H.R. 5733 would “codify a final rule of the United States Fish and Wildlife Service relating to the designation of critical habitat under the Endangered Species Act.” On October 29, 2021, the U.S. Fish & Wildlife Service proposed to rescind the January 15, 2021 rule after determining that its narrow definition of “habitat” “inappropriately constrains the Service’s ability to designate areas that meet the definition of ‘critical habitat’ under the [Endangered Species] Act.”
Issue 111
This Week's Spotlights
Legislative Updates - Pending Federal Actions
Legislation Would Codify Narrow Definition of Critical Habitat for Endangered Species
Legislative Updates - Passed State Actions
New York Amends Divorce Law to Consider Best Interests of Companion Animals
New York Governor Kathy Hochul signed Senate Bill 4248, which requires courts to consider the best interests of the animal when awarding custody of a companion animal during divorce proceedings. The “best interests” criteria are the same criteria that courts apply to make custody decisions about children.
New York Governor Kathy Hochul signed Senate Bill 4248, which requires courts to consider the best interests of the animal when awarding custody of a companion animal during divorce proceedings. The “best interests” criteria are the same criteria that courts apply to make custody decisions about children.
Case Law Updates - Federal Case Law Updates
9th Circuit Remands “All Natural” Class Action for Preemption Determination
The 9th Circuit has affirmed in part and reversed in part the dismissal of a putative class action that alleges that ConAgra falsely advertised its frozen chicken products as “natural” and “preservative-free” when they in fact contained synthetic ingredients. In its decision the 9th Circuit made clear that, on limited remand, the parties should submit evidence only about whether the USDA’s Food Safety & Inspection Service reviewed and approved ConAgra’s label because plaintiffs’ claims will be entirely pre-empted if FSIS approved the label.
The 9th Circuit has affirmed in part and reversed in part the dismissal of a putative class action that alleges that ConAgra falsely advertised its frozen chicken products as “natural” and “preservative-free” when they in fact contained synthetic ingredients. In its decision the 9th Circuit made clear that, on limited remand, the parties should submit evidence only about whether the USDA’s Food Safety & Inspection Service reviewed and approved ConAgra’s label because plaintiffs’ claims will be entirely pre-empted if FSIS approved the label.
Case Law Updates - State Case Law Updates
YouTube Sued Over Animal Abuse Videos, Not Enforcing Ban
The New York Times reports that the non-profit organization Lady Freethinker has filed a lawsuit in California Superior Court in Santa Clara against YouTube, claiming breach of contract under the company’s user agreement and community guidelines by allowing animal abuse videos to be uploaded and failing to remove them when notified. The Times article also reports that Lady Freethinker sent a letter to the Justice Department the same day the lawsuit was filed, accusing YouTube of aiding and abetting the violation of the federal anti-Animal Crushing law, 18 U.S. Code § 48. The Digest’s attempts to contact Lady Freethinker and the Santa Clara court to obtain a copy of the complaint have been unsuccessful so far.
The New York Times reports that the non-profit organization Lady Freethinker has filed a lawsuit in California Superior Court in Santa Clara against YouTube, claiming breach of contract under the company’s user agreement and community guidelines by allowing animal abuse videos to be uploaded and failing to remove them when notified. The Times article also reports that Lady Freethinker sent a letter to the Justice Department the same day the lawsuit was filed, accusing YouTube of aiding and abetting the violation of the federal anti-Animal Crushing law, 18 U.S. Code § 48. The Digest’s attempts to contact Lady Freethinker and the Santa Clara court to obtain a copy of the complaint have been unsuccessful so far.
Agency Updates
U.S. Fish & Wildlife Service Proposes to Restore Broader Definition of “Critical Habitat”
In response to the January 20, 2021 Presidential Executive Order that required all federal agencies to review specific actions taken between January 20, 2017 and January 20, 2021, U.S. Fish & Wildlife Service is proposing to rescind a rule that limited the definition of “habitat” during the agency’s designation of critical habitats for imperiled species. FWS found that the January 15, 2021 rule’s narrow definition “inappropriately constrains the Service’s ability to designate areas that meet the definition of ‘critical habitat’ under the [Endangered Species] Act.” The public comment period is open through November 26, 2021. On October 26, 2021, H.R. 5733 was introduced in Congress to try and codify the previous, more limited definition of “habitat” before FWS has time to rescind the rule.
