Relief Areas for Dogs at Airports: Department of Transportation Proposes Rules, Solicits Advice on Open Issues

Airlines are already covered by a requirement to provide relief areas for service animals, but since the relief areas have to be at terminals, and some airport operators were not being fully cooperative with the airlines, the Department of Transportation has proposed rules that will apply to the terminal operators as well. The rules will apply to most commercial airports, though some of the smallest would not be covered. These smaller facilities, often not much more than glorified hangars, will generally have areas where dogs can take care of their needs.

Those who travel with service animals, and probably those who travel with search and rescue dogs as well as small dogs that come under weight limits for carry-on transport, should take a look at the rules since the Department is seeking advice on issues such as the number of relief areas, whether they have to be located inside terminals, and whether airports should have personnel available to help people, such as blind people and people with mobility impairments, to and from service animal relief areas.

The Department is tentatively recommending that airports be required to provide at least one relief area for each terminal, but concedes that this may not be enough in a large airport where getting to a relief area might result in a person with a service dog missing a flight if the relief area takes the passenger far enough from the route he or she and the dog must take to get to the next flight. Given the hassle of getting past security in a modern airport, there is no question that an adequate relief area should almost always be provided inside of security checkpoints (inside the "sterile area" in Transportation Security Administration terminology).

Also, given the complexity of many airports, it would be advisable to require airport operators to provide personnel that can take individuals with certain disabilities to and from relief areas. This might include blind individuals, individuals with mobility impairments, and those with certain cognitive conditions. It may be possible to do this on some case-by-case basis. Thanks to the Metropolitan Washington Airports Authority for providing the picture of the pet relief area at Dulles International Airport.

Requirement for Carriers

In 2008, the Department had amended 14 CFR Part 382.51, Nondiscrimination on the Basis of Disability in Air Travel, to include a provision stating:

“In cooperation with the airport operator and in consultation with local service animal training organization(s), you must provide animal relief areas for service animals that accompany passengers departing, connecting, or arriving at an airport on your flights.” The “you” here were carriers, and the provision applied to “all terminal facilities you own, lease, or control at a U.S. airport.”

Since “you” did not include the airports themselves, some carriers have been asking the Department for leverage to get cooperation from the airports themselves. The 2011 release provides the following background:

“Part 382 [the provision applying to carriers, not airports directly] does not provide specific directives regarding the design, number, or location of service animal relief areas an airport should have; it simply requires carriers to provide service animal relief areas in cooperation with the airports and in consultation with service animal training organizations concerning the design of service animal relief areas. However, in a Frequently Asked Questions document issued by the Department’s Aviation Enforcement Office on May 13, 2009, examples of factors airlines and airports should consider in designating and constructing areas for service animal relief at U.S. airports are provided. Factors to consider in establishing relief areas include the size and surface material of the area, maintenance, and distance to relief area which could vary based on the size and configuration of the airport. The Department seeks comment about whether it should adopt requirements regarding the design of service animal relief areas and what, if any, provisions the rule should include concerning the dimensions, materials used, and maintenance for relief areas.”

The FAQs from the Aviation Enforcement Office will be discussed below.

Airports Covered

The rules the Department is now proposing would require any airport with 10,000 or more “enplanements,” i.e., passengers boarding planes, to provide service animal relief areas. This would apply to commercial service airports that account for 96% of enplanements annually, a total of about 368 airports. Only very small airports with limited passenger traffic would not be covered.

Number and Placement of Relief Areas

The preamble to the 2011 proposed rules continues:

“We are tentatively proposing a minimum of one service animal relief area for each terminal in an airport. The Department is aware that requiring only one service animal relief area for each terminal in an airport may result in individuals with disabilities missing flights when trying to reach service animal relief areas located outside the sterile area of an airport, especially in larger airports. For this reason, and despite our tentative recommendation of one relief area for each terminal in an airport, the Department seeks comment on what would be an appropriate number of service animal relief areas in an airport. In addition to seeking public comment on how many service animal relief areas should be required at an airport or a terminal, the Department would like to know how that number should be determined. For example, should the number be determined by the size or configuration of the airport (e.g., the number, location and design of terminals and concourses) and/or the amount of time it would take for an individual with a disability to reach a service animal relief area from any gate within the airport? Or should DOT establish a performance requirement that a passenger arriving at any gate with his or her service animal be able to reach a relief area in 10, 20 or some other number of minutes?"

It is my opinion that a performance requirement of about 10 minutes should be imposed. If the relief area could be placed in a room off each concourse, or off a connecting hallway, this would often involve minimal delay for a passenger changing planes.

As to the location of relief areas relative to security checkpoints, the preamble states:

“The Department also seeks comment on the placement of service animal relief areas, particularly whether service animal relief areas should be located inside or outside the sterile area of an airport. It could be important to have relief areas both inside and outside the sterile area of an airport to ensure that individuals with service animals have access to such areas when traveling. For example, an individual traveling with a service animal could arrive at Gate C3 and have an hour to make a connection to a flight at Gate G17. If the individual must leave the sterile area to find a service animal relief area, travel to and from that area, and then go back through security screening, the individual could have difficulty in making the connecting flight. At the same time, we understand that some airports have expressed security and logistical concerns about the placement of service animal relief areas inside the sterile area of an airport. The Department also recognizes that the Transportation Security Administration (TSA) in May 2011 revised its guidelines "Recommended Security Guidelines for Airport Planning, Design and Construction," to make clear that airports may provide Service Animal Relief Areas in sterile areas of the airport, or may provide escorted access to non-designated outdoor areas for the purpose of service animal relief. The Department also recognizes that coordination with the TSA via each airport’s site-specific Airport Security Program would need to occur if service animal relief areas are to be placed inside the sterile area. Consequently, the Department seeks comment on where airport service animal relief areas should be located to ensure that the time and distance to access the service animal relief areas do not create barriers for passengers with disabilities.”

It is not clear why putting a service animal relief area inside a sterile area would cause safety concerns. It would seem that taking a service dog outside of the sterile area would be a much greater risk. The passenger, whatever he is carrying, the dog, and in some cases, an accompanying airport official would all have to be rescreened to some degree if they left the secure areas of the airport. Also, if relief areas are not located inside the terminals, one person who uses a dog for stability has advised me that it often takes upwards of 45 minutes to get to a relief area and back. That is too much.

It would also be a good idea to put a relief area in the baggage claim area as that area often serves the entire airport and passengers arriving with service animals can get them to such an area while they are waiting for luggage.

Assistance for Service Animal Users to Get to Relief Areas

On the question of assistance by airport personnel, the preamble states:

“Finally, the Department has been made aware that some individuals with disabilities, especially, but not only, individuals who are blind or visually impaired, are experiencing difficulty in locating service animal relief areas at certain airports. Under part 382, passengers who request that a carrier provide them with assistance to an animal relief area should be advised by the carrier of the location of the animal relief area. Additionally, if requested, it would be the responsibility of the carrier to accompany a passenger traveling with a service animal to and from the animal relief area."

It is my opinion that human assistance should be required in certain circumstances. Blind passengers with guide dogs may be given directions in braille but should not be expected to ask other people for help if they get lost in a complicated airport. Such assistance may also be appropriate for individuals with mobility impairment or with certain cognitive disorders.

What Should Maps, Diagrams, and Brochures Include about Relief Areas?

The Department wants to know if airports should be required "to specify the location of service animal relief areas on airport Web sites, maps and/or diagrams of the airport, including whether the relief area is located inside or outside a sterile area. We also seek comment on whether airports should be required to provide signage to assist individuals with disabilities in locating service animal relief areas.”

This information should be required, but it is difficult to imagine that airports will have any resistance to such requirements. Airport operators will want to seem dog-friendly, and it must be realized that relief areas will also be used by passengers flying with small dogs, as well as occasionally search-and-rescue dogs that may be allowed in cabins. Also, airports will not want service animal users constantly asking personnel and other airport users where a relief area is located.

Should Requirements for Airports and Airlines Be Uniform?

The Department asks whether the separate requirements for air carriers and airports should be made identical:

“To the extent that the Department issues a final rule with requirements for airports to establish service animal relief areas that are more detailed than the requirements for U.S. and foreign airports that exist in part 382, the Department believes that it is beneficial to have the same requirements apply to U.S. and Foreign airlines. As such, we are soliciting comment on whether any requirement that applies to U.S. airports should also be applied to U.S. and foreign carriers. For example, if the Department creates a requirement that airports must establish service animal relief areas inside the sterile area of an airport, should such a requirement apply to U.S. and foreign air carriers in part 382?”

The rules should probably be made identical so that when there is some friction between a carrier and an airport as to implementation, the Department can assure that both are being tasked with the same goals.

