H.R. 7766, the “Trust the Science Act,” would require the Department of the Interior to reissue regulations to remove Endangered Species Act protections for the gray wolf. The bill, which was introduced by Representative Lauren Boebert and referred to the House Committee on Natural Resources, also would exempt the proposed revisions from judicial review.
Issue 139: May 23, 2022
This Week's Spotlights
Legislative Updates - Pending Federal Actions
Bill Would Impose Moratorium on Industrial Agriculture Mergers and Acquisitions
H.R. 7827, the “Food and Agribusiness Merger Moratorium and Antitrust Review Act of 2022,” temporarily would prohibit the acquisition of industrial agriculture businesses with annual revenue of at least $16,000,000 by industrial agriculture companies with existing revenue of at least $160,000,000. The bill was introduced by Representative Mark Pocan and has been referred to the House Judiciary Committee and the House Agriculture Committee.
Legislative Updates - Pending State Actions
Michigan Bill Would Allow Issuance of Hunting Licenses to Minor Children
Michigan House Bill 6113, the “Natural Resource and Environmental Protection Act,” would allow the issuance of hunting licenses to minor children. The bill has been referred to the House Committee on Natural Resources and Outdoor Recreation.
Legislative Updates - Enacted Municipal Actions
Dallas Passes Ban on Sale of Dogs and Cats by Pet Stores
The City of Dallas, Texas enacted a new ordinance that prohibits the sale of dogs and cats by pet stores and provides penalties for stores that offer dogs and cats other than those who are available for adoption.
Federal Case Law Updates
DC Circuit Rules NOAA Does Not Have to Release Data for SeaWorld Orca Deaths
The D.C. Circuit has upheld a lower court’s ruling that animal advocates failed to establish standing in a suit seeking access to medical records of three orca whales who died in SeaWorld captivity. Whale and Dolphin Conservation and Lori Marino et al had sued the National Oceanic and Atmospheric Administration seeking the records, but the National Marine Fisheries Service claimed that the 1994 amendments to the Marine Mammal Protection Act shifted authority to regulate post-capture marine animals to the Animal and Plant Health Inspection Service.
Advocacy Groups Move for Summary Judgment in Case Challenging Inhumane Treatment of Live Birds in Slaughterhouses
The Animal Welfare Institute and Farm Sanctuary, represented by Harvard Law School’s Animal Law & Policy Clinic, filed a motion for summary judgment in their case challenging the U.S. Department of Agriculture’s refusal to promulgate regulations banning the inhumane treatment of live birds at slaughterhouses. Plaintiffs argue that inhumane treatment of live birds leads to adulterated meats, the sale of which is illegal under the Poultry Products Inspection Act.
Federal Judge Denies Motion to Dismiss Lawsuit Relating to Sustainability Claims in ALDI Salmon Products
The U.S. District Court for the Northern District of Illinois rejected ALDI, Inc.'s motion to dismiss a class action lawsuit against the supermarket chain alleging it makes deceptive sustainability marketing claims about its fresh Atlantic salmon products. The lawsuit alleges that ALDI's use of the phrase “Simple. Sustainable. Seafood.” on its product packaging misleads consumers to believe that the salmon were farmed in accordance with high environmental and animal welfare standards.
State Case Law Updates
New York Appellate Court Holds Hearing in Happy the Elephant Habeas Case
The New York Court of Appeals held a hearing on the Nonhuman Rights Project’s petition that an elephant named Happy should be released from the Bronx Zoo through a habeas corpus proceeding and rehomed to a reputable sanctuary. The Court of Appeals is New York’s highest court and became the highest court in an English-speaking jurisdiction to hear a case demanding the extension of legal rights to a nonhuman animal. A ruling is expected in 6-8 weeks.
Agency Updates
EPA’s Internal Auditing Department Launches Investigation into Agency’s Failure to Address Seresto Flea Collar Complaints
The Environmental Protection Agency (EPA) announced that its Office of the Inspector General is investigating whether the agency violated federal law by failing to take action on the Seresto flea collar linked to thousands of pet deaths. The EPA has not put in place a single protective measure or notified the public about any concerns associated with the product despite more than 98,000 consumer complaints linking the flea collar to harm in companion animals, including more than 2,500 reported deaths, and at least 900 complaints about harm to humans.
