Brooks Animal Law Digest

Washington Cattlemen’s Association, National Cattlemen’s Beef Council, the American Petroleum Institute, thirteen states, and eight other organizations filed a petition for writ of mandamus to the U.S. Court of Appeals for the Ninth Circuit, challenging a lower court order restoring comprehensive Endangered Species Act regulatory protections for hundreds of species and their critical habitats. Petitioners argue that the lower court’s ruling was “clearly erroneous” because it set aside final agency action without declaring the action unlawful under the Administrative Procedure Act. Petitioners have requested that the writ of mandamus issue by September 14, 2022.

Animal Outlook filed a lawsuit against the American Heart Association (“AHA”) over its “Heart-Check” certification mark, which is available for purchase by meat producers that wish to use it on their beef product labels. The complaint alleges that AHA is violating D.C. consumer protection laws by failing to disclose that the “Heart-Check” certification is purchased, and misleads consumers into thinking beef products are “heart healthy” when they cause heart disease. The lawsuit also includes common law claims for negligent misrepresentation and unjust enrichment related to AHA selling a certification that Animal Outlook believes is factually false and violates AHA’s purported organizational philosophy. Animal Outlook is seeking injunctive relief and treble damages as well as restitution for affected consumers. Waymaker LLP is representing Animal Outlook in the lawsuit.

Animal Outlook submitted a petition for rulemaking to the Maine Department of Agriculture, Conservation, and Forestry (the “Department”) seeking rulemaking to implement the Department’s oversight of fish in aquaculture facilities and to ensure that “fish confined to state aquaculture facilities are kept in optimal environments, receive proper care and treatment, and are free from cruelty and neglect.”

The U.S. Fish and Wildlife Service (FWS) proposes to introduce the Guam kingfisher on Palmyra Atoll as an experimental population under the Endangered Species Act. The bird has been extinct in the wild for more than three decades and currently exists only in captivity. FWS is accepting public comments on the proposal through September 30, 2022.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced its intention to request revision and extension of approval of an information collection associated with the Animal Welfare Act regulations for the humane handling, care, treatment, and transportation of certain animals by dealers, exhibitors, operators of auction sales, research facilities, carriers, and intermediate handlers. The information collection includes, but is not limited to, inspections, itineraries, written programs of veterinary care, and records of the acquisition, disposition, and transport of animals. APHIS will accept public comments on its proposal through November 1, 2022.

Turtle Island Restoration Network just released the most rigorous independent water quality report ever conducted relating to Point Reyes National Seashore. The report documents significant water quality pollution attributable to cattle manure from nearby subsidized private ranching operations that pose unacceptable health risks for water recreation activities and shellfish harvesting. The report was published a week before the California Coastal Commission is set to vote on whether to approve a water-quality strategy prepared by the National Park Service to address chronic water pollution caused by private ranching in the only national seashore on the West Coast. 

Alaska Governor, Mike Dunleavy, signed House Bill 298, which creates the Alaska Food Strategy Task Force with the goal of improving food security. Additionally, the bill establishes forgivable loan programs for farm development and meat processing facilities.

Alaska Governor, Mike Dunleavy, signed House Bill 347, which exempts certain animal and owner-related information, including livestock virus testing reports, from disclosure under the Alaska Public Records Act.

The Second Circuit has revived a lawsuit brought by three members of the Shinnecock Indian Nation seeking to use their tribe’s ancestral fishing grounds off the coast of Long Island. Finding that the lower district court erred in granting summary judgment on the plaintiffs’ claims for declaratory and injunctive relief, the Court remanded the case for further proceedings.

Washington Cattlemen’s Association, National Cattlemen’s Beef Council, the American Petroleum Institute, thirteen states, and eight other organizations filed a petition for writ of mandamus to the U.S. Court of Appeals for the Ninth Circuit, challenging a lower court order restoring comprehensive Endangered Species Act regulatory protections for hundreds of species and their critical habitats. Petitioners argue that the lower court’s ruling was “clearly erroneous” because it set aside final agency action without declaring the action unlawful under the Administrative Procedure Act. Petitioners have requested that the writ of mandamus issue by September 14, 2022.

The U.S. District Court for the Western District of Washington certified to the Washington Supreme Court that the question of whether violations of the state animal cruelty law and state and federal wildlife laws, including the Endangered Species Act, can suffice as predicates for public nuisance causes of action. The decision comes as a result of litigation brought by the Animal Legal Defense Fund in which the advocacy organization alleges that the Olympic Game Farm is violating the Endangered Species Act and state animal laws by failing to provide adequate care to captive wildlife at the Sequim, Washington roadside zoo.

Animal Outlook filed a lawsuit against the American Heart Association (“AHA”) over its “Heart-Check” certification mark, which is available for purchase by meat producers that wish to use it on their beef product labels. The complaint alleges that AHA is violating D.C. consumer protection laws by failing to disclose that the “Heart-Check” certification is purchased, and misleads consumers into thinking beef products are “heart healthy” when they cause heart disease. The lawsuit also includes common law claims for negligent misrepresentation and unjust enrichment related to AHA selling a certification that Animal Outlook believes is factually false and violates AHA’s purported organizational philosophy. Animal Outlook is seeking injunctive relief and treble damages as well as restitution for affected consumers. Waymaker LLP is representing Animal Outlook in the lawsuit.

