlers would have to deplane. Upon reaching the gate, WestJet's personnel required the Adlers to get up and leave the airplane…. [The complaint says that “the flight attendant ordered the Plaintiffs to get up.”]  Unfortunately, Melissa, who had taken sleep-inducing medication, had difficulty standing up and walking off of the aircraft…. The Adlers told the crew that Melissa would have trouble walking to the gate without assistance…. The crew, however, did not provide any assistance, such as a wheelchair, and the Adlers left the airplane under their own power.... At the gate, Barry demanded an explanation for their removal from the airplane, but received none.”

The complaint adds that at the gate, Barry Adler asked to speak with a Conflict Resolution Officer but none was present and none was made available.  He also requested the names of the flight attendants that had removed them from the airplane but no names were given. 

The Adlers went home.  That night, a WestJet official phoned the Adlers and apologized for their removal from the flight and arranged for the Adlers to fly from Miami to Toronto the next day. Undoubtedly someone in the chain of command at WestJet realized that the flight attendant had made a serious mistake, though the seriousness of the error did not become evident to the airline until the Adlers filed their lawsuit in December 2013, over a year after the incident.   

Melissa “suffers from a progressive disease of the nervous system,” which she contended was exacerbated from being forced to walk from the aircraft.  The Adlers also alleged that they were humiliated by being ejected from the airplane.  They asserted three causes of action:
  •  negligence
  •  fraudulent misrepresentation 
  •  negligent training and supervision
WestJet moved to dismiss each of these claims.  Judge Cohn’s opinion concerned his order granting dismissal, but with a right to amend, of several of the claims, and his denial of the motion to dismiss the negligence and negligent training claims.  This will, unfortunately for the law of service animals in flights, be the extent of the law from the case as the parties agreed to a confidential settlement and the federal district judge dismissed the case on August 11, 2014.  Nevertheless, what was decided is very important for those members of the service animal community who fly with their animals. 

Common  Law Negligence

The complaint alleged that WestJet had duties imposed by the Air Carrier Access Act and implementing regulations, but stated that the “lawsuit does not sound in violation of the ACAA, but in common law negligence.”  WestJet argued that Congress did not intend to create a private cause of action for ACAA violations and the Adlers could not assert a negligence claim implicating ACAA standards.  Judge Cohn rejected this argument “because although the ACAA may be relevant to WestJet’s duty of care, the mere fact of its relevance does not convert the Adlers’ negligence claim into a preempted claim to enforce the ACAA.” 

The Eleventh Circuit, in Love v. Delta AirLines, 310 F.3d 1247 (11th Cir. 2002), rejected a suit in which a disabled individual sought an injunction requiring Delta to comply with the ACAA, but Judge Cohn determined that the Adlers were not trying to enforce the ACAA as their claim was “one for simple negligence under state law,” and he found that the ACAA did not preempt their state-law claims.  Other cases, according to Judge Cohn, “have concluded that the ACAA, though it may not create a stand-alone cause of action for disability discrimination, does not preempt state-law negligence claims for injuries related to a failure to provide appropriate accommodations on airplanes.”  See, e.g., Gilstrap v. United Air Lines, Inc., 209 F.3d 995 (9th Cir. 2013); Elassaad v. Independence Air, Inc., 613 F.3d 119 (3rd Cir. 2010); Gill v. JetBlue Airways Corp., 836 F. Supp. 2d 33 (D.C. Mass. 2011). The court accepted, however, that “although the ACAA does not entirely foreclose claims by disabled individuals asserting injuries other than discrimination against air carriers, it does abrogate conflicting state-law standards of care.”

In order to establish common law negligence under Florida law, the Adlers would have to establish (1) a duty or obligation requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks, (2) a failure to conform to that standard, (3) a reasonably close causal connection between the conduct and the resulting injury, and (4) actual loss or damage.  The standard involved could, under Judge Cohn’s ruling, be based on ACAA requirements.

Fraudulent Misrepresentation

Since WestJet provided written permission to Melissa that she could fly with a service animal, the Adlers alleged that this “written representation by WestJet was a false statement concerning a material fact.”  Judge Cohn said that under Florida law:

“[A] plaintiff asserting a claim for fraudulent misrepresentation must allege a misrepresentation concerning a past or existing fact; promises of future action are usually insufficient…. A promise can support a fraud claim, however, when the promisor had no intention of performing at the time the promise was made. This is because a statement of the promisor's present intent is considered a statement of present fact…. [T]he Adlers were required to plead that WestJet had no intention to allow the dog on the airplane at the time of its promise.” 

The judge determined that the Adlers pleadings on this issue were “too conclusory to supply the necessary allegations of intent,” but he did consider it possible that “the Adlers may be able to remedy this deficiency through supplemented allegations.”  This claim was dismissed with leave to amend. 

Negligent Supervision

As to the third claim, Judge Cohn noted that it was really two claims:

“WestJet contends that the Adlers have failed to plead a claim under Count III of their Complaint, for negligent training and supervision, because they do not allege that WestJet had notice that any of its employees were unfit for their jobs. Though plaintiffs often bring claims for negligent training and negligent supervision together, the two causes of action are distinct, and only a negligent supervision claim requires the plaintiff to allege that an employer knew or should have known that its employee was unfit. Accordingly, the Court will dismiss Count III only insofar as it alleges negligent supervision, and will allow the Adlers to proceed on a theory of negligent training.” 

Judge Cohn elaborated on the negligent training issue as follows:

“Drawing all permissible inferences in the Adlers' favor, the Complaint also pleads sufficient facts to show that the Adlers, as passengers on a WestJet flight, were in a reasonably foreseeable zone of risk from the actions of WestJet's flight crew, such that a legal duty of care in training the flight crew ran from WestJet directly to the Adlers. Accordingly, the Court finds that the Adlers have pled sufficient facts to sustain Count III on a theory of negligent training.”

Montreal Convention

The prior arguments could apply to a domestic flight as well as to an international flight, but WestJet added an additional preemption argument that could only apply to an international flight.  WestJet argued that all of the Adlers’ claims were preempted by the Convention for the Unification of Certain Rules for International Carriage by Air, commonly known as the Montreal Convention.  The Convention has 107 signatories, including the United States and Canada.  In Article 17, the Convention provides:

“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” 

An accident has been defined as including an unexpected or unusual event or happening that is external to the passenger,” which Judge Cohn determined could include “a flight crew’s unexpected and unusual response to a passenger’s medical condition….”  The injuries of the Adlers were within the scope of the Convention, which expressly provides for recovery of certain personal injury claims subject to certain limitations on liability.  The Convention’s liability limitations are complex, but for present purposes, limit some recoveries to under $200,000 if an injury was not due to a carrier’s negligence.  Judge Cohn ruled that the Montreal Convention permitted the Adlers to “proceed on state-law claims within the scope of the Convention, subject to the Convention’s limitations on liability.”


