Brooks Animal Law Digest

Massachusetts Governor Charlie Baker signed Senate Bill 2603, which broadens the scope of “Question 3,” the state-wide ballot initiative voters approved in 2016 that set minimum standards for the confinement of chickens, veal calves, and pigs, and also banned the in-state sale of products that don’t comply with those standards. The upgraded requirements in the new law include mandating cage-free conditions for egg-laying hens with welfare enrichments, such as perches, dust bathing areas, scratching areas, and nest boxes. The new law also expands Question 3’s coverage to include “egg products” and liquid eggs, rather than just shell eggs. It is estimated this expansion will result in another 2 million hens each year being raised in cage-free housing. As a compromise to pass these upgrades, the new law delays Question 3’s enforcement by 7 months to August 15, 2022.

The 8th Circuit Court of Appeals ruled that a lawsuit against Tyson Foods for fraudulent misrepresentation and gross negligence allegedly resulting in COVID-related deaths of plaintiffs' relatives should proceed in state court. Plaintiffs allege that Tyson executives knew the risks of COVID-19 in March and April 2020 but still: failed to provide personal protective equipment at its Waterloo, Iowa, facility; transferred in workers from other facilities without testing or quarantine; encouraged sick employees to keep working; and denied confirmed cases of the virus while attributing worker illnesses to the flu. Ultimately one thousand of the 2,800 Waterloo workers tested positive for COVID-19 and numerous individuals died, including plaintiffs' relatives. Tyson had removed the cases to federal court, alleging that the company was acting as a functionary of the federal government at the onset of the pandemic. The 8th Circuit disagreed, remanding the cases back to state court, where they will now proceed.

New York Attorney General Letitia James filed a deceptive trade practices lawsuit against pet store Shake-a-Paw. The suit alleges the pet store unlawfully sold sick and injured puppies at both of its Long Island locations after falsely advertising the animals as healthy, fabricating health certificates, and refusing to reimburse customers for veterinary bills. The New York AG’s office is seeking restitution for the victims of the store’s deceptive trade practices, civil penalties, as well as a permanent injunction barring Shake-a-Paw and its owners from conducting any animal-related business in the State of New York.

The U.S. Department of Agriculture Animal & Plant Health Inspection Service (APHIS) announced the withdrawal of a rule it proposed in 2016 that would have updated the Horse Protection Act regulations. APHIS announced its finding that the 2016 rule does not reflect updated findings by the National Academy of Sciences relating to detecting soreness in walking horses as well as its intention to propose a new rule with a new public comment period at a later date.

Ontario authorities charged Marineland, a Canadian amusement park, with violating a 2019 law banning the use of cetaceans for performances without a license. Last Chance for Animals, a United States-based advocacy organization, reported the unauthorized use of beluga whales for tricks during performances at Marineland in August 2021. Marineland is scheduled to appear in court on February 14, 2022, and faces up to $200,000 in fines if convicted.

Massachusetts Governor Charlie Baker signed Senate Bill 2603, which broadens the scope of “Question 3,” the state-wide ballot initiative voters approved in 2016 that set minimum standards for the confinement of chickens, veal calves, and pigs, and also banned the in-state sale of products that don’t comply with those standards. The upgraded requirements in the new law include mandating cage-free conditions for egg-laying hens with welfare enrichments, such as perches, dust bathing areas, scratching areas, and nest boxes. The new law also expands Question 3’s coverage to include to “egg products” and liquid eggs, rather than just shell eggs. It is estimated this expansion will result in another 2 million hens each year being raised in cage-free housing. As a compromise to pass these upgrades, the new law delays Question 3’s enforcement by 7 months to August 15, 2022.

Commissioners in Caddo Parish, Louisiana voted 10-1 to pass Ordinance 6148, which requires all cats to be spayed or neutered by 6 months of age and all dogs to be spayed or neutered by one year of age. The ordinance takes effect on July 1, 2022, and will be enforced through June 30, 2024, unless the commissioners vote to make the change permanent. Animals who are not kept in compliance with the new ordinance are subject to impound and sterilization by the parish.

The Center for Biological Diversity and the Center for Food Safety are asking the U.S. District Court for the District of Columbia to issue a writ of mandamus directing the Environmental Protection Agency (EPA) to comply with a 2017 court order requiring it to protect endangered species from the toxic insecticide cyantraniliprole. Documents obtained through Freedom of Information Act requests show the EPA has failed to comply with a 2017 court order requiring the agency to consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service to assess the harms associated with cyantraniliprole.

