The U.S. Court of Appeals for the Ninth Circuit upheld California’s ban on the sales of foie gras, holding that the prohibition is neither preempted by the federal Poultry Products Inspection Act nor unconstitutional under the dormant Commerce Clause. In its decision, the Ninth Circuit also affirmed that the sales ban does not prohibit Californians from ordering foie gras from out-of-state suppliers for personal consumption.
Issue 137: May 9, 2022
This Week's Spotlight
Federal Case Law Update
Legislative Updates
Pending Federal Actions
Federal Bill Would Allocate Funding to Help Stop Chronic Wasting Disease
Senate Bill 4111, the "Chronic Wasting Disease Research and Management Act of 2022," would allocate funds for chronic wasting disease (CWD) research and state management programs. CWD is a highly transmissible spongiform encephalopathy affecting deer. The bill has been referred to the Senate Committee on Agriculture, Nutrition, and Forestry.
Federal Bill Would Require Greater Transparency in Cattle Pricing
House Resolution 7639, the “Cattle Price Discovery and Transparency Act of 2022,” would establish a cattle contract library and other mechanisms to enhance transparency in pricing, including civil penalties for packers who fail to comply with the bill’s requirements. The bill has been referred to the House Committee on Agriculture.
Pending State Actions
New Jersey Bill Would Establish Statewide Uniformity in Treatment of Potentially Dangerous Dogs
New Jersey Assembly Bill 3714, the “Better Care Dog Act,” would empower the New Jersey Department of Health to establish a statewide regulatory system relating to both the responsible care and control of potentially dangerous dogs in order to enhance public safety and animal welfare, and the consequences for owners who fail to exercise responsible care of dogs who are not properly supervised.
New York Bill Aims to Establish Greater Protection for Marine Mammals and Sea Turtles
New York Senate Bill 9007, the “Marine Mammals and Sea Turtles Protection Act,” would authorize the New York Department of Environmental Conservation to adopt regulations to protect marine mammals and sea turtles from harm and harassment. The bill would become effective immediately upon enactment.
New Jersey Bill Would Prohibit Convicted Animal Abusers from Owning Firearms
New Jersey Assembly Bill 3841, a bill to prohibit the possession of a firearm by a person who has been convicted of cruelty to animals, has been reintroduced. The text of the new bill is not yet publicly available, but it was introduced in a prior legislative session as Assembly Bill 1572.
Case Law Updates
Federal Case Law Updates
Lawsuit Alleges Federal Agencies Improperly Withheld Public Records About Plans to Weaken Endangered Species Act
The Center for Biological Diversity (CBD) sued the U.S. Department of Agriculture (USDA) and the U.S. Fish & Wildlife Service (FWS) for alleged violations of the Freedom of Information Act. CBD alleges that the USDA and FWS have improperly withheld public records detailing discussions between political officials and agency staff about potential legislation that would weaken the Endangered Species Act. CBD seeks declaratory judgment and injunctive relief.
9th Circuit Upholds California’s Ban on Sales of Foie Gras with Limited Exception
The U.S. Court of Appeals for the Ninth Circuit upheld California’s ban on the sales of foie gras, holding that the prohibition is neither preempted by the federal Poultry Products Inspection Act nor unconstitutional under the dormant Commerce Clause. In its decision, the Ninth Circuit also affirmed that the sales ban does not prohibit Californians from ordering foie gras from out-of-state suppliers for personal consumption.
Agency Updates
USDA Announces Recall of Undercooked Chicken Products
The U.S. Department of Agriculture’s Food Safety and Inspection Service announced that Decatur, Alabama-based Wayne Farms, LLC is recalling 30,285 pounds of ready-to-eat chicken breast filets that it believes may be undercooked. The products were shipped to Illinois for further distribution to restaurants.
USDA Announces Recall of Potentially Contaminated Ground Beef
The U.S. Department of Agriculture’s Food Safety and Inspection Service announced that Lakeside Refrigerated Services, a Swedesboro, New Jersey company, is recalling 120,872 pounds of ground beef due to concern for E. coli contamination. The products were shipped to retail locations nationwide.
