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Coast Guard Seeks Uniformity in Passenger Screening at Cruise Ship Terminals, Discusses Use of Explosives Detection Dogs

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The Coast Guard is proposing to amend its regulations on cruise ship terminal security.Transferred to the Department of Homeland Security in 2003, the Coast Guard wants to “standardize security of cruise ship terminals and eliminate redundancies in the regulations that govern the security of cruise ship terminals.” It would have been helpful if the problematic "redundancies" had been further explained. 

Some of the proposals concern the use of dogs for screening passengers and luggage, something that the Coast Guard acknowledges is not being done uniformly at cruise terminals.  The preamble to the proposed rules states that “most terminals use metal detectors and x-ray systems.  Some terminals use canines and other terminals, normally ports of call, screen by hand.”  Screening by hand involves manually searching baggage and personal effects.

National Maritime Security Advisory Committee

In proposing new regulations, the Coast Guard relied heavily on advice from the National Maritime Security Advisory Committee (NMSAC), a committee “composed of representatives from a cross-section of maritime industries and port and waterway stakeholders including, but not limited to, shippers, carriers, port authorities, and facility operators.”  This committee makes recommendations to the Secretary of Homeland Security through the Commandant of the Coast Guard on matters affecting maritime security.  The current Commandant is Admiral Paul F. Zukunft. 

Use of Canines for Screening

NMSAC does not feel that dogs should necessarily be used at all terminals because “each terminal operation, passenger ship, threat information, and security operation is different, a ‘one size fits all’ regulation to meet the ‘when’ and ‘how’ of canine use will not work.”  Before a decision on the use of dogs is appropriate for a specific terminal, NMSAC believes three issues must be addressed:
  1. When should canines be utilized for screening?
  2. How should canines be used for screening?
  3. What should be the training and certification requirements for the canine and the handler?
The Coast Guard states that it does “not propose mandating the use of canines for normal screening operations.”  Nevertheless, if terminals or cruise ships voluntarily use dogs to screen for explosives, the Coast Guard sees a need to establish standards, and states that it “is engaged in separate, ongoing projects to address the use of canines at maritime facilities, including cruise ship and other passenger facilities.”

The preamble to the proposal states that “cruise ship industry canine security representatives have been meeting with USCG and DHS officials to discuss appropriate regulatory requirements for the certification of both dog and handlers.”  NMSAC acknowledges its lack of expertise in this area and “therefore declines to offer recommendations in this regard.”  It appears that this committee could use a member or two with expertise in bomb dog deployment. 

The only references to canines in the proposed regulations (as opposed to the preamble) occurs in the definition of Explosives Detection System (EDS), which “means any system, including canines, automated device, or combination of devices that have the ability to detect explosive material.”

Prohibited Items List

The Coast Guard wants to create a Prohibited Items List to be used in screening persons, baggage, and personal effects at a terminal.  A list of dangerous substances is also being created.  TSA has issued such lists for airline travel, but the preamble notes that there are necessarily differences between cruise ships and airplanes:

"Whereas airline screening can be conducted with the understanding that airline travel is undertaken for only a relatively short period of time and with a focused mission, cruise travel can be for much longer periods of time and with travelers participating in varying activities. Additionally, there is no distinction in cruise travel between checked baggage or carry-on items, since passengers and crew will have access to their personal items once they are onboard."

The proposed Prohibited Items List for cruise ship terminals is as follows:

Weapons, Including
  • Hand Guns (including BB guns, pellet guns, compressed air guns and starter pistols, as well as ammunition and gunpowder)
  • Rifles/shotguns (including BB guns, pellet guns, compressed air guns and starter pistols, as well as ammunition and gunpowder)
  • Stun guns or other shocking devices (e.g. TaserR, cattle prod)
  • Realistic replicas and/or parts of guns and firearms
Explosives, Including
  • Blasting caps
  • Dynamite
  • Fireworks or pyrotechnics
  • Flares in any form
  • Hand grenades
  • Plastic explosives
  • Explosive devices
  • Realistic replicas of explosives
Incendiaries, Including
  • Aerosols (including spray paint but excluding items for personal care or toiletries in limited quantities)
  • Gasoline or other such fuels or accelerants
  • Gas torches
  • Lighter fluids (except in liquefied gas (e.g. BicR-type) or absorbed liquid (e.g. ZippoR-type) lighters in quantities appropriate for personal use)
  • Turpentine
  • Paint thinner
  • Realistic replicas of incendiaries
Disabling Chemicals and Other Dangerous Items, Including
  • Chlorine
  • Liquid bleach
  • Tear gas and other self-defense sprays
Such items can be confiscated and destroyed. It is perhaps worth noting that, although this list might be an occasional inconvenience to passengers who like to keep a supply of turpentine with them at all times, it is not likely to stop sophisticated terrorists from finding ways to get explosives aboard.  An easy example is triacetone triperoxide (TATP), used by the “shoe bomber,” an explosive that can be manufactured from commercially available products (e.g., nail polish remover and peroxide).  A passenger can easily justify such items as needed for pretty fingernails and white teeth, but a group of ten people could bring enough of these items aboard without suspicion and thereafter assemble a bomb.  Dogs could, of course, be taught to alert to such items, at least identifying passengers who could be interviewed morethoroughly, but it is not clear that anything like this is planned. 

Opportunity to Comment

We have spoken beforeabout the turf wars between federal agencies on how to train explosives detection dogs. Most agencies have made decisions on how and when to use such dogs without seeking any comment from the public, and perhaps without seeking any comment from other agencies engaged in the same activities.  The Coast Guard is to be commended for trying to get as much input in this area as possible, and entities, both public and private, engaged in the training of explosives detection dogs should consider sharing the benefit of their experience.  

Comments on the proposed rules may most easily be submitted at the regulations.gov website (keywords: consolidated cruise ship security).  At the moment, the Coast Guard does not plan to hold a public meeting on the proposal.  Comments are to be submitted by March 10, 2015.   

Conclusion

TSA Layers of Aviation Security (GAO-11-938T, September 2011)
This notice demonstrates that cruise ship security precautions are in a much more formative stage than airline security precautions, with fewer requirements and less specificity regarding the use of dogs than has been the case with the Transportation Security Administration.  There appears to be little evidence of the kind of layered approach that the TSA has developed towards screening, as visually depicted here in a graphic taken from a 2011 GAO report on aviation security.  (Does the Coast Guard see this approach as a "redundancy"?) 

Although ships can carry more people than planes, for much longer periods of time, with multiple points of embarkation in many locations, the cruise industry has been far less of a target for terrorists than the airline industry. Perhaps Al Qaeda did not want to follow in the path of the Palestine Liberation Front in the 1987 hijacking of the Achille Lauro, and aside from some recent controversy about an opera, that incident may be to many security specialists only a distant memory.

Given that this release is being issued by both the Coast Guard and the Department of Homeland Security, it appears that DHS is not requiring that the Coast Guard follow the lead of TSA, but is allowing it to engage in “separate, ongoing projects to address the use of canines at maritime facilities, including cruise ship and other passenger facilities.”  This may not indicate any no-confidence position as to the TSA, but may mean instead that DHS sees cruise environments as sufficiently different from airport and airplane environments that the Coast Guard will be allowed to develop its own approaches to canine training, handling, and deployment.  It could also mean that DHS is willing to accept input from other federal agencies and non-governmental organizations.  A public meeting on the proposal would likely reveal more, but at the moment none is anticipated. It is to be hoped that the Coast Guard is not planning to become yet another fiefdom in the federal bomb dog turf wars. 

Department of Homeland Security, Coast Guard.  Consolidated Cruise Ship Security Regulations: Notice of Proposed Rulemaking, RIN 1625-AB30, 79 Fed. Reg.73255 (December 10, 2014).  

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

Antitrust Rules and Heartworm Medications: Why a French Company is Acquiring the Sentinel Product Line

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Eli Lilly & Co. is acquiring Novartis Animal Health from Novartis AG for $5.4 billion.  The Federal Trade Commission, in a complaint filed on December 19, 2014, argued that this acquisition will violate the Clayton Antitrust Act for the following reason:

“The market for canine heartworm parasiticides in the United States is highly concentrated. Eli Lilly is the market leader with a market share in excess of 35% [with the Trifexis line]. Merial Limited, which sells Heartgard and Heartgard Plus, is the second-leading supplier, with a share of 30%. Heartgard and Heartgard Plus are oral products but do not treat fleas. Novartis’s Sentinel product line has an 8% market share. The only other significant supplier is Zoetis Inc., which supplies Revolution and ProHeart 6. Revolution is a combination product that requires topical application. ProHeart 6 is an injectable product that does not impact fleas.Thus, the Acquisition would consolidate the two closest competitors, would substantially increase concentration, and would produce a single firm controlling more than 43% of the relevant market."

Eli Lily will add dog care products with the acquisition, including Deramaxx, an anti-inflammatory drug used for arthritis.  The FTC describes the relevant market as follows:

“Canine heartworm parasiticides are used to treat heartworm in dogs, and are available in a variety of formulations, in combination with other medications to treat other conditions, and in topical, oral, and injectable form. Eli Lilly’s Trifexis and Novartis’s Sentinel products are particularly close competitors because they both use the same active ingredient to treat heartworm [milbemycin], they both are combination products that treat fleas as well as heartworm, and they both are oral products.”

Product Line
Manufacturer/ Parent
Market Share
Active Ingredients/ Application
Combinations
Trifexis
Eli Lilly
35%
milbemycin oxime/ chewable tablet
spinosad (flea control)
Heartgard, Heartgard Plus
Merial Ltd.
30%
ivermectin, pyrantel pamoate/ chewable tablet
No flea treatment
Sentinel
Novartis Animal Health/Novartis AG
8%
milbemycin oxime
lufenuron (flea control)
ProHeart 6
Zoetis Inc./ Pfizer
24% (in 2004, per FDA)
moxidectin/ injectible
No flea treatment
Revolution
Id.  
No recent figures obtained
salamectin/ topical
Also effective against fleas and ticks

The table lists data on the products described by the FTC.  The flowchart below describes the life cycle of the canine heartworm (Dirofilaria immitis). The final image below, provided by the American Heartworm Society, shows an infected heart.  

As to how the acquisition could reduce competition and lead to higher prices for consumers, the FTC elaborates in the Federal Register (79 Fed. Reg. 78872, December 31, 2014):

Life Cycle of Dirofilaria immitis. Cu Faoil and Anka Friedrich, Wikipedia
“Eli Lilly’s acquisition of Novartis Animal Health will adversely affect competition in the market for canine heartworm parasiticides by eliminating close head-to-head competition between Trifexis and the Sentinel products. Trifexis and the Sentinel products are each other’s closest competitors because, among other reasons, they are the only oral heartworm products that impact fleas [though Trifexis uses spinosad and Sentinel uses lufeneron]. Flea prevention combined with heartworm prevention in one oral treatment is particularly important as it combines the convenience of a single oral treatment while avoiding the mess and smell of topical products. In addition, Trifexis and the Sentinel products are the only oral combination products that treat whipworm. These attributes provide a scope of treatment and ease of use not available with other canine heartworm parasiticides. Absent a remedy, the Proposed Acquisition would likely result in higher prices for consumers due to the ability of Eli Lilly to effect a unilateral price increase.”

The price levels of anti-heartworm drugs are a main reason why many people do not or cannot give such preventative medications to their dogs, so a significant price increase could affect canine health nationally.Although new parasiticides for heartworm may be in development from other pharmaceutical companies, the FTC notes that bringing a product to market can take considerable time given “lengthy development timeframes, FDA and other agency approval requirements, and difficulty of establishing a brand name and convincing veterinarians to prescribe new products.” 

The solution to the FTC’s problem with Eli Lilly’s acquisition of Novartis AG is for Eli Lilly to sell the Sentinel line of products to Virbac, a French pharmaceutical company, which had $934 million in global revenues in 2013.  Virbac is currently the sixth largest veterinary product company in the companion animal business and has a U.S. subsidiary with 350 employees and $130 million in revenue in 2013. According to the FTC:

“Although Virbac currently sells canine heartworm products, their sales are relatively small and, because they do not contain an active ingredient to treat fleas, their competitive interaction with the Sentinel products is limited.”

Dog Heart Infected with Heartworm (courtesy American Heartworm Society)
The price of the sale of Sentinel is not disclosed in the unredacted portions of FTC documents, though the Veterinary Practice News reports that “U.S. sales of Sentinel Flavor Tabs and Sentinel Spectrum, which protect dogs from heartworms  and fleas, are expected to reach up to $100 million in 2014.” 

The FTC wants to give Virbac as good a chance to succeed in the U.S. heartworm market as possible by requiring that Eli Lilly also divest supply chain assets related to the Sentinel products as well as to provide  the product to Virbac during an interim period, something that an FTC-appointed Interim Monitor will assure is performed fairly.  The FTC knows that the sale might not have the desired result:

“If the Commission determines that Virbac is not an acceptable acquirer of the divested rights and assets, or that the manner of the divestitures is not acceptable, the parties must unwind the sale of rights and assets to Virbac and divest them to a Commission-approved acquirer within six months of the date the Order becomes final.”

Stumbling is indeed possible here.  Edie Lau, a reporter with the Veterinary Information Network News Service notes that Virbac “recalled its heartworm preventive medication Iverhart in 2009 and again in 2013, both times because some lots had insufficient amounts of the active ingredient.”  Lau quotes one veterinarian who had to call over 100 clients that had purchased the product and explain “the doses they were giving may have been ineffective.”  The veterinarian said he lost clients over the incident. 

The FTC’s action shows that pet-related pharmaceuticals can be a significant factor in the prediction of anti-competitive results from a merger or acquisition. Anyone wishing to comment on the FTC’s actions in this pharmaceutical company acquisition, or the product divestiture, can do so at the regulations.gov website.  The comment period is particularly short, however, as comments must be received by January 21, 2015.

Thanks to Sue O'Brien of the American Heartworm Society for providing the image of the infected heart.  Thanks to L.E. Papet and Kingsbury Parker for suggestions and corrections.

Is Expedited Screening Getting Too Much Attention from Bomb Dogs at Airports?

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A cousin of mine went to the Phoenix Airport to fly to Newark.  Not a frequent flier, he was in one of the longer boarding lanes when a security officer pulled up a cloth strap between two poles and invited him and his wife to step into the fast lane for pre-screened passengers.  Delighted, they dragged their bags between the poles and were about 20 feet from the x-ray system when they passed a dog that they hardly noticed.My cousin was pulled aside and taken into a room.  He was told to empty his pockets and open up his carry-on bag.  After the initial search he was taken into another room where he had to remove most of his clothing.  He was told that a dog had alerted to the smell of explosives.  My cousin soon remembered that the pants he was wearing for the flight were the same ones he had worn to a firing range several days earlier.  Eventually he was allowed to board but the delay was considerable and they had no choice but to check their carry-ons because there was no space left in the overhead compartments.  Expedited screening had been anything but.
Increase in Expedited Screening from 2011 to 2014

What I did not realize until I read a recent Government Accountability Office Report was that had my cousin and his wife remained in the slow lane they would very likely not have been subjected to a bomb dog sniff.  It may have been because of their gray hair that they got the perk of expedited screening through a process called "managed inclusion," which adds ordinary passengers to the pre-screened system when those lanes have low traffic, and solely because they were moved into a fast lane that my cousin’s habit of frequenting Arizona gun ranges caused him to nearly miss a flight. 

GAO Report

In December, the Government Accountability Office released a public version of a sensitive report that was completed in September 2014.  The report, Aviation Security: Rapid Growth in Expedited Passenger Screening Highlights Need to Plan Effective Security Assessments.  GAO-15-150 (December 12, 2014) looks at how the Transportation Security Administration has implemented and expanded pre-screening to the point where, in April 2014, about 5.6 million individuals were eligible for expedited screening. Because many participating passengers are frequent fliers, the first graph shows that upwards of 15 million pre-screen passes have been issued in some months, amounting to over 40% of passengers nationwide.  The TSA has set a goal of making half of all passengers eligible for expedited screening. 

There are important advantages to being pre-screened:  

“[P]assengers eligible for expedited screening may no longer have to remove their shoes; may leave their permitted liquids, gels, and laptops in carry-on baggage; and are not required to divest light outerwear, jackets, or belts when passing through screening checkpoints unless the walk-through metal detector alarms, in which case these items must be removed.”

Just as there are passengers that qualify for expedited screening, there are passengers who are prohibited from boarding an aircraft because they are on the No Fly List, as well as passengers on a Selectee List who must undergo additional screening before being permitted to board an aircraft.  These individuals are on a Terrorist Screening Database, which is maintained by the FBI but available to multiple agencies. 

TSA PreTM Program

Paper and Electronic Pre-Screen Boarding Passes
In the summer of 2011, TSA began using expedited screening in standard lanes to passengers 12 and younger, 75 and older, and certain flight crew members.  In October 2011, TSA implemented the TSA PreTM program under which the agency began to evaluate passengers to determine if they presented a sufficiently low risk to be granted expedited screening. Initially, pre-screening for frequent fliers was implemented with two carriers at four airports, with accepted passengers going through expedited screening lanes known as PreTM lanes.  The two initial carriers were Delta Air Lines at Detroit Metropolitan Wayne County Airport and Hartsfield-Jackson Atlanta International Airport, and American Airlines at the Dallas-Fort Worth and Miami International Airports. As of April 2014, there were nine carriers participating in the PreTM program.

The initial pilot program also included certain members of the U.S. Customs and Border Protection’s (CBP) three trusted traveler programs, NEXUS, SENTRI, and Global Entry.  The pilot program transitioned into a formal program in February 2012, and more airlines began to participate. Initially eligible passengers could only use PreTM lanes for airlines on which they were frequent fliers. 

TSA soon expanded the PreTM program to include members of the U.S. armed forces, Congressional Medal of Honor Society Members, members of the Homeland Security Advisory Council, and Members of Congress.  In October 2013, TSA began a PreTM Risk Assessment Program to evaluate passenger risk data to determine the likelihood that passengers on which TSA had sufficient information would likely qualify for expedited screening.  In December 2013, TSA started taking applications for its own PreTM list.  As to how to get on this list, the GAO explains:

“To apply, individuals must visit an enrollment center where they provide biographic information (i.e., name, date of birth, and address), valid identity and citizenship documentation, and fingerprints to undergo a TSA Security Threat Assessment. TSA leveraged existing federal capabilities to both enroll and conduct threat assessments for program applicants using enrollment centers previously established for the Transportation Worker Identification Credential Program, and existing transportation vetting systems to conduct applicant threat assessments. Applicants must be U.S. citizens, U.S. nationals or lawful permanent residents, and cannot have been convicted of certain crimes.”

List Sources of Pre-Screened Passengers
The various PreTM lists, the numbers on each, and a description of eligible participants for each list is contained in a table provided by the GAO, included here.  It must be asked whether some of the categories are not sufficiently broad that someone with nefarious purposes could on occasion qualify, say by being in the military—a distinct possibility as demonstrated at Fort Hood in 2009—or by being a frequent flier. 

Secure Flight Program

Under the Secure Flight Program, TSA matches information on every passenger against watchlists, such as the No Fly and Selectee Lists, to check for matches.  TSA then directs the carrier to mark a passenger’s boarding pass for enhanced, expedited, or standard screening, or to prohibit the passenger from boarding.  Passengers designated as low risk are advised by TSA that they are eligible for expedited screening, which also directs the carrier to mark the boarding pass of such a passenger with the PreTM designation.  (The regulations that apply to the Secure Flight Program are contained 49 CFR Part 1560.  The GAO has reviewed the Secure Flight Program in several contexts, but see particularly its September 2014 report: Secure Flight: TSA Should Take Additional Steps to Determine Program Effectiveness, GAO-14-531.)

Passengers with the PreTM designation use expedited lanes at some airports and will not have to remove shoes and light outerwear or remove laptops, liquids, and gels from luggage.  If dedicated lanes are not available at an airport because of configuration or passenger levels, such passengers will have to remove liquids, gels, and laptops for the efficiency of screening operations in non-dedicated lanes.The 118 airports with dedicated pre-screening lanes are marked on the map below.  Although TSA operations cover about 450 airports, these 118 airports represent around 95% of enplanements.  

Airports with Pre-Screening Lanes
Managed Inclusion

In November 2012, TSA began a Managed Inclusion system designed to assess passengers who are not on participating or eligible for the PreTM program but who will nevertheless be moved to a pre-screened lane for expedited screening.  The assessment involves a layered approach including randomization procedures, behavior detection officers (BDOs), and either explosives detection canines or explosives trace detection (ETD) devices.  As to how the randomization procedure works, the GAO explains: 

“When passengers approach a security checkpoint that is operating Managed Inclusion, they approach a TSO [Transportation Security Officer] who is holding a randomizer device, typically an iPad that directs the passenger to the expedited or standard screening lane.” 

Behavior detection officers are to look for certain behaviors that indicate a passenger may be a higher risk and keep such a passenger in a standard screening lane.  The GAO reviewed the analytics used by TSA’s behavior detection officers in a report issued in May 2010: Aviation Security: Efforts to Validate TSA’s Passenger Screening Behavior Detection Underway, but Opportunities Exist to Strengthen Validation and Address Operational Challenges, GAO-10-763.  In the current report, the GAO summarizes its doubts about behavior detection procedures as follows:

“TSA has not demonstrated that BDOs can reliably and effectively identify high-risk passengers who may pose a threat to the U.S. aviation system. In our 2013 report, we recommended that the Secretary of Homeland Security direct the TSA Administrator to limit future funding support for the agency’s behavior detection activities until TSA can provide scientifically validated evidence that demonstrates that behavioral indicators can be used to identify passengers who may pose a threat to aviation security. The Department of Homeland Security did not concur with this recommendation; however, in August 2014, TSA noted that it is taking actions to optimize the effectiveness of its behavior detection program and plans to begin testing this effort in October 2014.”

It can be expected, therefore, that more GAO reports will concern TSA’s behavior detection efforts.  In addition to the behavioral assessment, a passenger in an expedited lane may pass a bomb dog team or an explosives trace detection device. As to when a passenger might encounter various components of the Managed Inclusion Program, the GAO provides a sort of generic floor plan distinguishing between the paths at a security gate of pre-screened passengers, passengers moved to expedited screening under the Managed Inclusion process, and all other passengers. 

Queues for Going Through Security


The GAO provides specific details about canine teams:

“TSA uses canine teams and ETD devices at airports as an additional layer of security when Managed Inclusion is operational to determine whether passengers may have interacted with explosives prior to arriving at the airport. In airports with canine teams, passengers must walk past a canine and its handler in an environment where the canine is trained to detect explosive odors and to alert the handler when a passenger has any trace of explosives on his or her person. For example, passengers in the Managed Inclusion lane may be directed to walk from the travel document checker through the passageway and past the canine teams to reach the X-ray belt and the walk-through metal detector. According to TSA documents, the canines, when combined with the other layers of security in the Managed Inclusion process provide effective security.”

As we discussed in a prior blog, it should not be assumed that anything missed in the security lanes will be caught by canine teams roaming around open areas either before or after the security gates. Two GAO reports (GAO-13-329 and GAO-14-695T) were skeptical about the effectiveness of passenger screening canine (PSC) teams and GAO posted the video below of a PSC team misidentifying the passenger with explosives odor in a test conducted at an airport.  



Conclusion

GAO notes that “Managed Inclusion passengers are more likely than other passengers to be screened for explosives.” My cousin's experience was apparently not unique. This is disturbing, given that a passenger going through ordinary screening is thus less likely to get near a dog or a device designed to detect explosives.  A terrorist carrying a new type of explosive might increase his chance of success by not being selected for an expedited screening, particularly if the components of an explosive can be made to look harmless enough for a physical inspection.GAO says that "TSA has conducted work to assess canine teams and to ensure that they meet the security effectiveness thresholds TSA established for working in the Managed Inclusion lane...."  GAO has not merely accepted TSA's word about the effectiveness of canine teams, as it did not regarding TSA's claims for the free-roaming PSC teams, and it must be hoped they will have some of their own investigators perform underground work here. 

An overall analysis of the effectiveness of screening should take the configuration of security lanes into account. It must also be hoped that GAO is continuing to test the effectiveness of other canine deployments at airports. The National Explosives Detection Canine Program is slated to get nearly $130 million under the 2015 Department of Homeland Security Appropriations Act. Canine teams must be effective to justify that kind of price tag. 

