Legal Issues

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Nature endures the folly of man

Off Leash Dog Walking

While the vast majority of Edmands Park users reserve their right to off-leash status under ‘article XXIV of Mass. Constitution‘ and ex post facto law standard, walking the canine companion off-leash, does come with it the risk of receiving a $50 citation for not complying with the Newton leash ordinance. Unfortunately this is the cost in the protection of the rights of the general public/park users.

Newton’s Parks & Recreation Department continues its’ advocacy of a cash cow off-leash program which, in event of serious canine incident, exposes the City to tort action under Mass. General Law ch 258A, and, by herding unsuspecting members of the public into a flawed program causes limitation in civil tort recourse.  Although the city gains substantial profit at $50./head,  the OL permit holder does not gain any liability indemnification benefit i.e. the city’s off-leash permit application states: ‘ that you agree to forever release, acquit, discharge and covenant to hold harmless the City of Newton from any and all claims and rights of action or damages as a result of participation in this program‘. –  Keep in mind that all the sanctioned OL areas are premised on a shared use concept potentially visited by vulnerable members of the public: toddlers, children, seniors, or special consideration individuals.  These folks, with or without canines, are placed in willful wanton harm by government (attractive nuisance doctrine) should a canine related incident occur.  State law requires access to public land by all, and accordingly the segregation of these public park lands is not just outright exclusionary but bolsters an impermissible tax.   This is troubling that the executive administration of our city would comport such an oversight especially in light of the recent State Supreme Court case in which the city is a defendant (Marcus case).

Here’s how:

The Recreational Use Statute affords the City indemnification from liability provided that such use of the land does not incur a fee.  Since the City’s off-leash program collects a $50. per dog fee for use of the OLA (off-leash area) which is publicly held land, the City has greater risk in violating afforded RUS indemnification which subsequently affects the City’s self-insurance program.  This results in a hidden tax costing taxpayers more by non-disclosure settlement agreements.  Unfortunately Newton politics being what it is, will not respond to needed change until after serious incident occurs. (See Marcus v. Newton Civil Suit ). In it, the State Supreme Judicial Court has pointed out a municipality’s responsibility for land ownership is not to be undermined by pressing budgetary demands.

The original intent of the 1973 ‘Leash Law‘  required the leashing of canines on public lands.  However well-meaning the ordinance was, the publics’ perception morphed into a discourteous assumption that leashed canines were allowed on all public land (with few exception).  An unintended cultural consequence created the basis for the formation of a strong bonding amongst the fellowship of dog owners, some of whom care more significantly about their canine needs than those of their fellow species.  The idea then of a dog running at-large off-leash on designated public land did not enter the conversation or public policy.  This whole time, generations of Edmands’ park-users had been politely free ranging their beloved dogs for the aerobic exercise of ‘taking the dog for a walk’.  This wilderness activity morphed into a cultural paradigm of the ‘dog taking the human for the walk’.  This behavior phenomenon does not need legislative sanctioning for that which occurs deep in the woods beyond the realistic reach of law enforcement.  Recognizing law enforcement’s constrained financial resource, the ability to control & prevent citywide off-leash scofflaws appears to be an exercise of taxpayer waste.  The off-leash area program sanctioning experiment in many designated OL sites has become an attraction for disobedient canines with handlers many of whom lack common sense, courtesy, or civil responsibility.

On or Off-leash dog walking is a natural human behavior, dependent not of government sanction, regulation, enforcement, or taxation.  For government to legislate morality in an attempt to change human behavior historically results in failure and undermines the integrity of the vested public trust (see the 18th & 21st Amendments to the US Constitution – prohibition).

That leads to the sustainability of publicly held land question: is human nature part of nature?  For it seems not.  As mankind evolves, the respect for the conscious inter-relationship of land & nature becomes secondary.  Certain well-intentioned individuals with a propensity to push canine rights above fellow human rights to peace, privacy, and sanctity of spirit continue to deny what is unmistakably the unique Edmands’ experience.

Please help us to retain the ‘status-quo’ policy as we for generations have found to work.

for friends of Edmands‘    Harry Sanders

comments to:  617-390-3454 c