Other Changes in the Proposed Rules

The Department has also made global changes to the regulations of 49 CFR Part 27, such that “nonhandicapped” is revised to “nondisabled,” “handicapped person” is now “individual with a disability,” and “handicapped,” when not followed by “person,” is changed to “disabled.”

Comments on the issues raised are sought by November 28, 2011, but the release states that late-filed comments “will be considered to the extent practicable.” The proposed service animal relief regulation is reproduced in the Appendix below.

Frequently Asked Questions

The FAQs referred to in the preamble that were issued on May 13, 2009, are entitled "Answers to Frequently Asked Questions Concerning Air Travel of People with Disabilities under the Amended Air Carrier Access Regulations."

Under the question, where should service animal relief areas be established, The DOT Office of Enforcement and Proceedings states:

"Answer: While not specifically required by our rule, carriers and airports may wish to consider the benefits of establishing animal relief areas both inside and outside the secure area (e.g., to accommodate passengers with short connection times, to minimize time needed for escort service, passenger convenience). In doing so, carriers should consult with service animal training organizations. In establishing animal relief areas inside the secure area, carriers and airports should coordinate closely with the Transportation Security Administration (TSA) and the Customs and Border Protection (CBP) offices serving the airport to ensure that the animal relief area can be used consistent with TSA and CBP procedures."

As to who is responsible for installing and maintaining relief areas, DOT says that this should be done cooperatively by both airlines and the airport operator “in consultation with local service animal training organization(s),” and lists the American Dog Trainers Network and Assistance Dogs International. In lieu of consulting with a local service animal training organization, the FAQs state that a carrier may consult with its disability advisory board members.

If DOT’s Aviation Enforcement Office receives a complaint about a relief area not being available or maintained, the carrier would ultimately be responsible. With the revised rule, DOT effectively makes both authorities jointly responsible.

The FAQs specifically require that if a service animal user requests assistance in finding the service animal relief area, “it would be the responsibility of the carrier to accompany a passenger traveling with a service animal to and from the animal relief area.” If the presently proposed rules are made final, this responsibility would also be shared with the airport operator.

The FAQs state that a relief area should be designated solely as such to “keep the area free of hazards and distractions,” and to help prevent the spread of waste contamination. Also, the site should be adequate “for larger dogs to use” and “equipped with adequate lighting to enhance usability and security.” Gravel is recommended because it “can be disinfected adequately to reduce the chance of germs being spread between animals or being carried outside of the relief area.”

Areas should be fenced so that dogs can get a little exercise and smell the area before they relieve themselves. Perhaps, as is done by some cruise lines, "dog litter" could be used.

Transportation Security Guidelines for Airport Planning

The Transportation Security Administration’s "Recommended Security Guidelines for Airport Planning, Design and Construction," revised May 2011, observe that:

“Service animal relief areas will often include grassy space, drinking water, cleaning capabilities such as water hoses and disposal containers, and appropriate drainage. Generally, maintenance of grassy areas is only practical on the public landside, not airside, but artificial materials may be used for service relief areas located on the sterile side.”

TSA seems to feel that if airports do not have space for a limited service animal relief area on the sterile side, they “may provide travelers with escorted access to non-designated outdoor areas for the purpose of service animal relief.” In the next paragraph, the TSA guidelines mention that the escort should be “badged.”

The Transportation Security Administration was formerly part of the Department of Transportation, but was transferred to Homeland Security in 2003. Therefore, where security issues may be involved, such as where a relief area is outside of security checkpoints, TSA input will be required.

Conclusion

It is likely that this regulation will be fast-tracked, so people who travel with dogs in the cabin should make their opinions known by the close of the comment deadline on November 28, 2011. Although the proposal may be somewhat redundant in that a service animal relief area already applies to carriers, some carriers have only limited or temporary space in airports, and may not have much influence with airport operators. Therefore, the regulation is important and issues such as the number, placement, and size of relief areas should be specified in the final rules. Also, the availability of assistance will be important for some individuals traveling with service animals, who should now make their needs known to the Department of Transportation, particularly since it seems to be willing to listen.

In sum, users of service animals, and persons who travel with dogs generally, are being given the opportunity to make comments on:

1. Where relief areas should be located, i.e., inside terminals, inside and outside terminals, within a certain distance of a main concourse, and/or reachable within a certain time frame, such as 10 or 20 minutes. Travelers who have had problems with specific airports might discuss those airports, since this may provide the Department with useful data that will apply to other airports.

2. Whether assistance should be provided by airport personnel. Again, individual experiences will help the Department develop a rule that will be helpful to all service dog handlers who might benefit from assistance.

3. What sorts of maps and other information should be provided, what should be placed on airport websites, whether carrier websites should provide the same data or link to airport websites, what signage should be inside airports, and whether airport personnel should generally be informed and therefore able to help passengers find relief areas. Here also individual experiences could be very helpful.

4. Whether airline and airport rules should be identical. In my opinion, this should probably be the case so that situations do not fall through the cracks.

There are many airports with many different issues, and it is quite possible that the Department has not thought of every issue that should be considered in the rules. Since the Department seems to be making a sincere effort to gather additional information from users, and since these rules will affect a great many passengers who travel with dogs, this is one case where I believe comments are important.

Thanks to Patty Dobbs Gross, Joan Esnayra, Anne Wicklund, Caitlin Moore, and Matt Kincaid for help on this blog.

Appendix: Proposed Regulation

The proposed rule regarding service animal relief areas reads as follows:

49 CFR 27.72 Boarding Assistance for Aircraft
…
(h) Service animal relief areas. Each airport with 10,000 or more annual enplanements shall consult with service animal training organization(s) and cooperate with airlines that own, lease, or control terminal facilities at that airport to provide at least one animal relief area in each airport terminal for service animals that accompany passengers departing, connecting, or arriving at the airport. To the extent that airports have established animal relief areas prior to the effective date of this subsection and have not consulted with service animal training organization(s), airports shall consult with service animal training organization(s) regarding the sufficiency of all existing animal relief areas.

Department of Transportation, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance (U.S. Airports), Docket No. DOT-OST-2011-0182, 76 Fed. Reg. 60426 (September 29, 2011).

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Hierarchy and Insurrection in the Medieval Forest

John Manwood’s Treatise of the Forest Laws, written at the end of the sixteenth century but describing a legal system that flowered centuries earlier, provides great detail about how those without grants from the king were punished for taking game from, or sometimes just near to, a royal forest. (Most older sources, and the discussion here, use "forest" as meaning a "royal forest," while referring to other wooded areas as "chases," "warrens," "woods," and other terms. Forests in some areas, and some parts of Britain, did not always refer to land under the forest laws.)

I know of no peacetime period in world history where dogs were so brutally caught up in the affairs of men, where the hierarchy of society created such a rigid ordering of dogs that a dog’s life was very much determined by who owned it. A man not assured of a sufficient income or title could not even own a greyhound. A commoner dwelling in a forest could not own a large guard dog unless at least one leg of the animal was sufficiently damaged to prevent it from chasing deer.

Kings had officials responsible for training and caring for their hunting dogs, which were divided by their respective skills. The skill the dog brought to the hunt determined where it would live in the castle keep. The lymers (leashed trackers, thought to be precursors to bloodhounds) and other hounds lived in well-built kennels, where poor people might sleep with them at night to keep themselves warm and retrieve a huntsman or one of his servants if a dog got sick. Greyhounds often had the run of the castle. Small dogs could be owned by commoners, and pampered Maltese (Canis melitensis to Aldrovandus) took fleas from ladies (while giving them back, but there was always a trade-off). The first woodcut is of a lymer from Turbervile; the second a Maltese from Aldrovandus

This rigid separation of dogs, reflecting the layering and boundaries in human society, goes some way toward explaining modern breeds, since this separation of types of dogs discouraged breeding between dogs that served different functions and encouraged breeding like to like. Also, the limited trade and isolation of the middle ages allowed for regional development of types that, in many cases, survived until more formal breed designations and standards began to be established in the nineteenth century, something my father and I recognized but could not sufficiently document when he was writing The Complete Book of Dogs forty years ago.