The 8th Circuit Court of Appeals ruled that a lawsuit against Tyson Foods for fraudulent misrepresentation and gross negligence allegedly resulting in COVID-related deaths of plaintiffs' relatives should proceed in state court. Plaintiffs allege that Tyson executives knew the risks of COVID-19 in March and April 2020 but still: failed to provide personal protective equipment at its Waterloo, Iowa, facility; transferred in workers from other facilities without testing or quarantine; encouraged sick employees to keep working; and denied confirmed cases of the virus while attributing worker illnesses to the flu. Ultimately one thousand of the 2,800 Waterloo workers tested positive for COVID-19 and numerous individuals died, including plaintiffs' relatives. Tyson had removed the cases to federal court, alleging that the company was acting as a functionary of the federal government at the onset of the pandemic. The 8th Circuit disagreed, remanding the cases back to state court, where they will now proceed.

In a case brought by Earthjustice, the American Beekeeping Federation, and the Pollinator Stewardship Council against the California Department of Pesticide Regulation, a California Superior Court ruled that the bee-killing pesticide sulfoxaflor no longer can be used in the state because its approval violated state environmental law. Sulfoxaflor is a long-lasting pesticide which can have catastrophic consequences for entire colonies of bees when one affected bee introduces the toxin back into the colony. The decision will help protect commercial bee colonies as well as native pollinators like Monarch butterflies.

New York Attorney General Letitia James filed a deceptive trade practices lawsuit against pet store Shake-a-Paw. The suit alleges the pet store unlawfully sold sick and injured puppies at both of its Long Island locations after falsely advertising the animals as healthy, fabricated health certificates, and refused to reimburse customers for veterinary bills. The New York AG’s office is seeking restitution for the victims of the store’s deceptive trade practices, civil penalties, as well as a permanent injunction barring Shake-a-Paw and its owners from conducting any animal-related business in the State of New York.

The U.S. Department of Agriculture Animal & Plant Health Inspection Service (APHIS) announced the withdrawal of a rule it proposed in 2016 that would have updated the Horse Protection Act regulations. APHIS announced its finding that the 2016 rule does not reflect updated findings by the National Academy of Sciences relating to detecting soreness in walking horses as well as its intention to propose a new rule with a new public comment period at a later date.

The U.S. Fish & Wildlife Service (FWS) announced the availability of a draft recovery plan for meltwater lednian stonefly and western glacier stonefly, two species of insects listed as threatened on the Endangered Species List. Climate change is the primary threat to these cold-weather insects, that are found primarily in Montana, Wyoming, and Canada. FWS is accepting comments through February 14, 2022, on its proposed framework and actions to help recover the species to the point that they are no longer in need of Endangered Species Act protections.

The U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) announced the recall of 10,990 pounds of ready-to-eat pepperoni produced by Omaha-based Smithfield Packaged Meats Corp. and sold as “Margherita Pepperoni.” FSIS announced the recall after routine testing detected bacillus cereus, a toxin-producing microorganism that causes diarrhea and vomiting.

The National Marine Fisheries Service announced that it has issued an incidental harassment authorization (IHA) to the Maine Department of Transportation (MDOT) which will allow the state agency to harass seven species of marine mammals during a bridge replacement project in Blue Hill, Maine. The IHA authorizes MDOT to incidentally, but not intentionally, harass Atlantic white-sided dolphins, common dolphins, harp seals, hooded seals, harbor porpoises, harbor seals, and gray seals between July 1, 2022, and June 30, 2023 during the bridge construction project.

The National Marine Fisheries Service published notice of its issuance of a letter of authorization (LOA) to the U.S. Navy (USN) for the harassment of seven species of marine mammals during a five-year construction project at Naval Station Newport in Rhode Island. The LOA is effective from May 15, 2022, through May 14, 2027, and authorizes USN to incidentally, but not intentionally, harm or harass common dolphins, harbor porpoises, harbor seals, gray seals, harp seals, and hooded seals incidental to its construction project.

The Florida Fish and Wildlife Conservation Commission approved a final rule to protect diamond back terrapins from wild collection and drowning in recreational blue crab traps. The terrapins are a “Species of Greatest Conservation Need” and a keystone species in Florida’s estuaries. The new rule prohibits collection of diamond back terrapins and requires owners of all recreational blue crab traps to reduce terrapin bycatch by implementing specific bycatch reduction measures by March 1, 2022.

