Lowell Friday v. Animal Humane Society



FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

Lowell Friday v. Animal Humane Society
Court File No.: 02-CV-11-7750
Issued January 6, 2012 by the Honorable Jenny Walker Jasper

The above-captioned matter came on before the Honorable Jenny Walker Jasper, Anoka County District court, on December 5, 2011, on Plaintiff's request for a hearing regarding the seizure of a horse known as Special Effects under Minn. Stat.  343.325, Subd. 3(b). Plaintiff appeared personally and was represented by Marshall Tanick, Mansfield, Tanick and Cohen, P.A., 1700 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, Minnesota, 55402. The Humane Society was represented by Katherine Bloomquist, 100 East 2nd Street, Suite 200, Chaska, MN 55318.


At the conclusion of the contested hearing, Plaintiff's attorney requested that the record remain open and that he be given a continuance to secure the services of a veterinarian to examine Special Effects. At the time the request was made, no previous effort had been made by Plaintiff to contact or retain the services of a veterinarian to examine the horse. Special Effects was seized by the Humane Society on November 16, 2011 and Plaintiff requested a hearing on November 21, 2011. Pursuant to Minn. Stat.  343.235, Subd. 3(b), a hearing on the seizure was to be held within ten days of the date Plaintiff requested a hearing. The hearing in this matter was held on December 5, 2011, outside of the ten day time limit, at the request of Plaintiff's attorney, who sent a letter to this Court waiving the time limits. Plaintiff had nearly three weeks to retain the services of a veterinarian before the hearing but failed to do so. Therefore, Plaintiff's request to keep the record open and continue the matter was denied.


FINDINGS OF FACT


1.  On November 16, 2011, the Animal Humane Society executed a search warrant at property located at 18215 Greenbrook Drive, in the City of East Bethel, Anoka County, which is owned by Plaintiff, Lowell Friday. The Humane Society secured the warrant with the assistance of the Anoka County Sheriff's Office in order to investigate the welfare of horses owned by Plaintiff after the Humane Society recieved complaints that the health of several of Plaintiff's horses had deteriorated since Humane Agent, Keith Streff, had last been at the property.[1]



  2.  As required by Minn. Stat. 343.22, Subd. 2, Dr. Nicole Eller Medina, a veterinarian, was present during the execution of the search warrant and examined 28 horses owned by Plaintiff.  Dr. Eller Medina graduated from the University of Minnesota's College of Veterinary Medicine in 1999, she provides veterinary care to the Minnesota Hoofed Animal Rescue Foundation as well as a horse endurance club and is a member of the Arabian Horse Endurance Rider's Association.  In addition to Dr. Eller Medina's professional credentials, she has experience riding and raising thoroughbred horses.



  3. Dr. Eller Medina was asked to examine the horses owned by Plaintiff and to assign to each horse a Body Conditioning Score, hereinafter "BCS."  According to Exhibit 16, BCS is a "classification system used to determine relative fatness or body condition of horses."  Using the BCS, "(h)orses are ranked on a scale of 1 to 9, with 1 being poor and 9 being extremely fat.  Horses should be maintained at condition scores of 5-7 for optimum health and performance."



  4. Dr. Eller Medina rated 7 out of Plaintiff's 28 horses as having a BCS of less than [5].



  5. A body score of 3 indicates a thin horse.  Dr. Eller Medina opined that a horse with a BCS of 3 or less is subject to seizure.  In order to determine the BCS for these horses, Dr. Eller Medina visually examined each horse and physically examined all horses but one through palpitation.  Dr. Eller Medina scored four horses as a 1 and scored three horses as a 2.



  6. The 7 horses that had a BCS of 1 or 2 were sized by the Humane Society with the assistance of the Anoka County Sheriff's Office and taken to the Veterinary Hospital at the University of Minnesota.  Six of the horses were loaded into trailers without issue.  One horse, a two year old filly named Crystal, who was given a BCS of 1, was extremely hard to load into the horse trailer and collapsed multiple times prior to loading.  At the scene, Crystal was found to have a grade 3 heart murmur due to malnutrition and dehydration.  Dr. Eller Medina gave Crystal a rescue steroid that gave the horse the strength to get back on its feet and was eventually loaded into the horse trailer.  Prior to injecting the steroid, Dr. Eller Medina and agents from the Humane Society discussed the possibility that Crystal would have to be euthanized at the scene.



