Brooks Animal Law Digest

Florida House Bill 711 would revise the legislative intent of the Florida Endangered and Threatened Species Act to direct the Florida Fish and Wildlife Conservation Commission (FWCC) to protect certain indigenous species of wildlife regardless of their classification by U.S. Fish & Wildlife Service under the federal Endangered Species Act. The House bill is identical to Florida Senate Bill 238 which was introduced on September 16, 2021. The bills also would preclude the FWCC from considering the costs associated with determining the protection level for an endangered or threatened species in Florida.

The First Circuit Court of Appeals reinstated a seasonal closure on lobster fishing in an area of approximately 967 square miles off the coast of Maine. The National Marine Fisheries Service (NMFS) had issued the closure rule on August 31,2021 to protect critically endangered right whales from becoming entangled in lobster trap lines. The lower court had granted an injunction to lobster fishers to prevent the closure from being implemented, but the federal appeals court reversed, finding that the district court had “misapprehended the record and overstepped its role in rejecting the judgments of the agency that Congress has charged with protecting endangered marine mammals.” The First Circuit stayed the district court’s order, allowing NMFS to implement the seasonal closure while the parties proceed with litigation.

U.S. Senator Elizabeth Warren sent correspondence to the Department of Justice, requesting that the DOJ’s Antitrust Division open an investigation into apparent price fixing, wage fixing, and corporate consolidation by the poultry industry. Senator Warren references the uniform rise in poultry prices throughout the increasingly consolidated industry while poultry worker wages have remained flat in her request for further investigation into possible antitrust violations.

President Biden signed H.R. 3684, the “Infrastructure Investments and Job Act,” which allocates hundreds of millions of dollars for programs that will safeguard fish and wildlife habitats. Key provisions include investments in wildlife-friendly road crossings, improvements and repair to access roads that are in disrepair and are polluting or otherwise negatively impacting wildlife habitats, estuary restoration, and support for endangered species recovery.

New Jersey Senate Bill 4168 would require veterinary technicians to become licensed by the State Board of Veterinary Medical Examiners and would authorize licensed vet techs to engage in certain veterinary services under the supervision of a licensed veterinarian. The bill has been referred to the New Jersey Senate Committee on Commerce.

Florida House Bill 711 would revise the legislative intent of the Florida Endangered and Threatened Species Act to direct the Florida Fish and Wildlife Conservation Commission (FWCC) to protect certain indigenous species of wildlife regardless of their classification by U.S. Fish & Wildlife Service under the federal Endangered Species Act. The House bill is identical to Florida Senate Bill 238 which was introduced on September 16, 2021. The bills also would preclude the FWCC from considering the costs associated with determining the protection level for an endangered or threatened species in Florida.

Florida House Bill 723 the “Providing Equity in Telemedicine Services (PETS) Act,” would authorize veterinarians to practice telemedicine and would set professional standards for veterinarians who use telemedicine in their practices. The House bill is identical to Florida Senate Bill 448. The bills also would broaden the category of individuals who are authorized to administer veterinary vaccines beyond licensed veterinarians.

The City Council in Elizabethtown, Kentucky voted on the “Humane Pet Store Ordinance,” which reportedly passed, though the meeting minutes and enacted ordinance have not yet been made available publicly. The new ordinance reportedly prohibits the retail sales of dogs and cats in pet stores and in public areas such as parking lots and flea markets.

The County Council for Horry County, South Carolina, reportedly passed Ordinance 86-2021, which establishes minimum standards for humane care and treatment of companion animals, including adequate shelter, veterinary care, and feeding. The meeting minutes have not yet become publicly available.

The First Circuit Court of Appeals reinstated a seasonal closure on lobster fishing in an area of approximately 967 square miles off the coast of Maine. The National Marine Fisheries Service (NMFS) had issued the closure rule on August 31,2021 to protect critically endangered right whales from becoming entangled in lobster trap lines. The lower court had granted an injunction to lobster fishers to prevent the closure from being implemented, but the federal appeals court reversed, finding that the district court had “misapprehended the record and overstepped its role in rejecting the judgments of the agency that Congress has charged with protecting endangered marine mammals.” The First Circuit stayed the district court’s order, allowing NMFS to implement the seasonal closure while the parties proceed with litigation.

