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Brooks Animal Law Digest

US Edition: Issue 159

  BACK TO US DIGEST INDEX

This Week's Spotlights

Federal Case Law Updates

October 1, 2022
Federal Judge Approves Class Action Settlement in False Advertising Suit Against Dairies over “Humanely Treated” Cows Claims

A federal judge in Illinois granted a $21 million settlement, ending multidistrict class action litigation that accused milk companies of falsely marketing milk as originating from humanely treated cows. The judge also signed off on a stipulated injunction which requires milk makers selling to Fairlife LLC to undergo annual audits of their farms, over the next three years, to ensure cattle welfare. The injunction further mandates employee training on animal handling and requires that farm suppliers bar hiring of individuals with histories of animal abuse or cruelty.

October 3, 2022
EPA Admits that it Failed to Consider Fungicide’s Impacts on Humans and Wildlife

The U.S. Environmental Protection Agency (EPA) admitted that it failed to consider relevant human health and wildlife studies when it approved the fungicide difenoconazole for use on crops, asking the Ninth Circuit for a chance to withdraw the decision itself. The agency asked the Ninth Circuit to deny a challenge from the Center for Food Safety seeking to vacate the EPA's interim approval of the chemical over alleged violations of the Federal Insecticide, Fungicide, and Rodenticide Act and the Endangered Species Act.

October 7, 2022
DOJ and FWS Announce Indictment and Extradition of Wildlife Trafficking Kingpin

The U.S. Department of Justice (DOJ) and the U.S. Fish & Wildlife Service (FWS) announced the indictment of Teo Boon Ching, a Malaysian national, for his role in a transnational criminal enterprise that profited off the trafficking of horns taken from poached rhinoceros. He also was indicted for laundering the proceeds of his illegal rhinoceros horn sales. Ching was arrested in Thailand and extradited to the United States, where he will face prosecution by the U.S. Attorney’s Office for the Southern District of New York.

October 8, 2022
Animal Activists Who Rescued Sick Piglets Acquitted in Criminal Theft and Burglary Case

A Utah jury acquitted Direct Action Everywhere activists, Wayne Hsiung and Paul Picklesimer, of the felony burglary and theft charges they faced after rescuing two dying piglets from a Smithfield pork production facility. Hsiung admitted that he took the sick piglets, but successfully argued that the state had not met its burden of demonstrating that he had taken anything of value, a necessary element of both charges, after the state veterinarian testified that the two piglets had a value of approximately $42 and were unlikely to survive the night. Picklesimer, who reportedly served strictly as a camera person for purposes of documenting facility conditions, did not testify. Three other co-defendants previously took plea bargains.

Agency Updates

October 3, 2022
USDA Proposes Rule Changes to Packers and Stockyards Act to Prevent Anticompetitive Behavior in Animal Agriculture

The U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) announced proposed revisions to the regulations under the Packers and Stockyards Act to promote inclusive competition and market integrity in the livestock, meats, poultry, and live poultry markets. AMS will accept comments on the proposed rule change through December 2, 2022.

October 5, 2022
FWS Announces ESA Delisting of the Snail Darter

The U.S. Fish and Wildlife Service (FWS) announced that it is removing the snail darter, a small freshwater fish native to the Tennessee River watershed, from the Federal List of Endangered and Threatened Wildlife. The de-listing is effective November 4, 2022. The snail darter was the subject of early high-profile Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) litigation and legislation, reaching the Supreme Court in Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) which upheld its protection. In response, Congress passed legislation specifically exempting the Tellico Dam from the ESA allowing the project to be completed in 1979 despite its potential impact on the fish.

October 5, 2022
FWS Releases Final Revised Mexican Gray Wolf Recovery Plan

The U.S. Fish & Wildlife Service (FWS) released its final revised Mexican Wolf Recovery Plan which includes court-ordered measures to reduce the number of wolf deaths by increasing law enforcement presence in “mortality hot spots.” Mexican gray wolves are highly endangered animals, with fewer than 200 counted in Arizona and New Mexico in 2022.

Legislative Updates

Pending Federal Actions

October 1, 2022
Bill Would Require ESA Listing Criteria to be Published on Internet

House Resolution 9108 would amend the Endangered Species Act (ESA) by requiring the U.S. Fish and Wildlife Service to publish the basis for determining ESA listing status on the internet. The bill was introduced by Representative Tom McClintock and has been referred to the House Committee on Natural Resources. The bill text has not yet been made publicly available.

October 7, 2022
Bill Would Help Ensure More Humane Management Practices for Wild Horses and Burros

House Resolution 9154 would amend the Wild Free-Roaming Horses and Burros Act to protect those animals from slaughter and better ensure humane management practices. The bill was introduced by Representative Raúl Grijalva and has been referred to the House Committee on Natural Resources. The bill text has not yet been made publicly available.

