Exotic Newcastle Disease (END) and the Mass Killing of Birds Petition

Memorandum of Points and Authorities

I. Introduction and Statement of Facts

A. Southern California Pet Owners Are Being Unnecessarily, Illegally And
Unconstitutionally Abused By the Members Of The Task Force.

B. Cockfighting And Lax Industry Biosecurity Are The Two Primary Causes
Of The End Crisis, Not Private Pet Birds.

1. Cockfighting Spreads END, Not Pet Birds In Backyards or Cages.

2. Lax Poultry Industry Biosecurity Allows the Transmission and Spread of END.

3. While Pet Owners are being Reimbursed at Bargain Basement Prices, the
True Culprits are Laughing all the way to the Bank

II. The Emergency Services Act Authorizes the Government to suspend any
State Laws and Regulations but not the State Constitution, United States Constitution
or the Bill of Rights

III Constitutional Abuses are not Excused by the Emergency Services Act

IV Despite Emergency Powers, The State Is Required To Be Reasonable
And Proper Under The Circumstances.

V. While The Emergency May Subvert Normal Statutes And Regulations, The
Task Force Is Required To Strictly Follow Its Own Protocols And Procedures.

VI. The Activities Of The Task Force Are Sufficiently And Repeatedly
Unconstitutional So As To Require Court Supervision.

VII Immunity From Liability Is Limited.

VII. Request For Injunctive Relief

VIII. Request For Hearing

Vertification
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3-13

WILLIAM H. DAILEY, SB#125141
Attorney at Law
8749 Holloway Drive
West Hollywood, CA 90069
(310) 652-1462

Attorney for Petitioners,
CHERYLYNN COSTNER, HILLARY CHICKEN MEMORIAL FUND, RANDY WALKER, TERESA MARQUEZ, SHAREEN MORRIS, JOE MORRIS, JEAN MALONEY, EILLEN WATSON, JANIS RIDGEWAY DAMIANI, STEVE BELLANGER, APOLINAR SANCHEZ, CINDY MARIE GEDDES, IRIS L. ROZIER, MICHAEL FRAZER COWAN, WHOLESALE FEEDS AND SADDLERY, and ASSOCIATION OF VETERINARIANS FOR ANIMAL RIGHTS.

CHERYLYNN COSTNER, HILLARY CHICKEN MEMORIAL FUND, RANDY WALKER; TERESA MARQUEZ, SHAREEN MORRIS, JOE MORRIS, JEAN MALONEY, JANIS RIDGEWAY DAMIANI, EILEEN WATSON, STEVE BELLANGER, APOLINAR SANCHEZ, CINDY MARIE GEDDES, IRIS L. ROZIER, MICHAEL FRAZER COWAN,WHOLESALE FEED AND SADDLERY, ASSOCIATION OF VETERINARIANS FOR ANIMAL RIGHTS,

Petitioners,

v.

STATE OF CALIFORNIA, DEPARTMENT OF FOOD AND AGRICULTURE, GOVERNOR GRAY DAVIS, EXOTIC NEWCASTLE DISEASE TASK FORCE and Does 1-10, inclusive,

Respondents.

CASE NO. BS O81649

FIRST AMENDED PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES AND REQUEST FOR INJUNCTIVE RELIEF AND HEARING

HEARING DATE: None set.Department 85

Petitioner CHERYLYNN COSTNER is a citizen in the state of California, who owns, loves and cares for her families’ domesticated and exotic birds. Ms. Costner is the founder of the Hillary Chicken Memorial Fund, Love Birds Educational Resources, and the Church of the Avian Ark of which she is an ordained minister known as Rev. Avina Costner.

Petitioner HILLARY CHICKEN MEMORIAL FUND, a not for profit organization in Beverly Hills, California dedicated to the safe relocation of unwanted or abandoned domesticated and exotic birds.

Petitioner RANDY WALKER is a citizen in the state of California who has fought the Task Force in an effort to preserve his right to own, love and care for his family’s numerous domesticated and exotic birds.