The Attorney General of Kansas filed a Petition for Writ of Certiorari following a ruling by the Tenth Circuit Court of Appeals upholding a lower court’s injunction against enforcement of the state’s “Ag-Gag” law on the basis that the statute is an unconstitutional violation of the First Amendment. The 1990 Kansas legislation was the first state Ag-Gag law enacted in the U.S. and aimed to curtail undercover investigations on factory farms by criminalizing photography and video without the express consent of the facility’s owner.

The U.S. District Court for the Northern District of California dismissed a lawsuit against the Subway restaurant chain in which plaintiffs argued that the restaurant committed fraud and violated California consumer protection laws when it advertised its tuna as “100% sustainably caught skipjack and yellowfin tuna.” The court found that, regardless of Subway’s widespread marketing campaign, plaintiffs were unable to demonstrate that they acted in reliance on any of Subway’s representations prior to purchasing tuna sandwiches.

Tofurkey and Plant Based Foods Association (PBFA), represented by the Animal Legal Defense Fund, filed a lawsuit challenging Oklahoma’s Meat Consumer Protection Act. Plaintiffs argue that the state’s disclosure and labeling requirements for plant-based food companies are anticompetitive, violate the dormant Commerce Clause, and violate FDA product labeling regulations. Tofurkey has filed similar lawsuits in Arkansas, Missouri, and Louisiana.

The U.S. Fish & Wildlife Service is extending the comment period through December 13, 2021 on its previously-published proposal 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.” 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. The bill was referred to the House Natural Resources Committee, but no further action has been taken yet.

The Environmental Protection Agency and the U.S. Army Corps of Engineers have announced a new rule restoring a previous, more expansive definition of “waters of the United States” to be more consistent with the purpose and intent of the Clean Water Act. The more expansive definition is expected to better protect aquatic animal habitats and the agencies state it will “ensure critical protections for the nation’s vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.” When the notice is published in the Federal Register, the agencies will be accepting public comments for a period of sixty days following publication and will hosting a series of virtual hearings in January 2022.

U.S. Senator Elizabeth Warren sent correspondence to the Department of Justice, requesting that the DOJ’s Antitrust Division open an investigation into apparent price fixing, wage fixing, and corporate consolidation by the poultry industry. Senator Warren references the uniform rise in poultry prices throughout the increasingly consolidated industry while poultry worker wages have remained flat in her request for further investigation into possible antitrust violations.

The Bureau of Land Management (BLM) is preparing an Environmental Impact Statement (EIS) relating to a planning initiative that impacts greater sage grouse habitat on BLM-managed public land in California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming. BLM is seeking public input on the planning initiative and will accept comments through February 7, 2022.

The U.S. Fish & Wildlife Service (FWS) announced its completion of a 12-month review for multiple freshwater turtle species. FWS proposes to list the Pearl River map turtle as a threatened species with a rule issued under section 4(d) of the Endangered Species Act (ESA). Although FWS determined that it is not warranted at this time to list the Pascagoula map turtle, the agency still proposes to list the Pascagoula map turtle, Alabama map turtle, Barbour’s map turtle, and Escambia map turtle as threatened species under the 4(d) rule due to their similarity in appearance with the Pearl River map turtle––affording those species all the same ESA protections. FWS is accepting comments through January 24, 2021.

The National Marine Fisheries Service has announced a virtual public hearing for December 9, 2021, to discuss the agency’s proposed regulation that would prohibit any entry into five known Hawaiian spinner dolphin habitats between 6 a.m. and 3 p.m. daily in order to minimize human-dolphin disturbance. The agency is still accepting public comments on the proposed rule through December 27, 2021.

The U.S. Department of Agriculture (USDA) announced that it previously added Malaysia to the list of regions affected by African Horse Sickness in order to prevent introduction of the fatal equine virus into the United States. The USDA made this determination in September 3, 2020, but did not publish notice in the Federal Register for more than a year.