Having failed to derail most of the Adlers’ lawsuit, perhaps facing considerable liability from a trial, WestJet agreed to settle.  The particulars of the agreement reached by the parties were not provided in filed documents nor to my knowledge made public and I do not know the size of the settlement. Monetary issues might not have been the only factor encouraging WestJet to settle.  The claim for negligent training involved reputation risk.  No airline wants bad press concerning its training programs at a time when security issues are paramount in the public’s mind.   

WestJet’s quick apology the night of the event suggests that the ejection of the service dog may have happened in part because this was an international flight.  Crews on domestic flights are more likely to know about service animal rules, whereas taking a service dog on an international flight is less common. The crew may have even been based in Canada. In any case, the owner of the service animal has to be sure that he or she will be able to use it in the foreign country, and some foreign countries still limit recognition of service animals to guide dogs.  One does not want to take a service animal aboard a flight only to discover that it will be required to go into quarantine at the destination.  Many people will not want the headaches of preparing in advance for such possibilities, even though Canada is quite relaxed in this regard.    

The analysis by Judge Cohn concerning the incorporation of the ACAA standard into state negligence concepts on the duty of care will be important in subsequent lawsuits where airlines do not accept service animals, and will no doubt also be cited in negligence cases where the entity denying admittance is covered by the Americans with Disabilities Act.  The negligent training and supervision claims will be made in similar cases in the future, though pleading will be refined as a result of Judge Cohn’s decision.  Airline defendants may try to refine the Montreal Convention argument that WestJet tried.  This is a significant case in service animal law. 

Wednesday, July 30, 2014

Once a Companion to the Sun God, the Mexican Wolf Now Faces Extinction

Proposed Mexican Wolf Experimental Population Area (revised July 2014)
The U.S. Fish & Wildlife Service has announced additional changes to rules it initially proposed in June 2013 regarding the Mexican Wolf Experimental Population Area.  This is an area where the seriously threatened population of Mexican wolves is to be protected.  It is not likely that the expansion of the area now being proposed by the agency will actually improve the chances of survival for this subspecies of the gray wolf, but it is a step in the right direction. 

Before providing some detail about the proposed changes, it is appropriate to say something about this animal that is now considered a subspecies of the gray wolf.  The subspecies designation is recent, but this wolf’s history includes a thousand years of special status in pre-Columbian cultures during which they were sometimes kept for ritual purposes, perhaps as sacrifices to the sun god as representatives of his companion across the void of night. 

Canis lupus baileyi

Vernon Bailey, 1898 (Smithsonian Archives, Wikipedia)
In 1931, Vernon Bailey (1864-1942) described the Mexican wolf as a “rather small dark-colored wolf, in summer dully tawny, and in winter coat yellowish gray, heavily clouded with black over back and tail.  The skull is smaller and slenderer than the larger, lighter colored wolf of the Great Plains region.”  Adults are on average about five feet long and weigh between 50 and 90 pounds, with a shoulder height between two and two and a half feet.  

Bailey found many of these wolves far from typical and said that some “show evident gradation into the larger, paler wolf of the Great Plains region.” (The wolf was named after Bailey by two of his colleagues at the U.S. Biological Survey, Edward Nelson and Edward Goldman, who described the wolf as a separate subspecies in the Journal of Mammalogy in 1929.)  Genetic analysis (Garcia-Moreno et al. 1996; Leonard et al. 2005) has concluded that Mexican wolves are “the most distinct grouping of gray wolves,“ supporting their designation as an endangered subspecies.

Bailey described the Mexican wolf’s range in the United States as “mainly within the Upper Sonoran and the Transition Zones, and their greatest abundance has long been in the open grazing country of the Gila National Forest.”  Fish & Wildlife includes Mexico in its range description:

“Mexican wolves historically inhabited montane woodlands and adjacent grasslands in northern Mexico, New Mexico, Arizona and the Trans-Pecos region of western Texas ... at elevations of 4000-5000 ft. where ungulate prey were numerous …. The subspecies may have also ranged north into southern Utah and southern Colorado within zones of intergradation where interbreeding with other gray wolf subspecies may have occurred…. The southernmost extent of the Mexican wolf’s range in Mexico is consistently portrayed as ending near Oaxaca…. Mexican wolves in Arizona and New Mexico inhabit evergreen pine-oak woodlands (i.e., Madrean woodlands), pinyon-juniper woodlands (i.e., Great Basin conifer forests), and mixed conifer montane forests (i.e., Rocky Mountain, or petran, forests) that are inhabited by elk, mule deer, and white-tailed deer.”

Bailey wrote as early as 1906 that these wolves were a problem for local stockmen.  While camped at the head of the Mimbres River, Bailey reported that he “could count on about four wolves passing his station every two or three nights.” Occasionally he encountered bands of six or eight or even more.  Interbreeding with dogs was also occurring:

“In this rocky country they were traveling almost entirely in the trails and roads to save their feet from the sharp, stony surface outside. They had little fear of the ranches and often passed close to the buildings and killed stock as freely within the pasture as outside. At one ranch on the Mimbres below camp several wolves had been shot in the pasture from the house. A huge black, half wolf and half dog, which was kept chained in the corral at the Mimbres store, had been raised from a large mongrel bitch that had been visited by a male wolf at night, and this only remaining member of her litter was unmistakably as much wolf as dog, except for the color. It was a savage brute and considered too dangerous to run at large.”

Bailey reported that “they had no trouble in finding cattle of any age or condition,” which they preferred to deer, “which are more nimble and not so easily caught.”  Occasionally they ate jack-rabbits.  Bailey reported that the wolves were particularly active at night:

“At night they make long trips into distant localities where they make their kills. When the young are small the food is always swallowed and later disgorged at the den for the little fellows. The food is thus partly masticated and is more easily digested. As the pups become stronger, large pieces of calves and yearlings, as well as antelope and other game, are carried to the den. The heads of calves and game animals, as well as other bones, are brought in great numbers, no doubt chiefly for the young to play with and for the necessary development of teeth and jaws.”

Days are quieter:

“They generally lie about the den during the day and keep a close watch. In leaving the den on the approach of man, they will usually move off over the highest points in order to command a back view. They very often howl when their young are approached or molested. Both young and old wolves sleep much in midday, but at other times they are very active.”

Bailey Notes on Photograph (Smithsonian archives, Wikipedia)
As to where the animals construct burrows, Bailey said that in “rough country they are generally found in a crevice or natural cavity, usually in the rim of a mesa. Even where there are suitable places among the rocks, badger burrows are often enlarged to the desired size and depth. Sometimes the den is prepared under the roots of an upturned tree, and it is common to find the young in holes in solid rock, where they can be obtained only by blasting.”

