Brooks Animal Law Digest

The House Amendment to the Further Consolidated Appropriations Act, 2020, signed into law on December 20, requires that the Animal and Plant Health Inspection Service of the United States Department of Agriculture both restore all previously deleted records to its website and to make publicly available for the next three years unredacted versions of all Animal Welfare Act inspection reports, Animal Welfare Act and Horse Protection Act enforcement records, all reports and documentation of non-compliances observed by Department officials, and final Animal Welfare Act research facility annual reports.

The U.S. Supreme Court has rejected a bid by the foie gras industry to hear its challenge to California’s ban on the item. This leaves in act a 9th Circuit ruling upholding the ban and allows the ban to finally go into effect.

The Food Safety Inspection Service has announced an updated version of its guideline on the documentation required to support animal raising claims on meat and poultry product labeling. Changes to the guideline include requirements that product labels include descriptive language that accompany claims of animal welfare and environmental stewardship and added information on the use of terms synonymous with “free range.” The agency is accepting comments on the changes until February 25, 2020.

The House Amendment to the Further Consolidated Appropriations Act, 2020, signed into law on December 20, requires that the Animal and Plant Health Inspection Service of the United States Department of Agriculture both restore all previously deleted records to its website and to make publicly available for the next three years unredacted versions of all Animal Welfare Act inspection reports, Animal Welfare Act and Horse Protection Act enforcement records, all reports and documentation of non-compliances observed by Department officials, and final Animal Welfare Act research facility annual reports.

Senator Cory Booker has introduced legislation that would both prevent the construction of any new factory farms and require the closure of existing factory farms by the year 2040. The legislation would also amend the Packers and Stockyards Act of 1921 to bolster antitrust enforcement and require country of origin labeling.

Senate Bill 3053, the Food Safety Modernization for Innovative Technologies Act, would set the regulatory pathway—shared between the FDA and USDA—of foods created using cellular cultivation technology. The Act would mandate pre-approval of any food labeling and require that any such food product “that is an imitation of another food” be conspicuously labeled with the word “imitation.” Under the Federal Food, Drug, and Cosmetic Act, a food is considered to be an “imitation” if it is nutritionally inferior or does not comply with a standard of identity or nutritional quality guideline of that food.

House Bill 5445, the Critical Infrastructure Act of 2019, would require that major power companies include in their monthly billings to each customer the costs that the company (and respectively that customer) has incurred due to compliance with federal environmental laws, would prohibit the designation of critical habitat under the Endangered Species Act where there are certain water delivery or storage facilities, and categorically exclude all powerline projects and some projects where prairie dogs are the source of concern from the requirements of the National Environmental Policy Act.

House Bill 5489, the Polar Bear Conservation and Fairness Act, would amend the Marine Mammal Protection Act to allow for the import of polar bear trophies killed in sport hunts in Canada before polar bears were protected under the Endangered Species Act in 1997.

House Bill 5467, the Land Ownership Collaboration Accelerates Life Act of 2019, proposes to amend the Endangered Species Act to expand the agency’s ability to voluntarily contract with and authorize voluntary contracts between other private and public parties to protect certain species in exchange for protection from future conservation measures. The Act proposes to consider all such agreements as regulations, encourage the use of templates and reduction of monitoring of such agreements, and allow the Secretary to offer safe harbor agreements to parties. The Act would not allow the Secretary to determine whether any such agreement would provide a conservation benefit in their evaluation of the agreement.

The House Committee on Energy and Commerce has released the legislative framework for the Climate Leadership and Environmental Action for our Nation’s (CLEAN) Future Act. The Act aims to make the United States achieve net-zero greenhouse gas emissions by 2050. The draft does not currently contain provisions specifically addressing the role of animal agriculture in climate change.

The Opportunities for Fairness in Farming (OFF) Act proposes to reform the agricultural checkoff programs administered by the United States Department of Agriculture. The legislation is designed to increase transparency and to institute financial controls over the programs. Companion legislation has also been introduced in the Senate.