Poaching

Restricting a large part of the deer population of England for the pleasure of the king, the purpose of the forest laws, inevitably led to poaching. Manwood’s descriptions suggest that poachers generally operated secretively, often at night, and removed the stag or other game before anyone could see and report the mischief to the foresters or other local authorities. As a typical example, take a case from 1200 (reign of King John) translated from the Latin by G.J. Turner in Select Pleas of the Forest (4-6):

“Thomas Inkel, forester of Cliffe, found in the wood of Siberton a certain place wet with blood, and he traced the blood in the snow as far as the house of Ralph Red of Siberton; and forthwith he sent for the verderers and good men. They searched his house, and in it they found the flesh of a certain doe; and they took Ralph himself and put him in prison at Northampton, where he died. But before his death, when he was in prison, he appealed Robert Sturdi of Siberton and Roger Tock of the same town, because they were evil doers to the forest together with him. And the foresters and verderers searched the house of the aforesaid Robert, and in it found the bones of deer; and they took him and sent him to prison. And in the house of Roger Tock they found ears and bones of wild beasts. And he was taken and imprisoned. Robert Sturdi comes before the justices and says that the dogs of Walter of Preston used to be kenneled at his house. Walter's hunters ate the venison whence came the bones; and Robert vouches the aforesaid Walter to warranty of this ; and let him have him to-morrow. Walter comes and warrants him, saying that his dogs [canes] were kenneled in his house for fifteen days while he was hunting bucks.

“The aforesaid Roger Took comes before the justices and denies everything. And the verderers and foresters witness that the ears and bones found in his' house were those of beasts which the hunters of Walter of Preston took. And because Roger lay for a long time in prison, so that he is nearly dead it is adjudged that he go quit; and let him dwell outside the forest.”

Thus, because the hunters did not cover the blood and tracks they and their dogs made in the snow, one of them died and one lay in prison until he was almost dead, then was required to live outside the forest to reduce his chances of further mischief.

Poachers vs. Hunters

An account from 1251 (reign of Henry III) in Turner’s Select Pleas shows that hunters with permission to use a forest could get into fights with poachers, who in this case had numbers on their side:

“It happened on the Wednesday next after the feast of St. Michael [end of September] in the same year that James of Thurlbear, Thomas of Spain, and Robert of Wick, the hunters of Sir Geoffrey of Laugley, the justice of the forest, and others with them went into the Farming wood of Brigstock after dinner and met certain persons doing evil in the forest with bows and arrows [arcubus et sagittis], estimated at the number of twelve. And they led three dogs in a leash, of which one was black, a second red with ears erect, and the third ticked with white and black [tres canes in lieno quorum vuus fuit niger et alter ruffus cum auribus stantinis et tercius tetchelatus albedine et nigredine]. And the huntsmen forthwith hailed them; and they shot arrows at one another. And two of the evil doers came out of their band and seized Robert of Wick, as he stood at his tree; and when the hunters could not resist them on account of their number, they went away.”

Dogs were often described with particularity because poachers sometimes wore masks or remained in the cover of brush, making identification difficult, but dogs could be well known in the area where their owners lived. The following occurred in 1248:

"William le Rus and Geoffrey of Pilton, walking foresters of Weybridge, were going towards midnight to Weybridge to lie in watch over their bailiwick, so that ... towards Alconbury they met a certain red greyhound worrying a doe. And they called the said greyhound and took it. Afterwards twelve men came following the greyhound, one of whom carried an axe in his hand, and another a certain long stick, and the others ten bows and arrows, and they led three greyhounds in a leash, of which one was white, and another ticked with white and black ; and of what colour the third was they knew not. And the foresters called the men, who shot six arrows at the foresters, three barbed and three 'genderated.' And the foresters shot at the men who entered the wood. And on account of the thickness of the wood and the darkness of the night the foresters knew not what became of them."

It has been suggested that sagitta genderata derives from the French cendrée and means that there was a ball of lead at the end of the arrow to prevent too much penetration into the deer (review of Select Pleas appearing in The Athenaeum, No. 3878, p. 234, February 22, 1902; the reviewer considers it also possible that the term refers to some mechanism for removing an arrow).

Insurrection

Most accounts indicate that the perpetrators were unlucky to have been caught, though perhaps somewhat deserving of their fates because of sloppiness in their criminal endeavor. But on page 214 of his Treatise, Manwood writes a long sentence about an incident that took place in the reign of Edward III in 1334:

“One Nicholas Melvill, and several others, were indicted for that they, with Bows and Arrows and Dogs, had killed 43 Stags and Hinds in the Forest, and had set their Heads on Stakes; they were committed and grievously fined, and according to the Charter of the Forest, were bound to their Good Behaviour; and so they must have been if they had been pardoned.”

Forty-three stags, their heads on stakes! No subtlety here.
Yet they are only fined and let go on their good behavior? What is going on? Did the forest laws receive any respect at all? More will be said about this incident below, but it is necessary first to put the forest laws in the context of a broader English history.

What is a Forest?

Manwood defines a forest as follows:

“A Forest is a certain Territory of woody Grounds and fruitful Pastures, privileged for wild Beasts and Fowls of Forest, Chase, and Warren, to rest and abide there in the safe Protection of the King, for his Delight and Pleasure; which Territory of Ground so privileged is meered and bounded with unremoveable Marks, Meers and Boundaries, either known by Matter of Record or by Prescription; and also replenished with wild Beasts of Venery or Chase, and with great Coverts of Vert, for the Succour of the said Beasts there to abide; for the Preservation and Continuance of which said Place, together with the Vert and Venison, there are particular Officers, Laws, and Privileges belonging to the same, requisite for that purpose, and proper only to a Forest, and to no other Place.” (Manwood, 143)

In sum, a forest to Manwood must have four things: vert (green plants and trees), venison (game, particularly deer), special laws, and special officers to enforce them. Wood in a forest was protected as was its game, and grazing was limited to animals that would not hurt the game or eat what the game wanted to eat (at least for some part of the year). These aspects, not involving dogs, will only be alluded to here. More can be found on the protection of vegetation in the excellent books on the forest laws by Young and Grant listed in my sources at the end of this blog.

As to hunting, Manwood is specific:

“Hunting in Forests is Sport for Kings and Princes, and therefore not to be used by every common Person, but only by such of the Nobility and others who have Authority from the King, or from his Justice in Eyre, or other Officers of the Forest, or by such who have some good and lawful Authority so to do, and no other may hunt there.” (Manwood, 184)

Manwood may be exaggerating slightly in this statement. A number of the laws he himself refers to speak of the rights of “owners,” not just the king. Liebermann notes that Blount’s Law Dictionary (1717) states that a king could grant a forest, though this seems to have been uncommon.

It is also to be noted that not all hunting was prohibited to commoners. Although harts and boars were generally forbidden to any but the king, Manwood (182) states the king might grant residents of a forest “Liberty to hunt Vermin of Chase, fiz. Foxes, Wild Cats, Pole-cats or Squirrels.”

Royal Forests and the Royal Treasury

The rights of kings over forest property can be traced to the early medieval period. Chris Wickham, describing the increasing militarization of elite culture following the collapse of the Roman Empire, describes how by the eighth century kings “put their palaces beside woodland regions that were easy to reach for hunting; the Frankish and Lombard kings began to see some of these regions as ‘forest’, royal reserves, in which only they could hunt.”

Forests were not under the king’s control because they were wooded, but rather because they had been marked out as forests by a process of afforestation. Afforestation, as Professor Emma Griffin notes in Blood Sport, “involved not wholesale eviction of the local inhabitants but the imposition of a new code of law upon them.” Similarly, the same area could lose its forest status by a procedure called disafforestation.

Griffin acknowledges the importance of the sport to the Anglo-Saxon kings, but attributes the land policies that eventually reserved hunting rights over much of England to the crown to William the Conqueror and his early descendants. Christopher Brooke describes the situation before and after the Conquest succinctly:

“Like Edward the Confessor, the Norman kings were all passionately fond of hunting. They added substantially to the area of forest, which means, not continuous woodland, but space in which special laws operated, special punishments were enforced, intended to ensure the safe-keeping of game, especially deer and boar. In these areas beasts were more precious than men. It is well known that the early Normans created, or rather extended the New Forest; less well known that they could ride from Windsor, through the New Forest, to the sea without leaving territory subject to the forest laws; that the whole country of Essex was forest; that only three English counties were entirely free from forest law; and that there was probably no part of England more than fifty miles from a forest.”

The New Forest is shown about 1575 in Christopher Saxton's map of Hampshire. (Double click for larger image.)

The purpose of the forest laws was to assure that deer populations would remain high in areas where the king enjoyed hunting them, which meant that only he, and those few on whom he bestowed the right, could hunt in such places. Bestowing the right generally came with a price, and when the king needed money, he could get it by including more nobles within the privileged circle of hunters. This was often not enough—particularly if a major war had to be financed—and the best solution was to “disafforest” broad sections of previously designated royal forest. This took the land out of the royal forest and gave it to the noble who paid the price. For several centuries following the Conquest, the ebb and flow of forest lands, afforestation followed by disafforestation followed again by afforestation, reflected the needs of the kings to fill the coffers. As summarized by Helen M. Jewell:

“The history of the royal forest can almost be read as a commentary on the relative positions of the crown and its critics in the middle ages, for the kings when strong increased the area of forest, and when weak yielded to pressures for deforesetment.”