As indicated by the previous sentence, despite his devotion to biology, Bailey was not concerned with preserving all members of the species.  Nevertheless, he did not believe they should suffer in being caught.  A photograph with Bailey’s hand-written notes, taken from papers now in the Smithsonian, indicates his concern with steel traps.  The current regulations prohibit certain traps, such as neck snares. Traps now also to be “appropriately sized,” so that an Interagency Field Team can arrange for radio-collaring and releasing the wolf. 50 CFR 17.84(k)(5)(iii)(C)

In 1916, J. Stokley Ligon (1879-1961), who worked for the U.S. Biological Survey, estimated that a single adult wolf costs ranchers between $1,200 and $1,500 per year (up from $25,000 in present dollars).  Bailey wrote that forest guards, rangers, and local and outside trappers were all killing the wolves, such that by the 1920s they had become so rare that they “were too scattered to make professional trapping for the bounty profitable.” 

Numbering in the thousands before European settlement, there were only dozens of Mexican wolves left by the 1930s. 

Wolf Mural, Teotihuacan, Atetelco Compound (Wikimedia)
Wolves at Teotihuacan

The Mexican wolf was well known to pre-Columbian cultures.  Archeologists excavating pyramids at Teotihuacan, a site 25 miles north of Mexico City, have concluded that the inhabitants bred wolves with dogs, which were used in rituals and eaten, as the bones at excavations display cut marks.  Some bones were cooked but the heads and faces could be used for priest and warrior attires.  

The burials date from the 7th to the 16th centuries AD, but most were dated from 600 to 950 AD.  Pumas may also have been bred in captivity for ritual purposes.Sugiyama (2013) notes that such carnivores “dominated the landscape and their status as top predators no doubt added to their symbolic value.”   Animal burials in tunnels, passages to the underworld, included wolves, coyotes, dogs, and wolf-dog hybrids. The hybrids were not as large as Mexican wolves, but morphology suggests they were bred from Mexican wolves. 

Domus Animalium, 1524 Nuremberg Manuscript
Analysis of strontium and zinc in the bones of hybrids establishes that they had a primarily herbivorous diet, suggesting that they did not roam freely but were kept in captivity and fed by humans who gave them only minimal access to meat.  Dogs, in contrast, seem generally to have had more meat in their diet. This suggests to Valadez et al. (2002), in a particularly elegant piece of archeological research, that the hybrids were kept isolated for ritual purposes.  Chronicles of later peoples, such as the Aztecs, say dogs ate the same food as people but were not given raw meat because of a belief that this would make them too aggressive.  The animals were oriented to the west in the Teotihuacan burials, which is interpreted by Valadez et al. (2002) as likely meaning that they were sacrificed in rituals concerning the passage of the sun.  Xolotl, an Indian god with a dog shape, was the sun’s night companion.  Xolotl may have been conceived of as a wolf, but the hybrids were more tractable and could accompany humans in rituals just as Xolotl accompanied the sun. Dog skeletons found in quarry tunnels at Teotihuacan were described by Manzanilla et al. (1996) as  perhaps being "conceived as guides to the underworld." The universal nature of dogs as guides to the underworld was the subject of a blog about Anubis and Cerberus several years ago

Not all websites designate the Teotihuacan mural shown here as being of a wolf as Valadez et al. do.  I have found at least one that called it a leopard.  I find it easiest to think of the figure as that of a canid by imagining it without the headdress and the feather-like rows above the back and behind the tail. I do not presently know if there is any speculation about the possibility that the depiction might show a wolf wearing something of a costume, with a headdress.

There is evidence that the Teotihuacans and other pre-Columbian cultures maintained buildings where wild animals were kept, the best known of which is the House of the Animals (domus animalium) in the Aztec capital.  The structure is labeled on the Nuremberg map of Mexico City published in 1524, and was adjacent to the central plaza of the city. Its function for the Aztecs was at least partially to be a zoo for entertainment, but being near the temple complex, the animals may have been fed on the torsos of sacrificial victims. The House of the Animals is labeled in the lower left of the portion of the map reproduced above.  The animals, mostly birds, are in square cubicles below the label.       

Florentine Codex, Book VIII
Evans (2000) says the Mexico City zoo-aviary complex “had specimens from all over Mexico, and sculpted images of varieties that could not survive in the Central Highlands.  These were made of stone and precious metals, and recall Tenochtitlan's precious metal 'House of Birds' ….”  This complex was taken over by the Franciscan order in 1529, as St. Francis of Assisi’s love of animals made this an appropriate syncretism.  Brother Bernardino de Sahagun described caregivers for holding the animals of the forest, including jaguars, wolves, mountain lions, and bobcats (cuidadores de animals silvestres, jaguares, lobos, leones de montana, linces). The figure from the Florentine Codex shows what may be a caregiver with various birds and wild animals. 

Beginning of Protection for the Mexican Wolf

The Mexican wolf was listed as an endangered subspecies in 1976 (41 Fed. Reg. 17740, April 28, 1976), followed in 1978 by listing the entire gray wolf species in North America south of Canada as endangered, except in Minnesota where the designation was threatened (43 Fed. Reg. 9607, March 9, 1978).  The 1982 Mexican Wolf Recovery Plan called for establishing a captive breeding program along with reintroduction of wolves to the wild. Breeding programs were conducted at locations such as the Sevilleta Wolf Management Facility south of Albuquerque.  The Fish & Wildlife photograph shows the fenced areas of the Facility. 

Sevilleta Wolf Management Facility (FWS)
Wayne and Hedrick (2011) state that all "Mexican wolves alive today descend from three captive lineages founded between 1960 and 1980 from a total of seven wolves.”   In 1998, 13 Mexican wolves were reintroduced to the wild near the border between New Mexico and Arizona.  Although, the population had begun to increase, there were still only 42 wolves in the area in January 2010, in part because 32 wolves had been illegally killed.  Wayne and Hedrick state that only two killers were identified and successfully prosecuted.  Many animals were also removed from protected areas due to depredation claims (after which they may be kept for a time in places like the Sevilleta Facility).  These researchers state:

“Given expected rates of wolf removal and killing, we suggest that for recovery of Mexican wolves three populations, each simultaneously having 250 animals for 8 years (approximately two generations) is the minimum necessity.”

They suggest that Mexican wolves could also be introduced to the north rim of the Grand Canyon and certain Northern New Mexico and Southern Colorado sites.  This suggestion was not taken up by the Fish & Wildlife Service. The Interagency Field Team estimated that there were 83 Mexican wolves in the wild in 2013, up from 75 in 2012.  It is not clear if such numbers would be accepted by other conservation scientists.

Carroll et al. (2013) note that “a population derived from inbred and interrelated founders generally must have a larger census population size than a population derived from outbred and unrelated individuals.”  Because the Mexican wolves now in the wild come from such a small number of founders, this group says that “viability of the existing wild population is uncertain unless additional populations can be created and linked by dispersal….”  Nevertheless, the models of this research group give reason to hope that the Mexican wolf may indeed survive. 

Proposed Enlargement of Experimental Population Area

The changes now proposed by Fish & Wildlife involve expanding the areas within which Mexican wolves can be released, and in which they can disperse and occupy, extending the southern boundary of the MWEPA from I-10 to the Mexican border in New Mexico and Arizona, and changing some definitions and rules regarding when wolves can be taken while attacking livestock and non-feral dogs or to manage ungulate populations.  Livestock is defined in a draft environmental impact statement as cattle, sheep, horses, mules, burros, llamas, and alpacas. For purposes of the proposal: “Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  An “unintentional take” is coincidental to an otherwise lawful activity, so it does not include poisoning or shooting.  “Harass” is defined as “intentional or negligent actions or omissions that create the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering.”