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

School Board Cannot Require Insurance, Extra Shots, or Separate Handler for Service Dog of Special Needs Child

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Some schools have opposed special needs children coming to classes with service dogs, as noted here before,but courts have been generally unsympatheticto such efforts to exclude service dogs.  A recent case from Florida concerns a school that did not oppose a child’s use of a service dog and even allowed the child to come to school with the dog without all of the school’s requirements being satisfied.  The legal dispute arose over whether the school could require that the child’s family provide a handler for the dog when the child was in school, purchase liability insurance for the dog, and obtain more shots than are required under state law for dogs before they can enter a school.  Similar issues are likely to come up in other school districts as the number of service dogs for children with disabilities increases, so the order of the court is an important development in service dog law.

The U.S. Department of Justice filed a Statement of Interest in the matter, responding to an argument that its Title II ADA regulations exceeded the Department’s authority.  Many of the cases and legislative history cited in the DOJ Statement appeared in the Florida federal district court’s order in Alboniga v. School Board of Broward County, Florida, No. 14-cv-60085 (January 14, 20014).

Seizure Alert and Response Dog for Child in Florida

A.M., whose full name has been revealed in press reports, a six-year-old, lives with his mother, Monica Alboniga, in Broward County, Florida.  A.M. suffers from multiple disabilities, including cerebral palsy, spastic quadriparesis, and a seizure disorder.  He is nonverbal and uses a wheelchair and, according to an order on cross motions for summary judgment issued by the federal district court for the Southern District of Florida, “needs care and support for all aspects of daily living and education.” 

Broward County Service Animal Request, page 1.
In 2013, Monica Alboniga determined that her son required a seizure alert and response dog and obtained a medium-sized terrier named Stevie.  Stevie is tethered to A.M. when they are at home or in public places, and Stevie is able to go outside to urinate even when tethered to A.M.  According to the court’s statement of the facts, Stevie alerts 30 to 45 minutes in advance of a seizure and is trained to step onto A.M.’s wheelchair and lay across his lap in the event of a seizure, a task called “Cover” that keeps A.M.’s head up to “prevent airway distraction or choking on saliva during a seizure episode.”  Cover also helps calm A.M. during outbursts and helps disrupt abnormal behaviors or movements and provides A.M. with a tactile presence that can help bring A.M. out of an episode. The court states that "[c]urrently, A.M. has seizures every other night" but notes that "[n]o school staff at A.M.'s school has observed this behavior from the service dog."

Stevie is also trained to alert human responders if A.M. begins experiencing a medical crisis: 

“This [alerting] includes activating a sensor mat by stepping, jumping on or passing across the mat which sets off an alarm; going for help, physically alerting a human responder, and then returning to and staying with A.M.; or otherwise acting in a way to bring attention to the medical situation…. Stevie was also equipped with a special vest which carried pertinent medical supplies and information important for the care of A.M. in an emergency.”

Uncontroverted documentation was presented to the court indicating that separating Stevie from A.M. would be detrimental to Stevie’s effectiveness, “reducing the animal’s ability to respond and perform tasks for its target, and disrupting the animal-target bond that is important to the effective working connection between members of the service dog team.”  Such negative effects from separation would “carry over even when the service dog team is reconnected.”

Ms. Alboniga spoke to the Education Opportunity Office of the School Board of Broward County regarding her son being allowed to be accompanied by a service dog to school during the 2013/14 school year, and filled out a form labeled Request for Use of Service Animal in School District Facilities (a copy of which is included in the Broward County’s posted Proposal to Adopt a New School Board Policy “Use of Service Animals in School District Facilities” (4001.2)).  The School Board requested information on liability insurance for the service animal that was not provided by Ms. Alboniga.  Also, the vaccinations of the service dog listed in the information she provided did not correspond with those vaccinations required by the School Board.  The two pages of the request form that are to be filled out by an applicant are reproduced in plates here.

Vaccination, Insurance and Handler Requirements

The School Board required vaccinations for distemper, hepatitis, leptospirosis, parainfluenza, parvovirus, bordetella, roundworms, hookworms, and rabies, which are the vaccinations required of a dog transported or offered for sale under Florida Statutes 829.29.  The federal district court noted that owners of dogs are, under Florida Statutes 828.30, only specifically required to obtain rabies vaccinations for their dogs, which is the sanitation standard for K-12 private schools under Florida Administrative Code 6A-2.00400.  In a later letter, the Board also required that Stevie be vaccinated against coronavirus, a vaccine that is not generally recommended by veterinarians. 

The School Board informed Ms. Alboniga that she would need to obtain liability insurance for a professionally trained service animal in an amount determined by the School District’s Risk Management Department.The School District was to be listed as an additional insured in the policy.  Finally, the School Board informed Ms. Alboniga that she would need to provide a handler for the dog. 

School Begins

A.M. began school in August 2013 and was accompanied by Stevie and his mother, who served as the dog’s handler.  She was not paid by the school and did not assist with any care or activities regarding A.M. in the classroom.  The School Board maintained that it was not responsible for the care or supervision of Stevie, but in November 2013 the Board made an administrative decision to provide an employee to serve as the handler for Stevie, who happened to be the school’s custodian.  The custodian received training from the same individual who initially trained Stevie.  According to the federal district court:

“The ‘handler’s’ only responsibilities in school are the following: to walk Stevie alongside A.M. with a leash instead of allowing Stevie to be attached to A.M.’s wheelchair via a tether; to take Stevie outside of the school premises to urinate; and to ensure that other people do not approach, pet or play with Stevie while he is working as a service dog.”

Issues Presented

The Court considered and resolved a number of issues, including whether:

  1. The case should be dismissed for Alboniga’s failure to exhaust administrative remedies.
  2. The matter is moot because A.M. had been coming to school with A.M. and the school has never tried to stop this. 
  3. The School Board is not obligated to adhere to the service animal regulations of the Department of Justice because those regulations exceed the Department’s authority. 
  4. The school is not obligated to allow A.M. to come to school with Stevie given that school staff members were trained to provide seizure care measures sufficient for A.M.’s needs.
  5. The school could require that Alboniga obtain liability coverage on Stevie.
  6. The school could require that Stevie receive vaccinations beyond those required in the Florida administrative code for other animals entering schools, i.e., beyond rabies.
  7. The responsibilities the school has undertaken with respect to Stevie—particularly the accompaniment of a staff member with A.M. and Stevie when the dog needed to go outside to urinate—meant that the school was providing care and maintenance to the service dog.  
  8. The school could require that Alboniga either serve as or obtain a handler to be with Stevie while A.M. was in school. 
As will be seen below, the court decided all of these issues in a manner favorable to Alboniga and A.M. 

Exhaustion of Administrative Remedies

Failure of students and parents to exhaust administrative remedies has at times led to dismissal of actions regarding the refusal of a school board to allow use of a service dog, as discussed here in a prior blog and in Service and Therapy Dogs in American Society, pp. 180, 182. The Florida federal district court cited with approval, however, prior cases in which exhaustion was not required, including Sullivan v. Vallejo City Unified School District, 731 F.Supp. 947 (ED Cal. 1990), where the federal district court for the Eastern District of California determined that the student was not claiming that the education plan for her was inadequate but rather that the school had “discriminated against her on the basis of her handicap by arbitrarily refusing her access if she is accompanied by her service dog.”  The Florida district court followed the same logic with regard to A.M.’s situation:

“Plaintiff does not claim that A.M. has been denied a free and appropriate public education. Plaintiff does not claim that A.M.’s IEP [Individualized Education Plan] is in any way deficient. Plaintiff does not claim that A.M.’s service animal is educationally necessary, or that the School Board’s provision of A.M.’s education would be impacted by the presence of the service animal. Defendant, in point of fact, agrees. Elsewhere in its submissions, Defendant argues that the service animal is not necessary for or relevant to A.M.’s educational experience – that the services provided by the animal are performed through other means by school staff in order to provide A.M. a FAPE [free and appropriate public education] in accordance with his IEP…. Plaintiff asserts claims for violation of the ADA and Section 504 regardless of Defendant’s compliance with the IDEA [Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq.]. The IDEA and its administrative scheme are simply not implicated by Plaintiff’s claims here.  As such, exhaustion of those procedures is not a prerequisite to this action.”

Mootness

Broward County Service Animal Request, page 2.
The School Board argued that summary judgment should be granted because the case is moot as the school has always allowed, and continues to allow, A.M. to come to school with Stevie.  The district court notes, however, that voluntary cessation of allegedly illegal conduct does not deprive it of the power to hear and determine a case.  If the threat of the lawsuit were to be removed, there would be nothing to stop the School Board from enforcing its policy in a manner detrimental to A.M. and Alboniga’s interests. 

Americans with Disabilities Act Regulations Apply

After noting the substantial overlap between the Rehabilitation Act and the Americans with Disabilities Act, and the regulations under the latter that cover, among other entities, public schools, the federal district court focused on the regulations that apply to service animals, specifically 28 CFR 35.136.  The School Board argued that this regulation exceeded the statutory authority of the Department of Justice, but the court held it valid, enforceable, entitled to deference, and a permissible interpretation of the ADA.  

Seizure Detection and Care Measures for A.M.

Accepting that the school might be able to provide seizure detection and care similar to what A.M. receives from Stevie, the court said this was not up to the School Board to insist upon as it would be “akin to allowing a public entity to dictate the type of services a disabled person needs in contravention of that person’s own decisions regarding his own life and care.” 

The court saw an analogy to a housing case it decided recently, Sabal Palm Condominiums of Pine Island Ridge Association, Inc. v. Fischer, 6 F.Supp.3d 1272 (SD Fla. 2014), where a condo association refused a reasonable accommodation request under the Fair Housing Act made by a resident.  The association said the resident had not substantiated her need for a service dog, and even if a dog was reasonable or necessary to secure for the resident an equal opportunity to use and enjoy her dwelling, a dog over 20 pounds, such as the resident used, was not reasonable or necessary.  The court said that it was not up to the association to determine what size of dog the resident needed:

“[T]he most fundamental problem with the argument that a dog over 20 pounds was not necessary is that it gets the law wrong. [The association]’s implied argument – that even if a dog is reasonable or necessary for [plaintiff], a dog 20 pounds or under would suffice – is akin to an argument that an alternative accommodation (here, a dog under 20 pounds), would be equally effective in meeting [plaintiff]’s disability-related needs as a dog over 20 pounds. . . .  Since a dog over 20 pounds is a reasonable accommodation, [plaintiff’s] (commonsense) belief that a dog over 20 pounds – in particular, a dog of [her dog’s] size – is better able to assist her renders the need to evaluate alternative accommodations unnecessary as a matter of law. That a blind person may already have a cane or that he or she could use a cane instead of a dog in no way prevents the blind person from also obtaining a seeing-eye dog as a reasonable accommodation under the FHA. A contrary result is absurd.”

Judge Bloom also notes that the Ninth Circuit, in Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004), had rejected an argument by the defendant arts center that it could provide an able-bodied specially-trained companion for the plaintiff that would obviate her need for her service dog.  

Insurance Is Impermissible Surcharge

As to the requirement that Ms. Alboniga maintain liability insurance for Stevie, the court stated:

“The School Board’s requirement that Plaintiff maintain liability insurance for A.M.’s service animal and procure vaccinations in excess of the requirements under Florida law is a surcharge prohibited by 28 C.F.R. § 35.136(h). The School Board’s policies require what amounts to an extra upfront fee charged to Plaintiff in order for A.M. to use his service animal at school. The insurance costs are over and above what other students are required to expend in order to attend school.”

Requiring Additional Vaccinations Is Discriminatory Practice

The court determined that requiring more vaccinations than are ordinarily required under Florida law, including those required for animals entering schools, constitutes an “impermissible discriminatory practice.” Again, this is the correct conclusion under the relevant law.

In 2000, the Association for Professionals in Infection Control and Epidemiology, Inc. (“APIC”) issued an APIC State-of-the-Art Report: The Health Implications of Service Animals in Health Care Settings, published in the American Journal of Infection Control, 28, 170-180. In listing possible zoonotic risks of dogs, this report specifies rabies and indicates that proof of rabies vaccination may be appropriate “in an area with a high prevalence of dog rabies,” but mentions no other vaccination requirement.  The Centers for Disease Control's Guidelines for Environmental Infection Control in Health-Care Facilitiescite the APIC Report in its brief mention of service dogs, and observes that “[n]o reports have been published regarding infectious disease that affects humans originating in service dogs.”

The veterans administration, however, recently proposed rules regarding animals on VA property, 79 Fed. Reg. 69379 (November 21, 2014), which would require more shots than just the rabies vaccine for service dogs in certain situations:

"The individual with a disability must provide VA with documentation that the service animal has had a comprehensive physical exam performed by a licensed veterinarian within the last 12 moths that confirms immunizations with the core canine vaccines distemper, parvovirus, and adenovirus-2, and that confirms screening for and treatment of internal and external parasites as well as control of such parasites...."  Proposed 38 CFR 1.218(a)(11)(vii)(B).

A major organization I contacted in researching this blog indicated that it does not place dogs without an assurance that the dogs will continue to receive a "full array of vaccinations, including canine influenza," and will consider decertifying a team that does not follow this requirement.

A possible area of concern is bordetella.  In 1999, Dworkin et al. identified nine HIV-positive individuals with Bordetella bronchiseptica infections, sometimes verified as coming from household dogs or cats. In 2008, Rath et al. reported on a recurrent bordetella infection in an infant who did not have HIV and was considered immunocompetent.  The initial hospitalization, when the infant was six weeks old, occurred only days after the household dog received an intranasal vaccination with an attenuated live vaccine, but genetic comparison established that the source of the infant's infection was not from the vaccine, though it could have been from a slightly different strain of bordetella that the dog may have passed. The patient was admitted to emergency rooms at four and six months and treated for presumed pertussis with azithromycin by doctors who did not know about the previous bordetella infection.  At eight months, a culture identified that the child was again positive for bordetella and received imipenem therapy and remained symptom-free after that.  In 2014, Yacoub et al. described serious bordetella infections in immunosuppressed patients and stated that such patients should be strongly cautioned "to minimize contact with animals when they are ill." Such reports should receive the attention of medical authorities advising schools regarding the presence of animals with children. Certainly, if any of the children in a school have compromised immune systems, an argument could be made that a dog coming into the school should have previously been vaccinated against bordetella.

It is the author's opinion that vaccination requirements for pet dogs as well as dogs that enter educational, medical, and other facilities should on occasion be reevaluated by medical and veterinary professionals to determine what vaccinations are appropriate.Taylor et al. (2001) noted that 61% of pathogen species causing disease in humans are zoonotic, and 75% of emerging pathogens are zoonotic, indicating that diseases not formerly transmitted across species lines may yet do so in the future.  Nevertheless, unless such modifications are made under Florida law as to all dogs entering schools, no additional vaccination requirement should be asked of A.M.'s service dog. 

School’s Responsibilities Do Not Amount to Care and Supervision of Service Dog

Under 28 CFR 35.136(e), a “public entity is not responsible for the care or supervision of a service animal,” but the School Board contended that leading Stevie outside to urinate constitutes care or supervision.  According to the court’s reading of language in the preamble to the final regulations (75 Fed. Reg. 56197, September 15, 2010, 3rd column under Responsibility for supervision and care of a service animal), care or supervision refers to routine animal care, “such as feeding, watering, walking or washing the animal.”

Florida Statutes 413.08(3)(d) similarly define "care or supervision of a service animal" as "the responsibility of the individual owner. A public accommodation is not required to provide care or food or a special location for the service animal or assistance with removing animal excrement.” The Florida Department of Education (District Implementation Guide for Section 504, p. 106) states that a school board is not responsible for “training, daily care, or healthcare of service animals.” 

The question then becomes, according to the court, whether assisting A.M. to lead his dog outside the school to relieve itself is part of the “routine overall maintenance” of the dog.  The court concludes it is not, reasoning as follows:

“The School Board is not being asked to provide an employee to walk Stevie. Rather, the School Board is being asked to help A.M. do so. That is, the School Board is being asked to accommodate A.M., not to accommodate, or care for, Stevie.”

The court finds such assistance provided to A.M. to be similar to that provided other children: 

“In the same way a school would assist a non-disabled child to use the restroom, or assist a diabetic child with her insulin pump, or assist a physically disabled child employ her motorized wheelchair, or assist a visually disabled child deploy her white cane, or assist that same child with her seeing-eye dog—the accommodations here are reasonable.” 

The court finds that it does not need to go as far as the California district court in C.C. v. Cypress School District, discussed in a prior blog, which had held that requiring a school to provide an aide to “hold the dog’s leash when navigating campus, provide Eddy with water, and tether and untether him throughout the day” did not fundamentally alter the school’s educational program, necessarily impose an unreasonable accommodation, or amount to the school providing care and supervision for Eddy.  (The Department of Justice also filed a Statement of Interest in that case.)  The aide's responsibilities in that case amounted to at least temporary handling, which touches on the remaining issue considered by the Florida district court.  

No Obligation on Family to Provide Handler

Under 28 CFR 35.136(d), a “service animal shall be under the control of its handler.” The School Board argued that it was not obligated to provide a handler for Stevie, but that one is necessary because “A.M., due to his disabilities, cannot act as the dog’s handler.”  (A prior blog describes how the regulations were amended by the Department of Justice to take into account the fact that the individual with the disability may not always be the handler of a service dog for that individual.)  

The court disagreed with the School Board, stating that “normally, tethering a service animal to the wheelchair of a disabled person constitutes ‘control’ over the animal by the disabled person, acting as the animal’s ‘handler.’ And, even absent tethering, voice controls or signals between the animal and the disabled ‘handler’ can constitute ‘control.’”  The court concludes that given "the specific facts here, having Stevie tethered to A.M. in school would constitute control by A.M. over his service animal as the animal's handler" under the federal regulations, including 28 CFR 36.302(c)(4), which provides:

"A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).”  

In seeking feedback on an earlier draft of this blog I spoke with a number of individuals involved in the training and operation of service animals with special needs children. Several emphasized that a handler should always be present in class when a child with disabilities similar to those described for A.M. is accompanied by a service dog. One major organization that provides service dogs for severely disabled individuals does so by requiring that there be a team consisting of a “Facilitator,” who is the handler, and the “Skilled Companion,” the service dog.  The disabled individual, child or otherwise, is never permitted to handle the Skilled Companion in public, only the Facilitator.  Individuals receiving service dogs are told they must attend school without the dog unless the Facilitator is able to be present in the classroom. Facilitators are often family members.  

Under a two-leash system sometimes used with autistic and other children, described inService and Therapy Dogs in American Society, pp. 80-82,a service dog is tethered to the child with one leash while a second leash is held by a parent or other handler. Insofar as I have been in communication with parents using such systems, they generally do not refer to the child as a handler, but only themselves. This is, of course, not a perspective derived from legal analysis.     

The Florida federal district court, however, found the arrangement with the custodian satisfactory under the facts presented. I believe that there could be other situations, however, where more handling by someone other than the individual with the disability would be required, as appears to have been true in CC Cypress. Some minimal handling should be permitted without making the accommodation unreasonable or amounting to impermissible care and supervision. Cases in the future will likely define the limits of a school's responsibilities here.        

Conclusion

The comment of Patty Dobbs Gross below, which came in after this blog was posted, raises important issues with regard to considering special needs children to be handlers.  Ms. Gross is the founder of North Star Foundation and the author of The Golden Bridge: A Guide to Assistance Dogs.  There are gaps between what the law requires and what many service dog organizations consider to be best practice. (When I come to revising Service and Therapy Dogs in American Society, I will deal with such gaps more comprehensively than was done in the first edition.)
 
Nevertheless, I believe that the court's order is correct on the law as it stands. The case is scheduled to have a settlement conference by March 17, when, presumably, remaining issues will be resolved. 

This blog was written with the assistance of Leigh Anne Novak, Veronica Morris, Brad Morris, John Moon, and others who prefer to remain in the background. The opinions expressed in this blog, however, are not necessarily those of these individuals who generously gave me time and help.

Children of Anubis

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The following article was published in two parts in the January/February and March/April 2015 issues of PetsNews.  I had wanted to update the original blog, posted in May 2012, so Eytan Hendel's request to publish a Hebrew version gave me an opportunity to add new material that had come to my attention in the intervening years. 

In Oklahoma City there is a memorial to those who died on April 19, 1995.  On the south side of the park are the remains of the entrance plaza to the Alfred P. Murrah Federal Building destroyed by the explosion.  In the center of the park is a long rectangular pool, beside which is a lawn with 168 glass and bronze sculptured chairs representing the people who died there that day.             

Figure 1. Anubis embalming Sennedjem
Visiting the city in April 2012, I took Chloe for a walk to the memorial as dawn was breaking one morning.  We had been told at the hotel that there was always a ranger on duty, though we did not see one. We saw no one once we entered the area.  We walked beside the pool and read some names, found the five chairs of those who had died outside the building.  We looked at the walls, the square arches that give the area the feel of a temple, an ancient temple, almost Egyptian, and I felt tears coming for people I had never known, felt the weight of the loss that was not mine, but was.  It was near the entrance arch that I felt something else, something cold. It was as if the earth had begun to shift from the spirits beneath, as if the chairs would speak.  I was suddenly afraid, yet ashamed of this senseless fear. 

It was then that Chloe began running, thrashing in desperate, frantic circles as some fear gripped her entire being.  A bee sting, the shadow of a bird overhead?  Perhaps, but I did not think of such possibilities until I began to tell others about what happened and needed to assure them of my sanity.  I knew then, though it makes no sense now—the irrational is always lost to any real description after the brief moment of its existence—that Chloe felt the same air I had, the same wisp of death, the same imminence of something not to be encountered above the earth, as if she had seen Anubis himself standing at the end of the pool, arms aloft, summoning a modern acolyte to her ancient duties. 

Graveyards and Battlefields

Almost all cultures—ancient, modern, eastern, western, Native American—make associations of dogs and other canids with death.  As observed by Roscher (1896), the presence of howling dogs where corpses are placed is particularly frightful in the night, as if the animals are powers from the underworld who can pull us across the boundary between life and death.  As translated by Kershaw, Roscher says that “wolf and dog have the same significance precisely in the cult and myth of the underworld demons but are otherwise strictly distinguished from one another.”

That this is the one realm where myth, and perhaps our unconscious, collective or otherwise, does not distinguish the domesticated from the wild canid is an important observation.  Kershaw elaborates:

“The connections of Canis with Death are manifold.  Dogs, or certain behaviors of dogs, presage death.  Dogs, especially large black dogs, are incarnations of death-spirits, or death-demons appear as dogs or are dog-headed; the same demons, e.g. Hekate, can appear as wolves.  Dogs are psychopompoi.  Fearsome dogs, such as Garmr and Kerberos, guard the realms of death.  All this is true of Indo-Europa, but identical conceptions are found worldwide.” 

Figure 2. Two human-fox burials of the Epipaleolithic Period
The association of the Canidae with death in “the cult and myth of underworld demons,” again borrowing from Roscher, may extend further even than dogs, wolves, and jackals.  Maher et al. (2011) report on fox-human burials at upper Paleolithic sites in Jordan.  Arguing that if “the earliest domestic dogs in the Near East are small, it is not much of a stretch to think that similarly-sized foxes could have been considered as potential domesticates to prehistoric people.”  Maher et al. speculate that “the burial of a fox with a human might have had the same social, ideological or symbolic significance as that of a human with a dog.”  There was, they argue, a “special relationship (i.e., companion) to the humans in these graves.” 

(The subject of abandoned domestication efforts could be an entire treatise in itself.  Dinell (1992; see also Jarman, 1972) cites several examples, including that red deer were “husbanded and perhaps herded in the Mesolithic,” only to be “discarded in favor of sheep.”  South American canids that had been at least partially domesticated lost favor among native groups to European dogs after the conquistadors arrived.) 

The difficulty of differentiating the canids in the graveyards extends to images, such as the early depictions of Anubis which, as Osborn and Osbornova (1998) observe, could have the head of a dog or jackal, but ears more fox-like, the tail bushy and short like a jackal.  “The black color is typical of Anubis statues and paintings, although black canines were rarely seen in Egypt.”

Even at the beginning of historical times, dogs were coupled with death by Homer, where many references describe them feeding on the slain.  “Nay of a surety many a one of the Trojans shall glut the dogs and birds with his fat and flesh, when he is fallen at the ships of the Achaeans  (ή τις Τρωων κορεει κυνας ήδ’ οιωνους δημω και σαρκεσσι, πεσων επι νηυσιν Αχαιων).” (Iliad, VIII.379-80, Murray translation, 1928)  Lilja (1976) cites strands of Homeric scholarship suggesting that this would have been expected from wild or half-wild pariah dogs supplementing the food they took from dunghills.