In response to the January 20, 2021 Presidential Executive Order that required all federal agencies to review specific actions taken between January 20, 2017 and January 20, 2021, U.S. Fish & Wildlife Service is proposing to rescind a rule that limited the definition of “habitat” during the agency’s designation of critical habitats for imperiled species. FWS found that the January 15, 2021 rule’s narrow definition “inappropriately constrains the Service’s ability to designate areas that meet the definition of ‘critical habitat’ under the [Endangered Species] Act.” The public comment period is open through November 26, 2021. On October 26, 2021, H.R. 5733 was introduced in Congress to try and codify the previous, more limited definition of “habitat” before FWS has time to rescind the rule.
FWS Proposes Changes to Mexican Wolf Management Program in Response to Litigation
The U.S. Fish & Wildlife Service has announced proposed revisions to the management of the experimental population of Mexican wolves in Arizona and New Mexico. The revisions are intended to comply with a federal court order resulting from a lawsuit brought by the Center for Biological Diversity alleging that the FWS’s existing management plan violated the Endangered Species Act. Of key importance, the proposed revisions remove the existing plan’s population cap which has allowed wildlife managers to kill wolves whenever the population exceeds 325. FWS is accepting comments through January 1, 2022, and is hosting a series of public information sessions and hearings between November 18, 2021 and January 11, 2022.
The U.S. Fish & Wildlife Service has announced proposed revisions to the management of the experimental population of Mexican wolves in Arizona and New Mexico. The revisions are intended to comply with a federal court order resulting from a lawsuit brought by the Center for Biological Diversity alleging that the FWS’s existing management plan violated the Endangered Species Act. Of key importance, the proposed revisions remove the existing plan’s population cap which has allowed wildlife managers to kill wolves whenever the population exceeds 325. FWS is accepting comments through January 1, 2022, and is hosting a series of public information sessions and hearings between November 18, 2021 and January 11, 2022.
Legislative Updates
Pending Federal Actions
Congress Considers Establishing Fund to Combat Aquatic Invasive Species
H.R. 5692, the “Stop the Spread of Invasive Mussels Act of 2021,” would establish a $25,000,000 fund for the U.S. Department of the Interior to assist states in combatting “aquatic invasive species,” which are defined as a “nonindigenous species that threaten the diversity or abundance of native species or the ecological stability of infested waters, or commercial, agricultural, aquacultural recreational activities dependent on such waters.” The bill has been referred to the House Subcommittee on Water Resources and the Environment.
H.R. 5692, the “Stop the Spread of Invasive Mussels Act of 2021,” would establish a $25,000,000 fund for the U.S. Department of the Interior to assist states in combatting “aquatic invasive species,” which are defined as a “nonindigenous species that threaten the diversity or abundance of native species or the ecological stability of infested waters, or commercial, agricultural, aquacultural recreational activities dependent on such waters.” The bill has been referred to the House Subcommittee on Water Resources and the Environment.
Legislation Would Codify Narrow Definition of Critical Habitat for Endangered Species
H.R. 5733 would “codify a final rule of the United States Fish and Wildlife Service relating to the designation of critical habitat under the Endangered Species Act.” On October 29, 2021, the U.S. Fish & Wildlife Service proposed to rescind the January 15, 2021 rule after determining that its narrow definition of “habitat” “inappropriately constrains the Service’s ability to designate areas that meet the definition of ‘critical habitat’ under the [Endangered Species] Act.”
H.R. 5733 would “codify a final rule of the United States Fish and Wildlife Service relating to the designation of critical habitat under the Endangered Species Act.” On October 29, 2021, the U.S. Fish & Wildlife Service proposed to rescind the January 15, 2021 rule after determining that its narrow definition of “habitat” “inappropriately constrains the Service’s ability to designate areas that meet the definition of ‘critical habitat’ under the [Endangered Species] Act.”