Attaching Radio Collar (2013 Draft Environmental Impact Statement)
The changes are most easily explained by reference to the zones in the map reproduced at the beginning of this blog.  Zone 1 is where Mexican wolves can be released or translocated.  Translocation is the release of Mexican wolves into the wild that were previously in the wild, and may involve giving the animal a radio collar. This Zone contains the Apache, Gila, and Sitgreaves National Forests, as well as parts of the Tonto and Cibola National Forests.  

Zone 2 is where Mexican wolves would be allowed to disperse naturally, and where Mexican wolves may be tranlocated.  On federal land in Zone 2, initial releases would be of pups less than five months old.  On private and tribal lands in Zone 2, Mexican wolves of any age can be released, but there must be a state-approved agreement with private landowners or a Fish & Wildlife-approved agreement with tribal agencies.  Thus, private landowners may collectively be able to limit such releases of wolves in the areas of their ranches. 

Neither initial releases nor translocations are to occur in Zone 3, but Mexican wolves will be allowed to disperse and occupy this area.  The preamble to the 2014 proposal describes this Zone as “an area of less suitable Mexican wolf habitat and where wolves will be more actively managed….” Zone 3 is not contiguous as part of it is in western Arizona and part is in eastern and southern New Mexico. 

Fish & Wildlife explains that it is extending the southern boundary of the MWEPA to the Mexican border because the Mexican Government is attempting to reintroduce Mexican wolves, which may disperse north into southern Arizona and New Mexico. 

Predator Damage Management

The new proposal provides that USDA employees involved in predator damage management may take Mexican wolves under certain circumstances.  Owners of domestic animals, including livestock and pets, may take Mexican wolves in the act of biting, killing, or wounding a domestic animal.  If there is a pattern of livestock or pet kills by Mexican wolves, and Fish & Wildlife or an agency or party designated by it has failed to stop the problem, Fish & Wildlife can issue a permit to a domestic animal owner or to an owner’s employees or land manager, or to local officials, to take Mexican wolves, including allowing permit holders to harass and kill the wolves.  “Permits issued under this provision will specify the number of days for which the permit is valid and the maximum number of Mexican wolves for which take is allowed.”

Livestock Guarding Dogs

The 2013 proposal provided that throughout the MWEPA, Mexican wolves could be taken by livestock guarding dogs “when used in the traditional manner to protect livestock on public, tribal, and private lands.”  The July 2014 proposal retains this, though the reporting mechanism for such a take is now more specific.  Whereas the 2013 proposal said that such a take “must be reported to the Service’s Mexican Wolf Recovery Coordinator or a designated representative of the [Fish & Wildlife] Service within 24 hours,” the new proposal provides the following on when and where a take of a Mexican wolf must be reported:

Illegally Killed Wolf with Radio Collar (2013 Draft Environmental Statement)
“Unless otherwise specified in this rule or in a permit, any take of a Mexican wolf must be reported to the Service or a designated agency within 24 hours. We will allow additional reasonable time if access to the site is limited. Report any take of Mexican wolves, including opportunistic harassment [as opposed to intentional or planned harassment], to the Mexican Wolf Recovery Program, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road, NE., Albuquerque, NM 87113; by telephone 505–761–4748; or by facsimile 505–346–2542. Additional contact information can also be found on the Mexican Wolf Recovery Program’s Web site at  Unless otherwise specified in a permit, any wolf or wolf part taken legally must be turned over to the Service, which will determine the disposition of any live or dead wolves.”

Hybrids and Feral Dogs

The proposed rules allow Fish & Wildlife or any designated agency to “capture; kill; subject to genetic testing; place in captivity; or euthanize any feral wolf-like animal or feral wolf hybrid found within the MWEPA that shows physical or behavioral evidence of: Hypbridization with other canids, such as domestic dogs or coyotes; being a wolf-like animal raised in captivity, other than as part of a service-approved wolf recovery program; or being socialized or habituated to humans.” Nevertheless, if a canid is “determined to be a pure Mexican wolf, the wolf may be returned to the wild.” For a subspecies of wolf close to extinction, the latitude given officials to shoot first and conduct tests later is disturbing.  A more careful set of criteria should be drafted. 

Protecting Wild Ungulates

If Arizona or New Mexico determines that Mexican wolf predation is having an impact on wild ungulate herds—herds of pronghorn and bighorn sheep, deer, elk, and bison, the state may request approval from Fish & Wildlife to remove wolves from the area of the ungulate herd. Approval allows the state to capture and translocate wolves inside the MWEPA.  Occasionally approval may be granted to a state to kill wolves in such circumstances. Granting such requests very often will probably doom the reintroduction program.


Mexican Wolves (FWS)
Wayne and Hedrick (2011) observe that in the U.S., “wolf conservation policy and management has often been schizophrenic, ranging from predator control and open hunting to reintroduction and absolute protection.”  This schizophrenia is particularly evident with the Mexican wolf, which even Bailey, the naturalist whose name was given to the subspecies, helped eradicate from parts of New Mexico in the early 20th century.    

I believe that ranchers have the right to protect their flocks, so I hope that that these wolves will be content with bighorn sheep, deer, and other game that was theirs to hunt before the domestic herds arrived.  The extension of the wolf population area south to the Mexican border may allow some of the wolves reintroduced in northern Mexico a place to live, but only greater efforts than have been made so far will assure the survival of this wolf.    

The blog was written by John Ensminger and L.E. Papet. 


Bailey, Vernon (1931). Mammals of New Mexico. Washington, DC: USDA Bureau of Biological Survey.

Blanco, A., Perez, G., Rodriguez, B., Sugiyama, N., Torres, F., and Valadez, R. (2009). El Zoologico de Moctesuma: Mito o Realidad? Asociacion Mexicana de Medicos Veterinarios Especialistas en Pequenas Espedes-AMMVEPE, 20(2), 28-39.

Boone, Elizabeth Hill (2011). This New World Now Revealed: Hernan Cortes and the Presentation of Mexico to Europe. Word & Image, 27(1), 31-46 (noting that the zoo, Domus animalium, was a great curiosity to the Spaniards).

Brown, D. E. 1983. The Wolf in the Southwest: The Making of an Endangered Species. Tucson: University of Arizona Press.

Carroll, C., Phillips, M.K., Lopez-Gonzalez, C.A., and Schumaker, N.H. (2006). Defining Recovery Goals and Strategies for Endangered Species: The Wolf as a Case Study.  BioScience, 56, 25-37. 

Carroll, C., Frederickson, R.J., and Lacy, R.C. (2013).  Developing Metropopulation Connectivity Criteria from Genetic and Habitat Data to Recover the Endangered Mexican Wolf.  Conservation Biology, 28(1), 76-86.