The Massachusetts Fisheries and Wildlife Board has adopted regulations that prohibit hunting contests that target fur-bearing animals (including coyotes, foxes, bobcats, weasels, minks, skunks, river otters, muskrats, beavers, fishers, raccoons and opossums).

Florida Senate Bill 2020 would make government information about where endangered or threatened species exist in the state exempt from public records requirements. The bill cites concerns for the species’ protection from poachers and increased traffic to such areas.

Florida House Bill 1067 would direct the Florida Fish and Wildlife Conservation Commission to continue to protect species even if they are delisted from the federal Endangered Species Act. The bill also recognizes that climate change is a threat to endangered species.

Indiana Senate Bill 110 would increase cruelty to or interference with a law enforcement animal or search and rescue dog from a Class A misdemeanor to a Level 6 felony. Indiana Senate Bill 48 proposes the same change without the search and rescue dog provision. 

Maryland House Bill 57 would set minimum hold times for animals taken in to an animal shelter for reclamation, require that animal shelters post publicly their guidelines regarding reclaiming an animal, and urge shelters to take steps to save at least 90% of the animals impounded.

Missouri Senate Bill 816 would alter the requirements of a state agency that confiscates an animal. The changes include requirements of a warrant, amount of time the agency has to appear in front of a judge following such a warrant, and dispersion of costs associated with the care of confiscated animals. The bill would also make it so that no person can recover damages for an animal who was “humanely killed” if a veterinarian found the animal “diseased or disabled beyond recovery for any useful purpose” or if that person failed to respond to a disposition hearing. Euthanizing or sterilizing an animal without such authorization is a Class B (and for each subsequent offense, Class A) misdemeanor.

Nebraska Legislature Bill 548 would make it a Class I misdemeanor to restrain (by means of chain, rope, cord, tether, or cable) an animal outdoors during a natural or manmade disaster, including tornado warnings and evacuation orders. The bill only applies to household pets.

New Hampshire Senate Bill 608 would allow individuals to take measures to rescue an animal from extreme temperatures, such as in a car on a hot day, as long as there is a witness, law enforcement has been contacted, and the individual reasonably believes that law enforcement will not arrive in time to prevent the animal from being harmed or killed. The bill also exempts such individuals from liability for damage resulting from reasonable steps to rescue the animal.

New Hampshire Senate Bill 588 would prohibit wildlife killing contests of wildlife except for fish. Organizing, promoting, or participating in such contest would be a Class B misdemeanor. The bill also prohibits intentionally leaving an animal injured or killed in a hunt without making a reasonable effort to retrieve the body.

New Jersey Senate Bill 3322 would allow for a court-appointed advocate to represent the interests of the animal at issue in any court case related to the welfare of an animal. Both lawyers and law students would be allowed to serve as advocates.

New Mexico Senate Bill 75, known as the Wildlife Trafficking Act, would prohibit the knowing purchase or sale of certain animals and animal parts, including elephants, lions, rhinoceros, and any species covered by Appendix 1 if the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The act provides exceptions for antique products, guns, musical instruments, ownership by an Indian nation for cultural or religious purposes, educational and scientific purposes, legal inheritance, and authorization by CITES.

New York Senate Bill 6933 proposes to change the factor that determines whether an animal is vulnerable in New York from an approximate 30% reduction in population size over the last ten years or three generations to any decline that if unreversed is likely to cause the species to become threatened or endangered in the foreseeable future.