Figure 3. Wall painting in tomb of Inerkhau
Funerary Rituals

Herodotus wrote that a Persian’s corpse is not buried until it has been mauled by birds or dogs (ὡς οὐ πρότερον θάπτεται ἀνδρὸς Πέρσεω ὁ νέκυς πρὶν ἂν ὑπ᾽ ὄρνιθος ἢ κυνὸς ἑλκυσθῇ, Histories 1.140).  Writing of the Bactrians east of Persia, Strabo (Geography 11.11.3) describes dogs known as “undertakers,” perhaps better translated as “entombers,” as suggested by Mair (2007):

“Now in early times the Sogdians and Bactrians did not differ much from the nomads in their modes of life and customs, although the Bactrians were a little more civilised; however, of these, as of the others, Onesicritus does not report their best traits, saying, for instance, that those who have become helpless because of old age or sickness are thrown out alive to dogs kept expressly for this purpose, which in their native tongue are called "undertakers," [ἐνταφιαστάς] and that while the land outside the walls of the metropolis of the Bactrians looks clean, yet most of the land inside the walls is full of human bones, but that Alexander broke up the custom.”

Devotion unto Death

Pliny the Elder in the first century CE (Natural History VIII.lx.143) recorded instances where dogs preferred to die with their masters:

“When Jason of Lycia had been murdered his dog refused to take food and starved to death. But a dog the name of which Duris gives as Hyrcanus when King Lysimachus's pyre was set alight threw itself into the flame, and similarly at the funeral of King Hiero.” 

Stories of dogs protecting their masters’ graves can be found even in places where dogs are not favored animals.  In the 10th century Arabic manuscript, The Book of The Superiority of Dogs over Many of Those Who Wear Clothes, Ibn al-Marzuban says:

“A certain story teller said: al-Rabi' b. Badr had a dog he had reared himself. When al-Rabi' died and was buried, the dog kept on throwing himself against the grave until he himself died. He also said:  ʼAmir b. ʼAntarah had both hounds and guard dogs for his flocks and treated them well when they were with him. When ʼAmir died the dogs remained by his grave until they died there, though his family and relatives had already left him.”

Societies often go through periods where dogs will be sacrificed and buried with their masters.  Rice notes that this was most prevalent in the Old Kingdom in Egypt, with dogs often buried at the threshold of the tomb just as they guarded the master’s house in life.   The practice was known among Native American tribes, as recorded by Pettit (1950) and Gifford (1955). Barnett (1939) writes of the Gulf of Georgia Salish that dogs could be killed at the owner’s death and buried with him.

Dogs and Ghosts

Dogs are said to sense ghosts.  Pythagoras would hold a dog to the mouth of a dead disciple to receive the departing spirit (Ash 1927, at 41).  Dogs might even stand in for those who have died in certain practices.  In describing Russian celebrations of the dead, Georgi (1780) reported:

“On the Thursday in passion-week every father of a family places certain eatables in the yard of his house, with a lighted torch near them, to the memory of each person that has died out of his house.  The dogs, as proxies for the dead, regale themselves on this provision.”

Figure 4. Water ghost with canid figures
In a rock art panel near Dinwoody, Wyoming exaggerated hands stretch from a water ghost, with canid figures below (Francis and Loendorf 2004).  In the Ghost Dance, a Native American religious movement with significant political overtones, as described by duBois (1939), Gayton (1948), and Mooney (1896), Native Americans killed dogs because the ghosts, fearing them, would not come to life if they were present. 

Guides to the Underworld

One of the broadest associations of dogs with death is the belief that they lead the dead to the next world, just as in life they led hunters to game.  How did dogs become psychopompoi, guides for the dead?   Michael Rice, in Swifter than the Arrow, sees this as part of the canine association with graveyards:

“[T]he wild dog or jackal stalking through a graveyard on the edge of a Neolithic or late predynastic settlement could in another dimension of existence become the divine entity which led the justified dead to the Afterlife or, by extension, vigilantly guarded the place of communal burial.” 

Browne (1896) describes an Irish legend:

“On the road between Ballycroy and Bangor, Erris, a phantom dog sometimes appears, as does a white cow, whose appearance is looked on as a death-warning. Several of the lakes are thought to be inhabited by ‘water horses,’ which sometimes come on land and endeavor to coax unwary people to mount them, and then, having got them mounted, carry them off into the water. They are believed to be seen once in every seven years.”

It is with Anubis that the function of guiding souls reached its most beautiful statement.

Anubis

Figure 5. Jackal-headed dancer, Predynastic Period
Anubis was first represented as a jackal or a therianthrope, a beast-man with the head of a jackal.  Prehistoric rock art from North Africa shows dog-headed men when Libya was fertile enough for the rhinoceros to thrive, though the deistic significance of the therianthropes is uncertain (Coulson and Campbell 2001).  An image on a predynastic palette shows a jackal-headed dancer playing a pipe.  Budge (1920) provides the hieroglyphics for Anubis (a later pronunciation), showing configurations that could be applied to the god from predynastic times into the Coptic period. 

Breasted (1912) describes Anubis as a mortuary god, a god that presided over funeral ceremonies, including mummification. The coffin of Henui from the Middle Kingdom describes the beginning of Anubis’s function on earth as an embalmer:

“Anubis … lord of the Nether World, to whom the westerners (the dead) give praise … him who was in the middle of the mid-heaven, fourth of the sons of Re, who was made to descend from the sky to embalm Osiris, because he was so very worthy in the heart of Re.” 

Anubis, or a priest of the god, was often shown with the pharaoh, whose afterlife would be in the presence of the gods (Borchardt, 1907). Breasted notes that in the Old Kingdom it was not unusual for a coffin to depict the deceased with a jackal’s face, as if jackals were indeed spirits of the dead.

The Book of the Dead, a category of funerary texts, gives additional functions to Anubis in the afterlife, including weighing the heart or soul of the deceased (“weigher of righteousness”). See the vignette from Spell 125, Papyrus London BM EA 9901,3 (Stadler, 2012). That this depiction was standard is demonstrated by extraordinarily similar shroud from the Staatliche Museen in Berlin (Walker 2000, p. 96).

Figure 6. Anubis weighing a soul
Anubis Comes out of Egypt

Plutarch, a Greek philosopher of the second century, sought to make the canine-headed god intelligible to an audience that increasingly required religion and myth to be consistent with philosophy and natural history.  Anubis guarded the gods as dogs do men (τους θεους Φρουρειν ωσπερ οι κυνες τους ανθρωπους). He was a son of Nephthys: 

“And when Nephthys was delivered of Anubis, Isis owned the child. For Nephthys is that part of the world which is below the earth, and invisible to us; and Isis that which is above the earth, and visible. But that which touches upon both these, and is called the horizon (or bounding circle) and is common to them both, is called Anubis, and resembles in shape the dog, because the dog makes use of his sight by night as well as by day (γαρ ό κυων χρηται τη οψει νυκτος τε και ημερας ομοιως). And therefore Anubis seems to me to have a power among the Egyptians much like to that of Hecate among the Grecians, he being as well terrestrial as Olympic. Some again think Anubis to be Saturn; wherefore, they say, because he produces all things out of himself and breeds them in himself. He had the name of Kyon (which signifies in Greek both a dog and a breeder).  Moreover, those that worship the dog have a certain secret meaning that must not be here revealed. And in the more remote and ancient times, the dog had the highest honor paid him in Egypt (παλαι μεν τας μεγιστας εν Αίγυπτω τιμας ό κυων εσχεν); but after that Cambyses had slain the Apis and thrown him away contemptuously like a carrion, no animal came near to him except the dog only (ουδεν προσηλθεν ουδ’ εγευσατο τον σωματος αλλ’ η μονος ό κυων).”

If the worship of Anubis “must not be here revealed,” the authorities of the mysteries were still to be respected, even feared, just as if in recent times the rites of a private club that includes some of the most important men of a community were so protected that political and legal repression could result from writing about them. 

Figure 7. Anubis mask, Ptolemaic Period
The Emperor Tiberius, learning that a woman had been seduced in the temple of Isis in Rome by a man claiming to be Anubis, destroyed the temple and banished the goddess Isis from Rome (Josephus, Antiquities, XVIII. 65-80)  The imposter may have been wearing a mask and it is not certain how deceived the woman actually was.  A number of Anubis masks survive. Yet worship of the Egyptian deities soon returned to Rome.  Anubis could be depicted wearing the uniform of a Roman soldier, as is seen in a statue on the side of a tomb at Kom El Shukafa where Anubis wears a cuirass (dated to the late first or early second century AD by Michalowski, 1968).

In late antiquity, an apocryphal work preserved in Arabic, The Acts of Andrew and Bartholomew, with place names that would be in modern Tunisia and Libya, a fearsome dog-headed man becomes a follower of the two apostles and helps them convert a hostile city to Christianity.  Although named only “Dog’s Head,” the character in the dream-like drama would have been understood in the pre-Moslem and pre-Christian mythology of the area as having divine elements:

“Dog's Head arose, and went to where the disciples were, rejoicing and glad, in the knowledge of the right faith. And his appearance was fearful exceedingly; his height was four cubits; his face was like the face of a large dog, and his eyes like lamps of burning fire, and his back teeth like the tusks of the wild boar; and his [front] teeth like the teeth of a lion ; and the nails of his feet like a curved scythe; and the nails of his hands like the claws of a lion, and his whole appearance frightful, terrifying.” (Lewis 1904)

Seznec (1953) describes depictions of Anubis in the Renaissance, including on a gem worn by Catherine de’ Medici. The last plate shows Anubis as drawn by Petro Stephanonio in his book, published in 1627, on ancient sculptured gems.

Cerberus

Figure 8. Heracles and Cerberus, late 6th century BCE
The great canine archetype of Greek art and poetry was Cerberus (Κερβερος), which Hesiod in the 8th century BCE described as having 50 heads, though later writers usually settled on three, and in vase paintings often just two.  Lilja summarizes early poetic references:

“The original concept of Cerberus … must have been that of a watchdog: a dog was imagined as guarding the palace of Hades in the same way as dogs used to guard houses and palaces in this life.  It was, I think, only gradually that “the devouring aspect of death began to be embodied in Cerberus so that, finally, the watchdog of Hades was identified with death. Not until the final identification with death could Cerberus be imagined as welcoming visitors, the voracity of death being expressed in that the dog devoured those who tried to escape.” 

The twelfth labor of Herakles involved bringing Cerberus up from the underworld. Apollodorus of Athens in the second century CE, says “Cerberus had three heads of dogs, the tail of a dragon, and on his back the heads of all sorts of snakes.”  Herakles, going to the land of the dead, wishes to be initiated into the mysteries at Eleusis first, and this takes some time because of his foreign status and his slaughter of the centaurs. After a few other misadventures, Herakles gets to the underworld.  Pluto allows Herakles to take Cerberus from Hades providing he masters the dog without weapons.  Herakles flings his arms around the dog and holds on despite the bites of the dragon in its tail.  Ascending from Hades at Troezen on the eastern Peloponessus, Herakles leads the beast to Eurystheus, who had commanded the labor, then carries him back to Hades. 

Figure 9. Statue of Cerberus, c. 180 CE
Unlike Anubis, Cerberus remains a dog, though a fearsome and mysterious one with multiple heads and sometimes appendages of other beasts.  Something of a guard dog, Herakles leads him like a war dog, and his functions can be understood as belonging to the more vicious functions dogs can perform. 

Archetypes of the Collective Unconscious

Two great canine archetypes have been created by the western imagination, Anubis and Cerberus.  Each has become eternal, if not as gods or beings of the underworld, at least in myth, poetry, painting, sculpture, recently in film, and always in the unconscious.  One is the majestic guide who leads the procession down the dark path to the river, the other a guardian at the river, on one side or both, keeping the spirits from returning to trouble the living and preventing the living from disturbing the rest of the dead.  Both help us when our earthly presence is beyond help.  Neither is a common dog, one being part man, the other usually having three heads, yet despite or perhaps because of this psychotic shift away from reality we cannot dream without them, cannot depict death without thinking of them and wanting them to be real, regardless of how advanced and abstract our theologies.     

Again I must defer to Michael Rice:

“Anubis is indeed one of the greatest of the archetypes: he is the Night Lord, Grave-Watcher, Soul-Guide, a being who bridges the worlds of the seen and unseen.  In this he is one of the most fully realised of all the animal divinities, brought out of the collective unconscious of the early inhabitants of the Nile Valley, who give meaning and explanation to the entire community of animal-human conflations.  The theriomorphic archetypes of Egypt are the first to be recognised and recorded by any complex society; in this lies their power, for the arcehtype only requires recognition to assume an independent existence.”

As David Gordon White (1991) proved, dog-headed men and gods can be found across civilizations in every part of the globe, often associated with death, whereas Cerberus exists only in those belief systems that have roots in Attic Greek thought and art.  Cerberus is not as generic as Anubis because Cerberus is limited to those peoples who accept a specific geography for the afterlife. Cerberus guards a river of  forgetfulness, or the boundaries of hell but seldom leaves his post, while Anubis is as broad and deep as death itself. 

Conclusion

Figure 10. Anubis Cynocephalus, 1627 CE
Could it be that canids entered the human collective unconscious before they filled any function for our survival?  Did it happen among a group of hunter gatherers in China or Mongolia, in the Middle East, Europe, Africa, or several of these at once? (“Once” is a relative term here since thousands of years could separate events without now being detectible to us looking backward.  It may have even happened in some early societies and been lost where partial domestications began but did not continue.)  The jackal was never domesticated, though some may have been tamed, but if they are the origin of Anubis it is from their habitation of graveyards that this must take its origin, at the place where the dead were separated from the living and left to make their own way to the next world.  Who will lead them if not the denizens of those places?  Is this part of our relationship one with canids, both those that were later domesticated and those that were not?  Their association with death may even precede their association with us as helpers in living.

I am suggesting that our recognition of a species that would share space with us may have begun in part in funerary ritual, stories told around fires about the animals scavenging nearby, in human dream life. Was the fixing of the archetype in fact one of the first steps towards domestication, rather than a later result of it? Is Anubis so strong because the archetype, the dream figure, has never been separated from benefits that dogs provide for us at home and work?

A history of the society of dogs and men cannot be complete without considering the irrational in our relationship.  We must account for what Rudolf Otto called the numinous. (I avoid the term “spiritual” as it connotes belief systems in which I do not participate—worse, while doing so differently for different people—and is in any case unnecessary for my argument.)  Other animals than dogs appear in dreams and visions, and in dreams and visions of death, but those animals tend more often to be figures on the landscape, not nearly so interactive with us as are our dogs.  In dreams and visions dogs look at us, do things for us, understand us, expect and demand things from us, and obey or ignore our commands, just as they do in waking life.  Their thoughts and expressions may come with words, which does not happen in waking life, but given speech their nature is brought closer to ours in the irrational than in the rational.  Our relationship is that of a combined society in which dogs are not completely separate from us by being part of the "other."  They have become part of us as we are part of them, as Anubis combines the canine with the human. We are both children of Anubis.

Was Chloe afraid for herself that morning in Oklahoma City, or for both of us?  A question from an irrational moment cannot receive a rational answer, but there will come that day when I shall know. 
 
Figure Sources and Permissions

Figure 1: Anubis Embalming an Official, Sennedjem courtesy Dahl and Wikimedia:  for the specific locus in the tomb, see photograph NB 1973.2313 by J.-Fr. Gout on the website of the Institut Francais d'Archeologie Orientale. The original tomb excavation and photographs of the walls were made by Bernard Bruyere (1959). Figure 2: Two Human-Fox Burials, Epipaleolithic Period.  Maher et al.  License for general use. Figure 3: Wall Painting in Tomb of Inerkhau.© Thierry Benderitter.  Permission granted by Dr. Benderitter, Toulon, France, member of the International Association of Egyptologists.For further information as well as photos showing the location of the image in the tomb of Inherkhaouy, see Bruyere (1930). Figure 4: Water Ghost with Canine Figures. Permission to use granted by University of Utah Press, November 24, 2014. Figure 5. Jackal-Headed Dancer, Quibell and Green, 1902, Plate 28, source outside of copyright. Figure 6. Anubis Weighting the Soul of a Decedent, courtesy Jeff Dahl and Wikimedia Commons. Figure 7. Anubis Mask, Roemer-Pelizaeus Museum Hildesheim, courtesy Einsamer Schutze, Wikimedia. Figure 8. Heracles and Cerberus, Louvre F204, courtesy Bibi Saint-Pol and Wikimedia. Figure 9. Statue of Three-Headed Cerberus, Heraklion Museum, courtesy Tom Oates, Wikimedia Commons.  Figure 10. Anubis Cynocephalus, Stephanonio, 1627, source outside of copyright.

References:
  1. Apollodorus. The Library (1921, Frazer, J.G., translator). Loeb Classical Library, vols. 121-2. Harvard University Press, Cambridge.
  2. Ash, E.C. (1927). Dogs: Their History and Development. Ernst Benn Ltd., London.
  3. Barnett, H.G. (1939). Culture Element Distributions; IX: Gulf of Georgia Salish. Berkeley Anthropological Records, 1(5).
  4. Borchardt, L. (1907). Das Grabdenkmal des Königs Ne-User-Re.  Leipzig.
  5. Breasted, J.H. (1912). Development of Religion and Thought in Ancient Egypt. Charles Scribner’s Sons, New York.
  6. Brewer, D.J., Phillips, A.A., and Clark, T. (2002). Dogs in Antiquity: Anubis to Cerberus.  Aris & Phillips. 
  7. Browne, C.R. (1896). The Ethnography of Ballycroy, County Mayo.  Proceedings of the Royal Irish Academy, series 3, vol. 4. Dublin.
  8. Bruyere, B. (1930). Rapport sur les Fouilles de Deir el Medineh, FIFAO 8. Cairo: Institut Francais d’Archeologie Orientale.  
  9. Bruyere, B. (1959). La tombe n° 1 de Den-nedjem à Deir el Médineh. Mémoires publiés par les membres de l'Institut français d'archéologie orientale du Caire 88.  Cairo: Institut Francais d’Archeologie Orientale. 
  10. Budge, E.A.W. (1895). The Book of the Dead: The Papyrus of Ani. The Medici Society, Ltd. New York.
  11. Budge, E.A.W. (1920). Egyptian Hieroglyphic Dictionary, vol. 1. John Murray, London.
    Entry on Anubis, Budge (1920)
  12. Coulson (2001). African Rock Art: Paintings and Engravings on Stone.  Harry N. Abrams, New York.
  13. du Bois, C. (1939). The 1870 Ghost Dance. Berkeley Anthropological Records, 3(1).
  14. Francis, J.E., and Loendorf, L.L. (2004). Ancient Visions: Petroglyphs and Pictographs of the Wind River and Bighorn Country, Wyoming and Montana. University of Utah Press. Salt Lake City.
  15. Gayton, A.H. (1948). Yokuts and Western Mono Ethnography; II: Northern Foothill Yokuts and Western Mono. Berkeley Anthropological Records, 10f(1) and (2).
  16. Georgi, J.G. (1780). Russia: or, A Compleat Historical Account of All the Nations Which Compose That Empire, vol. I. London.
  17. Gifford, E.W. (1955). Central Miwok Ceremonies. Berkeley Anthropological Records, 14(4).
  18. Herodotus (2007 translation). The Landmark Herodotus: The Histories (ed. Strassler, R.K.). Pantheon Books, New York.
  19. Homer. The Iliad vol. 1(1928, Marray, A.T., translator and editor). William Heinemann Ltd., New York.
  20. Jarman, M.R. (1972).  European Deer Economies and the Advent of the Neolithic.  In Papers in Economic Prehistory (Higgs, E.S., ed.). Cambridge University Press. ("[W]e should not overlook the possibility that deer may have been herded and husbanded  in the past.  Although it is usual to consider the deer as essentially a wild animal, there is no reason to believe that this was necessarily always so; indeed, there is much evidence to the contrary.")
  21. Josephus, Jewish Antiquities, vol. 9 (Feldman, L.H., translator). Loeb Classical Library, Cambridge, Massachusetts.
  22. LaFaye, G. (1884).  Histoire du Culte Des Divinites D’Alexandrie.  Paris: Ernest Thorin.
  23. Lewis, A.S. (1904). The Mythological Acts of the Apostles.  Horae Semiticae No. IV. C.J. Clay and Sons, London.
  24. Lilja, N. (1976). Dogs in Ancient Greek Poetry.  Commentationes Humanarum Litterarum. Societas Scientiarum Fennica. Helsinki.
  25. Lupo, K.D. (2011).  A Dog Is for Hunting.  In Ethnozooarchaeology (Albarella, U., and Trentacoste, A., eds.).  Oxford: Oxbow Press.  Karen Lupo, studying the use of dogs for hunting by Central African foragers, noting that “foragers and villagers believe that dogs and other animals possess spirits and can haunt the living.  Dogs are also viewed as a common physical form taken by sorcerers and witches.”  Burials of dogs near humans should not be taken as indicative of a close relationship: “people lack formalized cemeteries and the dead are often interred behind huts or living areas; dogs are often buried in the same general location resulting in close spatial proximity between dog and human graves. However, it is important to note that in this context the proximity of burial location to the house and other family members does not refl ect a similarly close position of the dog within the family.”
  26. Maher, L.A., Stock, J.T., Finney, S., Heywood, J.J.N., Miracle, P.T., and Banning, E.B. (2011).  A Unique Human-Fox Burial from a Pre-Natufian Cemetery in the Levant (Jordan).  PLoS One, 6(1), e15815, doi:10.1371/journal.pone.0015815. 
  27. Mairs, R.M. (2007).  Ethnicity and Funerary Practice in Hellenistic Bactria. In Crossing Frontiers: The Opportunities and Challenges of Interdisciplinary Approaches to Archaeology (Schroeder, H., Bray, P., Gardner, P, Jefferson, V., and Macaulay, E., eds.). Oxford: School of Archaeology, 111- 124.
  28. Marzuban, I. (1978). The Superiority of Dogs Over Many of Those Who Wear Clothes (Smith, G.R., and Haleem, M.A.A., translators). Aris & Phillips, Westminster, England.
  29. Michalowski, J.M.K. (1968).  L'Art de l'ancienne Egypte. L. Mazenod, Paris.
  30. Mooney, J. (1896). The Ghost Dance Religion and the Sioux Outbreak of 1890.  Extract from the 14th Annual Report of the Bureau of Ethnology, Government Printing Office, Washington, D.C.
  31. Morey, D.F. (2006).  Burying Key Evidence: The Social Bond Between Dogs and People.  Journal of Archaeological Science, 33(2), 158-175.
  32. Osborn, D.J., and Osbornova, J. (1998).  The Mammals of Ancient Egypt.  Warminster, England: Aris & Phillips Ltd.
  33. Otto, R. (1961). The Idea of the Holy: An Inquiry into the Non-factor in the Idea of the Divine and Its Relation to the Rational.  Oxford University Press, London.
  34. Pettit, G.A. (1950). The Quileute of La Push, 1775-1945. Berkeley Anthropological Records, 14(1).
  35. Quibell, J.E., and Green, F.W. (1902). Hierakonpolis, Part II. Bernard Quaritch, London.
  36. Rice, M. (2006). Swifter than the Arrow: The Golden Hunting Hounds of Ancient Egypt. I.B. Tauris & Co., London.
  37. Roscher, W.H. (1896). Das Von Der “Kynanthropie” Handelnde Fragment. Leipzig: Bei S. Hirzel.
  38. Russell, N. (2012). Social Zooarchaeology: Humans and Animals in Prehistory.  New York: Cambridge University Press (see particularly the discussion of shamanism at pp. 236-7, and symbolism at pp. 291-4).
  39. Seznec, J. (1953). The Survival of the Pagan Gods.  Princeton University Press.
  40. Stadler, M.A.  (2012).  Thoth, in UCLA Encyclopedia of Egyptology.  Los Angeles. 
  41. Steindorff, G. (1896). Grabfunde des Mittleren Reichs des Königlichen Museen zu Berlin, vol II. Berlin.
  42. Stephanonio, Petro (1627).  Gemmae Antiquitus Sculptae.  Rome:
  43. Walker, S. (2000). Ancient Faces: Mummy Portraits from Roman Egypt. Metropolitan Museum of Art, New York. (In addition to the reference in the text, see the plates on pages 130 and 134.)
  44. White, D.G. (1991). Myths of the Dog-Man.  University of Chicago Press, Chicago.

VA Advisory Committee to Discuss Service Dogs on May 19

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On May 19 and 20, the Federal Advisory Committee on Prosthetics and Special-Disabilities Programs will hold meetings at the VA Central Office, 810 Vermont Ave. NW, Washington, DC 20420.  Meetings will begin at 8:30 a.m. and adjourn at 4:30 p.m. on May 19 and at 12 noon on May 20.  The meeting is open to the public but members of the public will not be given time to comment. 