Legislative Updates
Pending Federal Actions
Bill Would Remove Endangered Species Act Protections for Gray Wolves
H.R. 7766, the “Trust the Science Act,” would require the Department of the Interior to reissue regulations to remove Endangered Species Act protections for the gray wolf. The bill, which was introduced by Representative Lauren Boebert and referred to the House Committee on Natural Resources, also would exempt the proposed revisions from judicial review.
Bill Would Require Federal Guidance to Address the Needs of Animals in Natural Disasters and Other Emergencies
H.R. 7789, the “Planning for Animal Wellness (PAW) Act,” would require the administrator of the Federal Emergency Management Agency to establish a working group to address best practices and federal guidance for “sheltering and evacuation planning relating to the needs of household pets, service and assistance animals, and captive animals, as appropriate, in emergency and disaster preparedness, response, and recovery.” The bill, which was introduced by Representatives Dina Titus and Peter DeFazio, has been referred to the House Committee on Transportation and Infrastructure and has been cross-filed as S. B. 4205 in the U.S. Senate by Sens. Gary Peters and Rob Portman.
Bill Would Impose Moratorium on Industrial Agriculture Mergers and Acquisitions
H.R. 7827, the “Food and Agribusiness Merger Moratorium and Antitrust Review Act of 2022,” temporarily would prohibit the acquisition of industrial agriculture businesses with annual revenue of at least $16,000,000 by industrial agriculture companies with existing revenue of at least $160,000,000. The bill was introduced by Representative Mark Pocan and has been referred to the House Judiciary Committee and the House Agriculture Committee.
Bill Would Allow Alternatives to Animal Testing in Biological Product Experiments
S.B. 4288, would allow manufacturers and sponsors of a drug to use alternative non-animal testing methods to investigate the safety and efficacy of biological products. The bill was introduced by Senator Ben Ray Luján and has been referred to the Senate Committee on Health, Education, Labor, and Pensions. The bill text has not yet been made publicly available.
Enacted State Actions
Illinois School Districts Must Offer Plant-Based School Lunches Starting Fall 2023
Illinois Governor J.B. Pritzker signed into law House Bill 4089, which requires school districts to provide plant-based school lunch options to students who request them starting August 1, 2023.
Arizona Governor Signs Bill to Prohibit Breed Discrimination by Courts and Insurance Companies
Arizona Governor Doug Ducey signed House Bill 2323, which prohibits reliance solely upon a dog’s breed when a court makes determinations about dangerousness or when an insurance company makes underwriting decisions. The dog’s behavior, rather than breed, is the relevant criteria under the new legislation.
Pending State Actions
New Jersey Bill Would Allow Certain Public Servants to Break into Cars to Rescue Distressed Animals
New Jersey Senate Bill 2482 would exempt law enforcement officers and emergency personnel from liability for breaking into motor vehicles to rescue an animal in distress. If enacted, the bill would have immediate effect.
New York Bill Would Require Conservation Initiatives for Monarch Butterflies
New York Senate Bill 9295, the “Monarch Preservation Plan,” would require the Department of Environmental Conservation to “take feasible actions to conserve monarch butterflies and the unique habitats they depend upon for successful migration.” The bill has been referred to the Senate Committee on Environmental Conservation.
New Jersey Bill Would Require Approval of On-Site Housing for Certain Commercial Farm Workers
New Jersey Senate Bill 2669 would direct the State Agriculture Development Committee to adopt an agricultural management practice for housing certain year-round, full-time employees on commercial farms and establish such housing as eligible for "Right to Farm" protection. The bill has been referred to the Senate Committee on Economic Growth.
Michigan Bill Would Allow Issuance of Hunting Licenses to Minor Children
Michigan House Bill 6113, the “Natural Resource and Environmental Protection Act,” would allow the issuance of hunting licenses to minor children. The bill has been referred to the House Committee on Natural Resources and Outdoor Recreation.
Pennsylvania Bill Would Establish Grant Program for Small Meat Processors
Pennsylvania Senate Bill 1236 would establish a grant program for small meat and poultry processing operations. The bill has been referred to the Senate Committee on Agriculture and Rural Affairs.
Enacted Municipal Actions
Dallas Passes Ban on Sale of Dogs and Cats by Pet Stores
The City of Dallas, Texas enacted a new ordinance that prohibits the sale of dogs and cats by pet stores and provides penalties for stores that offer dogs and cats other than those who are available for adoption.