Henry II (1154-1189) pushed the royal forests to their greatest extent. His son, Richard I, known as the Lionheart, spent very little time in England, needed capital for wars and a crusade, and disafforested much of the land his predecessors had put under the forest law. Richard’s brother John continued to policy of disafforesting various areas, but became assiduous in enforcing the forest laws against poachers and those who otherwise violated the remaining lands. This may explain John’s negative portrayal in the Robin Hood legend.

Henry III, John’s son and heir, accepted the pressure of the nobles to codify the forest laws in the Charta de Foresta, upon which Manwood bases much of his Treatise.

Margaret Ley Bazeley included a map of the royal forests of England in her 1921 article on the extent of the royal forests. The shaded areas of the map indicate areas designated as forests in the thirteenth century.

Dogs in the Forest Laws

Manwood mentions greyhounds, spaniels (Canis hispanicus, because of the belief they came from Spain), mastiffs and little dogs. Greyhounds and spaniels “are generally forbid, that is, they are not to be kept in a Forest, but only by a Grant from the King.” (Manwood, 110) Manwood asserts the antiquity of the prohibition on greyhounds:

“And even from the very beginning of the Forest Laws, it appears, That it was unlawful to keep Greyhounds there; for, by the 31st of the Laws of Canutus, tis ordain’d, Quod nullus medioctis habebit, nec custodiet Canes quos Angli Greyhounds appellant.” (Manwood, 111) The third plate above shows a greyhound from Aldrovandus, while the fourth shows his depiction of a spaniel.

There were penalties for keeping greyhounds in violation of these laws. If the owner were an “Artificer, Labourer, or other Layman, who hath not Lands of the Value of 40 s. per Annum, or any Priest or Clerk who hath not a Living to the Value of 10 £. a Year, will have or keep any Greyhound, Hound or other Dog to hunt, or Ferrets, Hays, Nets, Hare-pipes, Cords, or other Engines, to take or destroy Deer, Hares, Conies or other Game, he shall be committed for a Year.” For one whose station was higher, however, there could be a fine rather than imprisonment:

“All Persons, except such who are seised in their own Right, or in the Right of their Wives, of Lands or Tenements of Inheritance to the Value of 10 £. by the Year, or of 30 £. for Life, or possessed of Goods or Chattels to the Value of 200 £. or the Son of a Knight or Baron, or of higher Degree, or the Son and Heir apparent of an Esquire, and who shall have or keep any Greyhound to course Deer or Hare, shall be committed to the common Gaol for three Months without Bail, except he forthwith pay 40 s. to the Churchwardens of the Parish where the Offence was committed….” (Manwood, 124)

On the other hand, the following could keep a greyhound:

1. He must either be Owner of a Free Warren.
2. A Lord of a Manor.
3. Or he must have an Estate of Inheritance of 100 £. per Annum, either in his own Right, or the Right of his Wife, or for Life.
4. Or must have a Lease for 99 Years, of 150 £. per Annum.
5. Or must be the Son and Heir of an Esquire, or one of higher Degree. (Manwood, 124-5)

Greyhounds were not named for their color. Cox, in describing forest records, mentions greyhounds that were black, black spotted, tawny (teyngre), tiger-marked or brindled (tigrus), red (ruffus or rubens), and red with black muzzle (cum nigro mussel).

Turton, in his edition of the Pickering Forest records, mentions men owning many hounds, as many as seven, but even an abbot might not have authority to hunt:

“Thomas Wryel, William son of William Moye, and Prester John, on Trinity Eve [1324?], came with hounds of the Abbot of Whitby with his knowledge to Stayrigg and laid them on and took a hind ; Thomas, William and the Abbot fined, Prester John outlawed.”

A record from 1102 in the reign of Henry I, however, gave an abbot authority to “keep leporarii to hunt hares.” (Davis, Regesta, # 577; 1873 “hares and foxes, 1129-33).

Dogs could be fed by receiving part of what was poached, as can be gleaned from the following in Turton:

“Peter Mauley, John son of Malkin, William son of Thomas son of Stephen, William of Haverdale, and many others unknown, on Saturday, 14 April, 1313, took two harts in Wheeldale Rigg and Wheeldale Beck with gazehounds, bows and arrows ; one was eaten by Peter's hounds and the other was carried to his house. Peter fined as above, the rest outlawed.”

Residents of the forest below the ranks in the list above could only have two types of dogs: “Mastiffs expeditated, and little Dogs may be kept in a Forest; but no other Dogs, without a good Claim, by virtue of a Grant from the King, or the Owner of the Forest.” I discussed expeditation at length in a prior blog. A mastiff of the sort that was at risk of expeditation was illustrated by Konrad Gessner in the next plate below.

Opposition to the crippling of mastiffs did not just come from the lowly forest dwellers. An inquisition regarding the practices of foresters in Somerset was issued in 1278 or 1279, reproduced in Turner’s Select Pleas, contains the following passage:

“Although the charter says that view of the lawing of dogs ought to be made every third year, when the regard is made, and then by view of loyal men and good, and not otherwise, yet the foresters come through the towns blowing horns and make a nuisance with much noise to cause the mastiffs [mastins] to come out to bark at them ; and so they attach the good folk every year for their mastiffs if the three toes be not cut and a little piece from the ball of the right foot, although the charter says that the three toes are to be cut but not the ball of the fore foot.”

This inquisition shows that even those close to the king might occasionally acknowledge excesses in enforcement by the king’s agents.

Correlating Terms with Breeds

Terms such as leporarius in Latin, or greyhound in English, probably encompassed a range of breeds. (Leporarius originally meant "hare hound" from the Latin for hare, lepus.) Turton, in his editing of the Pickering Forest records, translated leporarius as gazehound, but acknowledges that it “is probable that the word leporarius included a large variety of breeds, some rough like the old Scotch deerhound, and some smooth like the modern greyhound.” Running-hounds, according to Turton, could have encompassed dogs that were like foxhounds, but also like bloodhounds. The long haired leporarius depicted by Aldrovandus below fits this description.

Hunting Rights of Those Living Adjacent to the Forest

Those living adjacent to the royal forest could hunt on their own lands as long as they did not stray into the forest itself. It was not expected that such hunters would gallop through woods with the same elegance and entourage that attended a king’s hunt. In fact, these local hunters might expect their dogs to do much of the work and the attachment of the dogs to a deer might give such a hunter the right to pursue quarry into the forest itself. As described by Manwood:

“But yet, in some Cases, a Purlieu Man may lawfully pursue his Chase, and hunt and kill a Deer in the Forest, for if he find such Deer in his Purlieu, and in hunting it towards the Forest, the Dogs fasten on it before ‘tis within the Bounds thereof, and the Dogs still hanging on, are drawn by the Force of the Deer into the Forest, and ‘tis killed there; in this Case, by reason of the first Property which he had, ratione soli [according to the soil, i.e., by reason of the purlieu man’s property rights], and also by the Pursuit and Possession thereof by his Dogs, before the Deer entered the Forest, he may lawfully follow his Chase there, and take and carry away the Deer, because he was actually possessed thereof by his Dogs (which are his Servants) before it entered the Forest.” (Manwood, 197-8)

Thus, the attachment of the dogs creates ownership in the hunter which is not abrogated if the beast enters the royal forest. If the beast reaches the brink of the forest before the dogs fasten, then it cannot be brought down as the property of the hunter. Stated differently, “a Purlieu Man hath a Property in the Beasts, ratione soli, against every Man but the King.” (Manwood, 294) This only applies if the hunter was on his own property, however, as indicated by a case from the time of Henry VIII:

“In the aforesaid Case, 12 H. 8. it appeareth, That if a Purlieu-Man doth begin to hunt in another Man’s Grounds in the Purlieu, and not in his own; this being an Injury to the Owner of those Grounds, if his Dogs fasten on a Wild Beast before it recovers the Bounds of the Forest, and are drawn in by Force, and then they kill the Deer there, the Owner of the Dogs must not enter into the Forest, nor take the Best so killed, because the first Hunting and Pursuit began by Wrong; for he never had any Property in the Beast, ratione soli; and therefore, though he doth not come himself into the Forest, yet he shall be a Trespasser of the Forest, because his Dogs enter’d it and killed a Wild Beast, in which he never had any manner of Property.”

As Marvin (2006) notes, the king did not own the animals as to which he had an exclusive right to hunt.  This is indicated by the fact that if the dogs fasten to a deer before it enters royal forest, it becomes the hunter's possession, having been caught.  