On May 19, the Committee will receive briefings on, among other things, service dogs.  It is not indicated whether this will include any update on the status of the VA's proposed revisions to its service animal policies, discussed here in a blog last November. Under 38 U.S.C. 543, the Committee is to advise the Secretary of the Department of Veterans Affairs on prosthetics and special-disabilities programs administered by the VA, including providing advice on the adequacy of funding for special-disabilities programs. The Charter of the Committee, which is posted on the VA's website, indicates that the Committee's advice may concern research on programs that deal with "spinal cord injury, blindness or vision impairment, loss of or loss of use of extremities, deafness or hearing impairment, or other serious incapacities in terms of daily life functions."  The latter phrase would cover mental health disabilities, including PTSD, so any discussion of service dogs should not be restricted to service dogs for physical disabilities. 

Any member of the public wishing to attend should contact Larry N. Long, Designated Federal Officer, at 202-461-7354.  He can also be emailed at lonlar@va.gov. Photo ID will have to be presented at the Guard's Desk of the building. 

Veterans and others concerned with the VA's service animal policies--at least those living in the DC area--should consider attending.  Although they presumably won't be allowed to speak, if Mr. Long receives enough calls from veterans asking about what service dog issues will be discussed, the Committee might allocate more time to those issues.

The VA's announcement is included in the Federal Register for May 4. Department of Veterans Affairs: Advisory Committee on Prosthetics and Special-Disabilities Programs; Notice of Meeting, 80 Fed. Reg. 25362 (May 4, 2015)

VA Secretary Puts Service Dog Rules Revision on Fast Track

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Slides presented at the May 19 meeting of the VA Advisory Committee on Prosthetics and Special-Disabilities Programs indicate that the proposed access regulations on service and therapy dogs, described here last November, have been given an expedited review status by Robert A. McDonald,Secretary of Veterans Affairs. 

Although no date for issuance of the final rules has been announced, presumably the Secretary’s designation will mean that this should occur in the next few months.  One of the slides in the presentation, reproduced to the left, indicates there will be training programs for police service employees of the VA since, often working at the entrances to VA facilities, “enforcement falls largely to them.”  Other affected staff have already participated in conference calls regarding the proposed rules according the last bullet point in the slide.

Leased Facilities Subject to ADA Service Dog Rules 

Another slide from the May 19 presentation, reproduced below, makes the interesting observation that leased facilities used by the VA, which may include outpatient clinics and Vet Centers, "may be covered under the Americans with Disabilities Act for access depending on how lease agreement and what access law applies."  A note under the main bullet point adds: "Care should be taken when negotiating these agreements."  This suggests to me that there has been a problem somewhere, perhaps in a facility where the VA does not have absolute control over the space, but shares it with some other entity or service provider.  

If the lease agreement did not provide that VA policy on service dogs should apply to the facility, it could mean that patients or employees with dogs defined as service dogs by the Department of Justice were bringing in psychiatric service dogs, so veterans began demanding the same privilege, or merely started bringing PTSD dogs with them to appointments or to work. (Many veterans are both VA employees and recipients of medical services at VA facilities.) Someone at the VA who had negotiated such a lease agreement is probably in hot water, though the flame should be lowered when the access rules are finalized.   

Transport Vehicles to Handle Service Dogs

Also, on May 27, the Department of Veterans Affairs issued proposed rulesregarding transportation of eligible persons to or from a VA facility for examination, treatment  or care.  The proposal states that, for veterans enrolled in the VA’s health care system who need transportation, adjustments are to be made if the veteran requires transportation with a service dog (proposed 38 CFR 70.71(b)(2)).  In arranging transportation services, the veteran or other individual making the request on behalf of the veteran is to indicate “any special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog), and other relevant information.”  Proposed 38 CFR 70.73(a), 80 Fed. Reg. 30190, May 27, 2015.

A service dog, for the purpose of such an accommodation in transportation, is defined under the VA's service dog funding provision, 38 CFR 17.148, so will not include psychiatric service dogs used, for instance, by veterans with PTSD.  The cross reference for the definition of "service dog" should change to 38 CFR 1.218(a), the proposed access regulation, once that is made final. Otherwise, veterans with PTSD dogs, and other service dogs for which the VA does not provide funding, may be able to bring the dogs into a VA facility after the access rule is finalized, but will not be able to take the dogs with them onto VA transport vehicles in order to get to a facility. Ideally, of course, the definition of "service dog" in the funding rule should be changed as well.

Conclusion

One of the slides used at the Advisory Committee meeting is about "pseudo-service dogs," and provides that employees can ask users if a dog is a service dog and what tasks the dog performs for the veteran.  It states that handlers who invite others to pet or play with their dogs probably do not have service dogs.  Also any unruly, unclean, un-house-broken, or generally misbehaving dog is deemed likely to be a pseudo-service dog. It can be expected that such generalizations will be part of the training that security officers and others will be receiving in the future.

The fact that the phrase "concurrence process" is used to describe the completion of the regulatory review (first slide above, second bullet point) may indicate that there have been disputes regarding the proposals within and between some sections of the VA, and that the individuals responsible for finalizing the rules are trying to get some level of cooperation across the agency. If nothing will be released until there is "concurrence," the optimism I expressed in the second paragraph above for a quick finalization may be misplaced. I hope I shall be proven wrong as to this speculation.    

Thanks to Larry N. Long, who works with the Advisory Committee, for providing a copy of the slide presentation of Joyce Edmondson, VHA Animals in Health Care Committee Co-Chair. 

New Definition of "Service Dog" May Get SDs for PTSD into VA Buildings, but Old Defnition May Keep Them off VA Transport Vehicles

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Regulations proposed in the Federal Register on May 27 would restrict transport of service dogs to those that have been funded, or at best could have been funded, by the Department of Veterans Affairs.  Such dogs must have been trained by a member organization of Assistance Dogs International or the International Guide Dog Federation, so would not include service dogs trained by other organizations or by the veterans themselves. (Dogs trained by organizations that are candidates for membership in ADI or IGDF would also not satisfy the definition, as stated by the VA at 77 Fed. Reg. 54372, September 5, 2012.) Such dogs would have to be used for visual, hearing, or substantial mobility impairments, so would not include service dogs for PTSD and other psychological conditions.

The problem with this proposal is that once the service dog access regulations proposed by the VA in the Federal Register on November 21, 2014, are made final, as may happen soon, veterans will be able to enter VA facilities with service dogs for PTSD, but unless the transport rules are revised to conform, they will not be able to bring their dogs on vehicles that will take them to the appointments.  While it might be expected that logic will not let this happen, the administrative paralysis that has afflicted operation of the VA in recent years could mean that logic will have little to say about the matter.  We can pray, but we can also write letters, and I submitted the following comment letter concerning the regulatory confusion to the Department of Veterans Affairs.

The letter has now been posted on the regulations.gov website. Thanks to Veronica and Brad Morris of Psychiatric Service Dog Partners for reading an earlier draft of this letter. 

June 4, 2015

William F. Russo, Director
Regulation Policy and Management
Department of Veterans Affairs
810 Vermont Ave. NW, Room 1068
Washington, DC 20420

Re: RIN 2900-AO92-Veterans Transportation Service

Dear Director Russo:

This comment is submitted regarding two provisions in the proposed rules concerning the Veterans Transportation Service as published in the Federal Register on May 27, 2015, 80 Fed. Reg. 30190.  Both provisions refer to service dogs.  I am an attorney in private practice, licensed in the State of New York. I have written a book, Service and Therapy Dogs in American Society (CC Thomas 2010), which describes service animal rules in various contexts, and also maintain a blog that regularly covers legal issues regarding dogs where I have discussed issuances of various agencies, including those of the Department of Veterans Affairs.

Proposed 38 CFR 70.71(b) states that “[r]egardless of a veteran’s eligibility for beneficiary travel, VA may provide VTS [Veterans Transportation Service] to veterans enrolled in VA’s health care system who need transportation authorized under § 70.72 [Types of transportation] for: … (2) Retrieval of, adjustment of, or training concerning medications, prosthetic appliances, or a service dog (as defined in 38 CFR 17.148)…” (emphasis added). The other reference to a service dog in the proposed rules occurs at 38 CFR 70.73(a), which provides that in requesting VTS, the requester “must provide the facility director or designee with information necessary to arrange these services, including … any special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog)…” (emphasis added). The second provision does not separately reference a definition for “service or guide dog” so it must be presumed that the definition would there also be taken from 38 CFR 17.148.[1]

The preamble to the proposal, at 80 Fed. Reg. 30192-3, elaborates:

Enrolled veterans would be eligible under paragraph (b) [Enrolled veterans] if they are traveling for a scheduled visit or urgent care; for retrieval, adjustment, or training concerning medications or prosthetic appliances; to acquire and become adjusted to a service dog provided pursuant to 38 CFR 17.148; for an unscheduled visit; or to participate and attend other events or functions for the purposes of examination, treatment, or care. (emphasis added)

This paragraph is apparently intended to indicate that if a veteran needs VTS in order to acquire or become adjusted to a service dog, such a dog would have to be one that satisfies the requirements of 38 CFR 17.148, which has a narrower definition of service dog than that contained in proposed 38 CFR 1.218(a), 79 Fed. Reg. 69379, November 21, 2014. If providing transportation services to acquire a service dog is regarded as one of the expenses that the VA will undertake to cover under the general service dog funding regulation, 38 CFR 17.148, then there is some logic to such a restriction.[2]  The phrase “becoming adjusted to a service dog” would seem to be somewhat less easily categorized as an activity that should be restricted to a service dog for which the VA would provide funding.  Although it is not clear how often veterans are provided VTS solely for the purpose of becoming adjusted to traveling with service dogs, all veterans with all service dogs, including service dogs under the broad definition of proposed 38 CFR 1.218(a), must be able to habituate their dogs to transportation vehicles.

The preamble also states that when an eligible person is contacting a VA facility regarding an examination, treatment, or care at the facility, a request may be made for transportation services.  The request may be made to a Mobility Manager in “many cases,” or to someone designated by the facility director.  The request is to contain necessary information for the transportation of the veteran, which can include “special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog) and other relevant information.” 

This clearly indicates that transportation services can be provided to any eligible veteran who is coming to a VA facility for an examination, treatment, or care, and who may need to be accompanied by a service dog.  Such a dog should not be presumed to be restricted to a dog eligible for VA funding under 38 CFR 17.148, but rather to any service dog that can obtain access to VA property under proposed 38 CFR 1.218(a), a much broader definition and one largely if not completely consistent with regulations regarding service animals issued by the Department of Justice (28 CFR 36.104, etc.).  If service animals that could be brought with a veteran on a VTS transport vehicle were restricted to the definition provided in 38 CFR 17.148, the anomalous situation would inevitably arise, upon finalization of 38 CFR 1.218(a), that a veteran could be entitled to bring a service dog for PTSD into a VA facility but would not be able to obtain transportation services in order to get the dog to the entrance of the facility. 

It might be argued that proposed regulations on transportation services should not be required to take into account proposed regulations on another issue, and this argument may as a policy matter have merit.  I note, however, that at a May 19 meeting of the VA Advisory Committee on Prosthetics and Special-Disabilities Programs, slides presented by Joyce Edmondson, Co-Chair of the VHA Animals in Health Care Committee, indicate that proposed 38 CFR 1.218(a) “is currently in the concurrence process with expedited review being completed at request of the Secretary.”  It would, therefore, seem appropriate to anticipate the finalization of those regulations with language to the effect that transportation services should be provided to veterans with service dogs as defined in regulations relevant to the access of animals to VA facilities.

Distinction between Service Dogs under 38 CFR 17.148 and Proposed 38 CFR 1.218(a)

Under 38 CFR 17.148, service dogs are defined as “guide or service dogs prescribed for a disabled veteran….”  Clinical requirements must be met, including that the “veteran is diagnosed as having a visual, hearing, or substantial mobility impairment….”  Even if a veteran is diagnosed as having such a condition, the regulation provides that “[i]f other means (such as technological devices or rehabilitative therapy) will provide the same level of independence, then VA will not authorize benefits under this section.”  I have been informally advised by one group working with veterans that this sentence has on occasion been used to justify medications, often substantial amounts of medications, as a preferable alternative to the use of a service dog. 

In addition to the one sentence definition of service dogs, 38 CFR 17.148(c) defines “[r]ecognized service dogs … for the purpose of paying benefits…” as having to satisfy the following requirement:

The dog and veteran must have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the International Guide Dog Federation, or both (for dogs that perform both service- and guide-dog assistance). The veteran must provide to VA a certificate showing successful completion issued by the accredited organization that provided such program.[3]

Thus, the veteran is to have a document that indicates completion of a training program with one of two organizations, or both.  Such a document might become a means by which employees of transport services would be able to verify that a service dog satisfies the requirements of 38 CFR 17.148 and thereby preclude access to vehicles by service dogs without such documentation.  Indeed, to accept dogs that did not qualify under 38 CFR 17.148 might arguably be a violation of the mandates of the proposed revisions to 38 CFR Part 70.

In contrast, proposed 38 CFR 1.218(a)(11)(viii) defines a “service animal” as follows:

A service animal means any dog that is individually trained to do work and perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Service dogs in training are not considered service animals. This definition applies regardless of whether VA is providing benefits to support a service dog under § 17.148 of this chapter. (emphasis added)

There is no specific organizational connection required for a dog to be a service animal under this provision, and there is no reason that a dog could not be trained by a veteran himself.  Indeed, there are programs under which veterans are presently being taught to train dogs, including service dogs.[4]  Also, there is no requirement that the service animal’s function be solely related to a “visual, hearing, or substantial mobility impairment,” as specified in 38 CFR 17.148, and functions related to a “sensory, psychiatric, intellectual, or other mental disability” are specifically allowed for service animals under the proposed provision.  If there were any doubt, the final sentence specifically distinguishes this section from the funding provision. 

Suggested Modifications to 38 CFR Part 70 Proposal

It is, of course, possible that proposed 38 CFR 1.218(a) will be finalized before the proposal under discussion here is finalized.  In that event I respectfully suggest that the parenthetical cross-reference in 38 CFR 70.71(b)(2) to 38 CFR 17.148 be changed to 38 CFR 1.218(a).  If finalization of 38 CFR 1.218(a) does not occur prior to the finalization of the current proposal, I suggest that the parenthetical reference in 38 CFR 70.71(b)(2) be altered to read:

(as defined in 38 CFR 17.148 or in such regulations as apply to the access of animals to VA property) 

Although I do not believe an exception on transportation services should be made based on the VA’s service dog funding policy, if it were deemed necessary to separate general transportation services from transportation specifically to acquire a service dog, the cross-reference to a broader definition could be restricted to proposed 38 CFR 70.73(a), where a sentence could be added after the sentence with the parenthetical reference to “service or guide dog” stating: “For purposes of this provision, a service dog is one defined under such regulations as apply to the access of animals to VA property.”

If an alteration to the effect of one of these suggestions is not accepted, the preamble to the final regulation under 38 CFR Part 70 should advise veterans as to the reason for a policy decision that transportation services will only be provided to service dogs satisfying the restricted requirements of 38 CFR 17.148. 

Please contact me with any questions regarding this comment.  I can be reached at jensminger@msn.com or at 917-613-4960.

Respectfully submitted,

John J. Ensminger 


[1] No provision other than §17.148 in Title 38 of the Code of Federal Regulations defines or even refers to service dogs.  Present 38 CFR 1.218(a)(11) refers to seeing-eye dogs, a provision that would be significantly expanded under the proposed service and therapy dog access regulations referred to at length in this letter.  38 CFR 17.37(h)(i) refers to certain kinds of care which, under special circumstances, a veteran may receive, mentioning “seeing-eye or guide dogs.”  38 CFR 18.444 refers to recipients of funds to provide educational programs for veterans and states that such recipients cannot impose certain kinds of rules on “handicapped students,” an example of which would be prohibiting students from bringing guide dogs into campus buildings. 
[2] Under 38 CFR 70.1, Part 70 “provides a mechanism” under which the VHA is “to make payments for travel expenses incurred in the United States to help veterans and other persons obtain care or services from VHA.”  Although this makes 38 CFR Part 70 itself something of a funding regulation, there is no logical reason to subsume its funding limits under the funding provisions of 38 CFR 17.148.  Obviously, somebody with crutches or a walker that needed transportation, but who did not obtain such items with VA assistance or approval, would not be told to leave their prosthetics at home because they were not or could not be obtained with VA funding. 
[3] A second provision regarding “recognized service dogs” concerns dogs obtained prior to the issuance of the regulation. 
[4] See, e.g., Rick A. Yount, Meg D. Olmert, and Mary R. Lee (2012), “Service Dog Training Program for Treatment of Posttraumatic Stress in Service Members,” pp. 63-69 in The United States Army Medical Department Journal: Canine-Assisted Therapy in Military Medicine (April-June 2012), describing a service-dog training program as “a safe, effective, nonpharmaceutical intervention to treat the symptoms of posttraumatic stress disorder (PTSD) and traumatic brain injury in Veterans and service members undergoing treatment at a large Veterans Administration residential treatment facility.” (available for download at http://www.cs.amedd.army.mil/FileDownloadpublic.aspx?docid=73e8d2aa-1a2a-467d-b6e3-e73652da8622).

All Major U.S. Airport Terminals Will Soon Have Service Animal Relief Areas

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All but the smallest airports will soon have one service animal relief area in each terminal, and most will be inside the secured sections of the airport so that service animal users who have already gone through security will not have to do so a second time just to take a dog to a relief area.  The placement of relief areas will also benefit passengers flying with pets that can be taken into cabins, i.e., generally dogs less than 20 pounds, and will also make life easier for the handlers of TSA bomb dogs who work at the airports. The final rules do not, however, require that airports provide escorts for passengers who need assistance in taking animals to and from relief areas, and do not impose website notice or signage requirements. (As discussed below, there is already an escort requirement, but it applies only to the airlines.)

It has taken four years for the Department of Transportation to get to this point.  On September 29, 2011, the Department proposed rules on service animal relief areas at airports.  On August 5, 2015, final rules were at last published in the Federal Register with significant changes from the earlier proposal. (I had predicted in a 2011 blog that the rules would be fast-tracked.  Obviously I was mistaken.)  Part of the reason for the delay was likely due to the fact that there are already service animal relief area requirements that apply to airlines and the rules to be applied to airports had to take into account the existing rules for airlines. Something had to be done, however, as the rules for airlines were not resulting in enough relief areas, and such as were being created were often very difficult for passengers with service animals to reach. Fortunately, that will now change.

The final rules are effective October 15, 2015, but airports have a year, until August 4, 2016, to meet the new relief area requirements.  The final rules are reproduced in an Appendix at the end of this blog. 

Airports and Service Animal Users Disagree over Location of Relief Areas

In 2011, the Department of Transportation asked for comments on how large service animal relief areas in airports should be, what surface materials would be optimal, the maximum distance service animal users should be expected to have to go to get a dog to a relief area, and what sort of maintenance of the areas should be required.  Commenters who were service animal users and disability organizations favored non-cement surfaces and suggested that outdoors relief areas should have overhangs.  As to where relief areas should be located, most such commenters said there should be “at least one relief area in each airport terminal.”  Some suggested that there should be one service animal relief area for every 15 gates or at every quarter of a mile throughout an airport.

As to whether relief areas had to be available in sterile areas of the airport—i.e., after passengers with service animals had gone through security checkpoints—the Department states the following:

“There is overwhelming support by individual commenters and disability organizations that at least one relief area should be located in the sterile area of each airport terminal.  Airports and airport associations, however, advocate that the rule not specifically mandate that service animal relief areas be located in the sterile area of an airport.”

The Department notes that some passengers with service animals had commented that “they were often forced to create itineraries with longer layover times because of the amount of time it takes for passengers with a disability to locate service animal relief areas and the amount of time it takes to exit the sterile area, relieve a service animal, and pass through security again.”

In general, commenters representing airports and airport organizations wanted the rules to be unspecific as to such details and generally follow the relief-area rules that apply to airlines in 14 CFR 382.51(a)(5), which state only that:

“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.”

In other words, the airports and their business associations wanted to be able to decide for themselves where the relief areas should be, what they should look like, and how easy they should be to get to.  Although consultation with a local service animal training organization would be required if the airport rules followed the airline rules, the airports wanted the involvement of service dog organizations to be no more than advisory. 

Website Information and Signage  

Service dog users want airports to indicate where relief areas are on their websites, make braille maps available to individuals with visual impairments, and perhaps develop a universal symbol for service animal relief areas, similar to the symbols for men’s and women’s bathrooms.  The Airports Council International argued, in contrast, that additional signage of this sort would overload passengers with information most do not need.  The Council argued that providing escorts for passengers with service animals to get to a relief area, already required of airlines under 14 CFR 382.91(c), should be sufficient. (I had argued in my 2011 blog that there should be signage requirements and that, in any case, "it is difficult to imagine that airports will have any resistance to such requirements."  I said that "airports will not want service animal users constantly asking personnel and other airport users where a relief area is located." As already noted, my crystal ball malfunctioned on this and other matters.)

What the Department of Transportation Has Now Decided

The Department of Transportation has decided not to require specific dimensions, designs, materials, or maintenance requirements for relief areas, though it has determined that they must be wheelchair accessible.  Fortunately, the Department said that this does not mean that airports can do whatever they wanted with respect to relief areas because they must consult with service animal training organizations regarding the designs. The preamble to the final rules states:

“We expect that most airports will likely choose to work with local chapters of national service animal training organizations to comply with this requirement as those organizations may be better suited to make specific suggestions that are tailored to individual airports….”

One Relief Area per Terminal

Under the new rules, there must be at least one relief area for each terminal in an airport.  The Department decided that this requirement was better than setting a maximum amount of time that it would take to get to a relief area from a gate.  A requirement to provide escort services for service animal users was not imposed on the airports because, as noted above, under 14 CFR 382.91(c) this is already required of U.S. and foreign air carriers.  Thus, this remains a responsibility of the carriers, but not of the airports themselves, although the latter are to be consulted.  

(I had argued in my 2011 blog on the proposed rules that there should be an escort requirement imposed on the airports as well as the airlines and still believe this would be preferable.  Airlines have varying degrees of presence in different airports, with ticket counters and boarding gates not always staffed when a service animal user might need assistance.  It will be important for service animal organizations to monitor whether the effectiveness of escort systems changes as the new relief areas are constructed. With the increased number of relief areas, presumably the costs to the airlines of paying staff to provide escort to and from the areas will be reduced.)  

Generally Must Be in Sterile Sections

Generally the airports must also assure that, where possible, relief areas are to be in sterile sections of airports. Acknowledging, however, that the Transportation Security Administration may, on occasion, prohibit a relief area in the sterile section of a particular terminal, the Department states the following:

“Recognizing that the TSA may prohibit a particular airport from locating a relief area in the sterile area of a terminal, the rule provides airports with an exception to this requirement if TSA prohibits a particular airport from locating a relief area in the sterile area of a terminal for security-related reasons. The Department also realizes that, based on an airport’s configuration, a relief area in the non-sterile area of an airport may be more desirable to relief area users. As such, the Department is allowing airports the option of placing a relief area in a location other than the sterile area of a terminal if a service animal training organization, the airport, and the carriers in the terminal in which the relief area will be located agree that a relief area would be better placed outside the terminal’s sterile area instead of inside the sterile area. The airport must, however, document and retain a record of this agreement.”

Thus, a relief area must be inside the sterile area of the terminal unless either (1) the TSA says it cannot be, or (2) a service animal training organization agrees that it would be better located outside the sterile area.  If the latter is the reason for putting it outside the sterile area, the airport must keep documentation of the service animal organization’s agreement to such a placement. 

How Many New Relief Areas Will Be Coming?

The number of relief areas at an airport will vary depending on the number of terminals at the airport.  Large hubs, according to the Department, average about seven terminals, medium hubs about five, small hubs about three, and non-hubs usually one.  Of the 387 airports in the U.S., 29 are large hubs, 35 are medium hubs, 74 are small hubs, and 249 are non-hubs that still have more than 10,000 passenger enplanements per year.  A total of about 849 terminals will have to have service animal relief areas under the new rule, though some already have relief areas that will satisfy the requirements.  The rest have one year to comply.  The Department estimates the overall cost for compliance will be about $88.1 million over 20 years, which includes the cost of construction and maintenance as well as the rent foregone for spaces that might otherwise hold stores and restaurants.  Airports will obviously look for ways to keep relief areas away from businesses that might be affected by the smells, or the thought, of a nearby relief area.