Vermont Senate Bill 206 would deem any meat or meat food product misbranded if the product was not “derived from or harvested from a carcass of cattle, bison, sheep, swine, domestic rabbits, or goats or from a poultry carcass.” The bill also prohibits selling or distributing any product labeled as meat, a meat product, poultry, or a poultry product unless that product contains “the part of the muscle of any cattle, bison, sheep, swine, goats, horses, mules, or other equines that is skeletal or that is found in the tongue, in the diaphragm, in the heart, or in the esophagus, with or without the accompanying and overlying fat, and the portions of bone, skin, sinew, nerve, blood vessels that normally accompany the muscle tissue and that does not include the muscle found in the lips, snout, or ears” or the carcass of “any domesticated bird.” Conviction for violations of this law could result in two years of imprisonment, a $10,000 fine, or both, and it would leave the offender open to civil liability of $10,000 for each product in violation of the law.

Vermont Senate Bill 207 proposes to criminalize selling or distributing a food product labeled as “milk” or as a “dairy product” that is not or is not derived from “the pure lacteal secretion” of a cow or other livestock, unless that product conforms to a standard of identity adopted by the Food and Drug Administration. An offense would be punishable by two years of imprisonment, a $10,000 fine, or both, and it would leave the offender open to civil liability of $10,000 for each product in violation of the law.

The Animal Legal Defense Fund announced it has settled its case against Fur-Ever Wild, a wolf exhibiter in Minnesota. As part of the settlement, Fur-Ever Wild has agreed to no longer kill wolves or sell products made from wolves’ bodies. The lawsuit was originally brought in 2017 under the Endangered Species Act.

Two Massachusetts fishing companies have been sentenced to pay $1 million in combined fines and to serve five years of probation. The companies, Sea Harvest Inc. and Fishing Vessel Enterprises Inc., pled guilty in Massachusetts federal court to violating the Clean Water Act by dumping oily bilge water into a river and harbor in Massachusetts.

Three chicken companies have agreed to settle price-fixing claims against them for a settlement of over $13 million. The case began in September 2016, when consumers filed a class action suit on behalf of all direct purchasers of broiler chickens in the country. The settlement has not yet been approved.

Animal Legal Defense Fund, Humane Society of the United States, Food & Water Watch, the Center for Biological Diversity, and other environmental groups have asked the Fourth Circuit to review the Environmental Protection Agency’s decision not to update standards regarding water pollution from slaughterhouses. The groups claim that the decision allows slaughterhouses to update under outdated limits and pollution control technology. Last year the Environmental Integrity Project released a report claiming that 75 percent of such plants exceeded legal limits but  faced little or no enforcement.

Lewis & Clark Law School’s new Animal Law Litigation Clinic has filed a lawsuit on behalf of seven organizations (Farm Sanctuary, Animal Equality, Animal Legal Defense Fund, Center for Biological Diversity, Compassion Over Killing, Mercy For Animals, and North Carolina Farmed Animal Save) challenging the United States Department of Agriculture’s New Swine Slaughter Inspection System (NSIS). The new rule would shift ante-mortem inspection responsibilities to plant employees, rather than government inspectors, and revoke all limitations on the number of pigs that the plant may kill per hour. The lawsuit also challenges the agency’s failure to consider the environmental impacts of the new rule.

A California federal judge has ruled that the Food and Drug Administration does have authority to regulate genetically modified salmon as a drug under the Federal Drug and Cosmetics Act, even though the animal does not seem like a drug in the traditional sense of the word. The ruling comes following a lawsuit brought by environmental groups claiming that the agency failed to properly consider the environmental effects of such a product.

15 attorney generals and New York City filed a lawsuit challenging the Trump administration’s repeal of the Waters of the United States Rule, an Obama-era Clean Water Act regulation that protected rivers, streams, and wetlands.

A federal judge in Oregon has revoked the grazing permits of two ranchers pardoned by President Trump for setting fire to federal lands. The ranchers, the Hammonds, were convicted in 2012 for arson and sent to prison for the federal minimum of five years. The ranchers’ permits were revoked in response to a lawsuit that argued the permits should never have been granted due to that conviction.

A federal court in California has ruled that the Trump administration violated both the Endangered Species Act and the National Environmental Policy Act when it allowed longline fishing off the California coast without considering the best available evidence on the decision’s impact on leatherback sea turtles. The decision follows a lawsuit brought by the Center for Biological Diversity and Turtle Island Restoration Network.