Paintings and drawings of medieval hunting rarely show dogs affixed to deer, this not being considered a noble way to hunt. In one of the plates from Gaston Phoebus, a larger dog, perhaps an alaunt, is shown grasping the back of a deer that is falling from the wound of an arrow.

Hart Royal

There was one instance where a purlieu man could not take a hart on his property, which is when the king proclaimed a “hart royal,” which Manwood describes as follows:

“For, at six Years old, he is called a Hart and if afterwards he is hunted by the King, and escapes alive, he is called a Hart Royal, and if, in hunting, he is driven out of the Forest so , that he is not likely to return of himself, and the King giveth over hunting him, then because he has made such sport, the King causeth a Proclamation to be made in all the Towns and Villages near the Place to which he was pursued and hunted, that no Person should kill, hurt or hunt him, and appoint certain Foresters to look after him till he returns to the Forest, and afterwards he is called a Hart-Royal proclaim’d; and by Budaeas, Eximius Cervus, that is, a goodly Hart.” (Manwood, 179-80)

King Richard made such a proclamation in 1194 regarding a hart that he chased out of Sherwood Forest into Barnesdale in Yorkshire. (Manwood, 180)

Methods of Hunting in the Time of the Forest Laws

In addition to letting the dogs bring the deer down, Robert Bell Turton, in his collection of documents from Pickering Forest, suggests that the most common form of hunting involved the retainers and the hounds driving the stag “and their master stood with his bow and arrow at some likely spot to shoot him as he came past.” Turton also refers to Ellis’s introduction to the Domesday Book, which describes stabilitio venationis, a hunting term meaning, “To drive the Deer and other Game from all quarters to the centre of a gradually contracted circle where they were compelled to stand.” (Ellis, 111-2)

The 43 Stags

The incident of the 43 stags and the heads on stakes would remain hard to put in any context were it not that a more complete description can be found in the records of the forest of Pickering, edited by Robert Bell Turton. Turton summarizes the case:

“The list of the indictments opens with an account of a hunt which, as it took place on the 23rd of March [1334] preceding the King's [Edward III] visit, may well have been the ground on which the Earl based his request for a commission. The meet, if my conjecture is correct, was not far from Saltergate Inn, and I doubt whether, when Captain Johnstone meets there with his hounds, he ever finds the neighbouring landowners so well represented as they were on this occasion, and all for the sole purpose of poaching. From Whorlton Castle came Nicholas de Menill [sometimes spelled Meynell in the documents]; from Coket Nook, in the parish of Egton, came Peter de Mauley the younger, heir to Mulgrave, and he brought William his Parker with him; from Kildale came a large party, John de Percy, with William his brother, William his cousin, heir to Sneaton, and Redheaded John his groom (the garcio, or groom, appears to have been the lad who attended on the huntsman and led the hounds, as, for instance, the lymer where a lymer was used.) Then there was a Wyvill, a Coleville of Arnecliffe, representatives and forefathers of the sporting family of Petch; indeed it would require the pen of Brooksby to do justice to all that were there. The sport, too, was of no ordinary kind; not one stag taken, or perhaps two, but no less than forty-three harts and hinds were accounted for. Finally, to show their contempt for the manner in which the Earl of Lancaster preserved his game, they cut off nine heads and fixed them on stakes in the Moor. The Earl's foresters could not be expected to lie quiet under this insult.”

Marvin explains that the setting an animal's head on a pole and pointing it in a particular direction is a particularly ritualistic type of contempt.  This was true even two centuries later. Griffin relates one night in 1524 when a group of about 15, including a parish priest, broke into Sir John More’s close and killed a number of deer, setting a buck’s head with a stick in his mouth pointing towards the knight’s mansion.

As to the incident in 1334, note that some came from castles, and some were listed as heirs of estates of sufficient size to have names (Mulgrave, Sneaton), and that some have French names. The original record is in Latin and refers to the use of arcurbus et sagittis et leporariis, i.e, crossbow, arrows, and greyhounds. Two months later, some of these individuals were caught red-handed (“bloody-hand”), imprisoned but released on payment of fines as follows:

1. Nicholas Meynell at £13 6s 8d
2. Peter de Maulay junior, £10 (mentioned elsewhere as an owner of gazehounds)
3. William Wyvill, £10
4. Robert Coleville, £6
5. Robert Staynton, £1
6. William Willardby, 10s
7. Robert Wymark, 10s
8. William Woodman, 6s 8d
9. William Eston, 6s 8d
10. William Touchprick, 10 s
11. William Haggerston, 13s 4d
12. William Broughton, 13s 4d
13. Thomas Dale, 13s 4d
14. Robert Petch, 13s 4d
15. William Usher, 13s 4d
16. William Parker, 13s 4d
17. Alan Petch junior, 13s 4d
18. Robert Seton, 13s 4d
19. Geoffrey Langdon, 10s
20. Robert Bald, 6s 8d
21. William Wyles, 6s 8d
22. Robert Lealhol, 6s 8d
23. Adam Lonsdale, 6s 8d
24. Thomas Mauley, £1
25. William Chapell, 5s
26. Roger Hull, £1
27. Walter Davidson, 13s 4d
28. Henry Moubray, 10s
29. John Lealholm, 13s 4d

I have already notified one friend of his outlaw ancestry but am hesitating as to another whose sense of humor I am less sure about. There were five others who were arrested later and posted bail, though some more did not appear and were declared outlaws. Turton’s commentary states that the fines were “very heavy, having regard to the value of money in those days.”

It appears that perhaps forty people were willing to band together to obtain meat, despite the laws. That would have amounted to a significant part of the population of an area, and certainly qualifies as at least a minor revolt. Given the titles and positions, this was not a peasant revolt, but rather a revolt of landowners who believed their ancient hunting privileges had been taken away (perhaps centuries earlier) for the pleasure of the crown and a few higher nobles.

The possibility that some of those participating were desperate because of starvation cannot be ruled out.  As Floud et al. (2011) noted regarding France in the 18th century, at least 10% (but perhaps as high as 30%) of the population in a more advanced age was getting insufficient nourishment for baseline maintenance and was thus starving to death, sometimes rapidly.  The risks that individuals living in and near the forests took can in many cases best be explained by assuming that poaching provided one of the few sources of nourishment. Unlike livestock rustling, no organized group was necessary, at least for the occasional opportunistic situation where a deer was found in a place where bringing it down involved minimal risk.  

Poachers could be violent. Charles R. Young summarizes a case from the 13th century where a poacher had the upper hand:

“In one case the information was given that although a forester failed to arrest some men he caught hunting deer, he did manage to capture two of their greyhounds, which he left with another man for safekeeping until the meeting of a forest court. Not to be outdone, Robert de Gernon, the apparent lawbreaker in the case, retaliated by kidnapping the forester and throwing him into a dovecot until he paid two shillings eleven pence for his release. Meanwhile Robert also regained the greyhounds by forcing them from the man who had them in his custody and entered the forest again with them to kill two deer.”

The End of the Forests

Royal forests did not end for several centuries, but hunting was increasingly carried out in deer parks, confined spaces in which the deer had ultimately little chance to escape the arrows of the privileged hunters who shot from perches and walls. Griffin says that by “the sixteenth century, deer were private property, enclosed in parks and rigorously protected by the long reach of the law.” In order not to deplete limited stocks, however, deer coursing, in which dogs competed in their ability to chase deer along a course but without the object of a kill, became a sport in itself, something like a sheep dog trial.

As deer populations and hunting grounds declined, interest in hunting animals such as foxes, once regarded as vermin that could be left to the peasants, increased, and eventually became the activity by which something of medieval courtly hunting ritual continued into modern times.

Thanks to Richard Hawkins of Fern Hill Scottish Deerhounds for many helpful suggestions, and for saving me from my own speculative idiocy regarding the term "genderated."