The Department decided not to require relief area information on airport websites, airport maps, or signage throughout the airport.  These decisions are somewhat mystifying since it is easy to bury information in a website, airport maps have lots of other information, and it is not clear how people with service animals will find the relief areas without the signage.  Hopefully most airports will want service animal users to find relief areas as quickly as possible, particularly after long flights, and will put signs up in any case.  The most the Department is willing to say at the moment is that if “there is confusion about the location of service animal relief areas at U.S. airports,” the issue will be revisited.

Conclusion

The Department is to be commended for not backing down on the issues of relief areas in each terminal, and putting them inside sterile areas wherever possible.  The willingness of the Department not to issue rules on website and signage could lead to problems, but given the interest the airports will have in getting passengers with animals to relief areas as efficiently as possible, there will hopefully be no need for such requirements. (I personally expect there will be problems, but hope my defective crystal ball will once again be wrong.)  The major guide and service dog organizations will be involved when airports seek to put relief areas outside of sterile areas and will have ample occasion to represent their members on such issues.  

Thanks to Leigh Anne Novak, Veronica Morris, and Brad Morris, for reviewing a draft of this blog. 

Appendix: Final Regulation
The final rule on service animal relief areas reads as follows:

49 CFR 27.71. Airport Facilities.

(h) Service animal relief areas. Each airport with 10,000 or more annual enplanements shall cooperate with airlines that own, lease, or control terminal facilities at that airport to provide wheelchair accessible animal relief areas for service animals that accompany passengers departing, connecting, or arriving at the airport subject to the following requirements:

(1) Airports must consult with one or more service animal training organizations regarding the design, dimensions, materials and maintenance of service animal relief areas;
(2) Airports must establish at least one relief area in each airport terminal;
(3) Airports must establish the relief area required by paragrah (h)(2) of this section in the sterile area of each airport terminal unless:

(i) The Transportation Security Administration prohibits the airport from locating a relief area in the sterile area, or
(ii) A service animal training organization, the airport, and the carriers in the terminal in which the relief area will be located agree that a relief area would be better placed outside the terminal’s sterile area. In that event, the airport must retain documentation evidencing the recommendation that the relief area be located outside of the sterile area; and

(4) To the extent airports have established service animal relief areas prior to the effective date of this paragraph:

(i) Airports that have not consulted with a service animal training organization shall consult with one or more such organizations regarding the sufficiency of all existing service animal relief areas,
(ii) Airports shall meet the requirements of this section August 4, 2016. 

Department of Transportation, RIN 2105-AD91, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance (U.S. Airports).  Final Rule.  80 Fed. Reg. 46508 (August 5, 2015).

Service Dogs Sometimes Belong in Shopping Carts: Justice Department Amends a FAQ

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In a webpage the Department of Justice has posted, Frequently Asked Questions about Service Animals and the ADA, one question and DOJ answer now read as follows:

Q31: Are stores required to allow service animals to be placed in a shopping cart?

A: Generally, the dog must stay on the floor, or the person must carry the dog. For example, if a person with diabetes has a glucose alert dog, he may carry the dog in a chest pack so it can be close to his face to allow the dog to smell his breath to alert him of a change in glucose levels.

Until last week, there was one additional word in the answer to the FAQ, which began with "No."  Thus, the DOJ had been saying that a dog could not be put in a shopping cart, but generally it had to walk on the floor or be carried by the owner. Why the wording was changed in the last week may be due to a dispute that arose between a grocery story in California and a woman with a seizure alert dog.  

FAQ 31 as downloaded by the author on July 20.
The Department’s stance on shopping carts--specifically the No that has now been removed--had received the approval of some service dog users.  An article in The Daily Courier of Prescott, Arizona, on July 17, entitled “No dogs in shopping carts: service dog owners hail clarification of ADA rules,"by Nanci Hutson, quotes a service dog user as saying:

"My husband and I have experienced a lot of problems with fake service dogs in the area, usually in grocery stores…. They will start barking from the carts and distract my husband's service dog whose job is to provide a sense of protection and a bubble around my husband."

This undoubtedly reflects the experience of many service dog users whose legitimacy has been questioned by store owners who have encountered people trying to disguise their pets as service animals in order to gain access. 

Butler v. WinCo Foods

In the California case between a shopper and WinCo Foods, LLC, the Ninth Circuit Court of Appeals found that WinCo Foods’ “store-wide policy prohibiting service animals from riding in its grocery carts” was not moot merely because the grocery story had offered the plaintiff an exception to its no-dogs-including-service-dogs-in-shopping-carts policy.  The exception was that Butler could put her dog in a grocery cart while she was shopping as long as the animal was in a carrier.  Butler v. Winco Foods, LLC, No. 13-55862, 2015 U.S.App.LEXIS (9th Cir. May 8, 2015), on appeal from the Central District of Califoria (CV 12-980 PA).

A Seizure-Alert and Seizure-Response Dog

Lynda Butler, who sued WinCo Foods over its service animal policies, explained in a Declaration filed with the trial court what her dog does for her:

I have a service dog, Coco Beans, who is a Cairn Terrier and who weighs about 15 pounds. I bathe her every two weeks and she is always clean. She does not bark or misbehave in public. She alerts me to the onset of a seizure and she orients me as I am coming out of the seizure. She alerts me by staring at my face, whining and scratching at my arms or chest. She orients me by repeatedly licking both sides of my face. This assists me in understanding that I have had a seizure and allows me to come into focus because my seizures effect my consciousness.

Butler’s Declaration says that the dog “never exhibited these behaviors before my seizures in 2006.”

About a month or two after my hospitalization in 2006 I realized that Coco Beans scratched and whined at me only when I had a seizure. I realized that she would scratch and whine, I would lose consciousness and I would wake up to her licking my face repeatedly. I put two and two together and realized that she was letting me know I was having a seizure even before I knew it. I also realized that her repeated licking of my face helped bring me into focus and to understand what had happened to me. I then began training her to continue these behaviors by praising her when she performed them. Instead of giving her corrections or disciplining her to stop the behaviors as I had been doing, I let her know they were acceptable by giving her positive reinforcement.

Dog’s Alerting Ability Allows Owner to Be in Public

Fearing she would have a seizure in public, Butler was largely housebound and got others to do her shopping for her but she began to trust that the dog could give her sufficient advance warning and she began to go out, including to shop.  She describes an early incident where the dog’s advance warning allowed her to sit down before a seizure struck:

I rely on Coco Beans’ alerting function. She alerted me to a seizure when I was shopping at the Albertsons near my house. She was in the cart seat and she began whining and pawing at my arms. I took her from the cart seat, sat down and placed her on my lap. I awoke to her licking my face repeatedly and there were customers and a store employee around me. If I did not have Coco Beans alert me, I would have fallen to the floor and hurt myself. I told the people around me that I had had a seizure, that Coco let me know about it and I did not need medical help. Coco helped me avoid having to go the hospital, which the people likely would have made me do if I had been injured.

The dog must be close to Butler’s upper body for the dog to alert or for it to be visible to Butler:

Coco Beans has only alerted me when she is in close proximity to my upper body, either when she is on my lap, next to me in a chair or in bed or is in a cart seat. I do not know how she knows to alert me. All I know is that when she is on the ground, she does not alert me or I do not understand the alert. I have fallen three times when Coco Beans did not alert me.

Most stores have not given Butler any difficulty about having the dog in a shopping cart, and neither did WinCo at first:

I shopped at Winco with Coco Beans in the cart seat without a problem until the summer of 2010. A female manager told me I had to remove Coco Beans from the cart seat. I told her that Coco needed to be in the cart seat to alert me to seizures. The female manager told me it was a “health and safety” violation. I did not believe that was true and I contacted the Health Department, which gave me a copy of Health and Safety Code 114259.5. I spoke with the Health Department official who was responsible for the Perris area and he told me that the Code only applied to food preparation workers, not to customers. I then discussed this with the female Winco manager who told me she would discuss it with Winco’s food safety person. After that, I was allowed to continue shopping with Coco in the cart seat.

WinCo Reverses Earlier Position

In 2011, a new manager at the WinCo store reversed the decision of the prior manager and told Butler she could not have the dog in a shopping cart.  This was an economic burden because Butler found WinCo’s prices much lower than other grocery stores in the area.  Alternatives to putting the dog in a shopping cart were not available to Butler:

I cannot carry Coco Beans while doing my month’s shopping at Winco because of my back problems. I also cannot carry her while I shop because I have to hold onto her carrier’s shoulder straps when we walk so that they do not fall off of my shoulder. I cannot hold onto the straps and push a grocery cart with one hand, particularly when it is loaded with groceries.

Thus, the chest pack option suggested by the Department of Justice in FAQ 31 is not available to Butler.  Butler tried once to put the dog in the cart inside the carrier, but again the manager told her that this was unacceptable.  It was not optimal to Butler either, as it left very little room for groceries. 

Hanging Carrier Inadequate for Butler and Coco Beans

WinCo at some point began offering patrons a “hanging carrier” that it deemed acceptable for situations like that of Butler, but this was also inadequate:

I looked at the pictures of the hanging carrier offered now by Winco. I understand the carrier is 13.5 inches long. Coco’s spine alone is 18.5 inches long, from the base of her neck to the base of her tail. Winco’s carrier will not work for me because it is too small for my service dog. Even if I could get her to stay in that small space, she would not fit comfortably in it. She would have to sit up for the whole two hours or so that it would take me to shop. This would be very stressful for her. Also, on the box for the carrier, it says that it is made for dogs up to 14 pounds.  Coco is already above that weight, so the carrier is not only too small, it is unsafe. 

Using the carrier would also put Butler too far from the cart she was pushing, which she needs to be close to for her own support needs. 

Expert Opinion

A witness retained by Butler, Dr. Adam Kirton, also submitted a Declaration on the motion for summary judgment in which he summarized the research on seizure alerting, including his own, and stated that Butler “describes seizure alerting behaviours that directly assist her in managing her seizures.  The descriptions are consistent with those found in multiple published studies.”  Kirton expressed doubt regarding some of WinCo’s reasons for refusing to allow the dog in a shopping cart:

Though I am not an expert in animal behaviour or infectious disease, I believe there is no evidence of anything greater than an extremely remote risk to the individual or public of having such an animal accompany their owner in a store with the service animal located in a cart seat on a blanket or in a carrier. Therefore, it is my opinion that the benefits of the seizure response behaviours offered by this dog clearly and substantially outweigh any risks posed by allowing Ms. Butler's dog in the Winco cart seat. The ability of her service dog to alert her to seizures not only gives Ms. Butler confidence to venture into public places like stores, it allows her to avoid serious injury that can result from a fall caused by a seizure. 

Connecting these observations to the legal questions involved in the case, Kirton states: “Without her service animal, the unpredictability of the seizures makes plaintiff afraid to go into public, which substantially limits her ability to socialize, to shop and to lead a normal life.”

Kirton notes that the “mechanism by which seizure alerting could occur remains speculative and further studies are required to confirm the possibility and understand the mechanism.”   I should note that I have written a chapter in a forthcoming book on canine olfaction that deals with the possibility that the mechanism may be olfactory (though behavioral and “sixth sense” explanations have also been offered).  

Health Regulations Not Implicated
 
A Google search for "shopping carts + service dogs" turned up one discussion regarding the possible application of health regulations prohibiting putting dogs in shopping carts.  This issue has, that I can find, not been raised in Butler v. WinCo, but if it were there would have to be an analysis similar to that in Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997), where a brewery sought to exclude a visitor with a guide dog from taking a tour of the brewery plant. The district court in the case, which was affirmed by the Fifth Circuit, had noted that the "marginal increase in contamination risk associated with over 5,000 annual human visitors to the Spoetzl Brewery is greater than the marginal increase in contamination risk associated with the maximum foreseeable number of annual guide dog visits by an order of magnitude."  People put children with leaky diapers, colds and other contagious diseases in shopping carts, as well as coats, hats, handbags and countless other items, and the health risks from service dogs occasionally riding in carts would, I suspect, be substantially lower than might come from the mass of other items regularly pushed around in carts.

I agree with Veronica Morris of Psychiatric Service Dog Partners that in those rare cases where safety or disability mitigation requires a service dog to be in a shopping cart, the handler should, if possible, bring a towel or blanket so that the dog does not actually come in contact with the cart. Putting the animal inside its carrier into the cart, the exception WinCo offered Butler, creates a similar barrier, but as noted in Butler’s Declaration, the dog was too large for that to be a practical solution. 

Conclusion

The Ninth Circuit remanded Butler v. WinCo to the Central District of California for further proceedings and, as of this writing, there is no indication that the matter will be settled.   At the very least, the facts of the case establish that there are instances where a simplistic statement that dogs do not belong in shopping carts cannot be supported within the framework of the Americans with Disabilities Act.

It appears to this observer that the Department of Justice may have changed the wording to its shopping cart FAQ so as to avoid becoming an unwitting proponent of the store's side in the California case. It would be good if the Department would go the next step and add a sentence to FAQ 31 acknowledging that service dogs sometimes do belong in shopping carts. In any case, the FAQ now only provides a partial answer so without some additional rewording neither stores nor service dog users will know what to do. 

Thanks to Veronica and Brad Morris and Leigh Anne Novak for reviewing and providing comments that vastly improved this blog.

Flying with Your Pet in Cargo: New Rules Help Choose the Safest Airline

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A year and a half ago I wrote a blog about changes the Department of Transportation was proposing to make on the incident reports airlines must file when an animal is lost, injured, or dies in their custody.  Now the proposal has been finalized, largely in the form proposed by the Department. All transport of pets is covered, so if you bring your pet parrot with you on vacation and it gets loose and bites a baggage handler the airline will have to file an incident report, but commercial shipments of parrots are not covered, only commercial shipments of dogs and cats. Animals that fly with you in the cabinservice animals and small petsare not covered because they remain in your custody.

Foreign carriers are not covered by the law, though overseas flights of domestic carriers are covered, including flights between two foreign airports.  Cargo airlines and all-cargo flights are not covered.  This may encourage some organizations, such as laboratories using dogs and cats for experiments, to avoid transport of these animals with domestic passenger carriers since, without reporting requirements, foreign and cargo carriers are likely to offer lower rates. If you are considering flying with your pet, my advice would be to choose a U.S. domestic airline.  It may not be any more careful than a foreign carrier, but at least it will have to report an incident if one occurs, which involves some reputation risk. That does not assure anything, but it allows you to follow up by at least making sure that the airline publicly acknowledges any fault they may have had with regard to the incident. 

Covered air carriers will now be required to report the total number of animals transported each year.  This will be important for consumers in that it will allow for a calculation of what percentage of animals are lost, injured, or die with each carrier on an annual basis.  A number of commenters, particularly animal rights and welfare organizations, had argued that reporting requirements should cover all types of animals, not just dogs and cats.  The Department of Transportation declined to do this, saying:

“We are not expanding the definition of ‘animal’ to cover all species of animals. We believe it would be unduly burdensome to require covered carriers to report the death, loss, or injury of all species of animals because there potentially could be thousands of individual animals such as fish, rodents, and insects that are transported by air carriers in a single commercial shipment.”

If an air carrier had no incidents during the year, it must still file a report indicating that that it had “0” incidents. It will take some years for significant statistics to gather, but this change will in time provide important data for passengers who want to be sure that they are using the safest airline, at least where there is a choice between several. 

The expansion of the number of carriers that must file reports will affect any carrier that operates scheduled service with at least one aircraft with a design capacity of more than 60 seats.  Previously, reporting carriers were defined as carriers receiving at least 1% of domestic scheduled-passenger revenues. Thus, some smaller airlines that did not have to report incidents before will have to do so now. 

Categories of Animals in Flights

The preamble to the final regulations explains the categories of animals in flights from an airline's perspective:

“There are three categories for animals transported in scheduled passenger air transportation: ‘unassigned in the cabin;’ ‘accompanied baggage;’ and ‘live cargo shipments.’ Animals categorized as ‘unassigned in the cabin’ are usually small pets that remain with the owner in the cabin for the duration of the flight. Air carriers may allow a limited number of passengers per flight to transport their animals as ‘unassigned in the cabin.’ [S]ervice animals accompanying individuals with a disability are not included in this category. Animals categorized as ‘accompanied baggage’ are pets traveling with passengers on the flight that are checked as baggage, remain in the custody of the air carrier for the duration of the flight, and are transported in the cargo compartment. Animals categorized as ‘live cargo shipments’ are animals that are not associated with passengers on the flight and are transported in the cargo compartment. While ‘accompanied baggage’ and ‘live cargo shipments’ may or may not be in different areas of the cargo hold of an aircraft, the primary differences between these two categories are shipping procedures and price points.”

Incident reports are filed on the second two categories, pets traveling with passengers and live cargo shipments on passenger flights. 

Recent Incidents

For the December 2012 blog I reviewed all prior incident reports—which go back to 2005—that had been filed by airlines.  Although there were some gruesome cases, there were fewer than I had expected, and I had to concede that the risk of putting a pet in the cargo hold was generally very low.  Since that blog, there have been more incidents, but many appear to have been at least partly the fault of owners.  Some pet owners used poorly constructed crates, or crates that pets were able to claw or bite their way out of.  One report (November 2013) included the following narrative:

“Upon arrival into Los Angeles, ramp personnel opened the cargo door to find a female boxer loose in the cargo area. Supervisors contacted the pet’s owner and escorted her planeside. The dog had chewed out of her kennel and had a small piece of metal stuck in the skin, next to her eye. The pet owner was able to flick the piece of metal out of her dog’s skin. The pet owner put a leash on her dog and they were escorted back to baggage claim.”

Some animals died because they had heart conditions or other illnesses.  One narrative described a seven-year-old pit bull dying because of a “combination of underlying cardiovascular disease and acute interstitial pneumonia.”  Necropsy of another dog discovered “histopathological diagnosis of multifocal chronic proliferative pneumonitis.”  Another narrative stated:

“Veterinarian determined cause of death as severe gastric and SI loop distension from air. Suspected animal was anxious during flight which lead to panting and air distension of stomach resulting in increased abdominal pressure on major abdominal vessels and subsequent hypotension and shock.” 

The message is: don't put your pet in cargo unless you're sure the animal can handle the confinement, isolation, noises, and the general spookiness of the experience that can cause physical and emotional stress.  Discuss it with your vet if you're in doubt.

Not too many cases involved clear fault of the airline.  One cat that had been on an American Airlines flight was removed by an employee during TSA screening so that crate could be x-rayed.  The owner was not present and the cat escaped. One death could not be explained because the flight (in August 2013) landed in a Spanish-speaking country where the authorities required that a dog’s remains be cremated in order to be released to the owner. Thus, overseas flights contain the possibility that local authorities may not allow a necropsy or other procedure that would be administered in the U.S.

A month by month compilation of incident reports of all sorts, including animal incident reports, has been posted by Jol A. Silversmith on a website called Third Amendment.  Mr. Silversmith is to be thanked for going to the trouble of extracting these reports from arcane locations in the Department of Transportation website structure and making them easily available.  

Additional Note.  Jol Silversmith, whose posting of incident reports was just mentioned, advises me of a gap in the regulations, in that they may not cover service animals that are put in cargo.  Service animals are not pets under Department of Transportation regulations, nor would they generally be part of a commercial shipment. Consequently, they are not "animals" for purposes of the incident-reporting regulations. Horizon Air filed a report about an incident involving a service animal, a dog, on February 20, 2013, but it would appear that an airline would not be required to file such a report under the wording of the regulations. I admit that I would probably never have noticed this possibility, but Mr. Silversmith is an expert on aviation law. It probably reflects an oversight on the part of the drafters of the regulations.  Of course, the more common situation involves passengers claiming that their pets are service animals in order not to have them travel in cargo.  The facts of the incident indicate that the passenger used a wheelchair.  She may have felt that managing the dog during the flight would be too much of a burden. For additional perspective, see "The Dog That Did Nothing: The Curious Incident of DOG's Animal Incident Reporting Requirements,"TransLaw (Summer 2006).        

Department of Transportation.  Reports by Air Carriers on Incidents Involving Animals During Air Transport. RIN 2105-AE07, 79 Fed. Reg. 37938 (July 3, 2014).  The final rule is as follows, with major changes from the December 2012 proposal in italics. An 

PART 235—REPORTS BY AIR
CARRIERS ON INCIDENTS INVOLVING
ANIMALS DURING AIR TRANSPORT
Sec.
235.1 Definitions.
235.2 Applicability.
235.3 Reports by air carriers on incidents involving animals during air transport.
Authority: 49 U.S.C. 41721.

§ 235.1 Definitions.
For the purposes of this part:

Air transport includes the entire period during which an animal is in the custody of an air carrier, from the time that the animal is tendered to the air carrier prior to departure until the air carrier tenders the animal to the owner, guardian or representative of the shipper of the animal at the animal’s final destination. It does not include animals that accompany a passenger at his or her seat in the cabin and of which the air carrier does not take custody.

Animal means any warm- or coldblooded animal which, at the time of transportation, is being kept as a pet in a family household in the United States and any dog or cat which, at the time of transportation, is shipped as part of a commercial shipment on a scheduled passenger flight, including shipments by trainers and breeders.

§ 235.2 Applicability.
This part applies to the scheduled domestic and international passenger service of any U.S. air carrier that operates such service with at least one aircraft having a designed seating capacity of more than 60 passenger seats. The reporting requirements of this part apply to all scheduled-service passenger flights of such carriers, including flights that are operated with aircraft having 60 or fewer seats.

§ 235.3 Reports by air carriers on incidents involving animals during air transport.
(a) Each covered carrier shall, within 15 days after the end of the month to which the information applies, submit to the United States Department of Transportation’s Aviation Consumer Protection Division a report on any incidents involving the loss, injury, or death of an animal during air transport provided by the air carrier, including incidents on flights by that carrier that are operated with aircraft having 60 or fewer seats. The report shall be made in the form and manner set forth in reporting directives issued by the Deputy General Counsel for the U.S. Department of Transportation and shall contain the following information:

(1) Carrier and flight number;
(2) Date and time of the incident;
(3) Description of the animal, including name, if known;
(4) Name and contact information of the owner(s), guardian, and/or shipper of the animal;
(5) Narrative description of the incident;
(6) Narrative description of the cause of the incident;
(7) Narrative description of any corrective action taken in response to the incident; and
(8) Name, title, address, and telephone number of the individual filing the report on behalf of the air carrier.

(b) Within 15 days after the end of December of each year, each covered carrier shall submit the following information (this information may be included in any report that the carrier may file for the loss, injury, or death of animals during the month of December):

(1) The total number of incidents involving an animal during air transport provided by the air carrier for the entire calendar year, including incidents on flights by that carrier that are operated with aircraft having 60 or fewer seats. The report shall include subtotals for loss, injury, and death of animals. Report ‘‘0’’ for any category for which there were no such incidents. If the carrier had no reportable incidents for that calendar year, it shall report ‘‘0’’ in each category. Covered carriers shall use the following data table when reporting the total number of animal incidents during air transport provided by the air carrier for the entire calendar year:

Total number in the calendar year
Deaths
Injuries
Loss

(2) The total number of animals transported in the calendar year. If the carrier did not transport any animals for that calendar year, it shall report ‘‘0.’’
(3) The December report must contain the following certification signed by the carrier’s authorized representative: ‘‘I, the undersigned, do certify that this report has been prepared under my direction in accordance with the regulations in 14 CFR part 235. I affirm that, to the best of my knowledge and belief, this is a true, correct and complete report.’’

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

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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? 

Control

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." 

Conclusion

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

Sources: 

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).

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

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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 2013regarding 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 http://www.fws.gov/southwest/es/mexicanwolf/.  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.

Conclusion

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. 

Sources:

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.

Cronin, M.A., Canovas, A., Bannasch, D.L., Oberbauer, A.J., and Medrano, J.F. (2015). Wolf Subspecies: Reply to Weckworth et al. and Fredrickson et al.  Journal of Heredity, advance access at http://jhered.oxfordjournals.org/content/early/2015/05/10/jhered.esv029.extract#. 

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).

Emery, K.F. (2002).  Animals from the Maya Underworld: Reconstructing Elite Maya Ritual at the Cueva de los Quetzales, Guatemala.  In Behaviour Behind Bones: The Zooarchaeology of Ritual, Religion, Status and Identity (O'Day, S.J., Van Neer, W., and Ervynck, A., eds.). Oxford: Oxbow Books (discussing ritual management of certain groups of dogs in Mayan culture).

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., Hedrick, P.W., Wayne, R.K., vonHoldt, B.M., and Phillips, M.K. (2015). Mexican Wolves Are a Valid Subspecies and an Appropriate Conservation Target.  Journal of Heredity, 106(4), 415-416

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.