The National Oceanic and Atmospheric Administration (NOAA) has announced the extension of its public comment period on proposed public scoping and preparation of an Environmental Impact Statement for the proposed Chumash Heritage National Marine Sanctuary off the California coast north of Santa Barbara. NOAA will conduct an additional public scoping meeting from 4-7 p.m. pacific time on January 6, 2022, and will accept public comments through January 31, 2022.

The National Marine Fisheries Service (NMFS) proposes to issue a permit authorizing the incidental, but not intentional, harm and harassment of protected marine mammals including humpback whales during fishing in the California thresher shark and swordfish gillnet fishery. The NMFS has made a determination of negligible impact on the protected species and is accepting public comments on the proposed permit issuance through January 18, 2022.

The National Marine Fisheries Service (NMFS) has proposed the issuance of an Incidental Harassment Authorization to the Scripps Oceanic Institute to authorize the unintentional harassment of marine mammals during the course of geophysical surveying in the Gulf of Mexico. NMFS is accepting public comments on the proposed authorization through January 18, 2022.

The Department of Labor is accepting public comments on its proposed changes to the H-2A visa program for foreign workers to apply the same standard for sheep and goat herders that is applied to other positions in livestock production. All employers must demonstrate that the work is “temporary” or “seasonal” regardless of occupation. The public comment period is open through January 18, 2022.

The National Science Foundation (NSF) published notice of a permit application under the Antarctic Conservation Act in connection with a planned yacht-based expedition to the Antarctic Peninsula Region. The applicant is seeking a waste management permit for all emissions and disposal of wastewater and solid waste in connection with shore landings, photography, and wildlife viewing. The NSF is accepting comments through January 18, 2022.

The National Oceanic and Atmospheric Administration (NOAA) has prepared an updated draft management plan as part of the Channel Island National Marine Sanctuary management plan review. NOAA is holding virtual public scoping meetings to discuss the management plan for the 1470 square mile California sanctuary on January 18 and 27 and is accepting public comments on the draft management plan through February 24, 2022.

The Center for Biological Diversity, Defenders of Wildlife, Save the Manatee Club, and Earthjustice sent the Environmental Protection Agency (EPA) a sixty-day notice letter of intent to sue under the citizen suit provision of the federal Endangered Species Act (ESA) for failing to protect manatees from pollution-cause deaths. The notice letter references a pollution-fueled algae bloom which killed thousands of acres of sea grass in Florida’s Indian River Lagoon in 2021, preventing it from ever growing back and contributing to the deaths of more than 500 manatees by starvation. The advocacy organizations are planning to sue the EPA to enjoin further ESA violations caused by the agency’s failure to consult with U.S. Fish & Wildlife Service on the impacts of wastewater treatment discharges, leaking septic systems, and fertilizer runoff into manatee habitat.

The U.S. Fish & Wildlife Service (FWS) announced a final rule designating the Hermes copper butterfly as a threatened species under the Endangered Species Act. The butterfly species is indigenous to San Diego County, California, and Baja California, Mexico. The final rule also designates 14,174 acres in San Diego County as critical habitat. The new rule becomes effective January 20, 2022.

The National Institutes of Health’s National Toxicology Program Interagency Center for the Evaluation of Alternative Toxicological Methods published notice that it is accepting data and information on approaches that meet regulatory requirements for testing the efficacy of ectoparasiticides on cats and dogs without using animals. The public comment period is open through January 28, 2022.

The Center for Biological Diversity and Western Environmental Law Center sent a sixty-day notice of their intent to sue the Environmental Protection Agency (EPA), U.S. Fish & Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), and Washington’s Department of Ecology for failure to protect multiple populations of chinook and coho salmon, Southern Resident killer whales, steelhead trout, and bull trout from the effects of cyanide in Washington waters. The notice letter, sent pursuant to the citizen suit provision in the federal Endangered Species Act, alleges that the EPA has violated its duty to ensure, in consultation with FWS and NMFS, that its approval of Washington’s water quality criteria for cyanide does not jeopardize federally protected species and their designated critical habitats.

The U.S. Fish & Wildlife Service (FWS) has proposed listing the cactus ferruginous pygmy owl as threatened under the Endangered Species Act. The owl is found in Mexico, southern Arizona, and southern Texas. The FWS will hold a public hearing and information session on January 25, 2022, and will accept public comments through February 22, 2022.