Sources:

1. Bazeley, M.L. (1921). The Extent of the English Forest in the Thirteenth Century. Transactions of the Royal Historical Society, Fourth Series, vol. 4, 140-172.
2. Brooke, C. (1963). The Saxon and Norman Kings (3rd ed.). Blackwell, Oxford.
3. Cox, J.C. (1905). The Royal Forests of England. Methuen & Co. London.
4. Davis, H.W.C. (1956 reprint), Regesta Regum Anglo-Normannorum, 1066-1154, Clarendon Press, Oxford.
5. Ellis, H. (1833. A General Introduction to Domesday Book, printed on command of King William IV (1833).
6. Floud, R., Fogel, R.W., Harris, B., and Hong, S.C. (2011). The Changing Body: Health, Nutrition, and Human Development in the Western World since 1700. Cambridge University Press, New York. 
7. Grant. R. (1991). The Royal Forests of England. Sutton, Wolfeboro Falls, New Hampshire (including an appendix listing all forests and when disafforestation or alienation occurred).
8. Griffin, E. (2007). Blood Sport: Hunting in Britain Since 1066. Yale Univ. Press, New Haven (p. 59 on extinction of wild boar by 15th century).
9. Jewell, H.M. (1972). English Local Administration in the Middle Ages. David & Charles, Newton Abbot (providing extensive detail regarding charges kings imposed to deforest various areas).
10. Liebermann, F. (1893). On the Instituta Cnuti Aliorumque Regum Aglorum. Transactions of the Royal Historical Society, VII, 77-107. Longmans, Green, & Co., London (arguing that works attributed to the time of Cnut included material from later periods and were compiled and probably written after the Norman Conquest; Cnut’s supposed forest law was a forgery (“the fabricator of the Forest-law who speaks under Cnut’s mask”)).
11. Manning, R.B. (1994). Unlawful Hunting in England, 1500-1640. Forest & Conservation History, 38(1), 16-23 (describing resentment to hunting restrictions under the game laws in later periods).
12. Marvin, W.P. (2006). Hunting Law and Ritual in Medieval English Literature.  D.S. Brewer, Cambridge.
13. North Riding Record Society (1893). North Riding of the County of York, II: The Honor and Forest of Pickering (Robert Bell Turton, ed.).  Woodfall and Kinder, London.
14. Stenton, F. (1971). Anglo-Saxon England (3rd ed.) Oxford Clarendon Press, Oxford & New York (“The French origin of the Anglo-Norman forest law has been placed beyond dispute, and the Conqueror’s severity towards those who broke the peace of his deer is recorded by one who had known him (Chronicle, under 1087). That he enlarged the borders of King Edward’s forests is certain, and there is no need to doubt the early tradition that the New Forest was converted into a royal preserve by his orders, to the destruction of many peasants who were struggling for existence in that unfriendly land. Nevertheless even within the forest sphere there was no absolute break with the past. The idea of a royal forest, jealously preserved had been familiar to Englishmen for forty years at least before the Conquest. Cnut had laid a heavy fine on anyone who hunted in a district which he had set apart for his own pleasure. Forest wardens had been maintained by Edward the Confessor. It is more important that the new forest legislation, which was intended for the protection of the king’s deer, never interrupted the operation of the common law. The forest courts brought the peasant within their jurisdiction under a new surveillance in the interests of the king’s sport, but left him in all other matters to the familiar justice of shire and hundred.”).
15. Turner, G.J. (1901). Select Please of the Forest. Bernard Quaritch, London.
16. Wickham, C. (2009). The Inheritance of Rome: Illuminating the Dark Ages, 400-1000. Penguin Books, London (p. 189).
17. Young, C.R. (1979). The Royal Forests of Medieval England. U. Penn. Press (describing the case of Robert de Gernon at p. 81).

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Do Dogs Display Guilt? Does the Smell of Lavender Relax Them? Curious Findings from a Recent Ethology Conference

Ethology was once the attempt to study an animal's behavior free of human coordinates. At Berkeley, and then at Tower Island in the Galapagos, I tested the ability of intertidal crabs to navigate by the sun and the moon. It was considered important at the time to eliminate human measures and even human terms from a study of an animal's behavior. "Begin with the fact that the animal has survived. It is here. It is successful. Saying it was intelligent is meaningless. All animals are intelligent enough if they are here." Such were the words, or how I remember them, of my senior thesis adviser, a visiting postdoctoral fellow from Oxford who was a student of Niko Tinbergen and is now one of the preeminent evolutionary biologists in the world.

In those days the great lights of ethology were Konrad Lorenz, Niko Tinbergen, and Karl von Frisch, all of whom focused primarily on the behavior of wild animals (though Lorenz, in Man Meets Dog, had considered the behavior of domestic canines). These three shared the Nobel Prize in Physiology or Medicine in 1973.

The study of domesticated animals was not held in high esteem by many biologists then. It was difficult enough to remove human measures from the study of an animal in the wild, but even more difficult when an animal had accepted a relationship with humans, had in a sense accepted human measures into its very being. Yet domestic animals have also survived. In fact they are generally more successful than their wild cousins. Cattle are abundant, but bison are preserved in only a few spaces and most herds have interbred to one degree or another with domestic cattle. Dogs live in the tens of millions, while wolves only exist in many areas because of human protection, or even because humans have reintroduced them into an environment.

"What can you learn from studying an animal in a cage?" I remember an ichthyologist with an ethological bent asking rhetorically. (This from a scientist who did not hesitate to include observations on fish in tanks in his papers.) This reluctance to study domestic animal behavior did not continue as a ban, but rather spawned a new branch of ethology, applied ethology or applied animal behavior. The complexity of removing human coordinates from the study of an animal adapted to some of those coordinates may remain a philosophical issue, but a recent conference convinces me that some things can indeed be learned from studying animals in cages.

The Proceedings of the 45th Congress of the International Society for Applied Ethology (ISAE) have been posted on the website of the U.S. Department of Agriculture. The conference took place this year in Indianapolis from July 31 to August 4. The title of the gathering was Scientific Evaluation of Behavior, Welfare and Enrichment, and a number of the abstracts reproduced in the publication concern dogs. Among issues considered by scientists were whether female dogs prefer to pee on Astroturf as opposed to concrete; whether owners can really tell if their dogs display guilt when greeting them because the dogs know they have done something wrong in the owners’ absence; behavioral differences in shelters between dogs relinquished for the first time and those transferred from other shelters; physiological effects of owner visits to dogs in intensive care units; euthanasia practices in Canada; whether programs where senior citizens walk shelter dogs reduce euthanasia rates of participating dogs; and differences in forepaw preferences in foxes by sex (which turn out to be the opposite of what is found in dogs). Some of the abstracts are described briefly below, but the full research papers will be appearing in scientific journals throughout the year.

To wee or not to wee: hospitalized female canines (Canis familiaris) preferred Astroturf to concrete in a two-way simultaneous presentation choice test. Sally Teer and Louise Buckley. “It is concluded that Astroturf shows promise as an alternative substrate for urination. However, this preference needs additional investigation before fake grass is recommended as an environmental modification.”

Do you think I ate it? Behavioral assessment and owner perceptions of ‘guilty’ behavior in dogs. Julie Hecht and Marta Gacsi. “The experiment used pet dogs … and established the social rule that food on a table was for humans. Dogs had the opportunity to eat after the humans left the room. Owners returned, were unable to see the table and therefore observed dog greeting behavior to decide if the dog ate. Behavior analysis revealed no difference in display of ABs [associated behaviors] during greeting between obedient and disobedient dogs….” The report said that some owners knew their dogs well enough to guess whether they had eaten the food, but owners who only looked at the dog’s behavior on greeting were no better than chance in determining whether the dog had eaten the food on the table.

Assessing quality of life in kenneled dogs. Jenna Kiddie, Daniel Mills, William Hayes, Rachel Neville, David Morton, Dirk Pfeiffer, and Lisa Collins. “Dogs that were transferred from another kennel were easier to handle; those relinquished for the first time avoided handling…. Transferred dogs tended to eat all of their food; dogs relinquished for the first time varied in the amount they ate…. There was a trend for first time relinquished dogs to spend longer walking than transferred or returned dogs. There was a trend for transferred dogs to have higher oxidative stress than first time relinquished dogs…..”

The development of a behavior assessment to identify ‘amicable’ dogs. Tammie King, Linda Marston, and Pauleen Bennett. “The Monash Canine Amicability Assessment (MCAA) was developed using a modified version of the Ainsworth’s Strange Situation Test, during which the dog is explosed to an unfamiliar environment and person in the presence and then absence of the dog’s owner. The protocol was applied to 200 pet dogs…. High amicability ratings … were associated with the dog spending less time near the owner’s chair in the presence of the stranger..., more time near the stranger… and more time in contact with the stranger when the owner was absent…. Stranger Fear was associated with less contact … and less tail wagging … with the stranger when interaction with the dog was attempted, as well as low body posture … throughout the assessment.”

Owner visitation: clinical effects on dogs hospitalized in an intensive care unit. Rebecca A. Johnson, F. Anthony Mann, Charlotte A. McKenney, and Sandra McCune. “The owners were allowed to visit as long as they wished with their dog. The observed visits lasted from 10-99 minutes…. The dogs’ HR [heart rate] increased from baseline (Mean = 100 beats per minute) to 5 minutes after the visit began (Mean = 110…), and increased again at 5 minutes before the owner left….” It seems the dogs knew when their owners were getting ready to leave (my observation). “Dogs’ pain scores decreased from baseline to 5 minutes into the visit….”