Department of the Interior, Fish and Wildlife Service.  Endangered and Threatened Wildlife and Plants; Proposed Revision to the Nonessential Experimental Population of the Mexican Wolf, RIN 1018-AY46, 79 Federal Register 43358 (July 25, 2014).

Evans, Susan Toby (2000).  Aztec Royal Pleasure Parks: Conspicuous Consumption and Elite Status Rivalry. Studies in the History of Gardens and Designed Landscapes, 20(3), 206-228.

Fredrickson, R.J., Siminski, P., Woolf, M., and Hedrick, P.W. (2007).   Genetic Rescue and Inbreeding Depression in Mexican Wolves.  Proc. R. Soc. B., 274, 2365-2371.  DOI:10.1098/rspb.2007.0785 (finding “there is still potential to establish vigorous wild populations”).

Garcia-Moreno, J., Matocq, M.D., Roy, M.S., Geffen, E., and Wayne, R.K. (1996).  Relationships and Genetic Purity of the Endangered Mexican Wolf Based on Analysis of Microsatellite Loci.  Conservation Biology, 10(2), 376-389. 

Hedrick, P.W., Lee, R.N., and Parker, K.M. (2000). Major Histocompatibility Complex (MHC) Variation in the Endangered Mexican Wolf and Related Canids.  Heredity, 85, 617-624 (“combining the three Mexican wolf lineages (adding the Ghost Ranch and Aragon lineages to the McBride lineage) would increase  genetic variation in the captive population.”).

Leonard, J.A., Vila, C., and Wayne, R.K. (2005). Legacy Lost: Genetic Variability and Population Size of Extirpated US Grey Wolves (Canis lupus).  Molecular Ecology 14, 9–17.

Manzanilla, Linda, Lopez, Claudia, and Freter, AnnCorinne (1996). Dating Results from Excavations in Quarry Tunnels behind the Pyramid of the Sun at Teotihuacan.  Ancient Mesoamerica, 7, 245-266.  

Mundy, Barbara E. (1998). Mapping the Aztec Capital: The 1524 Nuremberg Map of Tenochtiltlan, Its Sources and Meanings. Imago Mundi, 50, 11-33 (giving Monteucsoma gardens and zoos put him in a context Europeans would understand).

Nelson, E. W. and Goldman, E. A. (1929), A new wolf from Mexico, Journal of Mammalogy, 10, 165–166.

Wolf Pups at Sevilleta Wolf Management Facility  (FWS)
Parsons, D.R. (1996). Case Study: The Mexican Wolf.  In New Mexico’s Natural Heritage: Biological Diversity in the Land of Enchantment.  New Mexico Journal of Science, 36, 101-123. 

Sugiyama, N. (2013).  Animal Management, Preparation and Sacrifice: Reconstructing Burial 6 at the Moon Pyramid, Teotihuacan, Mexico.  Anthropozoologica, 48(2), 467-485.

Sugiyama, Nawa, Sugiyama, Saburo, and Sarabia, Alejandro (2013). Inside the Sun Peryamed at Teotihuacan, Mexico: 2008-2011 Excavations and Preliminary Results. Latin American Antiquity, 24(4), 403-432 (noting wolf skull found in offering chamber of sun temple).

U.S. Fish & Wildlife Service, Southwest Region (201). Mexican Wolf Conservation Assessment.
U.S. Fish & Wildlife Service, Southwestern Regional Office, Mexican Wolf Recovery Program (Augus 2013). Environmental Impact Statement for the Proposed Revision to the Nonessential Experimental Population of the Mexican Wolf (Canis lupus bileyi) and the Implementation of a Management Plan: Preliminary Draft.

U.S. Fish & Wildlife Service Public Affairs Office (July 2014). FAQs: Proposal to Revise Mexican Wolf 10(j) Rule: Frequently Asked Questions.

Valadez, Raul, Rodriguez, Bernardo, Manzanilla, Linda, and Tejeda, Samuel (2002). Dog-wolf Hybrid Biotype Reconstruction from the Archaeological City of Teotihuacan in Prehispanic Central Mexico.  9th ICAZ Conference, Durham 2002.  Dog and People in Social, Working, Economic or Symbolic Interaction (Snyder, L.M., and Moore, E.A., eds).

Wayne, R., and Hedrick, P. (2011). Genetics and Conservation in the American West: Lessons and Challenges. Heredity, 107(1), 16-19.

Tuesday, July 15, 2014

Guarding Sheep: Risks of an Ancient Function in the Modern (Ever More Crowded) World

Livestock Guarding Dog Fighting Coyote (USDA)
An attack of a bicyclist in a national forest in Colorado has been sent back to lower courts by the Colorado Supreme Court for a determination of whether the sheep guarding dogs that attacked the bicyclist were under the control of their owner at the time of the attack.  What control will mean in this case is uncertain because the appellate court had not seen control of the dogs as an issue but rather control of the land on which the attack occurred. 

Defining control with regard to sheep guarding dogs will not be easy.  Unlike suspect apprehension dogs, which are under the control of a police handler even if temporarily out of the handler’s sight, livestock guarding dogs spend most of their time protecting sheep, often with the handler miles away.  Indeed, their value is in reducing predation by being where the shepherd cannot be.  Some speculation on what control will mean here is now appropriate, and it is to be hoped that the case will continue, though the costs to the litigants, financial and emotional, may bring it to an end before such questions can be answered. 

First, however, let us look at the history of the case, and of livestock guarding in general.

An Attack by Sheep Guard Dogs in Colorado

Over 2.75 million sheep graze on 614 million acres of public lands in the United States, making this one of the largest uses of federal lands.  Most western ranchers depend heavily on federal or state trust lands for grazing and access to those lands is essential to their economy.  Samuel and Cheri Robinson, like many sheep owners in the U.S., used guarding dogs to protect their herds against mountain lions, wolves, coyotes, feral dogs, and other predators. 

Renee Legro was in a bicycle race in the White River National Forest when she was attacked by the two sheep guarding dogs owned by the Robinsons.  The Robinsons had a permit from the U.S. Forest Service to graze sheep in the area, and the Vail Recreation District had a permit to periodically conduct the bicycle races on roads in the Forest.  The attack resulted in serious injuries to Legro, who sued the Robinsons. 

Long-time readers of this blog may recognize the facts, which were described in a prior blog concerning a decision of a Colorado appellate court. The matter has now been considered by the Colorado Supreme Court.  Robinson v. Legro, No. 12SC1002, 2014 CO 40, 2014 Colo. LEXIS 414 (May 27, 2014).

The Colorado Supreme Court provides additional detail regarding the attack:

“Renee Legro was attacked on a public road by two of the Robinsons' dogs, Tiny and Pastor, while participating in a mountain bike race sponsored by the Vail Recreation District. The road is located on land that both the Robinsons and the Vail Recreation District were entitled, by permit, to access. Ms. Legro sustained serious injuries during the attack. Neither the Robinsons nor their employees were near the scene. The Robinsons' shepherd was about a little over a mile away from the area of the incident, ‘down by the river, trying to get the sheep to move along,’ at the time of the attack; he did not hear about the incident until the next day. Campers intervened to help Ms. Legro.”

