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Brooks Animal Law Digest

US Edition: Issue 153

  BACK TO US DIGEST INDEX

This Week's Spotlights

Federal Case Law Updates

August 20, 2022
Nation’s Largest Meat Packers Face Yet Another Antitrust Lawsuit

John Soules Foods, Inc., a business located in Tyler, Texas, sued Cargill, JBS, Swift Beef, National Beef Packing Company, and Tyson Foods alleging illegal price-fixing via an agreement to artificially inflate the wholesale price of beef in the United States. Collectively the companies sued control up to 85% of the domestic cattle market. Plaintiff is seeking injunctive relief and treble damages.

August 24, 2022
Court Won’t Grant Injunction, but Allows “Sustainably Sourced” Lawsuit against Gorton’s to Proceed

A Massachusetts federal court has granted seafood company Gorton’s, Inc.’s motion to dismiss a request for injunctive relief but will allow plaintiffs to continue other claims alleging that Gorton’s misleads consumers by marketing its tilapia products as “sustainably sourced.” The court noted Gorton’s acknowledged in a hearing “that some of its tilapia comes from fish farms in China” and found that “Plaintiffs … assert a plausible (albeit hotly disputed) claim that Gorton’s tilapia are sourced, in part, from unsustainable Chinese fish farms with ‘environmentally destructive and inhumane’ practices.”

August 23, 2022
Class Action Lawsuit Alleges that Whole Foods’ “No Antibiotics, Ever” Campaign Misled Consumers

Farm Forward, an animal advocacy organization, and a group of California consumers have filed a putative class action lawsuit against Whole Foods, alleging that the grocer misled consumers about whether its beef products were truly antibiotic-free. Plaintiffs are seeking restitution and punitive damages.

State Case Law Updates

August 20, 2022
Petland Suing City of Fayetteville Over New Ordinance Banning Retail Dog and Cat Sales

Boyle Ventures, which operates Petland pet stores in Arkansas, sued the City of Fayetteville over a new ordinance which bans the retail sales and display of dogs and cats. The plaintiff claims the ordinance is unconstitutional, and Benton County Circuit Judge, Doug Schrantz, entered a temporary restraining order prohibiting the city from enacting the ordinance pending a hearing on November 17, 2022. The ordinance was passed by the city council unanimously and was meant to become enforceable on August 20, 2022.

Agency Updates

August 20, 2022
CDC Publishes Guidance on Monkeypox in Companion Animals

The Centers for Disease Control and Prevention issued guidance for detection, management, and treatment of Monkeypox in companion animals, as well as recommendations for preventing transmission between humans and animals.

Other Updates

August 24, 2022
Hundreds of Advocacy Groups Advise Congress that Leaked Infrastructure Bill Will Fast Track Fossil Fuel Projects to the Detriment of Wildlife and the Environment

More than 650 climate, environmental justice, conservation, public health, youth, and other advocacy organizations sent a letter to congressional leadership opposing the fossil fuel expansion deal proposed by West Virginia Senator Joe Manchin to Democratic leadership in exchange for his support of the Inflation Reduction Act. According to a leaked draft of Manchin’s infrastructure bill, fossil fuel projects that threaten the environment and wildlife would be fast-tracked. According to the advocacy groups, “All this legislation will do is weaken environmental protections that are needed to protect communities, wildlife, and our public lands and waters from the devastation of toxic fossil fuel projects.”

Legislative Updates

Pending Federal Actions

August 20, 2022
Bill Would Establish Conservation Area in State of Arizona

House Resolution 8719 would establish the Great Bend of Gila Conservation Area in the State of Arizona. The bill was introduced by Rep. Raúl Grijalva and has been referred to the House Committee on Natural Resources.

Pending State Actions

August 21, 2022
Montana Bill Would Update Terms Relating to Nonresident Hunting and Fishing Licenses

Montana LC0209 would revise the definition of “nonresident” related to hunting and fishing licenses. The text of the bill has not yet been published.