Euthanasia practice in Canadian animal shelters. Niamh Caffrey, Aboubakar Mounchili, Sandra Mcconkey, and Michael Cockram. Nineteen percent of dogs and 40% of cats that entered a shelter were euthanized…. Sodium pentobarbital injection (a controlled drug) was the only method of euthanasia used by 61 and 53% of establishments euthanizing dogs and cats, respectively. Pre-medication was used by 58% and 48% of establishments that used sodium pentobarbital to euthanize dogs and cats, respectively.”

Shelter dog behavior improvement: dog walking as enrichment. Charlotte a. McKenney, Rebecca A. Johnson, and Sandra A. McCune. “We hypothesized that shelter dogs participating in a daily dog walking program involving elderly citizens, would have better behavior, higher adoption rates, and decreased euthanasia rates than dogs in a control group not in the walking program.” The results confirmed this hypothesis.

Relaxing effect of four types of aromatic odors in dogs. Yukari Kuwahara, Takayuki Horii, Katsuji Uetake, Yutaka Iida, and Toshio Tanaka. “This study explored the effect of four types of aromatic odors (chamomile, peppermint, rosemary and lavender) on behavior and physiology of 12 naïve dogs caged in two experiment institutions…. These results indicate that four types of aromatic odors used in this study have some positive effects, and particularly rosemary and lavender appear beneficial in their relaxing effect on dogs.”

Behavioral assessment in dogs during animal-assisted interventions (MTI). Lisa Maria Glenk, Birgit Ursula Stetina, Berthold Kepplinger, and Halina Baran. “Seven healthy dogs of different sex, age and breed were video-taped during 10-12 consecutive sessions that were carried out weekly in different institutions (inpatient drug withdrawal, prison, school).” The results were not summarized but apparently presented at the conference.

Behavioral and physiological evaluation of welfare in shelter dogs in two different forms of confinement. Paolo Dalla Villa, Shanis Barnard, Elisa Di Fede, Michele Podaliri, Carlo Siracusa, and James A. Serpell. “In Italy, the National Law (281/1991) forbids the euthanasia of shelter dogs if not dangerous or seriously suffering; this leads inevitably to overcrowded facilities where welfare becomes a major issue.” The study compared keeping 5 to 8 dogs in outdoor enclosures against keeping dogs in pairs in smaller enclosures, but results were not included in the abstract.

Difference in pawedness between male and female blue foxes (Vulpes lagopus). Jaakko Mononen, Sanna Tikka, and Hannu T. Korhonen. “Several studies have shown bias to the right in the female and to the left in the male dogs’ (Canis familiaris) forepaw use, but in V. lagopus, ie. another canid species, the situation seems to be rather the opposite. This finding suggests a need for wariness in making any generalizations on the effects of sex on behavioral laterality.”

Do these studies attempt to look at animals free of human coordinates? The Astroturf study is really about dogs in confinement, as is the study about dogs relinquished to shelters and that about visiting dogs in intensive care, as well as the research on seniors walking dogs. The Canadian euthanasia statistics are not behavioral at all. The research finding that owners cannot really see guilt in dogs is more a study of human perceptions than of canine behavior. The use of aroma therapy on dogs involves studying their reactions to stimuli more artificial than dogs often encounter. Only the study of forepaw preferences would have been acceptable as ethology at one time, in my opinion.

On the other hand, perhaps empathy is needed here. The horrors of pounds are made more vivid by the study of the physiological reactions of dogs on being relinquished into a system that will end in death for many of them. It is as if our guilt about mass euthanasia is breaking through the unconscious in applied ethology. I realize that the emphasis on "welfare and enrichment" in this particular conference might have created a bias in the presentations selected, but it seems to me that the field, when it comes to dogs, has almost become an extended study of human guilt.

Scientists may not be able to resolve the existence of god, but they know that sodium pentobarbital is used in more places than Canada.

Thanks to Barfbagger, English Wikipedia, and Wikimedia Commons for the picture of Grapsus grapsus, an intertidal crab found in the Galapagos and along the central Pacific coast of the Americas.

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Creating A Model Law for Dog Parks

Last month Fran Breitkopf and I posted a blog, Dog Park Law 101, in which we discussed statutes and cases that concern dog parks ("dog runs" in some older laws). We noticed how uncommon the phrase is in both contexts.

We contacted Professor David Favre of the Michigan State University College of Law on the issue. He suggested we consider drafting a model law concerning dog parks and we began a systematic review of relevant codes. Our analysis, which has culminated in model-law language, appears on the Animal Legal and Historical Center of the law school.

Anyone who has drafted or studied model laws generally attempts to provide a single statutory system, that is, to produce a single Act. Some cross-reference clean-up may be necessary so that the proposed legislation can fit within the general statutory system, but that should be kept to what is essential for this purpose. In drafting a model dog park law, Fran and I found that we could not easily restrict ourselves in this way. Many states have different laws that might have to be modified to allow for the possibility of dog parks. These include leash laws, dogs-running-at-large statutes, dangerous and vicious dog statutes, dog bite statutes, and abandonment laws. Depending on the state’s statutory system, it may also be advisable to revise general recreation and park laws, animal control authority provisions, dog pound provisions, on and on. We could find no one-size-fits-all solution for how a state should alter its statutory structure to allow for dog parks.

It gets more complicated. Many states delegate dog regulation to county and municipal legislators, and what may have to be altered at the state level in one state may require the attention of another set of legislative bodies in another state. Hopefully we have not made the problem insurmountable for those legislators, of whatever level, who wish to address this issue.

Of course, we have also included suggested rules for dog parks, but that was the easy part. There is substantial uniformity on those rules around the country, though factors such as shade, streams, nearby beaches or wells, proximity to schools, and other matters make for variation from place to place, so even here a one-size-fits-all approach was not completely possible. The picture, taken by Kingsbury Parker, shows Seattle's dog park rules. (Double click on the image for a larger display.)

The fact that in many states dog parks are not considered in general dog-related laws leaves these areas in something of a legal no-man's land. Police and animal control authorities may not want to try to enforce certain laws, such as dangerous dog laws, in a confined space where dogs are essentially violating leash laws and other laws to begin with, and where the authorities may correctly feel that they are being summoned to resolve disputes between pet owners who have different philosophies about what level of aggression should be permissible in such a space. Adopting laws that put dog parks in a defined legal context will provide police and control authorities with some parameters as to how they may approach and resolve situations that arise in dog parks.

We’re going to continue to follow this issue, so we ask dog park users to please give us your thoughts, as many already have. Fran can be reached at brightrose22@yahoo.com, and I can be reached at jensminger@msn.com.

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"Inquirers" Were Little More Than Guests, Retreat Was Little More Than Spa/Hotel, Yet Church Group Battles to Exclude Guide Dog

Optimum Health Institute is a non-profit, religious organization affiliated with the Free Sacred Trinity Church, which describes itself as a “non-denominational church rooted in early Judeo-Christian doctrine.” OHI invites people “from all religious traditions” to attend its “spiritual retreat” in Lemon Grove, California, near San Diego, where they will participate in “prayer circles” and perhaps have their lives transformed by “miraculous healings on all levels.”

Those coming to Lemon Grove reside in guest rooms, but Robert Nees, Ecclesiastical Superior of the Free Sacred Trinity Church, says that OHI is not a hotel. Rather, “the guest rooms are intended to enhance the monastic experience of the OHI’s holistic health.” There is, however, a focus on “diet, food preparation, and ritual purification.” OHI’s “ultimate goal is to bring the participants to an understanding of their purpose in life and to get them to affirm or reaffirm the reality of God.” OHI claims not to need to evangelize because “all paths eventually lead to Jesus Christ as Lord and Savior.”

Guests, Inquirers, Adherents

All first time guests are “inquirers.” If they return, they become “adherents.” There are about 22,000 adherents of Free Sacred Trinity Church. OHI claims to have helped over 100,000 people, most of whom were apparently first-time visitors, i.e., inquirers in the Church's terminology.

Nancy Stevens attended a program in 2007 and says she was always called a guest, not an adherent. Another individual who visited Lemon Grove about the same time submitted a declaration to the same effect. In 2009, Stevens telephoned OHI to ask about its holistic health program because she was about to undergo cancer surgery. She explained that she used a guide dog but was told she could not bring the dog. She said she would attend for one week with a cane. OHI apparently became concerned and said that Stevens would have to bring someone with her because OHI was worried that she might fall down stairs or put her hand in a juicing machine.