A federal judge in Maryland has ruled that the Tri-State Zoological Park of Western Maryland violated the Endangered Species Act with regards to lions, tigers, and lemurs under its care. The lawsuit, brought by PETA in 2017, alleged that the roadside zoo violated the Act by failing to provide adequately sanitary living environments, nutritional diets, veterinary care, and shelter and enrichment to the animals. The surviving animals at issue will be transferred to The Wild Animal Sanctuary, and the Defendants have been enjoined from possessing any threatened or endangered species.

The Ninth Circuit has revived a challenge brought by fishers against the National Park Service’s authority to prohibit commercial herring fishing in the San Francisco Bay. The lawsuit had previously been dismissed by a California federal court.

Winn-Dixie has told a federal court that it has reached a settlement with dairy producers, including Land O’Lakes, for price-fixing. The case centers around a National Milk Producers Federation Program that was allegedly an effort to sell dairy cows for beef as a way to decrease the supply of milk. The terms of the settlement have not yet been disclosed.

People for the Ethical Treatment of Animals has asked the First Circuit to clarify what it means to “harass” a captive animal under the Endangered Species Act, arguing that the lower court defined the term incorrectly. While PETA acknowledges that the plaintiff in the lower court failed to meet her burden of proof, it argues that the lower court judge’s ruling that “generally accepted and Animal Welfare Act-compliant animal husbandry practices” do not violate the Act is incorrect. PETA argues that this summary leaves out a third prong of the analysis: whether the action is likely to result in injury to the wildlife.

The U.S. Supreme Court has rejected a bid by the foie gras industry to hear its challenge to California’s ban on the item. This leaves in act a 9th Circuit ruling upholding the ban and allows the ban to finally go into effect.

A lawsuit brought by the Center for Biological Diversity, Sea Turtle Oversight Protection, and Turtle Island Restoration Network accuses the U.S. Fish and Wildlife Service and National Marine Fisheries Service of violating the Endangered Species Act by failing to designate critical habitat for the green sea turtle.

The Sierra Club has filed a lawsuit against the U.S. Fish and Wildlife Service, the Florida Department of Transportation, and the U.S. Army Corps of Engineers, among others, alleging that the agencies’ approval of Florida highway expansion plans violated the Administrative Procedure Act and the National Environmental Policy Act because it failed to fully consider the expansion’s effects on the endangered Florida panther.

The Tenth Circuit upheld a lower court ruling that the Uintah Valley Shoshone Tribe did not have the authority to issue permits to hunt and fish on the Ute Indian Tribe’s reservation.

The DC Circuit has reversed a district court’s dismissal of a lawsuit brought by the American Anti-Vivisection Society and the Avian Welfare Coalition against the United States Department of Agriculture that alleged that the agency’s failure to establish standards for the humane handling of birds not bred for use in research was arbitrary and capricious under the Administrative Procedure Act. The issue has been remanded to the lower court for briefing on whether such action was unreasonably delayed.

Nationwide Mutual Insurance Company has filed a lawsuit in Arkansas federal court against poultry companies that were involved in the sale of contaminated chicken tenders to New York City public schools, denying that the insurance company is responsible for any of the verdicts awarded in ensuing litigation.

A federal court has decided that the Bureau of Land Management’s environmental review of ConocoPhillips’ recent oil and gas exploration properly considered the exploration’s effects on caribou and other environmental issues. The decision stems from a lawsuit brought by an Alaskan tribe and several environmental groups.

The Center for Biological Diversity has filed a lawsuit challenging California’s Kern County’s approval of a 12,000-unit development. The complaint alleges that the county failed to fully consider the project’s impact on protected animals, air quality, greenhouse gas emissions, public health, and traffic.