  7. Plaintiff was provided with a notice of his right to a hearing under Minn. Stat.  Section 342.235, Subd. 3.  Plaintiff voluntarily relinquished ownership to 6 out of the 7 horses.  Plaintiff requested a hearing on the seizure of the horse Special Effects.



  8. According to Minn. Stat.  Section 343.235, Subd. 3(c), this Court may authorize the return of the horse if findings are made that: 1) the animal seized is physically fit; and 2) that the person claiming an interest in the horse can and will provide the care required by law for the animal.



  9. Plaintiff asserts that Special Effects is physically fit and that he can provide for the proper care of the animal.  I[n] support of Plaintiff's claim he called three witnesses who essentially all testified that Plaintiff's horses are properly fed and in good condition.  Andrea Wenz, one of Plaintiff's witnesses testified the horse seizure was a "witch hunt," and was "about seizing Plaintiff's land."  However, when shown a picture of Special Effects on cross-examination Ms. Wenz said she was not familiar with the horse and described Special Effects as very thin.



  10. Plaintiff's witnesses were his friends and a neighbor.  None of these witnesses have veterinary training and their testimony that Plaintiff's horses are all well cared for and property fed was not credible in light of: 1) the condition of the seven horses seized; 2) the testimony of the two veterinarians who examined Special Effects; 3) Special Effects' discharge instructions from the University of Minnesota Veterinary Center; and 4) the photograph of Special Effects provided to this Court at trial and received into evidence as Exhibit 2; and 5) the fact that one horse was so malnourished and dehydrated that it was almost euthanized at Mr. Friday's farm at the time of seizure.



  11. Lowell Friday testified in support of his request to have Special Effects returned.  Mr. Friday appears to believe Special Effects was seized by the Humane Society because the Humane Society wants to breed Special Effects.  Mr. Friday testified that his horses are properly fed, that he has 29 tons of grain, 500 pounds of concentrate, 11,000 bales of hay as well [as] bales of straw.  Mr. Friday also indicated he has an appropriate water supply for the horses.



  12. Conversely, Dr. Eller Medina observed the feed that was located on Mr. Friday's farm and testified that the available hay was of poor quality and garbage was visible in the bales.  Dr. Eller Medina also observed one available water source which she found to be half-full, dark and full of debris.  The doctor testified that this type of water source was "o.k. in a pinch," but that a horse may not drink it or may not drink enough to stay hydrated.



  13. Dr. Eller Medina also observed the feeding process used on Plaintiff's property, which involved tossing the feed into the paddock with the horses.  She explained that the feeding process itself may explain the emaciation of some horses while others remained healthy; the more dominant and aggressive horses get the feed while the less aggressive, less dominant horses do not.  Dr. Eller Medina indicated that prior to feeding time herds of horses as large as Plaintiff's must be separated into groups based on aggressiveness and fed separately.



  14. Mr. Friday disputed that Special Effect[s'] BCS is a 2 as scored by Dr. Eller Medina.  Mr. Friday claimed that in August of 2011, another veterinarian who checked the horses approximately three to four times per year scored Special Effects as a 5.  Mr. Friday's counsel did not call this veterinarian as a witness in this proceeding.  Mr. Friday also claimed that Special Effects is a performance horse and naturally a lighter weight horse than other types.  Mr. Friday testified that Special Effects is a thoroughbred and bred for endurance, which requires that the horse carry less weight.



  15. Dr. Eller Medina gave Special Effects a BCS of 2.  Dr. Eller Medina noted that Special Effects['] age, which is 15 according to Mr. Friday, would not account for the horse['s] weight loss.  Dr. Eller Medina scored Special Effects a 2 based on her extreme thinness, vertical and horizontal aspects of the spine, having no fat stores on the neck, no muscle on the scapula and prominent hooks and pins.  The doctor's testimony was persuasive and credible.



  16. Dr. Eller Medina credibly rebutted Mr. Friday's claim that Special Effects is thinner than other breeds of horses because she is a thoroughbred who is specifically bred for endurance.  Dr. Eller Medina is an endurance racer who has bred and treated thoroughbred horses.  While thoroughbred horses in race condition will have a "shadow of ribs" they have muscle between the ribs.  While their withers will be more prominent they have "substantial hind quarters."  Finally, overall the horses have muscle mass.  Based on Dr. Eller Medina's testimony Mr. Friday['s] assertion that Special Effects is thin because she is an endurance horse was not credible.