Passed State Actions
New York Amends Divorce Law to Consider Best Interests of Companion Animals
New York Governor Kathy Hochul signed Senate Bill 4248, which requires courts to consider the best interests of the animal when awarding custody of a companion animal during divorce proceedings. The “best interests” criteria are the same criteria that courts apply to make custody decisions about children.
New York Governor Kathy Hochul signed Senate Bill 4248, which requires courts to consider the best interests of the animal when awarding custody of a companion animal during divorce proceedings. The “best interests” criteria are the same criteria that courts apply to make custody decisions about children.
Pending State Actions
Florida Considers New Penalties Relating to Animal Fighting and Bestiality
Florida House Bill 435 would prohibit causing or allowing minors to attend fighting or baiting of animals and would elevate crimes relating to bestiality from misdemeanor to felony. Penalties for conviction of a bestiality-related offense would include a five-year prohibition on ownership and possession of animals as well as a five-year prohibition on living or working in a space with animals.
Florida House Bill 435 would prohibit causing or allowing minors to attend fighting or baiting of animals and would elevate crimes relating to bestiality from misdemeanor to felony. Penalties for conviction of a bestiality-related offense would include a five-year prohibition on ownership and possession of animals as well as a five-year prohibition on living or working in a space with animals.
Case Law Updates
Federal Case Law Updates
Federal Court Vacates Existing EPA Rule
The U.S. District Court for the Northern District of California has vacated a Clean Water Act regulation that dramatically limited water quality requirements. The regulation was implemented by the EPA on September 11, 2020 in response to Donald Trump’s Executive Order entitled “Promoting Energy Infrastructure and Economic Growth,” and subsequently was included among the regulatory decisions that the Biden administration ordered reviewed. The Court found that the 2020 regulation defied the purpose of the Clean Water Act. In remanding back to the EPA for rulemaking consistent with the purpose of the Clean Water Act, the federal court found that vacating the existing regulation was less disruptive than remanding without vacatur.
The U.S. District Court for the Northern District of California has vacated a Clean Water Act regulation that dramatically limited water quality requirements. The regulation was implemented by the EPA on September 11, 2020 in response to Donald Trump’s Executive Order entitled “Promoting Energy Infrastructure and Economic Growth,” and subsequently was included among the regulatory decisions that the Biden administration ordered reviewed. The Court found that the 2020 regulation defied the purpose of the Clean Water Act. In remanding back to the EPA for rulemaking consistent with the purpose of the Clean Water Act, the federal court found that vacating the existing regulation was less disruptive than remanding without vacatur.
Putative Class Action Alleges that Popular Sunscreen Marketed as “Reef-Friendly” is Harmful to Coral Reefs
Plaintiffs in California have filed a class action lawsuit against Hain Celestial Group, alleging that the company has falsely advertised fourteen of its Alba Botanica Hawaiian Sunscreen products as “reef friendly” when they, in fact, contain at least two ingredients that have proven to be harmful to coral reefs and other marine life. The products at issue contain avobenzone and octocrylene, which have been banned by the State of Hawaii for use in sunscreens due to reported harm to sea life. Plaintiffs in the putative class argue that Hain falsely advertised to consumers who acted in reliance on Defendant’s “reef friendly” claims in their purchasing decisions. Plaintiffs are seeking certification of the class and injunctive relief under numerous California consumer protection laws.
Plaintiffs in California have filed a class action lawsuit against Hain Celestial Group, alleging that the company has falsely advertised fourteen of its Alba Botanica Hawaiian Sunscreen products as “reef friendly” when they, in fact, contain at least two ingredients that have proven to be harmful to coral reefs and other marine life. The products at issue contain avobenzone and octocrylene, which have been banned by the State of Hawaii for use in sunscreens due to reported harm to sea life. Plaintiffs in the putative class argue that Hain falsely advertised to consumers who acted in reliance on Defendant’s “reef friendly” claims in their purchasing decisions. Plaintiffs are seeking certification of the class and injunctive relief under numerous California consumer protection laws.