Animal Outlook submitted a petition for rulemaking to the Maine Department of Agriculture, Conservation, and Forestry (the “Department”) seeking rulemaking to implement the Department’s oversight of fish in aquaculture facilities and to ensure that “fish confined to state aquaculture facilities are kept in optimal environments, receive proper care and treatment, and are free from cruelty and neglect.”

National Marine Fisheries Service published notice of its issuance of an incidental harassment authorization (IHA) to Vineyard Northeast, LLC to harass marine mammals incidental to marine site characterization surveys offshore from Massachusetts to New Jersey. The IHA is effective from July 27, 2022, through July 26, 2023.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) has prepared an environmental assessment concerning authorization to field test an unlicensed Bursal Disease-Infectious Laryngotracheitis-Marek's Disease Vaccine. The environmental assessment is based on an analysis of the risks associated with the field testing of the veterinary vaccine and examines the potential effects that field testing could have on the human environment. APHIS is accepting public comments through September 29, 2022.

The Bureau of Land Management announced that the Wild Horse and Burro Advisory Board will hold a three-day meeting on October 4-6, 2022, from 8:00 a.m. to 5:30 p.m. Pacific Time at the BLM National Training Center in Phoenix, Arizona. Topics for each day include Collaboration with BLM and U.S. Forest Service, Comprehensive Ecosystem Approach to Management, and Humane Treatment and Communication. The meeting is open to the public to attend in person and virtually.

The U.S. Fish & Wildlife Service announced a final rule prescribing special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands. The rule responds to Tribal requests for FWS recognition of their authority to regulate hunting under established guidelines. The rule becomes effective on August 31, 2022.

The U.S. Fish and Wildlife Service (FWS) proposes to introduce the Guam kingfisher on Palmyra Atoll as an experimental population under the Endangered Species Act. The bird has been extinct in the wild for more than three decades and currently exists only in captivity. FWS is accepting public comments on the proposal through September 30, 2022.

The National Oceanic and Atmospheric Association (NOAA) announced its proposal for an extension of a current information collection to comply with the requirements of the International Dolphin Conservation Program Act. NOAA is accepting public comments on the proposal through October 31, 2022.

The U.S. Department of Agriculture’s Food Safety and Inspection Service announced that Valrhona Inc., a Brooklyn, New York business, is recalling approximately sixty-six pounds of egg albumin products that were produced in Italy, a country ineligible to export egg products to the United States. The items were shipped to locations in California, Florida, Nevada, and New York. 

The National Marine Fisheries Service (NMFS) announced that it has received a request from the U.S. Navy for authorization to take small numbers of marine mammals incidental to construction activities associated with the multifunctional expansion and modification of a Navy dry dock at Portsmouth Naval Shipyard in Kittery, Maine over the course of five years. NMFS is accepting public comments through October 3, 2022.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced its determination that the modified Venezuelan equine encephalitis virus (VEEV) strain TC-83(A3G) has demonstrated increased pathogenicity and lethality and that the strain has the potential to pose a severe threat to animal health or animal products. APHIS is advising the public that the strain is subject to APHIS' select agent and toxin regulations effective September 1, 2022.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced its intention to request revision and extension of approval of an information collection associated with the Animal Welfare Act regulations for the humane handling, care, treatment, and transportation of certain animals by dealers, exhibitors, operators of auction sales, research facilities, carriers, and intermediate handlers. The information collection includes, but is not limited to, inspections, itineraries, written programs of veterinary care, and records of the acquisition, disposition, and transport of animals. APHIS will accept public comments on its proposal through November 1, 2022.

The U.S. Fish & Wildlife Service (FWS) published notice that it has received the following Endangered Species Act permit applications:

• Florida Fish and Wildlife Conservation-Fish and Wildlife Research Institute applied for a permit to import 120 tissue samples collected from loggerhead turtles originating from the Mediterranean Sea Distinct Population Segment for the purpose of scientific research.
• Smithsonian's National Zoological Park requested renewal of their permit to take, import, export, re-export, and/or purchase in interstate or foreign commerce, blood, hair, and other tissue samples from any endangered or threatened wildlife exotic to the United States.
• Four applicants are seeking permits to import sport-hunted trophies of male bontebok killed at canned hunting facilities in the Republic of South Africa.

The U.S. Fish and Wildlife Service (FWS) published notice of its receipt of multiple applications for permits to conduct activities intended to enhance the propagation or survival of endangered or threatened insects, mammals, crustaceans, plants, birds, fish, and amphibians under the Endangered Species Act. FWS is accepting public comments through October 3, 2022.

The National Assembly in Ecuador published a Bill on Animal Law, which would establish protections for animals as part of a vulnerable group. The Constitutional Court of Ecuador ordered the National Assembly to draft the measure as part of its March 2022 ruling in the Estrellita case which held Ecuador’s Constitutional rights of nature provision also applied to nonhuman animals. Ecuador’s law on parliamentary procedure requires two debates on the Bill, and the court set a two-year deadline to approve the law. 

Turtle Island Restoration Network just released the most rigorous independent water quality report ever conducted relating to Point Reyes National Seashore. The report documents significant water quality pollution attributable to cattle manure from nearby subsidized private ranching operations that pose unacceptable health risks for water recreation activities and shellfish harvesting. The report was published a week before the California Coastal Commission is set to vote on whether to approve a water-quality strategy prepared by the National Park Service to address chronic water pollution caused by private ranching in the only national seashore on the West Coast.