White, C.D., Pohl, M.E.D., Schwarcz, H.P., and Longstaffe, F.J. (2001). Isotopic Evidence for Maya Patterns of Deer and Dog Use at Preclassic Colha.  Journal of Archaeological Science, 28, 89-107 ("[D]iets of midden dogs may have closely appoximated the diets of humans, including changes over time, and, by contrast, dogs given special mortuary treatment were purposefully fed maize, probably for ritual reasons.").

Witt, K.E., Judd, K., Kitchen, A., Grier, C., Kohler, T.A., Ortman, S.G., Kemp, B.M., and Malhi, R.S. (2015).  DNA Analysis of Ancient Dogs of the Americas: Identifying Possible Founding Haplotypes and Reconstructing Population Histories.  Journal of Human Evolution, 79, 105-118 (finding high mtDNA diversity among dogs across Mexican archeological sites, and that certain "outlier haplotypes" may reprsent admixture between dogs and wolves).
 

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

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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 travelersexplains 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.”

Conclusion

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. 

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

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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 

Bomb Dogs Work Faster When Handlers Are Distracted

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The relationship between the handler and a detection dog is often of concern because of the possibility that the handler’s thoughts or feelings as to the presence of a target substance may result in a signal to the dog that it is time to alert, a phenomenon known as cueing.When typical drug-related criminal activity is suspected, the handler may intentionally signal the dog to give a trained final response so that probable cause for further action is established.  More often the concern has been that the handler may not be aware that his beliefs are leading to subtle behavioral changes in his management of the dog that result in the dog giving an alert.  (See Cueing and Probable Cause.)Yet the handler’s mental state may influence a working dog’s effectiveness in other ways, as indicated by recent research from Israel. 

A team of ten scientists from the Behavioural Neuroscience Lab at the Rappaport Faculty of Medicine in Haifa considered how putting stress on handlers affected the performance of explosives detection dogs.  For purposes of the study, the team sought to distinguish between two possible types of handler stress: external stress, which was defined as stress irrelevant to the task of the canine team, and internal stress that was relevant to the task.  The team studied five Malinois and their handlers working in the Israeli Air Force.  The dogs had been in service about six months, but each handler had at least a year of experience with the dog to which he was assigned.  Salman Zubedat, Shlomit Aga-Mizrachi, Adi Cymerblit-Sabba, Jonathan Shwartz, Joseph Fiko Leon, Shlomo Rozen, Itay Varkovitzky, Yuval Eshed, Dan Grinstein, and Avi Avital (2014).  Human-Animal Interface: The Effects of Handler’s Stress on the Performance of Canines in an Explosive Detection Task.Applied Animal Behaviour Science, 158, 69-75.

Experimental Design

To provide a baseline on the level of stress in a handler, a pre-pulse inhibition test was given both before the handler was put in a stressful situation and after a trial was completed.  External stress came from a three-minute conversation with the handler’s unit commander.  After the conversation, a task was performed in which the dog could identify two explosive odors.  In training sessions, however, dogs could detect 1, 3, 4, 5, or 6 explosive odors.  When the dog sat next to a hot spot, it was allowed to play with a ball as a reward. 

The search area was long and narrow, a 50 meter line with a two meter width, which teams were given no more than five minutes to search.  The unusual search area may have been chosen to duplicate a street in a dense urban environment where explosive devices might be hidden in buildings against the street or in items like carts along it.  Alerts, false alerts, and misses were to be measured, though no false alerts or misses were recorded (which says a great deal for Israeli military dogs).  Consequently, differences in performance levels of teams were established by measuring the energy levels of the dogs and the time intervals for the trials. 

An experimenter hid the explosives before a trial so that the handler and other staff were blind to the location of explosives.  Hides were placed in different orders relative to the exploration direction of the dogs.  Sites were explored from different directions by the teams so as to limit the effect of possible contamination, though the paper says that the “location of the hidden explosives remained constant between the different test days.” (This may have been a design flaw as the amount of odor available to the dog would tend to increase over the period of the experiment.) An alert consisted of the dog sitting near the hot spot and poking its nose towards the exact location of the hide.  Trials were videotaped.

Applying Stress

Internal stress consisted of having external viewers, commanders, and study executives present during trials.  These participants pointed at the handler as he walked the long and narrow search area and pretended to write down comments during the trial.  External stress, the three-minute conversation, consisted of the commander informing the handler that he would be reassigned to another military unit, that the handler was going to face a military investigation, or something else designed to rattle the handler.The handler was ordered not to share the conversation with anyone.At the end of the trial, the handler was told that the stressful information had been revoked, but that the handler still should not share the information.

The external stress condition (“You’re facing an investigation,” etc.) “led to the highest startle response compared with the control and the ‘internal stress’ conditions.” When handlers were under external stress, the dogs had the shortest, and thereby most efficient, detection times.  External stress was also correlated with the highest levels of canine activity.  As measured by the PPI test, stress on the handlers impaired their covert attention, and external stress produced the highest impairment of the two types. 

As to what explained this unexpected finding, the research team hypothesized:

“We postulate that the stress disturbed the handlers in their focus of attention and thus led to less control of the dogs’ leash. Consequently, it allowed the dogs to manifest their training outcome in a less ‘handler-dependent manner’. This presumable locus of control transfer may explain the improved performance of the dogs.”

Conclusion

The importance of explosive detection dogs in Israel may be indicated by the size of the team involved in this study. A photograph from a recent military operation shows the value that the Israeli military assigns to the protection and care of military dogs. 

The results might have differed had the search area been wider so that the sweep would have required crisscrossing.  Although training sessions could involve various numbers of hides, the scientists chose to use only two hides and perform limited recorded trials.  Having people, including supervisors and other officials, watch the trials might be more stressful for some handlers than others. Different ways of applying stress should be explored since a major difference between the two types of stress was when they occurred in relation to a trial.  Implementing variations on the experimental design will be important to verify the conclusions reached by this team. 

Still, the situations presented are clear enough, and the general nature of the findings is quite credible.  A handler with his own problems is less likely to be interested in cueing his dog to alert since he may not want to spend time dealing with a more detailed search or the resultant paperwork from a situation of his own making.  Thus, the research might have applications in a wider range of canine operations. 

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

Note on the photograph: This picture was provided by a friend in Israel, who advises us that it was sent anonymously from Gaza to an Israeli television station.  This apparently gave the station license to use the picture without giving the station the right to license (or preclude) our reproduction of it here. We believe it may have been reproduced elsewhere.  The anonymity may mean the photographer does not wish to acknowledge the context or is prevented by Israeli military law from asserting ownership.  If, however, someone believes the usage here violates an interest in the work, it will be removed on a credible claim of superior rights.  Anyone wishing to communicate with us regarding a claim as to the rights of the picture is asked to send an email to jensminger@msn.com.

Centers for Disease Control Seeks Funding for PTSD/Service Dog Study

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The Centers for Disease Control and Prevention is seeking approval from the Office of Management and Budget to fund “a laboratory-based work-simulation study” that will “investigate the influence of the presence of and interactions with a dog on the reactivity and performance of veterans with and without PTSD to work-related and startle stressors.”  The study will be conducted at a research facility of the National Institute for Occupational Safety and Health (NIOSH) in Morgantown, West Virginia.  The CDC’s announcement that it is seeking funding for the study was posted in the Federal Register on September 9 (79 Fed. Reg. 53430). 

The proposed study is described as follows:

“The role of dogs in potentially moderating the effects of the stressors will be investigated with either the absence or presence of a dog in some conditions and a dog that is either familiar or unfamiliar to the veteran in other conditions. The general working hypothesis is that the presence of, and/or interaction with, a familiar dog reduces stress and enhances work performance for both veterans with and without PTSD, with a greater benefit to veterans with PTSD.”

The  CDC announcement mentions therapy dogs, which perhaps means that when a dog unfamiliar to the veteran is used during some of the trial circumstances, therapy dogs will be used.  The kinds of symptoms that dogs may be useful in alleviating are listed as “diminished interest or participation in significant activities, feelings of detachment or estrangement from others, difficulty falling or staying asleep, hyper vigilance, exaggerated startle response, difficulty with concentration or attention, and a restricted range of affect.”

The CDC expects to recruit U.S. veterans for the study, including veterans with service dogs, by getting help from various veterans’ organizations.  About 400 persons in veterans’ agencies will receive emails concerning the research study, with follow-up phone calls.  Veterans will have to complete some questionnaires that will be posted on the internet, and those selected from this stage will go through several days of assessment sessions at the NIOSH Morgantown facility. Screening forms will include:
From the initial pool, 64 veterans will be enrolled in the laboratory portion of the study, including at least 16 veterans who own service dogs.  On entering the study, veterans with service dogs will complete the following materials: 
  • Big Five Inventory (BFI) 
  • Canine Behavioral Assessment and Research Questionnaire (CBARQ)
  • Pet Attachment and Life Impact Scale (PALS) 
  •  Dog Personality Scale (DPQ)   
  •  Social Style-Self and Social Style-Service Dog questionnaires
There will be no cost to participants other than giving their time. 

The CDC is probably hoping to find evidence that service dogs are helpful to veterans, but acknowledges that no particular outcome is certain:

“A review of mostly anecdotal evidence suggests that animal-assisted interventions may have general therapeutic benefits for individuals with PTSD. Although a few reports tout the benefits of human-animal companionship, no studies have focused specifically on investigating the elements of human-animal interactions that might be therapeutic for individuals with PTSD or other stress-related disorders. Furthermore, there is scant evidence supporting the notion that service dogs or therapy dogs may directly improve functioning and, thereby, ease an individual’s reintegration into society and employment.”

While most studies on the benefits of therapy dogs are rather anecdotal, research in the area is becoming more rigorous, as noted here in a recent blog

Anyone, including members of the general public, can obtain more information on the project by calling (404) 639-7570.  Comments can be sent to Leroy A. Richardson, 1600 Clifton Road, MS-D74, Atlanta, GA 30333.  An email can be sent to omb@cdc.gov.  Mr. Richardson is a Chief in the CDC’s Information Collection Review Office in Atlanta.  Written documents should be received within 60 days of the Federal Register announcement, i.e., by November 8. 

Federal Judge Slaps Injunction on Cab Company Refusing to Carry Woman with Scooter and Service Dogs

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On April 9, 2013, Melodie and James Doud got into the line for a taxi at the Reno Airport.  The first available taxi was Yellow Cab Co. # 132, driven by Mohammed Parvez, who declined to let the Douds into his vehicle, saying that it was not equipped to transport people with physical disabilities.  The Douds were traveling with a motorized scooter which Melodie Doud needed, having lost a leg to cancer. They also were also traveling with two service dogs.  The second taxi in the line was another Yellow Cab, and this driver also refused to take the Douds, alleging that his religious beliefs forbade him from transporting their service dogs. (According to one court document, the driver said to them: “I’m not taking you because you have dogs, dogs are dirty and it is against my religion to transport a dog.”) 

A third taxi, from the Whittlesea Company, also refused to carry the Douds.  James Doud then flagged down an airport police vehicle.  The officer approached the fourth taxi in the line, another Yellow Cab, the driver of which agreed to transport the Douds.  This took 45 minutes.  Almost lost in the details of the case was the fact that James Doud was himself an employee of Yellow Cab and may have lost his job because of the action he took against his employer in this matter. 

Just over a month later, on May 19, the Douds were again at the Reno Airport and again encountered Yellow 132, still driven by Mohammed Parvez, who again refused to take the Douds, this time saying it was “against the law,” despite Melodie’s assurance that her scooter would fit into the taxi.  The scooter breaks down into five pieces, the heaviest of which weighs 50 pounds.  (The picture of the scooter here is from a manufacturer’s document filed with the court.)  James Doud then called a supervisor at Yellow Cab Co., Mukesh Sharma, who agreed to pick up the Douds.  The Douds also called the airport parking authority and the airport police, and the police found a taxi for them, though the Douds chose to ride in Sharma’s taxi when it arrived.

Complaint Filed

The Douds described these experiences as “humiliating, discouraging, demoralizing, and maddening.”  On May 21, 2013, the Douds filed a complaint with the Nevada Transportation Authority, which determined that Yellow Cab had violated Nevada Revised Statutes 706.361, which provides that persons with disabilities are entitle to full and equal enjoyment of facilities of public transportation, which applies to “any common motor carrier of passengers.”  Yellow Cab appealed the decision.

The Douds also sought a preliminary injunction to stop Yellow Cab from refusing to give them service in the company’s standard taxis.  To obtain a preliminary injunction, a plaintiff must establish (1) he or she is likely to succeed on the merits, (2) likely to suffer irreparable harm without such relief, (3) that the balance of equity is in the plaintiff’s favor, and (4) that the injunction would be in the public interest.  A trial court is given broad discretion in deciding whether to grant a preliminary injunction.  

The federal district court for the district of Nevada determined that a preliminary injunction was appropriate because the Douds were likely to succeed on a claim under the Americans with Disabilities Act, they would likely suffer harm unless the cab company’s refusal to serve them was stopped, the injunction would not burden the cab company, and issuing an injunction requiring the company to accept disabled passengers would be in the public interest. 

The court noted that regulations under the ADA, 49 CFR 37.29, specifically mention taxi services, providing:

“Private entities providing taxi service shall not discriminate against individuals with disabilities by actions including, but not limited to, refusing to provide service to individuals with disabilities who can use taxi vehicles, refusing to assist with the stowing of mobility devices, and charging higher fares or fees for carrying individuals with disabilities and their equipment than are charged to other persons.”

Yellow Cab argued that it had offered the Douds a reasonable accommodation by asking them to ride in vehicles equipped for disabled passengers who use motorized scooters.  The company had a practice of referring disabled customers to a sister company, Reno Sparks, which has wheelchair-adapted vehicles that can transport the entire scooter with the passenger, without any need for disassembly.  The court noted, however, that making Yellow Cab accept disassembled scooters placed no undue financial or administrative burden on the cab company.  Also, James Doud could lift each piece of the disassembled scooter by himself, so there was no need for Yellow Cab to be concerned about its drivers lifting heavy equipment. 

Prior Taxi Dispute

This is not the first time, and is not likely to be the last, that a taxi company has refused to provide services to a customer with a service dog.  In 2003, a dispatcher for the Yellow Cab Drivers Association, Inc., sent a driver to a department store in Salt Lake City.  Upon being pointed by store employees towards a blind woman with the guide dog, the driver turned and left (DOJ Complaint 202-77-34).  Responding to the woman’s complaint, the Department of Justice stated that Yellow Cab is in the business of providing transportation services to members of the public and is covered by Title III of the ADA (42 U.S.C. 12181(10) and 28 CFR 36.104.  

As part of the settlement, Yellow Cab agreed to distribute a car window decal to all drivers in size 12 or larger, to be placed on every cab, welcoming persons with service animals.  The decal was to be on cabs "purchased, leased, or operated" by Yellow Cab.  All drivers and dispatchers had to take an ADA training program, and all future hires had to be trained concerning passengers with disabilities within 30 days of starting to work for Yellow Cab.  Yellow Cab also agreed that the Department of Justice could perform unannounced testing.  The woman who complained received 25 free fare certificates. 

Conclusion

The federal district court for Nevada granted the preliminary injunction, stating:

“Yellow must not refuse to transport the Douds on the basis of Mrs. Doud's disability. Yellow must provide the Douds with taxi services on the same terms and conditions as any other passenger. If, however, any portion of Mrs. Doud's disassembled scooter is too heavy to lift, Yellow's drivers need not lift it. Yellow must also incorporate into its existing driver training that the Douds may ride in Yellow's standard taxis.”

The case is likely to continue.  James Doud alleged that he lost his job with Yellow Cab in retaliation for filing the complaint against the company he worked for.  That sort of retaliation could lead to substantial penalties if established.  Doud v. Yellow Cab Company of Reno, Inc., Case No. 3:13-cv-00664-MMD-WGC, 2014 US Dist LEXIS 120243 (August 28, 2014). (See Service and Therapy Dogs in American Society, pp. 155-157.)

As one who was a long-time resident of New York City, where cabbies cruise for fares but, particularly at rush hours, only stop for passengers likely to be going short distances who don’t have luggage, it must be said that an injunction like this would have little effect at any location other than a taxi stand.  Even there, I could be passed to the second or third cabbie in the line just because I was not wearing a suit and tie on a given day.  “I’m going out on a call in a minute.”  “I’ve got to stop for gas if we’re going any further than midtown.”  An injunction would do no more than assure that certain excuses were not used.  Still, the fact that rights are not always enforceable does not mean that they do not exist.

Thanks to Leigh Anne Novak for valuable suggestions.  

Dogs of the Bible Lands

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Publication Note: The following article was published in Hebrew in PetsNews, over two issues, July/August and September/October, 2014.  The article grew out of a blog that was originally posted here in May 2011.  Eytan Hendel, an internationally known judge at dog shows and the editor of PetsNews, had previously turned a blog I wrote on sighthounds in ancient Egypt into an article for this magazine (July/August 2012) and asked me to update the article on dogs in the Bible. I had looked more at some Talmudic and Christian sources since the original posting, and had taken that posting down with the intention of revising it with new material, so Eytan's request spurred me to advance the project.    

Natufian Burial c. 10,000 BCE (courtesy Alain Degand)
A burial strongly suggesting domestication has been excavated in Israel and dated to around 12,000 years ago. A picture from the site, taken by Alain Dagand, shows a human skeleton, the left hand over the skeleton of a small dog, the two of them buried at Mallaha, about 15 miles north of the Sea of Galilee. There has been a good deal of research and speculation regarding the measurements of the dogs found in Natufian excavations, and it is generally agreed that they were not tamed wolves and may have been similar in size to present day pariah dogs.

Despite early evidence for domestication in the region, and the implicit affection of the arrangement of the two skeletons, The Interpreter's Dictionary of the Bible, in its entry on dogs, says bluntly that biblical writers "seem unfamiliar with any kind of warm personal relationship between a dog and its master." It must be doubted whether this tells the whole story, however, as there are references to a number of functions for dogs in the biblical and post-biblical periods of Judaism, and in works of early Christianity that probably originated in Jerusalem or in Christian communities in the Near East. 

Early Egyptian and Babylonian Contacts

The term for dog in Hebrew (כָּלֵב, keleb) may have been onomatopoeic, mimicking a bark. The word is similar in Akkadian, Phoenician, Ugaritic, Arabic, Aramaic, Syriac, and Ethiopic, and may be equivalent to the pronunciation of an Egyptian hieroglyph.  

Before the biblical period, a papyrus sent by an Egyptian official complaining of his remote posting, perhaps in a part of Syria under Egyptian control, refers to the hundreds of dogs (or dogs and jackals) that lived in the town, which could be depended upon to assemble any time a container of beer was opened. (Papyrus Anastasi 4, British Museum 10249)There may be some humor intended in the passage, with vast numbers of dogs pestering anyone who drank beer, but the presence of pariahs around a village was obviously already a problem.  Exodus 11:7says: “But not a dog shall growl at any of the Israelites [לְשֹׁנ֔וֹכֶּ֙לֶב֙יֶֽחֱרַץ־  לֹ֤א], not at people, not at animals.” The barking of pariahs would attend any caravan passing near a city or village. 

Gebel El-Arak Knife with Mesopotamian Dogs (Wikimedia Commons, “Rama”)
There is no evidence that the Egyptians influenced early Israelites as to dog breeding or otherwise, but there may have been trade between Mesopotamia and Egypt that could have involved dogs passing through the Near East.  A knife handle dated from 3300 to 3200 BCE found at Gebel El-Arak near Abydos, Egypt, presently in the Louvre, may show the god El wearing Mesopotamian clothing. The dogs, aligned below the lions, look very much like Mesopotamian Molossians.Samuel Birch, first head of the Egyptian and Assyrian section of the British Museum, thought the mastiff on the knife was not a native Egyptian breed, but one brought to Egypt from further East. Beatrice Teissier sees “the hand of a copyist” in the carving but describes significant trade from Iran along a northerly land route and “only latterly by sea to Egypt from the Lebanese coast.”Thus, whether or not the knife made a journey from east to west, it is quite possible that war and guard dogs could be found on trade routes through territory under Judaean control. 

Sheep Dogs

Deuteronomy 23:18 says: "Thou shalt not bring the hire of a whore, or the price of a dog, into the house of the Lord." Both Jewish and Christian scholars have seen the dog as a term for a male prostitute, but this explanation does not exclude the possibility that those reading the original law would have understood that dogs, like male prostitutes, do have a price, though a negligible one.  What kind of dog would have any value at all at that time in Israelite culture?  Offspring of proven sheep guarding dogs would have some value to other shepherds. A much later Talmudic passage, Bechoroth 57a, suggests that a good sheep dog might have the value of a lamb (equating ten sheep with the value of nine sheep and one dog). 

Job 30:1 makes the earliest certain reference to sheep dogs in the Bible: “But now I am laughed to scorn by men of a younger generation, men whose fathers I would have disdained to put with the dogs who kept my flock (אֲשֶׁר-מָאַסְתִּי אֲבוֹתָם לָשִׁית, עִם-כַּלְבֵי צֹאנִי).”  Later traditions supposed that flocks were large and the number of sheep dogs was sufficient to guard the flocks.  Genesis Rabbah (73.11) says that Jacob had sixty myriads of sheep and either one or two dogs for each flock, suggesting that a wise shepherd would have many sheep dogs. Livestock guarding dogs could be expected to fight and fend off large cats, wolves, hyenas, and other threats. BT Bechoroth 55a says a shepherd's dog comes when it is called, indicating that by Talmudic times there was a certain amount of what would now be called obedience training.

Cylinder Seal found near Baghdad (Frankfort 1955)
Seal impressions from the Near East sometimes depicted sheep dogs. Henri Frankfort described a seal found northeast of Baghdad in Iraq, perhaps dating from the Akkadian period, as showing a lion “driven off in the nick of time by a herdsman with a spear, while his dog has growlingly retired before the formidable robber.”  Although the dog is in the background above the goats, it appears not to be retreating but rather advancing directly towards the lion, which has turned its head but not its body towards the goatherd.  It is this author’s opinion that the dog has distracted the lion enough for the goatherd to be able to put the spear into the lion’s back.

Sheep dogs might have occasionally served as pack animals.  Leviticus Rabbah (Parashah 13:2) refers to a man who took his ass to the threshing floor where he loaded the ass with five seahs of grain and his dog with two.

Guard and War Dogs

Dogs could serve as guards of a camp or city, as is implied by Isaiah 56:10: "His watchmen are blind: they are all ignorant, they are all dumb dogs, they cannot bark; sleeping, lying down, loving to slumber."  Such dogs might have been pariahs living in and around cities or camps that would earn occasional scraps by sounding the alarm when strangers or predators approached. 

Dogs on Hittite Battlefield  or Sacrifice After (Frankfort 1939)
Psalms 68:23 refers to dogs on the field after a battle ("That your foot may be dipped in the blood of your enemies, and the tongue of your dogs in the same"), similar to many references in the Iliad of Homer.  Dogs are almost never indicated in battle scenes on cylinder seals or other art, though a Hittite seal shown described by Frankfort depicts dogs at a battle or sacrifice, perhaps being held until they can be loosed on dying and dead enemies. 

There is no evidence that Israelites used war dogs, but they would have been familiar with their use by some of their enemies.  While captives in Babylon, they would have seen the massive Molossians like those from the palace of Ashurbanipal displayed in the British Museum. A similar dog was depicted on a panel excavated from a Nabatean site at Hetra, a people with whom the Israelites sometimes engaged in battle.      

Hunting Dogs

References to hunters in Genesis (Nimrod, Esau) do not mention dogs but it cannot be taken as certain that dogs were not used at the time.  Men of rank in Egypt, Babylonian, and other Middle Eastern cultures were often depicted alone, facing a lion or other formidable game with only bow and arrow, when it can be said with certainty that such encounters almost never occurred without the support of many other people, also armed, and almost always dogs to make first contact and considerably reduce the loss of human life.