9th Circuit Remands “All Natural” Class Action for Preemption Determination
The 9th Circuit has affirmed in part and reversed in part the dismissal of a putative class action that alleges that ConAgra falsely advertised its frozen chicken products as “natural” and “preservative-free” when they in fact contained synthetic ingredients. In its decision the 9th Circuit made clear that, on limited remand, the parties should submit evidence only about whether the USDA’s Food Safety & Inspection Service reviewed and approved ConAgra’s label because plaintiffs’ claims will be entirely pre-empted if FSIS approved the label.
The 9th Circuit has affirmed in part and reversed in part the dismissal of a putative class action that alleges that ConAgra falsely advertised its frozen chicken products as “natural” and “preservative-free” when they in fact contained synthetic ingredients. In its decision the 9th Circuit made clear that, on limited remand, the parties should submit evidence only about whether the USDA’s Food Safety & Inspection Service reviewed and approved ConAgra’s label because plaintiffs’ claims will be entirely pre-empted if FSIS approved the label.
Advocacy Group Files Suit to Protect Endangered Bumble Bees
Natural Land Institute has sued the Greater Rockford Airport Authority, the U.S. Fish & Wildlife Service, and numerous other federal agencies to stop an airport road expansion project in Winnebago County, Illinois, arguing that the planned construction will further destroy the habitat of the endangered Rusty Patched Bumble Bee. Plaintiff is seeking declaratory and injunctive relief.
Natural Land Institute has sued the Greater Rockford Airport Authority, the U.S. Fish & Wildlife Service, and numerous other federal agencies to stop an airport road expansion project in Winnebago County, Illinois, arguing that the planned construction will further destroy the habitat of the endangered Rusty Patched Bumble Bee. Plaintiff is seeking declaratory and injunctive relief.
Advocacy Groups Sue to Protect Black-footed Ferrets
WildEarth Guardians, Western Watershed Project, and Rocky Mountain Wild have sued the U.S. Fish & Wildlife Service, alleging that the agency has violated the Endangered Species Act by failing to implement adequate conservation measures for the black-footed ferret in the State of Wyoming. Plaintiffs are seeking declaratory and injunctive relief and are requesting the U.S. District Court for the District of Columbia to order FWS to engage in meaningful rulemaking to protect the black-footed ferret.
WildEarth Guardians, Western Watershed Project, and Rocky Mountain Wild have sued the U.S. Fish & Wildlife Service, alleging that the agency has violated the Endangered Species Act by failing to implement adequate conservation measures for the black-footed ferret in the State of Wyoming. Plaintiffs are seeking declaratory and injunctive relief and are requesting the U.S. District Court for the District of Columbia to order FWS to engage in meaningful rulemaking to protect the black-footed ferret.
State Case Law Updates
YouTube Sued Over Animal Abuse Videos, Not Enforcing Ban
The New York Times reports that the non-profit organization Lady Freethinker has filed a lawsuit in California Superior Court in Santa Clara against YouTube, claiming breach of contract under the company’s user agreement and community guidelines by allowing animal abuse videos to be uploaded and failing to remove them when notified. The Times article also reports that Lady Freethinker sent a letter to the Justice Department the same day the lawsuit was filed, accusing YouTube of aiding and abetting the violation of the federal anti-Animal Crushing law, 18 U.S. Code § 48. The Digest’s attempts to contact Lady Freethinker and the Santa Clara court to obtain a copy of the complaint have been unsuccessful so far.
The New York Times reports that the non-profit organization Lady Freethinker has filed a lawsuit in California Superior Court in Santa Clara against YouTube, claiming breach of contract under the company’s user agreement and community guidelines by allowing animal abuse videos to be uploaded and failing to remove them when notified. The Times article also reports that Lady Freethinker sent a letter to the Justice Department the same day the lawsuit was filed, accusing YouTube of aiding and abetting the violation of the federal anti-Animal Crushing law, 18 U.S. Code § 48. The Digest’s attempts to contact Lady Freethinker and the Santa Clara court to obtain a copy of the complaint have been unsuccessful so far.