“Plaintiff told OHI representatives that ‘she did not need anyone's assistance, that she was independent and able to care for herself’; ‘she has lived independently for over 20 years’; ‘she has traveled all over the world as part of a paralympic ski team and as the world champion blind woman triathlete’; ‘she travels independently wherever she goes, utilizing public transportation and her excellent mobility skills’; and ‘she has skillfully managed all of her household appliances and food preparation utensils, including knifes, food processors and blenders.’”

OHI held fast to its requirement that Stevens bring someone, but agreed to charge half-price for the companion. As to the guide dog, Nees stated:

“The grounds of OHI are sacred. In order to maintain a pure environment for healing and worship, OHI cannot—and does not—welcome animals.... [I]n the eyes of the Church, based upon the teachings of the Old Testament, OHI's grounds are sacred but animals are not.... Allowing animals into the grounds is antithetical to the promotion of a safe, healing environment at the Institute, particularly for people who have animal phobias or allergies....”

Stevens Files Suit

Stevens sued, seeking monetary damages of $75,000. She also moved “for an order enjoining Defendants from preventing or causing the prevention of a guide dog, signal dog, or service dog from carrying out its functions in assisting a disabled person who attends OHI's detoxification program or who visits OHI's health center in Lemon Grove, California.”

OHI moved for summary judgment, arguing that it was not a business establishment or public accommodation, but rather a religious organization to which disabilities laws did not apply.

The Unruh Civil Rights Act requires that all “persons within the jurisdiction of this state are free and equal, and no matter what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). The act allows for triple damages and attorney’s fees, as well as injunctive relief. The California Disabled Persons Act applies to public accommodations, including hotels and other places to which the general public is invited, and specifies that an “individual with a disability has the right to be accompanied by a guide dog, signal dog, or service dog, especially trained for the purpose….” Cal. Civ. Code § 54.1

While the Unruh Act refers to “business establishments” and the Disabled Persons Act applies to “public accommodations,” California courts have seen the terms as significantly overlapping. The Unruh Act, in prior cases, has been held not to apply “truly private social clubs” or “a charitable, expressive, and social organization,” but it has been held to apply to a charitable organization that lacks a significant business-related purpose “if the entity’s attributes and activities demonstrate that it is the functional equivalent of a classic ‘place of public accommodation or amusement.’” In looking at a boy’s club, the California Supreme Court said that the club “offers basic recreational facilities to a broad segment of the population,” and was therefore covered (so that a suit for discrimination against girls was allowed). Isbister v. Boys' Club of Santa Cruz, 40 Cal.3d 72, 83, 219 Cal.Rptr. 150, 707 P.2d 212 (1985). See also Warfield v. Peninsula Golf & Country Club, 10 Cal.4th 594, 607 n. 7, 42 Cal.Rptr.2d 50, 896 P.2d 776 (1995); Curran v. Mount Diablo Council of the Boy Scouts, 17 Cal.4th 670, 696, 72 Cal.Rptr.2d 410, 952 P.2d 218 (1998).

Everyone is Welcome (?)

In the case before it, the federal district court noted that OHI does not make decisions about who might attend its program based on religious beliefs. In fact, nonmembers, nonadherents, and nonbelievers are welcome. No activities are required, so people coming to Lemon Grove can use the facility much like a hotel. Thus, “the Court finds that there is no genuine issue of material fact that, as applied to Plaintiff, OHI is a 'business establishment' pursuant to the Unruh Act and a 'public accommodation' pursuant to the Disabled Persons Act.” The court further concluded that OHI violated both Acts and that “Plaintiff is entitled to judgment as a matter of law as to Plaintiff's claim that Defendants violated the Unruh Act and the Disabled Persons Act when Defendants refused to allow Plaintiff to attend OHI alone, without a service animal and with a cane.”

The court noted that OHI has “offered no evidence that any of the people who attend OHI's detoxification program are members of FSTC or OHI and/or that any of them believe dogs defile spaces more than other animals that are not sacred and that roam OHI's multiacre facilities.” If allergies are a big problem, why are there other animals running around the area in the first place? The court held that even if there were “some slight infringement” on OHI’s member’s rights of expressive association, this infringement was justified because of the State’s compelling interest in eliminating discrimination against the disabled.

OHI then argued that even if the California Acts were to apply to OHI, the federal Americans with Disabilities Act would preempt them. That Act (42 U.S.C. 12187) exempts religious organizations or entities controlled by religious organizations from its coverage. Analyzing the legislative history of the ADA, however, the district court concluded that the federal legislation was not intended to displace rights and remedies available to disabled individuals under state law.

“The Court finds that it was the intent of the U.S. Congress that the ADA not preempt more expansive state laws such as the Unruh Act and the Disabled Persons Act. The Court finds that the religious organizations exemption in the ADA does not actually conflict with or otherwise preempt the application of the Unruh Act and the Disabled Persons Act in this case.”

There are a number of provisions that support the court in this respect. Under 42 U.S.C. 12201, the ADA specifies that nothing in it is to “be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities….” See also 28 CFR 36.103, providing that the ADA regulations do “not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.”

It is worth pausing to consider why the defense wanted to put the case under the ADA, which one might expect to be the linchpin of Stevens’ case, while Stevens’ counsel relied so heavily on state law claims. My guess is that it was a strategic decision. Stevens perhaps really wanted the monetary damages that could be obtained under the state law claims, but not the ADA. Although the ADA could have provided injunctive relief, Stevens wanted to come to OHI prior to her cancer surgery. By the time the case was resolved, the surgery would have happened, and the injunction would likely come too late. Damages may have been the only realistic relief.

Service Animal Issue Not Yet Resolved

It would seem the matter was settled, but the court determined that it could not grant summary judgment to Stevens with regard to her ability to bring the service animal.

“With respect to Plaintiff's presence at OHI with a service animal, and giving appropriate deference to Defendants' ‘view of what would impair [their] expression,’ … the Court finds that the competing affidavits submitted by the parties create a genuine issue of material fact as to whether application of the Unruh Act and/or the Disabled Persons Act to Defendants would violate Defendants' First Amendment rights to free expressive association.”

OHI, in its FAQs, states that pets “including service animals are not permitted in any area of OHI. During the detoxification process, guests become very sensitive to aromas, contaminates and pet allergens.” It is to be noted that service animals are not pets, something the court did not remark upon. In any case, the court may be signaling that it is possible OHI can make a “fundamental alteration” argument. In revising the ADA regulations in 2010, the Department of Justice allowed that a service animal could be removed from a public accommodation if “the presence of the animal constitutes a fundamental alteration to the nature of the goods, services, facilities, and activities of the place of public accommodation.” 75 Fed. Reg. 56267 The Department of Justice “maintains that the appropriateness of an exclusion can be assessed by reviewing how a public accommodation addresses comparable situations that do not involve a service animal.” 75 Fed. Reg. 56271. Thus, the court might look to whether OHI also precludes flowers from being in vases around the facility, or air fresheners from being in rooms, since pollens and chemicals are common triggers of allergic reactions. It is also to be noted that appropriate grooming of the dog might reduce allergic reactions.

OHI would also have to show that there would be no accommodation that could not take possible allergic reactions of the dog into account. The people with significant allergies might be given rooms separated by some distance from the dog, for instance (as is recommended, for instance, by the Department of Transportation in airplane cabins when service dogs are on the same flights as people with severe allergies)

Conclusion

Stevens has a picture of herself with her dog on her website. Stevens may not have helped herself on the service dog issue by agreeing at one point to use a cane instead of bringing her guide dog. It may have been more important for her to go to OHI than win on the service dog issue, and it is not clear at the moment that the case will continue. Since some important issues are involved, it is to be hoped that the court will be able to consider them. Others with guide dogs may encounter problems with OHI and similar facilities in the future, and it would be unfortunate if they have to fight the same battle over again.

Stevens v. Optimum Health Institute - San Diego , 2011 WL 3741055 (S.D. Cal. 2011)

Thanks to Joan Esnayra, Patty Dobbs Gross, and Kristina Chew for comments and suggestions.

Addendum. I received an email asking that I provide an example of where I thought a guide dog could be excluded based on a “fundamental alteration” argument. One situation that comes to mind is a petting zoo. California and Arizona have statutes that provide that zoos may exclude guide and other service dogs from places where such a dog might come in direct contact with zoo animals. The zoo must provide a kennel for the service dog at no charge, and must also provide a sighted person to accompany the blind person (Calif. Civ. Code. § 54.7(d)); Az. Counties Code § 11-1024.F). This is reasonable given that zoo animals cannot be expected to distinguish service dogs from other dogs. If—and I don’t think this is at all likely—OHI were able to carry the day on a fundamental alteration argument, the Church should not be able to charge for a person who accompanies a blind person during a stay at the facility. I believe that attempting to do so would violate the ADA.

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