Leopard Hunt on Sidon Sarcophagus (Bey & Reinach 1892)
Nets are mentioned a number of times in the Bible (e.g., Micah 7:2).  Dogs were used in hunting birds into nets across the Middle East, and were particularly effective with large birds such as ostriches.  (See Septuagint Proverbia 7:22, adding a reference to the use of a dog that is not found in the Hebrew Proverbs).  Lions and leopards were hunted both as game and to reduce the predator population near human habitation, and the Testaments of the Twelve Patriarchs (Testament of Judah 4:2) describes a leopard in Hebron leaping upon a dog, which could have been a dog protecting a flock or a hunting dog. The “Great Sarcophagus,” one of several found at Sidon that include hunting scenes, dating from the mid-fourth century BC, includes a panel of an attack by a leopard. (Bey & Reinach 1892)

Scenes from Beit Jibrin Tombs (Peters & Thiersch, 1905)
In 1902, John Peters and Hermann Thiersch, an American and a German, went into recently discovered burial caves at Beit Jibrin, southwest of Jerusalem. The caves dated from the second century BC in an area controlled by the Ptolemies during the period the tombs were constructed.  Of particular interest for canine history are two wall paintings, one showing a hunting scene and one showing a three-headed Kerberos.  There were also depictions of animals that were hunted or captured, possibly for use in staged hunts in arenas in places like Antioch.

The bottom painting in the montage from Beit Jibrin shows a hunter on horseback just before throwing a lance at an already wounded she-leopard. Beneath the horse runs a hound, while another dog seizes the leopard from behind. All the dogs have collars. Above the leopard’s head is the Greek word for leopard, ΠΑΡΔΑΛΟC. The faces on the tombs were scratched out by the local inhabitants of the area at the time of discovery, where the Sheikh of Beit Jibrin declared that they were haram, forbidden by Islamic law.  The names of some inscriptions from the later period of usage of the caves appear to have been of Jews or Idumaeans (e.g., Kosnatanos, Babas, Sariah), and Semitic names for months were found in the tombs.  It seems likely that the Ptolemaic overlords of the area brought their hunting passions with them, and it is certain that these hunts would have been seen by, and likely an annoyance to, local Jewish shepherds and other inhabitants. 

Companion Animals

The Book of Tobit, an apocryphal work, provides the earliest evidence that dogs could be companions:

(6.1) The boy and the angel left the house together, and the dog came out with him and accompanied them.
(11.2,4) When they reached Caserin close to Ninevah ... The dog went with the angel and Tobias, following at their heels.

The Interpreter's Dictionary of the Bible says that the likely composition date of Tobit is between 200 and 170 BCE, and that it was probably composed in Syria or Mesopotamia, though an Alexandrian origin has been suggested.  It has also been speculated that the dog may represent the spirit of a dead man, and that this may indicate Magian influence in the story.  Nevertheless, it appears that by the Hellenistic period dogs could live in houses and be seen as companions, though the degree to which this would have been true in Israel is uncertain.

Dog under Low Couch (Roman period; photo by author)
In the Gospel of Matthew (15: 26-7), Jesus says, "It is not right to take the children's bread and throw it to the dogs," to which a woman replies, "True, sir, and yet the dogs eat the scraps that fall from their master's table." Jesus may have been quoting a proverb, but regardless of its meaning (most commentators think that it is a debate as to whether Jesus should give his message to the Gentiles), the passage indicates that by the first century CE dogs were sufficiently common in dining areas that a reference to their picking up scraps dropping from a table would have been easily understood.  The passage also appears in the Gospel of Mark (7:27-8).  Only in the latter are the dogs said to be under the table, which further suggests that they may be pets. 

A passage in the Mishnah, Baba Kamma 5.3, says that "if a man brought his ox into the courtyard of a householder without permission and the householder's ox gored it or the householder's dog bit it, the householder is not culpable." This is a legal principle with practical meaning in an agricultural society, but it also tells us that dogs could be found in courtyards. It does not, however, tell us whether they were sheep dogs, guard dogs, or pets. That injury would occur suggests they were large. The same book (7.7) says that "a man may not rear a dog unless it is kept bound by a chain." This also means that, in the agricultural society in which the Mishnah was written, dogs were owned and cared for, but society even then expected them to be leashed, at least when in an entrance area to a house.  This may suggest that some of the animals were pets. 

Another book in the Mishnah, Nedarim (4.3) says that the meat of unclean cattle could be fed to dogs. Chullin (4.7) says that if a beast that had not before borne young cast an afterbirth, it may be thrown to the dogs. Although the Jerusalem temple had been destroyed and replaced by a pagan temple by the time of composition of the Mishnah, the ritual purity of food was still maintained. It also means that meat was considered appropriate food for dogs. Even meat sacrificed on a pagan altar could be given to them. (BT Pesachim 29a, Bechorot 15a.) The prohibition of giving meat sacrificed on the altar of the Jerusalem temple may explain the original context of a passage in the Gospel of Matthew (7:6): "Do not give dogs what is holy.”

Even priests may have owned dogs. Tosefta Kelim Baba Qama 1:6 says, concerning the sanctity of the area between the temple hall and the altar: “Are you ashamed to admit that the High Priest’s dog is more privileged than you?”  The Talmud, BT Pesahim 32a, says that if a “priest wishes, he can place [unclean terumah] before his dog or burn it under his pot.” BT Moed Katan 17a refers to a dog eating a rabbi’s shoes, which would seem most likely to be a transgression of a house dog. 

The Talmud provides many rules and observations concerning dogs. Although they may not eat sacred foods and sacrifices, they may eat semi-leaven on Passover (Pesachim 43a). Dogs bark to protect their owners and a neighborhood (Pesachim 113b). Dogs pretend to be asleep in order to steal food (Genesis Rabbah 36.7).  There were superstitions about when dogs bark. When dogs howl, the angel of death has come to town; when they frolic, Elijah the prophet has come to town (Baba Kamma 60b) (a belief shared by Arabs, Thousand and One Nights, 2:56). A widow should not raise dogs lest she be suspected of immorality (Abodah Zarah 22b; Baba Metzia 71a). It is forbidden to castrate a dog (Chagigah 14b). A dog knows its owner but a cat does not (Horayot 13a), which may perhaps be an early draft of a saying one hears even now:  "Dogs have masters, cats have staff."

Pariahs

Feral dogs congregated around areas where garbage was disposed of throughout the ancient world, and still do so in many cultures.  Exodus 22:31states: “You shall not eat any meat that is mangled by beasts in the field; you shall throw it to the dogs.”  This probably refers to pariahs, but does not exclude the possibility that dogs with guarding functions could be permitted to eat the flesh of carrion killed by beasts, particularly when resources were short.  

Leaving the bodies of criminals to dogs was a particularly contemptible fate for someone despised by society. 1 Kings 14:11 says: “Anyone belonging to Jeroboam who dies in the city, the dogs shall eat; and anyone who dies in the open country, the birds of the air shall eat.” Ahab was to be food for dogs in 1 Kings 21:19 and Jezebel in 1 Kings 21:23 and 2 Kings 9:10 and 9:36-7 (the latter emphasizing that she will no longer be recognizable after the dogs are through with her).   The prediction of Ahab’s body being left to dogs comes about in 1 Kings 22:38, which states: “They washed the chariot by the pool of Samaria; the dogs licked up his blood, and the prostitutes washed themselves in it….”  Licking blood at the pool of Samaria became favored imagery, and there may have been places where pariahs could be expected to congregate after executions.  Josephus recounts that one of Herod’s spies was uncovered by his enemy, pulled to pieces, and given to the dogs.  Reasons for executing and throwing a body to dogs appear in rabbinic discussions. (See BT Hullin 116a; Kiddushin 57b, 58a; Makkoth 23a; Pesahim 118a.) 

It has already been mentioned that pariahs could have been expected to bark at the approach of strangers or enemies.  During the revolt against Rome, Josephus recounts (BJ III.7.14) that one of the ways he tried to supply Jotopata when it was under siege was to have messengers creep past the Roman sentries at a neglected gully wearing sheepskins so that they might look for food. The messengers were to wear sheepskins so that if seen they might be mistaken for dogs. This means that dogs could be expected to be near the walls of a city under siege, but there is no implication that they were there for a military purpose, certainly not a defensive purpose or the dogs would have been brought in to avoid their barking and alerting the Roman sentries to the messengers.

Josephus also says (BJ IV.5.2) that when the Idumaeans cast corpses from Jerusalem, the naked victims might become the food of dogs and wild beasts. In the final stage of the war, Josephus tells of valleys filled with the dead, and mentions (BJ V.12.4; VI.7.2) dogs tearing bodies. Such descriptions are not confined to the war in which Josephus took part as he mentions dogs feeding on bodies in the war against the Philistines (Antiquities VI.9.4, VIII.11.1, IX.6.4).

Dogs in Syrian Village (Rice 1910)
Dogs in the region are still sheep dogs and scavengers. The picture printed by Edwin Wilbur Rice, taken about 1910 in Syria, shows dogs assembling for some anticipated treat. Rice does not further specify the location, but they are likely the pariah dogs of some city or village. Rudoph and Rudolphina Menzel, writing in the 1940s, noted that Bedouins would sometimes adopt pariahs and teach them to become herd dogs, and it is likely that some fluidity existed between feral and useful populations of dogs over the course of Near Eastern history.  The similarity of the Canaan Dog to the pariah has long been observed, and the treatment of this dog as a breed is a modern effort to isolate certain characteristics that was not part of earlier cultures (as has been true of sheep dogs and other sets of breeds beginning in the 19th century). 

Medicinal Value of Dogs

The Gospel of Luke (16.20) describes dogs licking the sores of Lazarus. Rice observed that the poor of Syria "who are afflicted with sores, expose them purposely to the dogs to be licked, trusting their saliva will help to cure them." Such a primitive medical practice could occur, however, without any religious significance.

In describing the area around the Dead Sea, Josephus mentions a medicinal plant called baaras that grows there, which is pulled from the ground with the help of a dog, which dies from the procedure. Most commentators believe the plant was the mandrake of later traditions. (Samuel S. Kottek, Medicine and Hygiene in the Works of Flavius Josephus, 1994) Josephus may have introduced the story of the use of a dog to extract the magical plant to western culture. Since dogs will not automatically die merely by being tethered to a root, it is possible that the account of Josephus contains a confused memory to a dog sacrifice by strangulation, perhaps even a local adaptation of a sacrifice to the goddess Gula. (Tallay Ornan, “The Goddess Gula and Her Dog,” Israel Museum Studies in Archaeology (2004))

Conclusion

Dogs were used in guarding flocks, particularly sheep, certainly by the pre-exilic period, and were quite likely used in the semi-nomadic period before final settlement. Dogs were an integral part of hunting technology throughout the Middle East, and this function can be demonstrated in Israelite territory from the Persian period onward. Earlier references to hunting lions and catching game with nets are quite likely to have involved the use of dogs, particularly since this would have reduced loss of human life and because use of nets without dogs would have often been a hopeless enterprise.  

Pariahs may have been the original city guard dogs, notifying the inhabitants of the arrival of threatening strangers.  Pariahs were also useful in disposing of bodies not deemed worthy of burial, and leaving a body to the dogs became a particular form of contempt. There may have been places, like the pool of Samaria, where this was regularly done.  Functions in healing were part of the ritual significance of dogs in Babylon and Persia, and aspects of these beliefs may have been known to Jerusalemites.  Dogs were pets across the Middle East, though this position in society requires a certain level of wealth if dogs are to receive food from masters.  By the late Hellenistic period, small dogs in houses could be assumed to be well known, and even some Jerusalem priests and rabbis owned dogs.

Does Therapy Work Stress Dogs? Should Therapy Dogs Be Allowed to Work Off Leash?

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The benefits of therapy dogs for various types of populations, including hospital patients, students, children learning to read, nursing home residents, and others, have been well documented, but how this work affects the dogs themselves has been less studied.  Having made therapy dog visits with Chloe for over six years, I have known a number of teams that have stopped because the handler concluded a therapy dog was burning out.  One handler told me that she took her boxer out of service because the dog had an expression that she had not seen before when a child picked up a fold from the dog’s back.  “He was not happy.  I could not risk that it might go further.” 

Concern for stress in therapy dogs was expressed by James Serpell, Raymond Coppinger, and Aubrey Fine in 1999, and various research teams have been looking to identify and measure stress in dogs doing therapy work, with some studies being largely anecdotal, some behavioral, and some looking for chemical markers that might indicate whether therapy dog work is stressful, and when it is too stressful for the dogs.  Although levels of oxytocin and insulin have been studied in the search for chemical profiles of stress, the studies discussed here were particularly focused on measuring levels of cortisol.  These studies often included measurement of specific behaviors and generally—though not consistently—found that therapy dogs did not have higher cortisol levels while they were doing therapy dog work or had recently completed therapy assignments. 

Cortisol is a steroid hormone secreted naturally in response to numerous mental and physical stimuli, some but not all of which are negative and stressful.  Cortisol rises in response to sexual stimuli and activities such as hunting and guarding.  Also, since dogs have long been valued for waking a village at night at the approach of intruders, it is possible that being approached and petted by strangers, as happens in therapy work, may produce some discomfort and raise cortisol.  Short-term effects of elevated cortisol are useful in allowing an animal to regulate bodily responses to situations requiring energy and focus, but prolonged high levels can lead to stress-related diseases and have negative effects on an animal’s health.  (Glenk et al., 2014)  Therefore, research has begun to focus on a combination of behavioral indications and high cortisol levels to establish that a dog is under stress. 

Research Issues

A number of questions have been posed by the research teams involved in this work, which are listed here with pithy summaries of the answers reported so far.  After this summary of issues, I will attempt some additional elaboration on some important studies.
  1. Are cortisol levels higher while therapy dogs are working than when they are at home or in other environments?  Some studies say yes, but an increasing number have found no significant difference during or after therapy work.  It is not clear that a reconciliation of inconsistent results is yet possible or wise, but I will hazard some thoughts on why the disparate results may have been reached. 
  2. Do the length and frequency of therapy dog work sessions affect cortisol levels?  Most studies looked at dogs doing nearly identical regimens of therapy work, though there may be indications that particularly long and frequent assignments lead to elevated cortisol levels.
  3. Does providing breaks to therapy dogs during work sessions avoid cortisol levels elevating during work days?  A study that was designed to answer this specific question found that the breaks made no significant difference in cortisol levels between a group of dogs that got breaks and a control group that did not. 
  4. Does working on leash increase cortisol levels for therapy dogs as opposed to working off leash?A recent study found that working on leash resulted in higher cortisol levels. I will discuss policy implications. 
  5. Are dogs stressed when working with specific target populations?  There is some evidence that working with children under age 12 is stressful for dogs, but other groups, such as nursing home residents, Alzheimer’s patients, and drug addicts do not seem to increase canine cortisol levels.
  6. Does positive reinforcement as a training approach reduce stress in subsequent therapy work by dogs?  A number of studies emphasize the use of positive reinforcement in training dogs for therapy work, but this has not been isolated as a factor in identifying which dogs will be more stressed by the work.  Because of ethical considerations, I doubt that it will be. 
  7. Are particular canine behavioral patterns correlated with higher cortisol levels?  Since some studies did not find higher cortisol levels from therapy work by dogs, correlations could not be provided between behavioral patterns and higher cortisol levels.  Nevertheless, a number of research teams have proposed lists of behaviors that should be recorded when seeking to verify that higher cortisol levels indicate stress rather than arousal from some other stimulus.  A standard list of such behaviors should be developed so that studies from various research groups can be correlated.
Before looking at individual studies, it is appropriate to provide a summary of their approaches and most important results, which is attempted in the following table.  The lead authors and dates of publication are listed in the first row, followed by summary characteristics of the teams, their training, the facilities where they work and what therapeutic functions they have.  Because one paper in particular raises the question of whether use of a leash may be a significant stress factor, a row is provided for what information is available from each study in this respect.  Finally, a summary of the behavioral and cortisol results is provided. 

Figure 1. Characteristics of Dogs, Training, Facilities, Activities, and Results of Cortisol Studies

Paper
Haubenhofer & Kirchengast, 2006
Piva et al., 2008
King et al., 2011
Glenk et al., 2013
Ng et al, 2014
Glenk et al., 2014
Number of dogs/teams
18
1
27 selected (data from 21)
21
15, but one team eliminated because of atypical results
5 dogs 3-10 years old
M/F
15 (4 spayed)/3
(1 neutered)
1 female intact (sometimes in heat)
14/13
7/14 (all spayed)
8/6, all fixed or spayed
3 (2 fixed)/2 (1 spayed)
Certification/training
Teams members of Tiere als Therapie
Basic obedience commands
Certified by Therapy Dogs, Inc. (Cheyenne)
Austrian AAI organization, certified dogs had ≥ 1 year experience in mental healthcare facilities
Vet Pets, Therapy Dogs International, AAA sessions, averaging visits from an 1 to 10/ month
Certified in Italy for AAI work, all with ≥ 2 years working experience; all trained with positive reinforce-ment and averaging ≥ 1 visit/ month
Facility/ population
Various facilities (hospitals, rehabilitation centers, retirement homes, schools)
Alzheimer’s patients
Edward Hospital, Naperville, Ill., most patients 41-60 years old, but some children
8-10 patients
Students in common area of U. Penn. Dormitory, 30 to 56 individuals in same room during study breaks
Drug-addicted inpatients
Activities
Dogs participate in “all types of work in AAA and AAT,” ranging from 1 to 8 hours (!)
20-minute AAA sessions
2-hour shifts, involving petting, hugging, watching the dog (AAT)
50-60 minute AAI sessions (~AAT)
Highly structured petting, scratching interactions in 60 minute sessions
Multi-professional animal assisted intervention (similar to AAT); sessions 55-60 minutes
Frequency
Variable number of sessions, sampling over 3 months
3-4 times/week
2 sessions/ week
1 time weekly for 8 weeks
Two 2-week periods during March & April 2012
1/week with 8-10 participants (and 1 dog and 2 therapists)
Use of leash
Not described
Allowed to roam free
Certifying organization requires use of leash, so presumably applied here
For experiments, 7 certified dogs were on leash and 7 were off; dogs in training were on leash
Off leash at home, on leash in novel and AAA environments, but could be attached to collar, harness, or head collar
Off leash
Reward
Not described
Praise, allowed to be free in garden and chase lizards
2-minute quiet-play time-out session (found not to significantly alter cortisol levels)
Praise, food treats
Treats prohibited during AAA sessions
Food treats (cheese) were sometimes given, but sometimes only allowed to be smelled to stimulate salivation
Behavioral stress indications
Not described, though authors recommend several days of rest after each session
Frequency of emotional and behavioral responses and calming signals and body language noted by staff
Stress behaviors such as air licking, yawning, panting, pupillary dilation, and whining were observed more frequently in dogs identified as having higher cortisol levels
No behavioral observations in published article
Ethogram (see next table); only behavioral difference noted was dogs standing more in AAA setting than novel or home; but more in novel than home
No differences in activities on the ethogram were found during working sessions; lip licking and other behaviors also did not indicate stress
Cortisol results
Salivary cortisol levels significantly higher on days dogs worked; higher in short sessions; generally higher at end of session; higher in morning than afternoon; cortisol levels increased with number of sessions/week
Fecal and hair cortisol measured supported “positive adaptation to the new environment and role of the dog”
10 dogs showed significant signs of stress, but 11 were either neutral or negative to stress levels of cortisol; experienced dogs were less likely to show stress levels of cortisol
No significant increases in salivary cortisol levels in any of the groups compared to baseline and home levels; positive interactions, quiet play, and affiliate behaviors were linked to reduced cortisol levels; dogs on lead showed high cortisol levels than dogs off lead
Cortisol measure in home, administrative office (novel), and dorm (AAA) environments; no significant difference between home and AAA environments
Salivary cortisol levels indicate dogs were not acutely stressed, but significant decreases were only found in experienced therapy dogs working off leash.

Undoubtedly more studies will be released in the coming months and years, but the following will provide a picture of some of the more dramatic results reported so far.  

2006 Study Finding Elevated Cortisol Levels in Dogs after Therapy Work

Two researchers from the Institute of Anthropology at the University of Vienna, Dorit Karla Haubenhofer and Sylvia Kirchengast (2006), studied salivary cortisol levels in 18 therapy dogs, 15 females (4 spayed) and 3 males (1 neutered).  All dogs were members of an Austrian therapy animal organization, Tiere als Therapie.  The working methods of the dogs were apparently variable as a “therapeutic session was defined as one visit to a facility and included all types of work in AAA and AAT.”  Sessions ranged from one to eight hours, though longer sessions apparently involved many breaks.

The number of sessions in which teams participated in the three-month period during which measurements were taken ranged from 9 to 50, so a team that had 50 sessions could have been averaging visits almost every other day.  The authors found that cortisol concentrations were significantly higher on days that the dogs did therapy work than on other days.  Cortisol levels after sessions were generally significantly higher than those taken before sessions began.  Also, this was more pronounced in the morning than the afternoon, and was higher in short sessions than in long ones.  The number of sessions per week was an important factor:

“Another variable related to physiological arousal was the number of therapeutic sessions done each week, with cortisol concentrations increasing significantly with the number of sessions. This suggests that several days of rest after each therapeutic session might prevent extreme arousal, which could lead to signs of chronic stress.”

Although cortisol levels were higher in short sessions than long sessions, it seems that the intensity of the work for some of the participants was very high, and eight hours in a therapeutic environment is not something I have personally encountered at any institution or facility.  The general nature of the description of the sessions, “all types of work in AAA and AAT,” makes speculation as to how these results may be correlated with others difficult.

The Time-Out Study

Two researchers from the Biology Department of Northeastern Illinois University and one from the Chicago Zoological Society, King et al. (2011), looked at both behavioral factors and cortisol levels in dogs working in animal-assisted therapies (AATs).  A specific purpose of the study was to determine whether therapy dogs allowed to have a quiet-play, time-out session during a working shift would “show fewer signs of stress both physiologically and behaviorally.”  A quiet-play, time-out session was described as consisting “of 2 minutes of visiting with the handler, allowing the dog to chew on a toy, petting and talking to the dog, or providing mental stimulation in the form of obedience commands.”

A total of 27 therapy dog teams were recruited, with 14 female and 13 male dogs, but 6 dogs were dropped from statistical sampling for various reasons.  Handlers had scheduled two-hour shifts at the Edward Hospital in Naperville, Illinois.  They note that this environment often involved “gathered crowds of people, or alarms on hospital equipment.”  Dogs were certified through TDI, which apparently here means Therapy Dogs, Inc. of Cheyenne, Wyoming (i.e., not Therapy Dogs International). 

Participating handlers filled out a survey providing information concerning the dog’s behavior during sessions and “the age of the patient the therapy dog visited, and the type of interaction between the patient and the AAT dog.”  Most patients visited by the dogs were between 41 and 60 years old.  Most engaged the dogs by petting, but some by hugging or just watching the dog.  A researcher also observed the dog’s behavior at the AAT office in the hospital after each work shift, recording, in particular, “panting, air-licking, tremor, pupillary dilation, or yawning 3 times.”

As to the question of how a quiet-time session would affect cortisol levels, the researchers found no significant difference between dogs that had such sessions and those that did not.  Some handlers did report “an initial hesitation in the dog when they returned to work after the time-out session.”  They also found that “AAT-hander survey reports were consistent with physiological indicators of stress,” though “cortisol levels decreased in several dogs at the end of their work shift, whether they had the ‘quiet-play’ time-out session or not.” 

This and the previous study are frequently cited as examples of results indicating that therapy work can be stressful in dogs.  Although I have encountered handlers who take their dogs for shifts as long as two hours, I have always restricted visits with Chloe to about one hour.  This was not initially my own limitation but because I sensed that Chloe’s interest in visiting more people in hospitals and nursing homes declined after about an hour.  Again, I wonder if the length of the sessions was a factor in producing stress. 

Shelter Dog in Alzheimer’s Facility

An early study that did not find unusual cortisol levels in a dog at an Alzheimer’s facility was somewhat different from other studies discussed here because the dog was not brought to the facility by a handler, but was “rehomed” to live in the facility after being at a shelter. (There has been some legal recognition of such resident companion animals in the United States.  See Service and Therapy Dogs in American Society, at 104.)  The research team, composed of veterinarians from the University of Bologna, Piva et al. (2008), chose Daisy, a six-year-old intact female English setter, from a group of eight candidates for the project.  Daisy was chosen because she was kind and cooperative when handled by strangers, interested in people, lacked aggression, was not excitable, had a stable and tolerant temperament, and acquired and carried out simple obedience commands easily.  The commands included Sit, Come, Wait, Sit on the Chair, and Down. 

Daisy (courtesy Dr. Elisabetta Piva)
Daisy was gradually introduced to the facility,initially by weekly visits, first with employees, then with patients. Meetings were held in a large room where she had the opportunity to escape.  Finally, she was allowed to explore the entire facility and randomly meet patients and employees.  Once in residence, Daily began to have 20-minute AAA sessions three to four times a week with four Alzheimer’s patients chosen by the staff psychologist. 