Grazing Permit

The court then describes the sheep ranching operation of the Robinsons as follows:

“Samuel and Cheri Robinson are sheep ranchers who hold a 'Term Grazing Permit' issued by the United States Forest Service. The permit allows the Robinsons to graze a certain number of sheep on federal land within the White River National Forest in Eagle County for a period of ten years, at which time they must reapply for the permit. The Robinsons owned several Great Pyrenees dogs to protect their sheep from predators. Predator control dogs bond with and protect livestock by patrolling the grazing area, alerting the livestock to potential threats such as coyotes and bears, and chasing predators away as necessary.”

Colorado Dog Bite Statute

Colorado has a strict-liability dog bite statute which provides that a “person … who suffers serious bodily injury or death from being bitten by a dog while lawfully on public or private property shall be entitled to bring a civil action to recover economic damages against the dog owner regardless of the viciousness or dangerous propensities of the dog or the dog owner's knowledge or lack of knowledge of the dog's viciousness or dangerous propensities.” Colorado Revised Statutes (CRS) 13-21-124

There are six exemptions to strict liability, however, one of which is a “working dog” exemption that provides that a “dog owner shall not be liable to a person who suffers bodily injury, serious bodily injury, or death from being bitten by the dog: … (f) While the dog is working as a hunting dog, herding dog, farm or ranch dog, or predator control dog on the property of or under the control of the dog’s owner.”  CRS 13-21-124(5)(f).

Issue before Colorado Supreme Court

Guard Dogs with Sheep (USDA)
The Colorado court of appeals had interpreted the phrase, “on the property of or under the control of the dog’s owner,” as requiring that the dogs were working as predator control dogs on the dog owner’s property or on property under the dog owner’s control.  Thus, the question for that court was whether the bite occurred on property that was under their control as a result of the grazing permit.  Control was defined by that court to mean at least “sufficient control over the property such that a dog owner has the right to exclude persons from the property.” 

The question, according to the Colorado Supreme Court, was whether the appellate court had correctly interpreted the phrase, “on the property of or under the control of the dog’s owner,” in saying that the control question had to be resolved by a determination of whether the bite occurred on property under the Robinsons’ control.  The problem, the Supreme Court said, was almost grammatical:

“While we acknowledge that there is some facial ambiguity over whether it is the property or the dog that must be controlled by the dog owner, the more grammatically correct and logical reading of the exemption is that ‘on the property of’ and ‘under the control of’ modify ‘[w]hile the dog is working.’ A dog owner is therefore exempt from strict liability if a person is bitten by a predator control dog ‘while the dog is working’ either (a) ‘on the property of . . . the dog's owner’; or (b) ‘under the control of the dog's owner.’ Thus, it is control of the dog, not control of the property, that is the relevant inquiry.”

Other Types of Working Dogs

The Colorado Supreme Court notes that the working dog exemption to strict liability for a dog bite applies also to hunting dogs, herding dogs, farm or ranch dogs, as well as to predator control dogs such as the Robinsons used.  The court states:

“Much of these dogs' ‘work’ occurs on public lands; yet, the court of appeals would allow their owners to invoke the exemption only when they could lawfully exclude others from public lands--a right that these hunters, farmers, and ranchers rarely, if ever, have on federally owned lands--practically eviscerating the exemption.”

The court notes that the exemption for working dogs “limits strict liability for bites that occur while dogs are being used to complete socially beneficial tasks.” 

Court of Appeals Nevertheless Affirmed

Despite determining that the appellate court had posed the wrong question regarding the application of the strict liability exemption to the Robinsons, the Supreme Court affirmed the decision of the appellate court to return the case to the trial court.  That court will now be required to determine whether the dogs were under the control of the Robinsons at the time of the bite.  Since sheep guard dogs regularly work independently, living with a herd, not with the master such as sheep herding dogs do—indeed the concept of a handler is often irrelevant to the kind of training such dogs receive—the concept of “control” is not the same here as it is for most other trained working dogs. Consequently, the matter could be far from over.    

When does the owner have control of a sheep guarding dog? The shepherd was over a mile away at the time of the incident and did not know about it for a day.  Yet this is to be expected with sheep guarding dogs. They are particularly valuable when there is no one else protecting the sheep.  If shepherds were always nearby, they would often not be needed.  So does “control” require anticipating the presence of bicyclists who might come near the herd and training the dogs to accept the presence of humans? 


The USDA in its brochure, Livestock Guarding Dogs: Protecting Sheep from Predators, provides certain cautions regarding the use of livestock guarding dogs, including advising owners to do the following:
  • Alert neighbors that the dog may wander onto their property and enlist their aid in preventing roaming.
  • Post their property as to the presence of a dog.
  • Keep the dog off roads.
  • Be alert to the presence of poison baits, rodenticides, traps, and snares, and take appropriate precautions.
Although this is worded with the ownership of land in mind, it can be adapted to a situation involving a grazing permit.  Thus, sheep owners with such a permit should notify the authority granting the permit that they will be using livestock guarding dogs on the property to which they have been given access.  If some posting is possible, it should be done.  Keeping the dog off roads can perhaps best be accomplished by regularly checking the location of the herd. 

J.R. Lorenz and L. Coppinger, in their manual, Raising and Training a Livestock-guarding Dog, note that training goals depend in part on where a dog will be working.   Some dogs will have to work “in distant pastures, away from the house, and away from constant shepherding.”  They state: 

“[A] commercial producer with several hundred sheep may require a dog that is shy of people. A dog that prefers sheep to people will work better in unsupervised settings. Shyness to people can be fostered by minimizing human attention, beginning at 5 weeks of age.”

The issue of whether a working dog must be under a handler’s control has been addressed numerous times by courts in the context of serious and fatal attacks by police dogs.  (See Police and Military Dogs, Chapter 20: Suspect Apprehension and Bite Issues.)  In that context it has been determined that dogs released to find or apprehend a suspect can be out of the handler’s eyesight for brief periods if necessary because of the circumstances of the search, such as where a suspect is hiding in dark warehouse or a dense forest.  Such situations, however, are not analogous to the work of livestock guarding dogs, which are taught to identify with the sheep or other livestock they guard, and should often be kept out of the house so as not to become pets or to feel more comfortable with humans than with sheep.

On the other hand, having dogs that protect sheep against predators in areas where humans are also common should bring a degree of responsibility for the risks such dogs might bring to the humans.  Does that responsibility fit within the definition of control?  Perhaps, but certainly not with presumed handler proximity of a suspect apprehension or tracking dog.  How, then, is control to be defined?  By posing the question as one of control of the property, the appellate court at least found an approach that allowed for a determination of the meaning of control.  Following the Colorado Supreme Court’s logic will require the courts faced with defining control to explore areas where no easy precedent is available.  One area which will have to be considered involves nuisance cases where livestock guarding dogs are the nuisance. 