August 24, 2022
Montana Bill Would Vest DNRC with Authority to Enforce Aquatic Invasive Species Act

Montana LC0230 would transfer oversight and enforcement of the Montana Aquatic Invasive Species Act to the Department of Natural Resources and Conservation. The text of the bill has not yet been published.

Pending Municipal Actions

August 20, 2022
Kansas Municipality Considers Ordinance that Would Allow Residents to Keep Large Constrictor Snakes

The City of Hays, Kansas is considering an update to its municipal animal code that would allow residents to keep non-venomous constrictor snakes over six feet long. The snakes would need to be registered with the city and microchipped.

August 20, 2022
Wisconsin Village Considers Allowing Small, Non-Venomous Snakes as Pets

The Village of Hobart, Wisconsin is considering Ordinance 2022-12, which would amend the village’s existing municipal code prohibiting exotic pets to allow non-venomous snakes fewer than three feet in length as adults.

August 23, 2022
Wisconsin Municipality Considers Multiple Updates to its Animal Code

The Town of Hartford, Wisconsin is considering multiple amendments to its municipal animal code, including provisions to allow residents to keep chickens and limitations on the total number of companion animals that residents may keep.

Case Law Updates

Federal Case Law Updates

August 20, 2022
Nation’s Largest Meat Packers Face Yet Another Antitrust Lawsuit

John Soules Foods, Inc., a business located in Tyler, Texas, sued Cargill, JBS, Swift Beef, National Beef Packing Company, and Tyson Foods alleging illegal price-fixing via an agreement to artificially inflate the wholesale price of beef in the United States. Collectively the companies sued control up to 85% of the domestic cattle market. Plaintiff is seeking injunctive relief and treble damages.

August 23, 2022
Conservation Group Pursues ESA Citizen Suit Process Against FWS for Delay in Developing National Wolf Recovery Plan

The Center for Biological Diversity commenced the Endangered Species Act (ESA) citizen suit process by delivering a sixty-day notice letter to the U.S. Fish and Wildlife Service (FWS) of its intent to sue over the agency’s failure to develop a national wolf recovery plan. The planned lawsuit would seek an order requiring FWS to draft a recovery plan that includes all populations of wolves in the contiguous United States.

August 24, 2022
Court Won’t Grant Injunction, but Allows “Sustainably Sourced” Lawsuit against Gorton’s to Proceed

A Massachusetts federal court has granted seafood company Gorton’s, Inc.’s motion to dismiss a request for injunctive relief but will allow plaintiffs to continue other claims alleging that Gorton’s misleads consumers by marketing its tilapia products as “sustainably sourced.” The court noted Gorton’s acknowledged in a hearing “that some of its tilapia comes from fish farms in China” and found that “Plaintiffs … assert a plausible (albeit hotly disputed) claim that Gorton’s tilapia are sourced, in part, from unsustainable Chinese fish farms with ‘environmentally destructive and inhumane’ practices.”

August 23, 2022
Class Action Lawsuit Alleges that Whole Foods’ “No Antibiotics, Ever” Campaign Misled Consumers

Farm Forward, an animal advocacy organization, and a group of California consumers have filed a putative class action lawsuit against Whole Foods, alleging that the grocer misled consumers about whether its beef products were truly antibiotic-free. Plaintiffs are seeking restitution and punitive damages.

August 23, 2022
Dairy-Alternative Producer Silk Sued Over Coffee Creamer

A group of consumers have brought a class action [pdf attached: Silk Complaint] against Silk, a dairy-alternative beverage producer. The complaint alleges that Silk misleadingly inflates the protein content in one of its almond-based coffee creamers. Plaintiffs are seeking damages and injunctive relief.

August 24, 2022
Ninth Circuit Allows Farming Coalition to Join Gray Wolf Suit

The Ninth Circuit has ruled that a coalition of farming groups have the right to intervene in a case challenging the decision to revive protections for gray wolves. The Court found that the coalition’s interest in the litigation, i.e., to ensure the protection of livestock, differed significantly from the interests of other parties. Other parties in the case include environmental groups and sporting interest clubs.