Case Law Updates
Federal Case Law Updates
U.S. Fish & Wildlife Service Settles Lawsuit by Agreeing to Release Overdue Reporting about Imperiled Populations of Manatees and Sea Otters
In response to a lawsuit filed by the Center for Biological Diversity and Turtle Island Restoration Network, the U.S. Fish & Wildlife Service agreed to release long-overdue population reports for manatees in Florida and Puerto Rico, and sea otters and walruses in Alaska, as required by the Marine Mammal Protection Act.
DC Circuit Rules NOAA Does Not Have to Release Data for SeaWorld Orca Deaths
The D.C. Circuit has upheld a lower court’s ruling that animal advocates failed to establish standing in a suit seeking access to medical records of three orca whales who died in SeaWorld captivity. Whale and Dolphin Conservation and Lori Marino et al had sued the National Oceanic and Atmospheric Administration seeking the records, but the National Marine Fisheries Service claimed that the 1994 amendments to the Marine Mammal Protection Act shifted authority to regulate post-capture marine animals to the Animal and Plant Health Inspection Service.
Advocacy Groups Move for Summary Judgment in Case Challenging Inhumane Treatment of Live Birds in Slaughterhouses
The Animal Welfare Institute and Farm Sanctuary, represented by Harvard Law School’s Animal Law & Policy Clinic, filed a motion for summary judgment in their case challenging the U.S. Department of Agriculture’s refusal to promulgate regulations banning the inhumane treatment of live birds at slaughterhouses. Plaintiffs argue that inhumane treatment of live birds leads to adulterated meats, the sale of which is illegal under the Poultry Products Inspection Act.
Federal Judge Denies Motion to Dismiss Lawsuit Relating to Sustainability Claims in ALDI Salmon Products
The U.S. District Court for the Northern District of Illinois rejected ALDI, Inc.'s motion to dismiss a class action lawsuit against the supermarket chain alleging it makes deceptive sustainability marketing claims about its fresh Atlantic salmon products. The lawsuit alleges that ALDI's use of the phrase “Simple. Sustainable. Seafood.” on its product packaging misleads consumers to believe that the salmon were farmed in accordance with high environmental and animal welfare standards.
Federal Court Overturns U.S. Fish & Wildlife Service Decision to Withdraw Endangered Species Act Listing Proposal for Imperiled Bird
The U.S. District Court for the Northern District of California has ruled that the U.S. Fish & Wildlife Service illegally withdrew its proposal to list the bi-state sage grouse as threatened under the Endangered Species Act. The ruling effectively vacates the agency’s withdrawal and reinstates its prior listing proposal.
Groups Sue to Stop Logging Project that Threatens Grizzly Bears in Montana
The Center for Biological Diversity, Alliance for Wild Rockies, and Native Ecosystems Council sued the U.S. Forest Service, alleging that its approval of a Knotty Pine timber sale project in Kootenai National Forest, Montana, impermissibly threatens federally protected grizzly bears. Plaintiffs are seeking declaratory judgment and injunctive relief.
Advocacy Organization Sues U.S. Fish & Wildlife Over Agency’s Failure to Protect Lizards in New Mexico and Texas
The Center for Biological Diversity (CBD) sued the U.S. Fish and Wildlife Service for its delay in deciding whether to grant Endangered Species Act protections to the dunes sagebrush lizard, a species that is threatened by oil and gas development in the Permian Basin. CBD is seeking declaratory judgment and injunctive relief.
Lobster Fishers’ Union Challenges Lack of Standing in North Atlantic Right Whale Suit
A lobster fishers’ union in Maine has asked a federal judge to reject the National Marine Fisheries Service’s (NMFS) Motion for Summary Judgment in the union’s legal challenge to a rule protecting endangered North Atlantic right whales. In their response to NMFS's motion, the union countered the claim that they lack standing to participate in the lawsuit and asserted that NMFS relied upon faulty data in its action, resulting in an incorrect apportionment of blame between U.S. and Canadian fishers when it comes to right whales’ entanglement in fishing nets.
State Case Law Updates
New York Appellate Court Holds Hearing in Happy the Elephant Habeas Case
The New York Court of Appeals held a hearing on the Nonhuman Rights Project’s petition that an elephant named Happy should be released from the Bronx Zoo through a habeas corpus proceeding and rehomed to a reputable sanctuary. The Court of Appeals is New York’s highest court and became the highest court in an English-speaking jurisdiction to hear a case demanding the extension of legal rights to a nonhuman animal. A ruling is expected in 6-8 weeks.