“These sessions include activities such as calling the dog from varied distances with vocal commands or gestures, brushing, playing, walking, feeding, and using hand signals to practice obedience exercises, depending on the patient involved.”  After sessions, Daisy was allowed to unwind and praised for relaxing.  She was also offered the chance to be free in the garden where she could hunt lizards.

Cortisol levels were measured:

“Fecal cortisol levels were evaluated in samples collected from every spontaneous defecation during the gradual introduction phase starting 2 days before to 2 days after each visit, and 2 days before to 7 days after adoption. An increase in fecal cortisol concentration indicates an activation of the adrenocortex in response to stressful conditions….”

The researches argued that their “findings suggest that despite small changes in the environment (more human patients in the facility) and in daily routines (fewer walks outside during AAA because of the hot and sometimes stormy summer weather that was considered dangerous for elderly people), the dog was healthy and her level of social interaction, exploration, and playfulness increased during the course of the AAA program. The dog displayed no aggressive or sexual behavior, even when in heat.  Autogrooming detected previously decreased in frequency and an acral lick granuloma that she had had gradually disappeared. Over-grooming, shown frequently by Daisy during the first examination in the shelter, was displayed less frequently as time went by in her new social and physical environment.”

The authors concluded:

“Daisy was able to cope with the new environment. The presence of enriched social contacts and the opportunity of increased physical activity positively affected her well-being…. The hormonal trend, especially with hair cortisol, seems to be correlated with the clinical and behavioral findings, all supporting a positive adaptation to the new environment and role of the dog…. Although this report refers to a single subject, Daisy, the results of our work represent an encouraging basis for further studies on a wider scale. Our dog, besides her ability to adequately carry out AAA sessions, showed progressive benefits (re-homing, increased activity and social interaction, decreased signals of stress), as definitively assessed by statistical analysis.” 

Although not highlighted in the results, Daisy was frequently off leash, which may be significant in light of a study to be discussed below.  The results also suggest that Alzheimer’s patients are not inherently stressful subjects for a therapy dog to work with.  

Leash Study

Six researchers from a number of institutions in Austria, Glenk et al. (2013), sought to measure changes in salivary cortisol levels of dogs participating in animal-assisted interventions (AAIs, essentially AAT sessions), collecting samples on working and non-working days of 21 dogs.  The researchers concluded that both therapy dogs and therapy dogs in training were not stressed by their participation in the activities. They did detect, however, that cortisol levels were significantly different depending on whether the dogs were working on- or off-lead in the sessions.  The paper argues that the effect of a leash on cortisol levels of therapy dogs may have been underestimated.  Beerda et al. (1998) had previously demonstrated that pulling dogs on a lead cased increases in cortisol when the dogs were confronted with sudden noises or electroshocks. 

Teams were recruited from an Austrian AAI organization whose members regularly work in dog-assisted group therapy.  All handlers were women who also took part in the therapy sessions.  An experimenter also attended the sessions for sampling procedures, with the approval of staff members of the facility where the sessions occurred.  Seven dogs were males and 14 were females, ranging from 1.5 to 14 years. Nine of the females were spayed, but the other females were not in estrus or pregnant during the experiments. 

To become a certified therapy dog team, “dogs and owners undergo special training, during which animal handlers can decide whether they want to work with their dog on- or off-lead.”  This is not typical in the United States. The rules of the organization to which Chloe and I belong provide: “Dogs must be kept on leash at all times when visiting, except when warranted (during a demonstration).”  There was another significant difference from my experience.  Among interaction behaviors recorded during the study were food treats being given to the dogs.  My organization's rules state that the “use of food or treats is prohibited while visiting (exception—during a demonstration, the handler can treat the dog).”

There were three groups used for the study, one group of dogs trained to work on lead (CTD-ON, in the acronym used in the paper), and another group off lead (CTD-OFF).  Dogs used for the study “had a minimum of one year working experience in mental healthcare facilities.”  The third group consisted of dogs that were in training (TDT-ON), whose owners had not yet decided whether to work on- or off-lead, but which were on lead for the experiments.  There were seven dogs in each group. The existence of such a training stage indicates a higher level of training than is often found for therapy-dog qualification in many countries. 

Sessions lasted 50 to 60 minutes and were described as follows:

“All therapy sessions consisted of theory parts, interpersonal communication and interaction parts with the therapy dog. Each therapy programme started with a group of ten adult patients and was run weekly for eight weeks with the same individuals (animal handler, therapy dog and patients) present. There was no patient turnover during these eight weeks. AAI programmes were supervised by each institution’s staff members and participation depended on the respective physical or psychological condition of the patients. In the experimental sessions, 8–10 patients were present. The patients were informed previously how to interact in an appropriate way with the therapy dog before the dog was first introduced to the group.  During therapy, the patients were seated in chairs and instructed by the animal handlers when and how to interact with the dog (ie stand up, call, touch, grab or pull the dog’s lead).”

Certified dogs participated in the sessions while dogs in training watched and did not interact with the working dog.  Dogs were trained and handled by “positive reinforcement and gentle handling.”  Salivary cortisol was measured at home, before and after AAI sessions, and on non-working days.  Saliva samples were also collected during some therapy group sessions. 

“[O]ur study results reveal that performance in group-AAIs in adult mental healthcare did not stimulate significant increases in salivary cortisol stress responses in CTD-ON, CTD-OFF or TDT-ON when working cortisol levels were compared to baseline levels and home levels. These are important findings, considering that in dogs, an elevation in cortisol has been associated with stressful conditions resulting from fear….  On the other hand, positive interaction with humans, quiet play and affiliate behaviours were linked to reduced cortisol levels in dogs….”

Cortisol Levels Before and During Sessions (courtesy Dr. Lisa Glenk)
The graphic from the paper shows that before therapy (Time 1a) dogs in the three categories, two with leashes (but one in training) had fairly similar cortisol levels, but during therapy (Time 1b), they separated substantially, with dogs off leash having lower cortisol levels then dogs on leash. Dogs in training, with leashes, had the highest levels. As noted above, Beerda et al. (1998) had determined that being pulled on a lead caused stress in dogs and increased cortisol levels, so these results were not surprising. 

The longer sessions lasted, the more cortisol levels may have declined in CTD-ON dogs, but more research will be needed to verify this.  The team notes that there may be some differences between handlers that prefer to work with dogs on lead and those that do not, meaning perhaps that more controlling handlers might add some stress to the therapy situation.  On the other hand, “animal handlers with therapy dogs on the lead should be aware of subtle signals of discomfort in their dogs when they interact with patients and react accordingly.”  My own experience over six years of therapy dog work confirms this.  I have no choice but to work on leash, but more than a few times I have felt that a patient or other individual in a therapy dog visit was discomforting Chloe in some way, perhaps slapping rather than petting, or smothering her, and I have had to extract her from the setting as tactfully as possible. 

As to why Hubenhofer and Kirchengast (2006) and King et al. (2011), both discussed above, reached different conclusions, this paper speculates:

“[I]t is likely that the AAIs investigated by the different authors are not directly comparable because of their different conceptual context (eg therapy content, single patient versus group interventions, familiar versus unfamiliar patients), environment (eg therapy facility such as hospital, prison, geriatrics) and arrangement (eg frequency, intensity and duration of human-animal contact, dog on/off the lead, refuge for the dog).”

This is an important observation.  With the limited number of cortisol and cortisol/behavior studies of therapy dogs conducted so far, more patterns regarding the effects of different types of institutions and different types of programs may come to light. 

Substance Abuse Facility

The same Austrian team published another paper in 2014, looking at behavior and cortisol levels in therapy dogs that participated in sessions at an in-patient substance abuse treatment facility, measuring cortisol levels before and after sessions.  Levels of the chemical decreased in all sessions.  “There was no difference between salivary cortisol levels sampled on a nonworking day at home and work-related levels sampled at the therapy site. None of the behavioral parameters varied significantly over the course of the 5 MTI [multiprofessional animal-assisted intervention] sessions.”  MTI, according to the authors, “meets all require criteria to be considered AAT … and is carried out by 2 human experts with a back ground in psychology, pedagogy, life science, and/or social science….” The paper elaborates:

“Mediated by the MTI professionals, patients used signals to communicate with the dog. These signals were verbal or nonverbal cues including different hand signs, eye contact, mimics, words, and tone of voice. The main goal of MTI is to enhance patients’ emotional and social competence through implicit learning during interaction with a therapy dog…. Accordingly, the participants had been instructed how to interact in an appropriate way with the therapy dog before the dog was introduced to the group. Human-animal contact was initiated by the freely moving dog, which was kept off lead. Human-animal interaction behaviors moreover included verbal contact, where people talked to the dog or spoke in a high-pitched/fluctuating voice to praise the dog. Tactile contact included softly touching, stroking, and/or grooming the dog. To play with the dog, people used dog toys and/or gently gestured with hand, arms, and fingers. For ethical reasons, dogs were never forced into positions and were able to lie down, drink water, or leave the therapy room at any time.”

The researchers concluded that therapy dogs “are not being stressed by repeated participation in in-patient substance abuse therapy sessions.”  They argue that therapy dog handlers need more guidance:

“The development of a practitioner’s guide on dog welfare for AAI professionals and, maybe even more importantly, AAI volunteers shall be a forthcoming endeavor. AAI volunteers are often very dedicated to their work, but they also need to be well aware of subtle signs of discomfort in their dogs. Future research still needs to identify the populations or situations where contact with therapy animals may be potentially problematic or inappropriate for either the animals or the people involved….”

This also is an important observation.  As additional research establishes what sorts of conditions might produce stress in dogs, handlers should receive additional instruction in how to recognize stress.  At the moment, most qualification examinations in the U.S. that I have encountered through my own experience or that of others primarily involves testing the dog’s ability to follow the handler’s commands, not whether the handler can read signals given by the dog. 

Ethogram Study

Four researchers at the Virginia-Maryland Regional College of Veterinary Medicine and two from the vet school at the University of Pennsylvania, Ng et al. (2014), sought to quantify the stress effects on therapy dogs from engaging in animal-assisted activities (AAAs). This team sought to determine how stress levels would differ for therapy dogs in three environments: their homes, a novel setting, which was an administrative area in Penn’s vet school, and AAA sessions with college students in the communal area of a residence hall. 

Dogs were either part of the University of Pennsylvania’s therapy dog program (Vet Pets) or dogs registered with Therapy Dogs International.  All participating dogs were fixed or spayed, seven females and eight males.  Five had been certified for only one year, but one had been certified for six years and one for eight.Some averaged only one therapy dog visit per month, but one averaged between seven and ten days per month.  Session lengths from the experience of the handlers could be as low as half an hour and as high as two hours.  Of 15 dogs, only two had male handlers. 

Saliva was collected after the handler and dog had been in each of the three settings for an hour.  The researchers state that the “goal of the novel setting was to allow the dog to act as it typically would with its owner when waiting in an unfamiliar environment for 60 min without stranger interaction.” Sometimes two of the teams were in the administrative location simultaneously, though dogs were limited to interacting only with their own handlers in the location. 

The AAA sessions were with undergraduates in a communal space of Rodin College House, a Penn dorm.  The room was often used by students for study breaks and there were between 30 and 56 individuals present in the room during the sessions.  The researchers elaborate:

“The room was 9.1 m × 9.1 m, with tables and chairs arranged to evenly spread and demarcate eight, 2.1 m × 2.1 m spaces for each dog-handler team to remain during the session. The dog remained in close proximity to the handler on a1.83-m leash attached to a collar, harness, or head collar that the dog was accustomed to wearing at AAA visits. A maximum of eight dogs used separate spaces of the room simultaneously, but dogs were restricted from interacting with one another.”

The AAA sessions were highly structured with interactions and saliva collection kept in specific sequences:

“Participants were instructed to approach the dog from the side, to extend a hand to allow the dog to sniff, and to pet gently. Participants were instructed to avoid the following: aggressive gestures, making loud noises, leaning over the dog, giving treats, and crowding around the dog. Assigned “petters” were assigned to pet specific dogs during the 5-min petting time … but participants were permitted to interact with any of the dogs outside of that time….

“Each petter was instructed to sit on the floor to the side of the dog opposite the handler, where the petter did not obstruct the video camera view of the dog. In all settings, each petter was instructed to sit next to, rather than facing, the dog and gently stroke, pat, massage, and/or scratch the dog anywhere on the body with at least one hand remaining on the dog at all times. The dog was to be allowed to position itself and behave as it wanted during the 5-min petting procedure, as long as it remained within the assigned space within view of the video camera (accomplished via leash).”

Saliva was collected every half hour as prior research by Vincent and Mitchell (1992), and Handlin et al. (2011) had found significant changes in cortisol levels 15 to 30 minutes after stress events. 

The study also involved looking at behavioral changes in the three distinct environments.  Sessions were videotaped and behavioral patterns of the dogs, particularly while being petted, were analyzed.  An ethogram, a list of behaviors divided into postural states, spontaneous events, oral behavior, and alertness was completed by analysts of the tapes. (See Figure 2, below.)  Postural states included sitting, standing, recumbent, ambulating, exploring, and crouching.  Exploring is defined as “moving slowly, sniffing, investigating the environment.”  Crouching is defined as “rapid, pronounced lowering of posture, sometimes in combination with movements that enlarge distance to eliciting stimulus; posture shows lowered position of tail, backward positioning of ears, legs bent.” 

Spontaneous events were subdivided into eight categories: paw lifting, vocalizing (any form), scratching, body shaking, trembling, jumping (“springing into air, either to make contact with an object or person or for no apparent reason”), repetitively moving head (continuously for more than three seconds), and stretching.  Oral behavior could be panting, neutral (mouth closed), mouth opening (“opening, closing mouth with rapid movements without extending tongue; possibly yawning”), lip licking (“includes tongue out: tip of tongue briefly extended; snout licking: part of tongue shown, moved along upper lip; swallowing; smacking”), licking person, licking object, and self-grooming (“oral behaviors directed toward dog’s own body (licking, chewing skin and coat)”).  Alertness was divide into two categories: alert (“eyes kept open”), and rest/sleep (“eyes closed, dog inactive > 10s”).  

The reason for looking at both cortisol levels and behavior is explained as follows in the paper:

“It is important to consider that the same behavior can correspond to different emotional states of the dog. For example, ambulating may be strictly a motor behavior, but it can also be an indicator of restlessness or anxiety, depending on how the behavior is performed and the type of concomitant behaviors present at the time of ambulating. Therefore, it is necessary to assess behavior in conjunction with a physiologic parameter such as cortisol.”

The only behavioral differences noted had to do with postural states.  As to behavior, dogs stood significantly more of the time in the residence hall than the other settings, but more in the administrative area than at home.  They also spent more time ambulating in the residence hall, but very little in the administrative area and almost none at home.  Recumbent time was highest at home, which is no surprise, but at 60 minutes was higher in the residence hall than in the administrative offices, while at 90 minutes was higher in the administrative offices than in the residence hall.  The researchers speculated that in the administrative offices, the environment was unfamiliar and the dogs “were hyper vigilant to disturbances outside the room.” 

The researchers conclude:

“The 60-min AAA for college students in a dormitory setting did not appear to cause significant HPA activation or increases in stress-associated behaviors in registered AAA dogs….  No physiologic or behavioral indicators of stress, fatigue, or exhaustion were present during the AAA, suggesting that this particular AAA with college students did not negatively impact the welfare of these dogs. Furthermore, salivary cortisol was higher in the novel setting, which may be explained by the unpredictable nature of the setting.”

They speculate that “dogs were likely not stressed during the AAA because it was a familiar and predictable situation.”  In the novel setting, the administrative offices, the dogs may have been slightly stressed by an inability to predict what would happen next.  Although the dogs were not in direct contact with the veterinary hospital, the researchers note that they “could have detected subtle cues of a veterinary hospital environment.  Therefore, the physical environment alone, especially a veterinary hospital setting, may be physiologically stimulating, irrespective of the activity performed.” 

As discussed, this study did not look at dogs in AAT settings, just AAA settings.  The researchers note that “there is no single validated model to test the effect of AAA or AAT because they vary greatly in intensity of interaction, duration, objectives, and demographics of recipients.”  Thus, an AAT session, which “typically involves a continuous interaction with a single or small group of individuals,” might be more stressful for dogs. 

The researchers argue that their study describes “a rigorous method of assessing welfare in AAA dogs that can be applied in larger populations of working dogs.”  This proposition should be considered by other research teams entering this area.  Consistency of research designs will help determine whether and when dogs are being stressed by therapy work. 

Summary

Variations in the studies as to the numbers of teams, the training and certification approaches, the types of facilities visited, what activities were conducted inside those facilities, and the length and frequency of visits and sessions, means that comparing studies so far published cannot assure solid conclusions.  American and European studies differ in that the former generally involved dogs working on leashes, without food treats, whereas European studies sometimes involved dogs moving freely in therapeutic settings and receiving food treats from handlers and sometimes others.  Attempts to specify behavioral indicators of stress have had limited success, and correlations with cortisol levels have proved elusive. 

Arguments, such as that made by Ng et al., that a uniform grading system for behavioral measurements would be desirable, should be adopted, perhaps after some major conference on stress and trained dogs.  The behavioral measures suggested by four of the major studies discussed here are listed in Figure 2. 

Figure 2. Behavioral Measures in Cortisol Studies

Piva et al. (2008)
King et al. (2011)
Ng et al. (2014)
Glenk et al. (2014)
Nose and lip licking
Sit or curl up
Lie down, also with head
Yawning
Closing eyes
Rapid eye movement
Hypervigilance
Walking, pacing
Circling
Low posture
Freezing
Stereotypes
Displacement activity
Redirect activity
Apathy
Panting
Pupillary dilation
Yawning
Whining
Air licking
Postural state:
Sitting
Standing
Recumbent
Ambulating
Exploring
Crouching

Spontaneous event:
Paw lifting
Vocalizing
Scratching
Body shaking
Trembling
Jumping
Repetitively moving head
Stretching

Oral behavior:
Panting
Neutral (mouth closed)
Mouth opening
Lip licking
Licking person
Licking object
Self-grooming

Alertness:
Alert
Rest/asleep
Activity:
Lay
Sit
Stand
Walk
Run

Behavior:
Lip licking
Yawning
Panting
Paw lifting
Body shake
Tail wagging

Response to human action:
Takes a treat
Obeys command

Arguably, a set of behaviors and a recording system should  be used for stress studies of dogs doing not only therapy work but also service, police, rescue work, etc. 

Conclusion

The standard U.S. requirement that dogs be on lead during therapy visits does not come solely from certifying organizations or the mandates of their insurance providers.  Recently, a hospital I have visited with Chloe went through a national accreditation process where one dog, which was regularly turned loose in the psychiatric ward, was banned from the hospital because the accrediting organization stated that therapy dogs visiting the hospital had to be on a leash at all times.  This is also required by some insurance policies for hospitals.  Nevertheless, therapy dog organizations should give further consideration to whether working with therapy dogs off leash might be appropriate in certain confined spaces and structured activities, and if necessary, engage other stakeholders in therapy dog work in discussions on this issue.  It might be appropriate for certifying organizations to consider advanced certifications for dogs that are capable of working off leash under voice command of the handler. Progress in this area might require the major therapy dog organizations to cooperate with each other. 

As discussed, most target populations caused and most research designs found no evident stress in dogs from therapy work.  Nevertheless, Marinelli et al. (2009b) found that the age of individuals involved in animal-related activities and therapies “influenced the expression of stress-related behaviors” in dogs in that more such behaviors were evident when dogs were with children under 12 years of age.  This has been my experience as well.  When Chloe turned six I stopped going to a facility for developmentally disabled children because one teacher who had often accompanied me on visits to the classrooms left and too many other teachers regarded my entry into the room as time to attend to other matters.  The children often overwhelmed Chloe.  As she has gotten older, I have become more concerned with experiences that I sense, without any chemical or scientific behavioral analysis, may be stressful for her. 

These studies do not negate the importance of the handler knowing his or her dog and sensing when it is time to go home or to stop working.  Even the most sophisticated behavioral analysis, with video cameras and behavioral patterns categorized down to seconds if not microseconds, cannot replace the instincts of a good handler.  Nor can handlers be automatons created complete and unchanging after passing a certifying examination.  My work with Chloe has evolved over many years, and I have grown to trust my sense of how she can be most effective, and what will be most helpful to a patient, resident, student, or other person we are visiting when she is working.  She looks at me when she wants me to realize that it is time to move on, or that the patient has had enough.  She has also grown into the work.  Any long-term handler with an experienced therapy dog will say much the same. 

Stress research is a promising area and all those involved or interested in therapy dog work, whether as handlers, trainers, certifying organizations, recipient institutions, or policy makers, should be paying attention as more results come in. 

Sources:

Beerda, B., Schilder, M.B.H., van Hooff, J.A.R.A.M., de Vries, H.W., and Mol, J.A. (1998). Behavioural, Saliva Cortisol and Heart Rate Responses to Different Types of Stimuli in Dogs.  Applied Animal Behaviour Science, 58, 365-381.

Ferrara, M., Natoli, E., and Fantini, C. (2004). Dog Welfare During Animal Assisted Activities and Animal Assisted Therapy.  Tenth International Conference of the IAHAIO. Glasgow, Scotland (finding dogs did not show stressed behavior from AAT and AAA sessions).

Glenk, L.M., Kothgassner, O.D., Stetina, B.U., Palme, R., Kepplinger, B., and Baran, H. (2013). Therapy Dogs’ Salivary Cortisol Levels May Vary During Animal-Assisted Interventions. Animal Welfare, 22, 369–378.

Glenk, L.M., Kothgassner, O.D., Stetina, B.U., Palme, R., Kepplinger, B., and Baran, H. (2014). Salivary Cortisol and Behavior in Therapy Dogs During Animal-Assisted Interventions: A Pilot Study.  Journal of Veterinary Behavior: Clinical Applications and Research, 9(3), 98-106

Handlin, L., Hydbring-Sandberg, E., Nilsson, A., Ejdeb, ck.M., Jansson, A.U., and s-Moberg, K. (2011). Short-Term Interaction between Dogs and their Owners: Effects on Oxytocin, Cortisol, Insulin and Heart Rate: An Exploratory Study.  Anthrozoos Multidisciplinary Journal. People and Animals, 24, 301–315.

Haubenhofer, D.K., and Kirchengast, S. (2006). Physiological  Arousal for Companion Dogs Working with Their Owners in Animal-Assisted Activities and Animal-Assisted Therapy.  Journal of Applied Animal Welfare Science, 9, 165-172.

King, C., Watters, J., and Mungre, S. (2011). Effect of a Time-out Session with Working Animal-Assisted Therapy Dogs.  Journal of Veterinary Behavior: Clinical Applications and Research, 6, 232–238.

Marinelli, L., Mongillo, P. Salvadoretti, M., Normando S., and Bono, G. (2009a). Welfare Assessment of Dogs Involved in Animal Assisted Activities. Journal of Veterinary Behavior: Clinical Applications and Research, 4, 84-85. (Salivary cortisol levels and behavioral indications of acute stress were not elevated in therapy dogs visiting a retirement home over a period of seven weeks.)

Marinelli, L., Normando, S., Siliprandi, C., Salvadoretti, M., and Mongillo, P. (2009b). Dog Assisted Interventions in a Specialized Centre and Potential Concerns for Animal Welfare.  Veterinary Research Communications, 33 (Supplement 1), S93-S95.

Ng., Z.Y., Pierce, B.J., Otto, C.M, Buechner-Maxwell, V.A., Siracusa, C., and Were, S.R. (2014). The Effect of Dog-Human Interaction on Cortisol and Behavior in Registered Animal-Assisted Activity Dogs.  Applied Animal Behaviour Science, 159, 69-81

Odendaal, J., and Meintjes, R.A. (2003). Neurophysiological Correlates of Affiliative Behavior Between Humans and Dogs.  The Veterinary Journal, 165, 296-301.

Piva, E., Liverani, V., Accorsi, P.A., Sarli, G., and Gandini, G. (2008).  Welfare in a Shelter Dog Rehomed with Alzheimer Patients.  Journal of Veterinary Behavior, 3, 87-94

Serpell, J.A., Coppinter, R., Fine, A.H., and Peralta, J.M. (1999).  Welfare Considerations in Therapy and Assistance Animals: An Ethical Comment.  Chapter 18 in Handbook on Animal-Assisted Therapy” Theoretical Foundations and Guidelines for Practice. New York: Academic Press, 415-431. (The chapter has appeared in two subsequent editions of this book.)  

Vincent, I.C., and Michell, A.R. (1992). Comparison of  Cortisol Concentrations in Saliva and Plasma of Dogs. Research in Veterinary Science, 53, 342–345.
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