August 26, 2022
Defendants Convicted of Multiple Federal Crimes in Connection with Cattle Ponzi Scheme

A federal court jury convicted two individuals who were indicted for wire fraud, conspiracy to commit wire fraud, and conspiracy to commit money laundering in connection with a Ponzi scheme that fraudulently represented to victim-investors that their investments were backed by short-term investments in cattle. Defendants are scheduled to be sentenced on January 6, 2023.

August 25, 2022
FWS Settles Lawsuit Over Delay in Listing Decision for Imperiled Lizards

In response to a lawsuit brought by the Center for Biological Diversity, the U.S. Fish and Wildlife Service agreed to decide whether to protect the imperiled dunes sagebrush lizard under the Endangered Species Act by June 29, 2023. CBD claims that widespread oil and gas development has destroyed significant portions of the lizard’s habitat in part of the Permian Basin region of Texas and New Mexico.

State Case Law Updates

August 20, 2022
Petland Suing City of Fayetteville Over New Ordinance Banning Retail Dog and Cat Sales

Boyle Ventures, which operates Petland pet stores in Arkansas, sued the City of Fayetteville over a new ordinance which bans the retail sales and display of dogs and cats. The plaintiff claims the ordinance is unconstitutional, and Benton County Circuit Judge, Doug Schrantz, entered a temporary restraining order prohibiting the city from enacting the ordinance pending a hearing on November 17, 2022. The ordinance was passed by the city council unanimously and was meant to become enforceable on August 20, 2022.

Agency Updates

August 20, 2022
CDC Publishes Guidance on Monkeypox in Companion Animals

The Centers for Disease Control and Prevention issued guidance for detection, management, and treatment of Monkeypox in companion animals, as well as recommendations for preventing transmission between humans and animals.

August 22, 2022
FWS Announces Issuance of ESA and MMPA Permits

The U.S. Fish & Wildlife Service published notice that it issued one Marine Mammal Protection Act permit to Scot Boyd at Stanford University Medical Center, and two Endangered Species Act permits to Cherokee Exotic Adventures, an exotic animal hunting ranch in Texas.

August 23, 2022
FSIS Issues Public Health Alert for Perdue Frozen Ready-To-Eat Chicken Tender Products

The U.S. Department of Agriculture’s Food Safety and Inspection Service issued a public health alert for Perdue’s frozen ready-to-eat chicken breast tenders that may be contaminated with small pieces of clear plastic and blue dye. The products, which are no longer available for purchase, were shipped to BJ's Wholesale Club retail locations nationwide.

August 23, 2022
FWS Announces Findings in Response to Four Petitions for Rulemaking Under the ESA

The U.S. Fish & Wildlife Service published its initial findings relating to four different Endangered Species Act (ESA) petitions for review and found that: 1) delisting Southern sea otters may be warranted; 2) adding the Fish Lake Valley tui chub to the list of ESA-protected species may be warranted; 3) sufficient scientific evidence has not been presented warranting revisions to the critical habitat for the Sonora chub; and 4) petitioners did not present sufficient evidence warranting further consideration of the Pryor Mountain mustang population for ESA protection. FWS will accept public input throughout its twelve-month review relating to Fish Lake Valley tui chubs and Southern sea otters.

August 23, 2022
USDA Seeks Public Comments on Proposed Extension of Information Collection Relating to Imported Poultry Products

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service announced its intention to request a revision to, and extension of, approval of an information collection associated with regulations for the importation of live poultry, poultry meat, and other poultry products from specified regions. The USDA will accept public comments on the proposed information collection through October 24, 2022.

August 24, 2022
Coalition of Groups Petition FWS to Protect Salamanders Under the ESA

The Center for Biological Diversity and ten partner organizations petitioned the U.S. Fish and Wildlife Service to protect the yellow-spotted woodland salamander under the Endangered Species Act. The petition estimates that only a few hundred of these salamanders remain.