National Marine Fisheries Service Considers Endangered Species Act Protection for Rare Shark
The National Marine Fisheries Service (NMFS) published its ninety-day finding on a petition to list the tope shark under the Endangered Species Act, announcing that it has found sufficient data to warrant further consideration of federal listing status for the imperiled shark. NMFS is accepting public input, including further scientific data, through June 27, 2022.
U.S. Fish & Wildlife Service Announces Delisting of Rare Coral Species
The U.S. Fish & Wildlife Service announced that it is removing Siderastrea glynni, a rare species of coral, from the Endangered Species List after concurring with the National Marine Fisheries Service’s finding that Siderastrea glynni does not meet the statutory definition of a “species.” The delisting is effective May 3, 2022.
U.S. Fish & Wildlife Service Publishes Notice of Agency Action on Numerous Imperiled Species
The U.S. Fish & Wildlife Service published a summary of the actions it has recently taken on the consideration of numerous species of fauna and flora for Endangered Species Act protection.
U.S. Fish & Wildlife Service Seeks Public Input on Endangered Species Act Permit Applications
The U.S. Fish & Wildlife Service (FWS) announced its receipt of several Endangered Species Act permit applications for the recovery and research of imperiled birds, spiders, and fish. FWS is accepting public comments on the permit applications through June 2, 2022.
National Marine Fisheries Service Proposes Increase to Annual Catch Limit for Red Grouper
The National Marine Fisheries Service (NMFS) announced a proposed rule that would increase the commercial and recreational catch limits for red grouper in the Gulf of Mexico from 4.26 million pounds to 4.96 million pounds. NMFS is accepting public comments on the proposed annual catch limit increase through May 18, 2022.
U.S. Fish & Wildlife Service Proposes Federal Protection for Rare Butterfly Species
The U.S. Fish & Wildlife Service (FWS) announced its intent to list the silverspot butterfly, a rare butterfly species found in Utah, New Mexico, and Colorado, as a threatened species under the Endangered Species Act. FWS is accepting comments on the proposed listing status through July 5, 2022.
U.S. Fish & Wildlife Service Seeks Public Input on Real Estate Developer’s Request for Permission to Harm and Harass Federally Protected Mice
The U.S. Fish & Wildlife Service announced receipt of a permit application submitted by a real estate developer who seeks permission to take federally protected Alabama beach mice incidental to a development project in Gulf Shores, Alabama. FWS seeks public comments on the propose incidental take permit through June 3, 2022.
U.S. Fish & Wildlife Service Seeks Public Input on Forest Management Activities that will Impact Protected Salmon, Owls, and Murrelets
The U.S. Fish & Wildlife Service announced a public scoping period to consider the impact of potential issuance of incidental take permits for the Oregon Department of State Lands to harm and harass northern spotted owls, marbled murrelets, and Oregon Coast coho salmon incidental to forest management activities. FWS is accepting public input through June 6, 2022.
National Marine Fisheries Service Authorizes Take of Threatened Fish
The National Marine Fisheries Service announced the issuance of an Endangered Species Act Permit to the Washington Department of Fish & Wildlife for a proposed “trap and haul” program to move adult threatened steelhead and salmon further upstream in Washington State’s Skykomish River.
USDA Announces Recall of Uninspected Beef Stew
The U.S. Department of Agriculture’s Food Safety and Inspection Service announced the recall of 12,472 pounds of Pop’s Que & Stew’s “Homemade Brunswick Stew” which the Opelika, Alabama-based producer shipped to retail locations in Alabama, Georgia, Mississippi, and Tennessee without USDA inspection.
Bureau of Land Management Announces Amendments to Wild Horse Management Plans in Wyoming
The Bureau of Land Management (BLM) announced the availability of Resource Management Plan (RMP) Amendments for Wild Horse Management in BLM’s Rock Springs and Rawlins, Wyoming management areas. In its announcement, BLM also included protocols for eligible individuals who object to the proposed RMP amendments.
International Updates
Egyptian Parliament Takes Steps Towards Restricting Dangerous Animal Ownership
A proposed new law is pending in the Egyptian House of Representatives that would prohibit the possession and breeding of dangerous dogs and other dangerous animals. Zoos, circuses, and certain other licensed entities would be exempt from the prohibition.
The US Edition of the Animal Law Digest is published weekly with the support of the Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School.