A lawsuit brought by Food & Water Watch and the Center for Food Safety challenges the United States Department of Agriculture’s New Swine Slaughter Inspection System as dangerous to both public health and the safety of plant employees.

Ben & Jerry’s has asked the court to dismiss the lawsuit brought against it in November. Ben & Jerry’s claims that the statements made on its packaging that the cows used to produce its ice cream are “happy” are merely opinions and “fluffery,” and therefore not actionable.

The United States Food and Drug Administration has announced that it has reviewed the objections made by the Center for Food Safety to the agency’s original approval of the use of soy leghemoglobin (commonly known as “heme”) in ground beef analogue products and found that they “do not raise issues of material fact that justify a hearing or otherwise provide a basis for revoking the amendment to the regulations.” The agency also clarified that this marks the ending of the stay of the effective date of this approval, making the Center for Food Safety’s argument that Impossible Burgers were being sold illegally in grocery stores and should be recalled moot.

The U.S. Fish and Wildlife Service has announced that a final comprehensive conservation plan and a final environmental impact statement for the National Bison Range in Montana is available.

The U.S. Fish and Wildlife Service has reclassified the Hawaiian goose from an endangered species to a threatened species and adopted a 4(d) rule specifically to enhance to conservation of the species. The rule is effective as of January 21, 2020.

The U.S. Fish and Wildlife Service has announced it will not list the Ozark chub, red tree vole (North Oregon Coast distinct population segment), or sand verbena moth as protection under the Endangered Species Act at this time.

The U.S. Fish and Wildlife Service has announced that it will initiate status reviews of the Bethany Beach firefly and the Gulf Coast solitary bee to determine whether listing those species for protection under the Endangered Species Act is warranted at this time.

The U.S. Fish and Wildlife Service has announced that it is accepting comments on several applications for Endangered Species Act permits, including from SeaWorld San Diego to import one captive-bred Pacific Walrus from Japan and from the San Diego Zoo to export two babirusa to Germany. The agency is accepting comments on these applications until January 22, 2020.

The New York Times has reported that the Trump administration’s policy toward migratory bird protections has resulted in an almost total halt of investigations into deaths, as well as active discouragement of local governments and businesses from pursuing precautionary measures to protect birds.

The National Marine Fisheries Service and National Oceanic Atmospheric Administration have announced their five year review of eight distinct population segments of the loggerhead sea turtle as required by the Endangered Species Act. The agencies are accepting information to help conduct the review until February 24, 2020.

The Food Safety Inspection Service has announced an updated version of its guideline on the documentation required to support animal raising claims on meat and poultry product labeling. Changes to the guideline include requirements that product labels include descriptive language that accompany claims of animal welfare and environmental stewardship and added information on the use of terms synonymous with “free range.” The agency is accepting comments on the changes until February 25, 2020.

The National Marine Fisheries Service has announced that it has adopted a final Endangered Species Act recovery plan for the threatened Puget Sound steelhead distinct population segment.

The Agricultural Marketing Service has proposed an increase in membership of the Cattlemen’s Beef Promotion and Research Board from 99 to 101. The agency is accepting comments on the change until February 28, 2020.

The Food Safety Inspection Service has announced an updated version of its guideline on statements that bioengineered or genetically modified ingredients or animal feed were not used in the production of meat, poultry, or products.

The U.S. Fish and Wildlife Service has announced that it has received an application for an Incidental Take Permit under the Endangered Species Act for Blue Creek Wind Farm. The agency is seeking comments on the application until January 29, 2020.

The Food Safety Inspection Service has responded to the Animal Welfare Institute’s petition asking the agency to define the term “free range” and amend the approval process for that claim. The agency responded by citing its recently released updated guideline for animal raising claims and says it believes the agency’s current process for approval of such claims is effective. 

The Food Safety Inspection Service has responded to the Animal Legal Defense Fund’s petition asking the agency to initiate rulemaking to require the disclosure of use of antibiotics in meat and poultry products. The agency rejected the petition, referring to its recent notice that it has released updated guideline for animal raising claims, including claims regarding antibiotics.