August 24, 2022
FWS Announces Delisting Decision for Braken Bat Cave Meshweavers

The U.S. Fish & Wildlife Service published a final rule removing the Braken Bat Cave meshweaver from the list of ESA-protected species. The delisting of the spider species is effective September 23, 2022.

August 24, 2022
NMFS Considers Application for MMPA Permit to Research Marine Mammals

The National Marine Fisheries Service (NMFS) published notice that Dr. Robin Baird of Cascadia Research Collective in Olympia, Washington has applied for a permit to conduct research on marine mammals. NMFS will accept public comments through September 23, 2022.

August 25, 2022
USDA’s FSIS Announces Pepperoni Pizza Recall

The U.S. Department of Agriculture’s Food Safety and Inspection Service announced that Pizza John’s, based in Essex, Maryland, is recalling approximately 156,498 pounds of pepperoni pizza products that were produced without the benefit of federal inspection. The pizzas were distributed to retail locations in Maryland.

August 25, 2022
NOAA Seeks Permission from FWS for Polar Bear Research and Monitoring

The National Oceanic and Atmospheric Administration and the Alaska Fisheries Science Center applied to the U.S. Fish & Wildlife Service (FWS) for a Marine Mammal Protection Act Permit to conduct aerial surveys of polar bears in the wild. The surveys will be used to estimate abundance and for detection and classification model development for the purpose of scientific research over a five-year period. FWS will accept public comments on the permit application through September 26, 2022.

August 25, 2022
NMFS Authorizes Army Corps of Engineers to Harass Marine Mammals During Oregon Construction Project

The National Marine Fisheries Service published notice that it has issued two incidental harassment authorizations (IHAs) to the U.S. Army Corps of Engineers to incidentally harass marine mammals during in-water construction activities associated with the North Jetty Maintenance and Repairs Project in Coos Bay, Oregon. The IHAs are effective from September 1, 2022, through August 31, 2023, and from March 1, 2024, through February 28, 2025.

August 26, 2022
USDA Seeks Public Input on Proposed Bovine Tuberculosis Classifications for Regions in Mexico

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service published notice of its intent to classify eight Mexican regions for bovine tuberculosis. The agency is accepting public comments on its proposed classifications through October 25, 2022.

August 26, 2022
NMFS Seeks Public Input on Energy Company’s Request for Authorization to Take Marine Mammals

The National Marine Fisheries Service (NMFS) has received a request from Orsted Wind Power North America LLC for authorization to take marine mammals incidental to high resolution geophysical site characterization surveys in coastal waters from New York to Massachusetts. NMFS is accepting public comments on the permit application through September 26, 2022.

International Updates

August 22, 2022
U.S. and Chile Unveil Environmental Goals Centered on Climate Change and Marine Life

A joint communiqué from the United States-Chile Environmental Affairs Council and Joint Commission for Environmental Cooperation revealed the countries’ shared environmental goals. In particular, the Parties are focusing on efforts to address the climate crisis and strengthen ocean conservation. “The United States and Chile intend to build upon previous environmental cooperation work and to intensify their focus on certain priorities, such as combating wildlife trafficking and [unreported and unregulated] fishing; addressing pollution; improving water management and drought resilience; tackling the climate crisis; and advancing environmental justice through their respective domestic laws, regulations, and policies.”

Other Updates

August 24, 2022
Hundreds of Advocacy Groups Advise Congress that Leaked Infrastructure Bill Will Fast Track Fossil Fuel Projects to the Detriment of Wildlife and the Environment

More than 650 climate, environmental justice, conservation, public health, youth, and other advocacy organizations sent a letter to congressional leadership opposing the fossil fuel expansion deal proposed by West Virginia Senator Joe Manchin to Democratic leadership in exchange for his support of the Inflation Reduction Act. According to a leaked draft of Manchin’s infrastructure bill, fossil fuel projects that threaten the environment and wildlife would be fast-tracked. According to the advocacy groups, “All this legislation will do is weaken environmental protections that are needed to protect communities, wildlife, and our public lands and waters from the devastation of toxic fossil fuel projects.”

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