State of Washington Alleges Broiler Chicken Producers Engaged in Illegal Price Fixing
The State of Washington, through its attorney general, has sued Tyson Foods, Pilgrim’s Pride, Sanderson Farms, Perdue Farms and other major broiler chicken producers alleging conspiratorial and anticompetitive practices. The State of Washington argues that America’s broiler chicken producers have manipulated price indices and engaged in bid rigging in violation of Washington’s Consumer Protection Act. Defendant Pilgrim’s Pride already pleaded guilty in February 2021 to criminal price fixing in response to charges brought by the U.S. Department of Justice. The defendants collectively account for 95% of America’s chicken supply. Washington State is seeking restitution, civil penalties, costs, fees, and injunctive relief.
The State of Washington, through its attorney general, has sued Tyson Foods, Pilgrim’s Pride, Sanderson Farms, Perdue Farms and other major broiler chicken producers alleging conspiratorial and anticompetitive practices. The State of Washington argues that America’s broiler chicken producers have manipulated price indices and engaged in bid rigging in violation of Washington’s Consumer Protection Act. Defendant Pilgrim’s Pride already pleaded guilty in February 2021 to criminal price fixing in response to charges brought by the U.S. Department of Justice. The defendants collectively account for 95% of America’s chicken supply. Washington State is seeking restitution, civil penalties, costs, fees, and injunctive relief.
Agency Updates
U.S. Fish & Wildlife Service Proposes Designation of Critical Habitat for Pacific Marten
The U.S. Fish & Wildlife Service is proposing to designate 1,413,305 acres in California and Oregon as critical habitat for the coastal distinct population segment of Pacific marten. FWS is accepting comments through December 27, 2021.
The U.S. Fish & Wildlife Service is proposing to designate 1,413,305 acres in California and Oregon as critical habitat for the coastal distinct population segment of Pacific marten. FWS is accepting comments through December 27, 2021.
U.S. Fish & Wildlife Service Considers Incidental Take Permit for Protected Flies
The U.S Fish & Wildlife Service is considering an application for the incidental take of Delhi sands flower-loving flies during the course of grading and paving work on a 4-acre parcel in San Bernardino County, Calif. The property owner seeks a permit for the disturbance of the protected flies over the course of the next five years. FWS is accepting comments through November 24, 2021.
The U.S Fish & Wildlife Service is considering an application for the incidental take of Delhi sands flower-loving flies during the course of grading and paving work on a 4-acre parcel in San Bernardino County, Calif. The property owner seeks a permit for the disturbance of the protected flies over the course of the next five years. FWS is accepting comments through November 24, 2021.
U.S. Fish & Wildlife Service Proposes to Restore Broader Definition of “Critical Habitat”
In response to the January 20, 2021 Presidential Executive Order that required all federal agencies to review specific actions taken between January 20, 2017 and January 20, 2021, U.S. Fish & Wildlife Service is proposing to rescind a rule that limited the definition of “habitat” during the agency’s designation of critical habitats for imperiled species. FWS found that the January 15, 2021 rule’s narrow definition “inappropriately constrains the Service’s ability to designate areas that meet the definition of ‘critical habitat’ under the [Endangered Species] Act.” The public comment period is open through November 26, 2021. On October 26, 2021, H.R. 5733 was introduced in Congress to try and codify the previous, more limited definition of “habitat” before FWS has time to rescind the rule.
In response to the January 20, 2021 Presidential Executive Order that required all federal agencies to review specific actions taken between January 20, 2017 and January 20, 2021, U.S. Fish & Wildlife Service is proposing to rescind a rule that limited the definition of “habitat” during the agency’s designation of critical habitats for imperiled species. FWS found that the January 15, 2021 rule’s narrow definition “inappropriately constrains the Service’s ability to designate areas that meet the definition of ‘critical habitat’ under the [Endangered Species] Act.” The public comment period is open through November 26, 2021. On October 26, 2021, H.R. 5733 was introduced in Congress to try and codify the previous, more limited definition of “habitat” before FWS has time to rescind the rule.