  17. Special Effects was also evaluated at the University of Minnesota's Veterinary Center immediately after she was seized.  Special Effects was diagnosed with a heart murmur upon admission.  Dr. Christie Ward, who is an equine veterinarian and faculty member at the U of M, treated Special Effects.  Dr. Ward indicated that heart murmurs among the horse population are extremely rare and usually due to malnutrition and dehydration.  Special Effects['] heart murmur resolved by the time she left the U of M, after 5 days of treatment, leading Dr. Ward to conclude that Special Effects['] heart murmur was due to malnutrition.



  18. Upon admission to the U of M, Special Effects was given a BCS of 2.  According to the physical exam (Exhibit 40),



"(h)er spinous processes, ribs, tailhead, tuber coxae and pelvic bones were prominent.  The bone structure of her withers, shoulders and neck were prominent with no fatty tissue able to be felt.  She had a grade II/IV left-sided systolic murmur. . . her skin was dry and flaky with a severe infestation of lice. . . All four hooves were over-grown and cracked.  She weighed 930 pounds."



Testing also revealed a moderate parasite burden.  Dr. Ward explained that this parasitic burden was not sever enough to affect the horse's weight, but would cause her to have less energy.



  19. The veterinarian at the U of M who completed Special Effects['] assessment concluded that she presented with emaciation as a result of malnutrition.



  20. Based on the assessment, Special Effects was gradually reintroduced to nutritious feed.  When provided with nutritious feed, staff observed that Special Effects ate well and that her heart murmur resolved.  Special Effects was discharged after five days during which time she gained twelve pounds.  Based on the treatment and exam at the U of M, factors that can lead to a horse to be under-weight, such as the age of the horse, dental problems or a high parasitic burden, were not present.  Thus, Special Effects had a BCS of 2 because she was malnourished.



  21. Dr. Ward testified that the picture of Special Effects received as Exhibit 2 that was taken upon her admittance into the veterinary hospital was not demonstrative of the condition the horse was in when she was admitted.  Rather, the doctor indicated this photograph makes Special Effects appear healthier than she actually appeared in person.



  22. Dr. Ward also opined that no medical problems were diagnosed that would explain Special Effects['] BCS of 2.  According to Dr. Ward, the sole basis for Special Effects['] appearance was malnutrition.  This opinion is supported by the fact that examination revealed no problems and the fact that the horse gained 12 pounds in five days when given food.



  23. Dr. Ward testified that Special Effects should have a BCS of 5 and that it will take approximately 18 to 24 weeks to attain this score if Special Effects is properly fed and cared for.



  24. Dr. Ward opined that Special Effects was not physically fit when she was seized.  Dr. Ward also opined that Special Effects will require special care to become physically fit.  The horse needs continued treatment for parasites and must be fed good quality alfalfa.  Dr. Ward described Special Effects as a horse that needs "TLC."  Upon discharge from the U of M, Special Effects was fostered at a farm with a heated barn.  The doctor explained this was necessary so that no energy stores were depleted to keep the horse warm thus leaving all nutrients available to [the] horse to put weight on.



  25. Mr. Friday does not have the ability to provide appropriate care and feeding for Special Effects.  Mr. Friday had control over Special Effects['] care during the period of time her health deteriorated and it was under his care that she became malnourished, in[f]ested with lice and did not receive appropriate care for horses, such as hoof care and parasite testing or medication.  Additionally, Mr. Friday refuses to admit that this horse is underweight and malnourished, instead claiming that her weight is appropriate.



  26. Even if Mr. Friday accepted the fact that Special Effects is malnourished, he has not demonstrated that he has the ability to properly care for her.  Mr. Friday's horse feed is substandard and he certainly does not have the high quality alfalfa that Special Effects will need to be fed for the next 18 to 24 weeks to reach a property BCS.  Mr. Friday testified that he spends less than $200 per year per horse for feed.  Additionally, Mr. Friday's method of feeding his horses, simply throwing feed into an enclosure with a large number of horses, will not ensure that Special Effects receives the appropriate amount of food necessary for her to become physically fit.



CONCLUSIONS OF LAW



1. Special Effects is not physically fit.



  2. Plaintiff, Lowell Friday, cannot provide the care required by law for Special Effects.



ORDER



1. The Animal Humane Society is hereby given full control and custody of Special Effects and shall determine the appropriate placement for the animal.



  2. Plaintiff shall pay for all costs associated with the seizure, care and transport of Special Effects to the veterinary hospital and subsequent foster care placement.







[1] In August of 2011 Agent Streff removed ten horses from Plaintiff's property.