The USDA’s Agriculture and Marketing Service announced technical revisions to the Lamb Promotion, Research, and Information Order relating to the collection of assessments imposed on lamb sales. “The program is financed by producers, feeders, and seedstock producers…who pay an assessment of seven-tenths of a cent ($0.007) per pound on all live lambs sold. Additionally, first handlers or exporters, pay $0.42 per head on ovine animals purchased for slaughter.” The new technical regulations become effective January 21, 2022.

The Center for Biological Diversity (CBD) sent a sixty-day notice of intent to sue the U.S. Department of the Interior and Bureau of Land Management for violating the Endangered Species Act (ESA) by failing to protect polar bears from an oil exploration project in the Western Arctic. CBD is seeking the immediate suspension of operations and rejection of drilling permit applications for activities in a portion of the National Petroleum Reserve-Alaska along the Colville River that is currently free from oil and gas development. The advocacy organization argues that expanding oil and gas exploration in the area is “fundamentally incompatible with polar bear survival and recovery” and will file an ESA lawsuit in sixty days if the agencies fail to take remedial and preventative action.

The National Marine Fisheries Service (NMFS) published notice of its 90-day finding on a petition to add the sunflower sea star, a species found in the northeast Pacific Ocean, to the Endangered Species List. NMFS found that there is significant data warranting a status review of the imperiled sea star and is seeking scientific and commercial data that will aid the agency in making a final listing determination, including designation of a critical habitat. The public comment period is open through February 25, 2022.

The National Marine Fisheries Service (NMFS) announced the reissuance of an authorization previously granted to the U.S. Army Corps of Engineers for the incidental harassment of seven species of marine mammals in the course of a dock replacement project in Sausalito, Calif. Work was not completed under the initial authorization, and therefore, NMFS is issuing an identical incidental harassment authorization which will be effective January 5, 2022, through January 4, 2023. Impacted species include harbor porpoises, harbor seals, gray whales, bottlenose dolphins, California sea lions, northern fur seals, and northern elephant seals.

The National Marine Fisheries Service (NMFS) announced the reissuance of an authorization for the U.S. Coast Guard to harm and harass harbor seals, gray whales, bottlenose dolphins, California sea lions, and short-beaked common dolphins during its Long Beach wharf expansion project. The project was not completed under the previous incidental harassment authorization and therefore, NMFS has issued an identical authorization which will be effective from February 1, 2022, through January 31, 2023.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service is advising the public that it has added the Dominican Republic to the list of regions considered affected by African Swine Fever (ASF). As a result of this designation, pork and pork products from the Dominican Republic are subject to import restrictions designed to mitigate the risk of introducing ASF into the United States.

The U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) announced its intention to add Lithuania to the list of countries that are eligible to export egg products to the United States. The agency is accepting public comments on the proposal through February 28, 2022.

The U.S. Fish & Wildlife Service (FWS) announced its intention to provide Endangered Species Act (ESA) protection for certain population segments of the foothill yellow-legged frog, a stream-dwelling frog species. FWS proposes to list two distinct population segments as endangered and two distinct population segments as threatened. FWS however declined to provide ESA listing status to two additional distinct population segments. The agency is accepting public comments on its proposed listing decision for the foothill yellow-legged frog through February 28, 2022.

The U.S. Fish & Wildlife Service has announced the availability of its findings on an incidental take permit requested by Lehigh Southwest Cement Company for the incidental harm and harassment of the California red-legged frog, protected as threatened on the Endangered Species List, during the course of permanent on-site maintenance activities in Santa Clara County, California. The public comment period will be open through January 27, 2022.

The U.S. Fish & Wildlife Service (FWS) received an application for a six-year incidental take permit from Indiana Crossroads Wind Farm which would authorize the wind farm to incidentally harm and harass endangered Indiana bats and threatened northern long-eared bats. Accompanying the application is the wind farm’s proposed habitat conservation plan. FWS is accepting public comments on the application through January 27, 2022.

The USDA’s Food Safety & Inspection Service (FSIS) issued a public health alert in connection with an undetermined amount of meat and poultry products imported into the United States from China. FSIS cannot issue a recall because the agency was unable to identify the importer. The illegal products, discovered during a U.S. Customs and Border Protection Investigation, are ineligible for import, uninspected, and considered to be unfit for human consumption.

Ontario authorities charged Marineland, a Canadian amusement park, with violating a 2019 law banning the use of cetaceans for performances without a license. Last Chance for Animals, a United States-based advocacy organization, reported the unauthorized use of beluga whales for tricks during performances at Marineland in August 2021. Marineland is scheduled to appear in court on February 14, 2022, and faces up to $200,000 in fines if convicted.