FWS Proposes Changes to Mexican Wolf Management Program in Response to Litigation
The U.S. Fish & Wildlife Service has announced proposed revisions to the management of the experimental population of Mexican wolves in Arizona and New Mexico. The revisions are intended to comply with a federal court order resulting from a lawsuit brought by the Center for Biological Diversity alleging that the FWS’s existing management plan violated the Endangered Species Act. Of key importance, the proposed revisions remove the existing plan’s population cap which has allowed wildlife managers to kill wolves whenever the population exceeds 325. FWS is accepting comments through January 1, 2022, and is hosting a series of public information sessions and hearings between November 18, 2021 and January 11, 2022.
The U.S. Fish & Wildlife Service has announced proposed revisions to the management of the experimental population of Mexican wolves in Arizona and New Mexico. The revisions are intended to comply with a federal court order resulting from a lawsuit brought by the Center for Biological Diversity alleging that the FWS’s existing management plan violated the Endangered Species Act. Of key importance, the proposed revisions remove the existing plan’s population cap which has allowed wildlife managers to kill wolves whenever the population exceeds 325. FWS is accepting comments through January 1, 2022, and is hosting a series of public information sessions and hearings between November 18, 2021 and January 11, 2022.
FWS Accepting Comments on Multiple Recovery Permit Applications
The U.S. Fish & Wildlife Service announced three recovery permit applications for the capture, tagging, and release of protected bat species and the capture, study, and release of a variety of protected species of mussels. Recovery permits are available under the Endangered Species Act expressly for scientific activities that enhance the propagation or survival of species in the wild. FWS is accepting comments through November 29, 2021.
The U.S. Fish & Wildlife Service announced three recovery permit applications for the capture, tagging, and release of protected bat species and the capture, study, and release of a variety of protected species of mussels. Recovery permits are available under the Endangered Species Act expressly for scientific activities that enhance the propagation or survival of species in the wild. FWS is accepting comments through November 29, 2021.
Academic Updates
Article Explores Students’ Willingness to Reduce Meat Consumption in Switzerland
Arnaudova, M., Brunner, T., Götze, F., Examination of students’ willingness to change behavior regarding meat consumption, Meat Science (Vol. 184, Feb. 2022).
Arnaudova, M., Brunner, T., Götze, F., Examination of students’ willingness to change behavior regarding meat consumption, Meat Science (Vol. 184, Feb. 2022).
Researchers Report Factors that Contribute to Reduced Meat Consumption
Tatjana, K., Dobering, K., Riefler, P., Towards reduced meat consumption: a systematic literature review of intervention effectiveness, 2001-2019, Appetite (Vol. 168, Jan. 2022).
Tatjana, K., Dobering, K., Riefler, P., Towards reduced meat consumption: a systematic literature review of intervention effectiveness, 2001-2019, Appetite (Vol. 168, Jan. 2022).
Article Explores How Conversations about Cultivated Meat Will Shape the Emerging Regulatory Space
Evans, B. and Johnson, H., Contesting and reinforcing the future of ‘meat’ through problematization: analyzing the discourses in regulatory debates around animal cell-cultured meat, Geoforum (Vol. 127, Dec. 2021).
Evans, B. and Johnson, H., Contesting and reinforcing the future of ‘meat’ through problematization: analyzing the discourses in regulatory debates around animal cell-cultured meat, Geoforum (Vol. 127, Dec. 2021).
Article Explores the Role of Parent-Child Conversations in Development of Understanding about Animals
Labotka, D., Gelman, S., and Jipson, J., Parent-child conversations about animals on a visit to a (virtual) zoo, Cognitive Development (2021).
Labotka, D., Gelman, S., and Jipson, J., Parent-child conversations about animals on a visit to a (virtual) zoo, Cognitive Development (2021).