Petitioner TERESA MARQUEZ is a citizen in the state of California who owns, loves and cares for her deceased fathers’ domesticated birds, which have been threatened with a impromptu kill order. Only her mother’s refusal to cooperate kept the disease free birds alive.

Petitioner SHAREEN MORRIS is a citizen with a heart medical condition in the state of California, co-owner of 14 endangered species Hawaiian Nene geese (federal endangered species permit PRT-838191, filed with Department of interior US Fish and Wildlife Services; California Fish and Game 2003 Domesticated Game Breeder class one license No. 701056-02) and previous co-owner of 468 of birds now dead because of the Task Force’s surprise invasion and massacre of her birds on the morning of December 31, 2002 and one bird killed on January 3, 2003.

Petitioner JOE MORRIS is a disabled citizen in the state of California and co-owner of 14 endangered species Hawaiian Nene geese, and previous co-owner of hundreds of birds now dead because of the Task Force’s surprise invasion and massacre of his birds on the morning of December 31, 2002.

Petitioner JEAN MALONEY is a citizen in the state of California and previous co-owner of five domesticated birds who are now dead because of the Task Force’s surprise invasion and slaughter of the family pets on February 28, 2003.

Petitioner JANIS RIDGEWAY DAMIANI is a citizen in the state of California who owns, loves and cares for her families’ domesticated birds. After notice was improperly served on a neighbor on Saturday, March 15, 2003, Ms. Damiani’s residence was placed under quarantine based purely on location and without any specific medical or scientific basis.

Petitioner EILEEN WATSON is a 78 year old senior citizen in the state of California who owns, loves and finds comfort (lowers her blood pressure) her pet domesticated birds. Ms. Watson suffers from Uncontrollable Hypertension, and the doctors fear that the any major stress would cause a stroke and cost her possibly her own life. Her daughter, Janis Ridgeway Damiani orally pleaded with the Task Force that she did not want her mother to die from shock due to the Task Force’s murder of her family’s pet bird friends.

Sadly, the “Hearing” offered Petitioner Damiani was nothing more than a cruel charade to give an appearance of a hearing when the decision rendered by the Task Force was pre-determined. Kangaroo Court style hearings fail to provide due process and any meaningful access to the courts and Justice for any citizen in the state of California. Therefore, the Task Force intentionally, knowingly and willfully deprived petitioners of their right to due process and equal protection of the law. Petitioners and their healthy pet birds were prevented from attaining Justice against the arbitrary quarantine at the mock hearing held by Mike Cleary, Hearing Officer, Department of Food and Agriculture, Division of Measurement Standards (Notice of Quarantine No. END 30371/NCA 23113, heard March 19, 2003).

Petitioner STEVE BELLANGER is a citizen in the state of California who owns, loves and cares for domesticated birds. Mr. Bellanger wants to protect his racing pigeons.

Petitioner APOLINAR SANCHEZ is a citizen in the state of California, who owns, loves and cares for domesticated birds and who is fighting the Task Force’s stated intention to depopulate his flock of chickens.

Petitioner CINDY MARIE GEDDES is a citizen of the state of California and previously owned, loved and cared for domesticated birds. Ms. Geddes is a single mother who was ordered out of her house at 8:00 PM and terrorized by the Task Force, who blinded her with a police spotlight and refused to identify themselves as if they were the infamous Nazi Gestapo of World War II. Without any form of notice, due process, testing for END or any other evidence of disease, valid search warrant, permission or acceptance of indemnity, and with reckless disregard for Ms. Geddes’ protests of the invasion of her home and pleaded in a desperate attempt to save the lives of her healthy beloved family pet animals/birds, the respondents proceeded to murder her every bird that night. Ms. Geddes and her two children have been forced to endure the mental pain and suffering that has resulted from all of their health beloved family birds having been illegally tortured and murdered at the hands of the Task Force’s death squad.