The U.S. Department of Agriculture published notice of a final rule that will relax several existing Animal Welfare Act reporting rules. The changes include removing the existing requirement for research facilities to update their registration information at least every three years, removing the existing requirement for the Institutional Animal Care and Use Committee at each facility to conduct a continuing review of research activities involving animals in favor of submission every three years, removing the requirement for research facilities to request inactive status if they no longer use, handle, or transport Animal Welfare Act-regulated animals, and no longer requiring that the Institutional Official or Chief Executive Officer sign the annual report. The rule changes become effective December 27, 2021.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) published notice that it is adding the Kingdom of Bhutan to the agency’s List of Regions Affected with African Swine Fever (ASF). ASF is a highly contagious disease found in domestic and wild swine that carries a high mortality rate. Import of pork and pork products from Bhutan will be virtually prohibited while the country remains on the list of regions where ASF has been documented.

A researcher from Johns Hopkins University has applied for a permit under the Marine Mammal Protection Act to import, receive, and export parts and cell lines from up to 370 cetaceans and pinnipeds over the course of five years. The National Marine Fisheries Service is accepting comments through December 27, 2021.

The National Marine Fisheries Service announced the issuance of an Incidental Harassment Authorization to the Chesapeake Tunnel Joint Venture, authorizing the disturbance and harm to marine mammals for a period of up to one year during tunnel construction activities in Virginia Beach, Virginia. The permit has been issued pursuant to the Marine Mammal Protection Act.

The National Marine Fisheries Service (NMFS) has received an application from the U.S. Coast Guard for a permit under the Marine Mammal Protection Act that would authorize the Coast Guard to harass or harm marine mammals during the course of repair and maintenance construction at eight Coast Guard facilities in Alaska between April 1, 2022, and March 31, 2027. NMFS is accepting comments through December 27, 2021.

The Department of Justice (DOJ) announced a proposed consent decree that included a $720,000 civil penalty in connection with fishers responsible for an oil spill off the coast of American Samoa. The consent decree will resolve the DOJ’s Clean Water Act complaint against San Diego-based JM Fisheries, GS Fisheries, the company’s manager, and its chief engineer. The DOJ will accept comments through December 24, 2021.

The U.S. Fish & Wildlife Service published notice of a final Endangered Species Act rule that will revise the taxonomy for three mammal species, two bird species, two amphibian species, and two arachnid species to reflect the most current scientifically accepted taxonomy. The comment period for these proposed changes is open through December 27, 2021, and the changes are scheduled to become effective on February 24, 2022.

The U.S. Fish & Wildlife Service has received eight Endangered Species Act applications for recovery permits for the Topeka shiner, Southwestern willow flycatcher, Penland beardtongue, black-footed ferret, and Pallid sturgeon. All but one of the applications are renewal, rather than new, applications for ongoing activities to enhance wild populations of the specified imperiled species. The public comment period is open through December 27, 2021.

Ireland’s fur farm ban will go into effect in 2022, at which time Ireland will become the fifteenth European country to impose such a ban. The three existing fur farms in Ireland currently account for approximately 110,000 pelts of mink, foxes, weasels, and other furbearing animals per year.

The UK Government is considering a “Kept Animals Bill” that would impose up to a five-year prison sentence for those convicted of theft of a companion animal. The bill marks a shift in the treatment of pet theft away from simple loss of property to a crime causing significant emotional harm for human and animal victims.

The UK Government announced that, in accordance with the best available scientific evidence, decapods (crab, lobster, shrimp) and cephalopods (octopus, squid, cuttlefish) are classified as sentient beings, bringing them under the protections of the Animal Welfare Bill. Based on this new classification, it will be unlawful to boil or dismember lobsters while they are alive. Switzerland and New Zealand already had banned boiling lobsters.

The UK’s National Trust for Places of Historic Interest or Natural Beauty (“National Trust”) announced that it will stop issuing licenses for trail hunts on its land. Trail hunts—where hunters on horseback hunt with dogs who follow a scent that has been artificially marked for them—have been allowed up until the National Trust’s announcement that it has lost faith in the Masters of Foxhounds Association following its director’s conviction for surreptitiously facilitating foxhunts, which have been banned since 2004.