Nuisance Cases

Courts have exempted livestock guarding dogs from nuisance liability. In Hood River Country v. Mazzara, 193 Ore. App. 272, 89 P.3d 1195 (2004), six hours of barking would have ordinarily been a nuisance liability, and the complainant could have obtained relief if there were proof that the dogs were not barking at predators.  In the absence of such proof, however, the barking could have been a “farm practice” under Oregon statutory law.  The dogs were used to guard goats. 

“The county, for its part, introduced no evidence that use of livestock guardian dogs was not a farming practice or that defendant was not using her dogs in a generally accepted, reasonable, and prudent manner. The county focused on the fact that the dog barked for six hours, but it did not adduce any evidence that the dog was not in fact reacting to a predator or that barking of that duration could not, somehow, meet the definition of a farming practice.”

This was stated by an Oregon appellate court, reversing the trial court.  The trial judge had engaged in the following colloquy with the attorney for the goatherd:

"[DEFENSE COUNSEL]: If [the complaining neighbor is] unable to verify whether there was or was not a predator around, Mr. Tomson--or Mr. Johnson, from the Oregon Department of Agriculture testified these dogs sense a lot more than humans do. They'll sense by hearing better than humans, smell better than humans, they may know something's there when humans don't, and that's a completely appropriate response for that dog to bark to keep that predator away, and if it takes six hours, it takes six hours.

"THE COURT: Well, I think that's patently ridiculous, and I would never accept that. I'm not venting on you; I'm just venting on the idea that it would be appropriate for some dog out to just bark, bark, bark its life away out there, and that it is not reasonable for an owner of a dog, if it really wants that dog to protect their animals, to not be there to respond to it, to just expect this dog to be out there in an area where there's people that are going to be disturbed. I just don't accept that within the Agricultural Practice Act, and I'm not going to.

"So, if we're arguing about it's okay for six hours of barking, eight hours of barking, two hours of barking, I have the facts of this case and the facts here are that it looks like it's in excess of six hours of barking by this dog, for no apparent purpose that I have. We don't have any testimony other than supposition, and I'm not going to make my decision on supposition, that there may have been a predator somewhere in the world there. That's not going to fly.”

The appellate court concluded that the trial judge was wrong to feel as he had.  Perhaps the trial judge had never been near an outdoor kennel full of beagles trained to hunt when a coyote is in the neighborhood.    

To the same effect was a 2006 New York case, Groat v. Brennan, 831 NYS2d 353 (2006), where Great Pyrenees were used to guard alpacas.  The court stated:

“The record shows that Great Pyrenees dogs have been considered a major benefit to herding agriculture for over 1,000 years. The record also supports a finding that the immediate area of the Serino farm does have coyotes, and that while the Serinos did not lose any alpacas to predation prior to acquiring the dogs, alpacas are very susceptible to such attacks. It is further noted that the type of alpacas kept by the Serino respondents are valued at between $10,000 and $15,000 each. Thus, the loss of even a single alpaca would be very significant. It is thus clear that the use of Great Pyrenees dogs to guard livestock is an effective and very longstanding agricultural practice.”

Here there was a significant question as to whether the dogs were barking that much in any case.  They appear to have only barked at night, and were often no louder than many ambient noises in the area.  Predators are for the most part nocturnal.

These cases at least acknowledge that livestock guarding dogs often operate without handlers who can stop them from barking.  Barking is a deterrent to predators.  If dogs can bark despite the nuisance aspect of the sound, it must be accepted that they will do so when their protectiveness leads to bites.  Should owners train the dogs to attack predators but not attack people, even if people are threatening? Sheep rustlers, more common with the rise in lamb prices, is a real threat.  Is teaching guarding dogs not to react to people even practical?  Some degree of acclimation to humans may help, but too much familiarity is likely to reduce the protective aggressiveness required for the dogs to drive away prey animals. 

Interbreeding of Wolf and Shepherd Dog Populations in Georgia

Republic of Georgia (U.S. State Department)
Some analysis of the history of livestock guarding may also add perspective.  Four researchers from Ilia State University in Georgia (Kopaliani et al., 2014) have found that hybridization between wolves and livestock guarding dogs is a “common event in the areas where large livestock guarding dogs are held in a traditional way,” though such hybridization has probably declined since “humans started to more tightly control contacts of purebred dogs.”  Livestock guarding dogs are, according to these authors, widespread throughout Anatolia, the Caucasus, and mountainous parts of Iran, Iraq, and Turkmenistan.  The researchers found gene flow from dog to wolf populations and from wolves to shepherd dogs.  They note: 

“The majority of publications describing dog–wolf hybridization suggest that mating between male dogs and female wolves is more common than the other way around …. However, genetic analyses suggest that hybridization between male wolves and female dogs also occurs in nature …. The presence of dog maternal lineages in wolf populations … or sharing haplotypes between wolves and dogs can only be the result of such hybridization pattern: Female dogs can produce offspring both in the wild and in domestic conditions, whereas female wolves can breed mostly in the wild. Our study supports this point of view. Hybridization between male wolves and female dogs might happen both occasionally and deliberately: In mountain parts of Georgia, dogs are occasionally paired with captured wolves, which allegedly ‘improves the breed.’ In such deliberate hybrid occasions, both male and female wolves can participate. The latter case is the most likely explanation of shared haplotypes between dog and wolf.”

Thus, the interbreeding of wolves and dogs is not only accidental, but sometimes deliberate.  There was evidence of “recent wolf ancestry in more than 10% of shepherd dogs and recent dog ancestry in more than 13% of wolves.  Moreover, 2% of the studied wolves and 3% of dogs were, with a high probability, first-generation hybrids.”  The researchers note that studies of hybridization in Europe generally do not find such high levels of hybridization, probably due to the fact that in most of Europe dogs are more highly controlled.  They note:

“Large livestock guarding dogs, such as Great Pyranees, are not commonly used any more in a way that they can easily interbreed with wolves, but nobody can say to what extent they interbred with wolves in the past….   We hypothesize that the situation was much more flexible in earlier times, when most of the dogs used by common people were not subjected to intensive selection, similar to what is now the situation with livestock guarding dogs in the Caucasus and most likely the rest of West Asia. This means that interbreeding with gray wolves was an important part of the dog maintenance, and the situation was much more complicated than the simple pattern including Neolithic domestication with the further expansion of dogs descending from these early domesticated wolves.” 

The latter conclusion puts this research into the debates regarding domestication models, previously discussed here in other blogs. 