Petitioner IRIS L. ROZIER is a citizen of the state of California who has previously own, loved and cared for domestic and exotic birds. The Task Force went to her house without notice or probable cause in January to depopulate every bird at her premises. The Task Force managed to kill 8-10 birds before they were made to leave because of the fact that the family birds were all very healthy and thriving, none of the bird had been tested for the virus, and she had not been notified of depopulation by the Task Force. About 2 weeks later in February the Task Force came back and without explanation to date secretly took at least one rare and expensive bird alive, a pure white peacock, and killed the rest of Ms. Rozier’s entire healthy flock without any evidence of the presence of any disease, notice or permission. The Task Force chose to circumvent the family’s demand for due process, scientific fact, fair and adequate notice by depopulating her collection of rare and exotic domesticated pet birds while she was not at home. Ms. Rozier, a 7th Day Adventist, was at worship service at her Church the day the respondents massacred her birds. Some of her peacocks were 22 yeas old and a goose was 20 years old and she loved all of her birds. The mental pain and suffering has been extremely hard on her entire family causing them irreparable harm that they will have to endure for the rest of their lives.

Petitioner MICHAEL FRAZER COWAN is a citizen of the state of California who suffers from cancer and completed his radiation therapy September 5, 2002. On November 15, 2002 the Task Force posted notice of quarantine and notice of intent to test his birds for END within a couple of days. On or about November 17, 2002 the task Force returned and demanded to kill all of the birds on the premises.
Mr. Cowan pleaded that he was in a recovery condition from cancer and under doctors’ care at the UCLA Hospital and that the notice said testing and did not state killing. His birds were an old flock he had started 25 years ago. Many birds were 16, 17, and 18 years old and all birds were completely healthy.
While waiting one Task Force member poked her finger at birds and rabbits to see them jump and scare them. The alleged veterinarians replied that “no, we are not here to test, we are here to kill everything,” quoting RV Jack Morpenson. Mr. Cowan cried as he begged for them not to kill his birds. However he was told that they were the final word and he had no right to seek further evidence or to appeal their decision, and that he had to sign a consent or indemnity form or that they would bring in the Police to assist in gaining his consent.

Terrified, confused and in weak medical condition he signed the form and then for that day and eight other days, the task Force killed his 210 healthy birds and several rabbits who died from fear and stress shock from the repeated gunshots.

Petitioner WHOLESALE FEED AND SADDLERY is a business in the State of California who has been quarantined for over three months and whose business has suffered substantial financial loss. The store is concerned about the birds’ safety at their premises and for their customers who own pet, companion and show birds.

Petitioner ASSOCIATION OF VETERINARIANS FOR ANIMAL RIGHTS is a non-profit foreign corporation operating in the state of California, its mission is to educate the public and the veterinary profession about issues of animal use by human society.

Respondent STATE OF CALIFORNIA has proclaimed a fraudulent state of emergency and irrational poultry eradication program against its citizens’ pets.

Respondent DEPARTMENT OF FOOD AND AGRICULTURE (CDFA) is a department of supervisory duties within the State of California to protect and regulate food safety and preserve public health.

Respondent GOVERNOR GRAY DAVIS is citizen of the state of California elected to be the governor of the State of California and author of proclamation in question filed January 7, 2003.

Respondent EXOTIC NEWCASTLE DISEASE TASK FORCE (Task Force) is group of individuals pulled together to accomplish the goal of the eradication of exotic Newcastle Disease Virus headed by a joint command of the California Department of Food and Agriculture and the United States Department of Agriculture with state and federal participants including but limited to California Highway Patrol, County Sheriffs Departments, City Police Departments, Department of Forestry, Fire Departments, Animal Control Departments, California Conservation Core, the Department of Fish and Game and freelance workers.
Petitioners respectfully request that this Court order the Governor of the State of California Gray Davis, to rescind his January 7, 2003 Proclamation of the Governor of the State of California, and to further order the Governor, State of California, California Department of Food and Agriculture, Exotic Newcastle Disease Task Force and all other federal, state and local governmental agencies providing services to the Exotic Newcastle Disease Task Force to develop additional protocols and procedures that will protect Petitioners from having their personal civil and Constitutional rights violated under the color of legal authority and subsequently having their beloved companion, pet and show birds illegally seized, unnecessarily tortured and inhumanely murdered without cause in fact.