The U.S. Fish and Wildlife Service has announced it is removing the Hawaiian hawk from the list of species protected under the Endangered Species Act. The rule is effective as of February 3, 2020.

The U.S. Fish and Wildlife Service has announced it is considering removing the Kanab ambersnail from the list of species protected under the Endangered Species Act. The agency is accepting comments on the proposed rule until March 6, 2020.

The U.S. Fish and Wildlife Service has announced it is considering listing the Sierra Nevada distinct population segment of the Sierra Nevada red fox under the Endangered Species Act. The agency is accepting comments on this proposal until March 9, 2020.

The U.S. Fish and Wildlife Service has announced it is considering listing the Hermes copper butterfly as a threatened species under the Endangered Species Act and to designate critical habitat for the species under the Act. The agency is accepting comments on this proposal until March 9, 2020.

The Council on Environmental Quality has issued a notice of proposed rulemaking that would update its regulations for the implementation of the National Environmental Protection Act. If the proposed changes were made final, agencies would no longer be required to consider the “cumulative” impacts of projects on the environment, and the time frame for required environmental reviews would be shortened. The agency is accepting comments on this proposal until March 10, 2020.

The Agricultural Marketing Service has proposed a change to its regulations regarding the implementation of the Packers and Stockyards Act. The proposed rule would establish criteria, rather than using a case-by-case approach, for determining whether an undue or unreasonable preference or advantage has occurred in violation of the Act. The promulgation of such regulations is required by the 2008 Farm Bill. The agency is accepting comments on this proposal until March 13, 2020.

The U.S. Fish and Wildlife Service has announced its five year review of the Grizzly Bear in the conterminous United States as required by the Endangered Species Act. The agency is accepting information to help conduct the review until March 16, 2020.

The Environmental Protection Agency is partnering with People for the Ethical Treatment of Animals (PETA) and Physicians Committee for Responsible Medicine (PCRM) to host public webinars on reducing animal testing. The first of these webinars will be held on January 22, 2020.

A landmark legal ruling in a case brought by an ethical vegan regarding his dismissal from the League Against Cruel Sports in London ruled that ethical veganism is a “philosophical belief” that is protected by the Equality Act of 2010. The plaintiff, Jordi Casamitjana, claims that he was fired from the animal welfare charity after disclosing that the organization was investing in firms involved in animal testing.

A new article published in the ILAR Journal explores the role of ethicists and their work in policymaking related to animal research.

An article published in Food Policy attempts to measure the effects of listing animals as protected under the Endangered Species Act on cattle stocks and suggests that those listings may actually increase cattle stocks.

The first edition of the Routledge Handbook of Animal Ethics has been published and addresses a wide range of topics including animal intelligence and emotions, agriculture and hunting, research and engineering, companion animals, wildlife management, and activism.

Physicians’ Committee for Responsible Medicine’s founding president Neal Barnard has published a new book on the hormones of food and health. The book will be available on February 4, 2020.

Food Safety and Inspection Service workers have spoken out against the new system, warning that reduced inspection and increased line speeds could expose consumers to unsafe products.

There are 773 fewer operating dairies in Wisconsin in 2020 than there were at the beginning of 2019. The mass closings are largely due to the passage of the USMCA and lessening tensions with China.

The 160-year-old dairy company Borden filed for Chapter 11 bankruptcy in Delaware, citing a $256 million debt, declining dairy consumption, and increased competition.

A new piece in the New York Times asks whether the Chinese market will accept meat substitutes, such as products produced by Beyond Meat and Impossible Foods.

Impossible Foods has announced the release of its newest products, Beyond Pork and Sausage. The sausage will arrive at some Burger King locations across the country later this month.

A piece in Civil Eats profiles the plant-based movement’s work to assist those who wish to transition away from working in animal agriculture.