Interbreeding Wolves and Sheep Dogs in Antiquity  

Cylinder Seal Showing Sheep Dog with Double Collar, Lion, and Shepherd (Henri Frankfort, 1955)
The problem of aggressive livestock guarding dogs may be ancient.  Guarding sheep  is one of the earliest known functions of dogs, and is mentioned in Homer and the Book of Job.  Even in antiquity, there was concern that sheep guard dogs could become too vicious from intentional interbreeding with wolves.  The Mishnah, a Jewish text composed in the late second to the early third century, specifies in Kilaim 1.6 that the wolf and the dog, and the wild dog and the jackal [הזאב והכלב כלב הכופרי והשועל], are of diverse kinds, though they are similar. Merlen (1971) took this to mean that neighboring peoples were breeding dogs with wolves, presumably to produce more fearsome guard dogs, a practice the rabbis wanted to discourage among Jews, arguing that it was a violation of Leviticus 19:19 (“You shall not allow two different kinds of beasts to mate together.”). Kilaim 8.6 states that the dog is a kind of wild animal, though Rabbi Meir says it is a kind of cattle, i.e. domesticated. So breeding a dog with a wolf would be mixing a wild animal with a domesticated one. 

Perhaps these mixed dog-wolves were dangerous to travelers at a time when people walked the roads.  A Middle Eastern cylinder seal from before 1,000 BC shows a sheep dog attacking a lion so that the shepherd can put a spear in the lion’s back from the other side.   

Interbreeding of dogs with wild canids was also known in pre-Columbian Mexico.  Valadez et al. (2002) discusses the "tradition of breeding female dogs and male coyotes, because the hybrids were considered as resistant, loyal but temperamental, and good guardians."  Evidence from excavations at Teotihuacan, north of Mexico City, indicates that dog-wolf hybrids may have been bred specifically for ritual purposes, kept isolated from other animals and fed a vegetarian diet.  "We propose that the hybrids were created by men, with the purpose of having individuals that could display the sacred attributes of the father (wolf), inside a body that could be manipulated by men. These animals could be taken care until the sacrificial ceremony ... in which they were cut apart and separated in pieces according to the symbolic value.  The most important body parts were the heads and faces, which were used for priest and warrior attires." 


There is no doubt that livestock guarding dogs are an essential part of the sheep industry.  A study of livestock guarding dogs in the French Alps concluded that up to 95% of kills by predators can be prevented by combining the use of livestock guarding dogs with a practice of penning sheep at night.  Espuno et al. (2010).

The prior blog on this matter suggested that the sponsors of the bike race should perhaps have verified that there were no livestock guarding dogs in the area.  The owners of the sheep should perhaps be careful to keep the sheep away from roads where bicyclists and hikers may be encountered.  The forest service should perhaps serve as an information conduit between groups that will overlap on their use of forest lands.  These, however, are planning points, not resolutions of the legal issues involved here. 

Perhaps general concepts of negligence should be applied.  Was it foreseeable that the sheep were grazing in an area where humans were likely to be encountered?  Was it foreseeable that the dogs were so estranged from humans that they would see any animals, including humans, as threats to the herds they were protecting?  Should the sponsors of the bike race be liable for not investigating the dangers that might lie on the path of the race?  Should the dog owners have been more aware of the aggressive tendencies of their dogs?  Should they have considered that deploying the two dogs together might have increased their aggressiveness?  Had the dogs, 9 and 11 years old, become more aggressive with age?

Again, such questions may resolve a dispute without really interpreting the statute or finding the legislative intent behind its creation.  In the end, we are of the opinion that the issue of control has to be based on the context of the training and function of livestock guarding, which means that if the dogs were trained to drive away and if necessary engage with prey animals, they must be allowed to do their work if the statute permits their existence at all.  Applying concepts of control that have been used with other types of trained and working dogs will not produce a practical result for the livestock industry.  The dogs were in the owner’s control if they acted within the parameters of their training and purpose. 

This blog was written by John Ensminger and L.E. Papet


Blum, Karen A. (2001).  Saying “Neigh” to North Carolina’s Equine Liability Act.  North Carolina Central Law Journal, 24, 156 (discussing use of llamas to protect sheep: “llamas are extremely effective guard animals. One llama can protect up to 2000 sheep. Although llamas cost more than dogs, they cost less to maintain because llamas eat the same food and receive the same vaccines as sheep.”).

Espuno, Nathalie, Lequette, Benoit, Poulle, Marie-Lazarine, Migot, Pierre, and Lebreton, Jean-Dominique (2010).  Heterogeneous Response to Preventive Sheep Husbandry During Wolf Recolonization of the French Alps.  Wildlife Society Bulletin, 32(4), 1195-1208. 

Fisher, Kristina Gray (2008). Reclaiming Querencia: The Quest for Culturally Appropriate, Environmentally Sustainable Economic Development in Northern New Mexico.  Natural Resources Journal, 48, 479 (New Mexico farmers bought livestock guard dogs from the New England Farm Center in Amherst, Mass., which reduced sheep losses from 45% to 12% in one summer).  

Frankfort, H. (1955). Stratified Cylinder Seals from the Diyala Region.  The University of Chicago Oriental Institute Publications, LXXII. University of Chicago Press, Chicago.  (The interpretation of the dog as assisting the shepherd is mine, not Frankfort's.  Frankfort describes that lion as being "driven off in the nick of time with a spear, while his dog has growlingly retired before the formidable robber."  I doubt that either humor, or cowardice, is being depicted here.  Rather, I believe the seal shows their cooperation.)

Kopaliani, Natia, Shakarashvili, Maia, Gurielidze, Zurab, Qurkhuli, Tamar, and Tarkhnishvili, David (2014). Gene Flow Between Wolf and Shepherd Dog Populations in Georgia (Caucasus). Journal of Heredity, 105(3), 345-353. DOI: 10.1093/jhered/esu014.

Lorenz, Jay, and Coppinger, Lorna (2002). Raising and Training a Livestock-guarding Dog, Oregon State University Extension Service.

Merlen, R.H.A. (1971). De Canibus. J.A. Allen & Co. Ltd., London, 38.

Randi, Ettore, Hulva, Pavel, Fabbri, Elena, Galaverni, Marco, Galov, Ana, Kusak, Josip, Bigi, Daniele, Bolfikova, Barbora Cerna, Smetanova, Milena, and Caniglia, Romolo (2014).  Multilocus Detection of Wolf x Dog Hybridization in Italy, and Guidelines for Marker Selection.  PLOS One, 9(1), e86409 (looking at dogs and wolves in Italy, the Balkans, and the Carpathian Mountains, and finding hybridization “mostly attributable to village dogs and not strictly patrilineal.”  Not finding many F1 or F2 hybrids, the team says that their results suggest “that hybridization events already occurred in Italy some generations in the past.”).

Strack, Hermann L., and Billerbeck, Paul (1922) Das Evangelium Nach Matthäus.  Munich: C.H. Beck’sche Verlagsbuchhandlung (noting, at 722, the use of the term “village dog”, “Dorfhunde” in German).     

Valadez, Raul, Rodriguez, Bernardo, Manzanilla, Linda, and Tejeda, Samuel (2002). Dog-wolf Hybrid Biotype Reconstruction from the Archaeological City of Teotihuacan in Prehispanic Central Mexico.  9th ICAZ Conference, Durham 2002.  Dog and People in Social, Working, Economic or Symbolic Interaction (Snyder, L.M., and Moore, E.A., eds).