This Petition is based upon the following facts:

1. Without any supportive administrative records, on January 7, 2003 Governor Gray Davis arbitrarily proclaimed a state of emergency to protect the Poultry Industry against an alleged threat of exotic Newcastle Disease Virus (END) in the State, Proclamation of the Governor of the State of California, see exhibit 1.
   
2. Based on the unsupported proclamation of Gov. Davis, the Task Force Co-Command United States Department of Agriculture Secretary Ann M. Veneman filed on January 9, 2003 a Declaration of Extraordinary Emergency because of Exotic Newcastle Disease.
   
3. Prior to the Governor’s emergency proclamation the California Department of Food & Agriculture (CDFA) formed a Task Force to eradicate/depopulate birds to protect the economic interests of the industrial poultry industry. United States Department of Agriculture (USDA) Task Force joined the Task Force upon the emergency status.
   
4. In response to the emergency orders Petitioners Cherylynn Costner and Hillary Chicken Memorial Fund submitted a Public Comment, Exotic Newcastle Disease and the Interests of the People of California to Gov. Gray Davis, Secretary William J. Lyons, Secretary Ann M. Veneman, Mr. Steven Lyle, Mr. Howard McGwire which was received on February 6, 2003.
   
5. On February 6, 2003 Mr. William H. Dailey, attorney for petitioners sent a letter to Gov. Davis, care of the CDFA Legal Department, requesting administrative records for the preparation of a writ of mandate based on the public comment regarding the alleged “state of emergency”.
   
6. On February 7, 2003 Mr. John Dyer, supervising attorney for the respondents, responded to Mr. Dailey’s letter stating that “there is no administrative records as such with a Governor’s Declaration,” see exhibit 2. In addition, Mr. Dyer agreed to meet with Ms. Costner, members of Hillary Chicken Memorial Fund and other animal support groups to discuss our concerns.
   
7. On February 13, 2003 the Humane Society of the United States of Washington D.C. provided the Water Front Room at the Marine Del Rey Hotel in Marine Del Rey for the state and federal representatives to meet with Mr. and Mrs. Costner, Hillary Chicken Memorial Fund, Humane Society of the United States, Fund for Animals, Last Chance for Animals, United Poultry Concerns, Humane Farming Association, Equus Sanctuary, America’s Freedom Foundation, Parrot Society of Los Angeles, Wilshire Animal Hospital, Bird Talk Magazine, The Daily Journal, Press Enterprise and victims from Riverside County, Randy Walker and his family and Mr. and Mrs. Mike and Sue Swallow.
   
8. The alleged emergency is based upon fabricated statistics. No meaningful grounds exist for the depopulation of pet animals a) with the lack of testing; b) unnecessary speed of slaughter; c) failure to consider alternative and non-destructive remedies for sick birds including but not limited to, in-home quarantine and biosecurity, supportive health care and medical treatment and the right to use the personal veterinarian of the bird in question. The poultry industry is the primary financial beneficiary of the emergency order while the general public suffers the loss of their pets. Furthermore, the industry and the government have actually spread END through their own acts and omissions by:
   
   1. Failing to adequately quarantine the primary source of the infection, fighting chickens, including but not limited to securing the border of the United States and Mexico;
      
   2. The poultry industry willfully failed to protect itself and the public through properly vaccinating their birds, protecting the health of their flocks, undertaking adequate bio-security to keep the virus from contaminating their birds and protecting the public from disease spread by commercial chickens;
      
   3. Intentionally failing to prevent the transportation of fighting cocks from place to place for illegal cock fighting events or the sale of said birds to third parties, and;
      
   4. The government agents after eradication of factory farm facilities and private residences have carried the allegedly infected feces of chickens in open trucks thereby spreading contaminated matter and possibly the disease to privately owned pet birds.
      
9. The agricultural departments and the special END Task Force members are systematically concealing and/or ignoring clinical studies regarding vaccines and treatment of END and the results of lab tests for current END crisis/depopulation and in the process depriving California citizens of their most fundamental Constitutional and civil rights.
   