Agency Updates
National Marine Fisheries Service Announces New Management Measures for West Coast Salmon Fisheries
The National Marine Fisheries Service (NMFS) announced new fishery management measures for the 2022 ocean salmon fisheries off the coast of Washington, Oregon, and California. The new measures are effective May 16, 2022, through the date that NMFS announces 2023 fishery management measures.
USDA Announces Upcoming Poultry Improvement Meetings in Dallas
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service published notice and meeting details for the National Poultry Improvement Plan’s (NPIP) 45th Biennial Conference in Dallas, Texas. The General Conference Committee will meet on June 7, 2022, and the NPIP General Session will begin on June 8, 2022.
USDA Issues Public Health Alert for Undercooked Pork Products Distributed to Midwestern Walmart Stores
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced a public health alert for ready-to-eat ham products that, due to underprocessing, may not be fully cooked. The ham products, produced by Council Bluffs, Iowa-based Swift Prepared Foods, were shipped to Walmart stores in Illinois, Indiana, and Ohio. FSIS is not issuing a recall because the products are no longer available for purchase.
EPA’s Internal Auditing Department Launches Investigation into Agency’s Failure to Address Seresto Flea Collar Complaints
The Environmental Protection Agency (EPA) announced that its Office of the Inspector General is investigating whether the agency violated federal law by failing to take action on the Seresto flea collar linked to thousands of pet deaths. The EPA has not put in place a single protective measure or notified the public about any concerns associated with the product despite more than 98,000 consumer complaints linking the flea collar to harm in companion animals, including more than 2,500 reported deaths, and at least 900 complaints about harm to humans.
U.S. Fish & Wildlife Service Seeks Public Input on Habitat Conservation Plan for Imperiled Amphibians and Reptiles
The U.S. Fish & Wildlife Service (FWS) announced the availability of a draft habitat conservation plan for activities associated with an incidental take permit application that would authorize harm to federally protected California red-legged frogs and tiger salamanders incidental to the Legacy Homes Development Project in Santa Barbara County. FWS is accepting public comments on the proposed habitat conservation plan through June 21, 2022.
National Marine Fisheries Service Authorizes Harm to Marine Mammals by Energy Company
The National Marine Fisheries Service announced the issuance of incidental harassment authorization to Ocean Wind II, LLC, for the harassment of marine mammals during site characterization surveys off the coast of New Jersey. The authorization is effective from May 10, 2022, through May 9, 2023.
Energy Company Seeks Permission to Harm and Harass Marine Mammals During Offshore Site Characterization Surveys
Vineyard Northeast, LLC has made a request pursuant to the Marine Mammal Protection Act for authorization to harm and harass marine mammals incidental to offshore marine site characterization surveys between Massachusetts and New Jersey. The National Marine Fisheries Service is accepting public comments on the application through June 21, 2022.
National Marine Fisheries Service Authorizes Harm to Marine Mammals During Geophysical Survey Activities in Gulf of Mexico
Pursuant to the Marine Mammal Protection Act, the National Marine Fisheries Service issued a letter of authorization (LOA) to Echo Offshore, LLC for the take of marine mammals incidental to geophysical survey activities in the Gulf of Mexico. The LOA is effective from May 15, 2022, through November 30, 2022.
U.S. Coast Guard Seeks Permit to Harm and Harass Marine Mammals During Alaska Dock Construction Project
The U.S. Coast Guard has applied to the National Marine Fisheries Service (NMFS) for a permit to harm and harass marine mammals incidental to a floating dock extension project in Ketchikan, Alaska. NMFS is accepting public comments on the Marine Mammal Protection Act permit request through June 21, 2022.
Smithfield Meats Recalls Ready-to-Eat Bacon Topping
The U.S. Department of Agriculture’s Food Safety and Inspection Service announced that Smithfield Packaged Meats Corp., based in Sioux Center, Iowa, is recalling approximately 185,610 pounds of ready-to-eat bacon topping due to possible contamination with foreign metal particles. Smithfield did not discover the problem until it received a customer complaint.
Academic Updates
Researchers Identify Key Opportunities to Improve Farmed Animal Welfare in China
Sinclair M, Lee HP, Chen M, Li X, Mi J, Chen S and Marchant JN (2022) Opportunities for the Progression of Farm Animal Welfare in China. Front. Anim. Sci. 3:893772. doi: 10.3389/fanim.2022.893772.
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.