10. The unintentionally chaotic creation of the END Task Force has created the opportunity for any government employee, out-of-state veterinarian and temporary employee to have apparent authority and flaunt the law with impunity under the Emergency Services Act. Thus, many of the Task Force Commanders and subordinates are:
    
    1. committing quasi-terrorist acts by using force, fear, violence or threat of the same to coerce citizens into surrendering their civil and constitutional rights and denying them to the right to have legal counsel and threatening them because they had gotten an attorney;
       
    2. illegally searching properties without search warrants, obtaining illegal search warrants, obtaining search warrants by false and inaccurate statements and without any proof that the property being searched had any infected birds at all, using search warrants that are un-Constitutionally broad in the extreme which is so extensive that they surpass the scope of search warrants in criminal cases for notorious and dangerous criminals;
       
    3. knowingly directly contacting and intimidating individuals represented by counsel,
       
    4. failing to follow proper legal procedure and violating due process and equal protection of the law;
       
    5. violating civil and Constitutional rights of citizens by unnecessarily murdering disease-free pet birds;
       
    6. removing expensive and rare bird(s) during a massacre of healthy pet birds without notifying owner of the bird(s) in what appears to have been an attempt to steal the bird(s) for the personal interests of the Task Force agent(s),
       
    7. violating civil and Constitutional rights of citizens first by failing to get a court order to determine whether or not the birds have been infected and secondly by failing to allowing personal veterinary treatment of infected or sick birds who have been proven to be ill with END;
       
    8. ignoring bio-security protocols and risking the further spread of END;
       
    9. obstruction of justice by withholding and suppression of prima facie lab test evidence and statements of victims of these police state actions and terror tactics;
       
    10. obstructing justice by theft of legal documents;
        
    11. violating Constitutional and statutory provisions for due process by failing to informed or lying to citizens about their rights and privileges;
        
    12. ignoring test results and current veterinary science;
        
    13. improperly threatening citizens with arrest and terror tactics/police state tactics; and
        
    14. generally misusing and abusing their authority and establishing a precedent and a policy that undermines the most fundamental Constitutional protections as well as the founding principals of this nation for which so many Americans have fight and died for in order to uphold.
        
11. There are known treatments or supportive care for non-poultry birds and vaccines for END that make depopulation of even sick birds unnecessary, which are being ignored by the Task Force.
    
12. The Task Force is indisputably committing mass murder of the People’s pets, companions and show birds. Euthanasia is for a bird that is sick or in pain. Murder is for those who are not sick or in pain.
    
13. The Task Force claims that the public eradication program humanely euthanizes the birds when destroyed. However, when a personal veterinarian administer euthanasia it is done through barbiturate injection. The Task Force utilizes carbon dioxide, gun shots, and cervical dislocation, which is only humane if done properly according to the Report of the AVMA Panel of Euthanasia, published March 2001. Other methods used, such as bludgeoning, suffocation and wood chippers are not considered humane death under any circumstance.
    
14. The Task Force pretends that the fatality rate is 90 – 95% in unvaccinated birds. In fact these are not disease related deaths, but rather depopulation statistics. Only 2-5% of all depopulated birds thus far were infected or became sick from the exotic Newcastle Disease Virus,
    
15. The Task Force labels a site as positive because a depopulation crew has murdered all of the birds on the premises. This occurs even when there is no evidence of exotic Newcastle Disease Virus ever being on the premises or having been the cause of any illness.
    
16. USDA veterinarian supervisors on the Task Force depopulation and other crews are not in fact or law California licensed veterinarians, or AVMA Board Certified Avian Veterinarians.
    
17. Petitioner has no plain, speedy, and adequate remedy in the ordinary course of law, other than the relief sought in this petition, in that the emergency order was made effective immediately, without findings and without administrative recourse.
    
18. Petitioners respectfully request injunctive relief from the application of the Proclamation of the Governor of the State of California filed January 7, 2003 and the Declaration of Extraordinary Emergency because of Extraordinary Emergency because of Exotic Newcastle Disease, Docket No. 03-001-01; Federal No. 03-495 filed 1-9-03.

This Petition is based upon this document, the Supplemental Record to be submitted, the Declarations of Petitioners and others, and such record as the Court deems appropriate to review.

Dated: March 24, 2003 ________________________________________