Pending State Actions

October 3, 2022
New Jersey Bill Would Require Veterinarians to Publish Price Lists for Basic and Emergency Services

New Jersey Senate Bill 3137 would require veterinary facilities to publish prices for standard and emergency veterinary services on their website or in another conspicuous location. The bill has been referred to the Senate Commerce Committee.

October 3, 2022
New Jersey Bill Would Establish Organic Farming Board

New Jersey Senate Bill 3140 would establish an organic farming board in the New Jersey Department of Agriculture “to develop, administer, and oversee programs … related to organic and regenerative farming.” The bill has been referred to the Senate Economic Growth Committee.

October 3, 2022
New Jersey Bill Would Provide Immunity for Individuals Who Rescue Suffering Animals from Vehicles

New Jersey Assembly Bill 4703 would exempt individuals from civil or criminal liability for breaking into a motor vehicle to rescue an animal under certain circumstances. New Jersey is currently only one of two states that criminalizes confinement of animals in vehicles under dangerous conditions without also providing for rescue immunity. If enacted, New Jersey will become the fifteenth state to enact a “Good Samaritan” law for companion animals. The bill has been referred to the Assembly Agriculture and Food Security Committee.

Case Law Updates

Federal Case Law Updates

October 1, 2022
Federal Judge Approves Class Action Settlement in False Advertising Suit Against Dairies over “Humanely Treated” Cows Claims

A federal judge in Illinois granted a $21 million settlement, ending multidistrict class action litigation that accused milk companies of falsely marketing milk as originating from humanely treated cows. The judge also signed off on a stipulated injunction which requires milk makers selling to Fairlife LLC to undergo annual audits of their farms, over the next three years, to ensure cattle welfare. The injunction further mandates employee training on animal handling and requires that farm suppliers bar hiring of individuals with histories of animal abuse or cruelty.

October 3, 2022
EPA Admits that it Failed to Consider Fungicide’s Impacts on Humans and Wildlife

The U.S. Environmental Protection Agency (EPA) admitted that it failed to consider relevant human health and wildlife studies when it approved the fungicide difenoconazole for use on crops, asking the Ninth Circuit for a chance to withdraw the decision itself. The agency asked the Ninth Circuit to deny a challenge from the Center for Food Safety seeking to vacate the EPA's interim approval of the chemical over alleged violations of the Federal Insecticide, Fungicide, and Rodenticide Act and the Endangered Species Act.

October 5, 2022
Rancher Sentenced to Federal Prison in Connection with Ghost Cattle Scam

A federal judge sentenced Washington-based cattle rancher, Cody Allan Easterday, to eleven years in prison for defrauding Tyson Foods, Inc. and another company out of more than $244 million by charging the companies for the purported costs of purchasing and feeding hundreds of thousands of cattle that did not exist. At the sentencing hearing, Chief Judge Stanley Bastian described Easterday’s fraud scheme as “the biggest theft or fraud I’ve seen in my career.” The court also ordered Easterday to pay $244 million in restitution.

October 5, 2022
Texas Woman and California Man Indicted for Trafficking Jaguar Cub

A federal grand jury indicted a Texas woman and a California man for alleged violations of the Endangered Species Act and Lacey Act in connection with the sale of a jaguar cub for approximately $30,000. The cub allegedly was re-sold and ultimately abandoned on the doorsteps of Lions, Tigers, & Bears, an accredited sanctuary in Alpine, California. Defendants are facing federal prison sentences and hundreds of thousands of dollars in criminal penalties.

October 7, 2022
DOJ and FWS Announce Indictment and Extradition of Wildlife Trafficking Kingpin

The U.S. Department of Justice (DOJ) and the U.S. Fish & Wildlife Service (FWS) announced the indictment of Teo Boon Ching, a Malaysian national, for his role in a transnational criminal enterprise that profited off the trafficking of horns taken from poached rhinoceros. He also was indicted for laundering the proceeds of his illegal rhinoceros horn sales. Ching was arrested in Thailand and extradited to the United States, where he will face prosecution by the U.S. Attorney’s Office for the Southern District of New York.

October 7, 2022
FWS Agrees to Designate Critical Habitat for Florida Bonneted Bat by November Fifteenth

Endangered Species Act litigation brought by the Center for Biological Diversity, Tropical Audubon Society, and the Miami Blue Chapter of the North American Butterfly Association has resulted in the U.S. Fish and Wildlife Service (FWS) agreeing to propose critical habitat for the endangered Florida bonneted bat by November 15, 2022. The bat, whose habitat is found only in South Florida, faces habitat loss from sea-level rise and urban sprawl.

October 8, 2022
Animal Activists Who Rescued Sick Piglets Acquitted in Criminal Theft and Burglary Case

A Utah jury acquitted Direct Action Everywhere activists, Wayne Hsiung and Paul Picklesimer, of the felony burglary and theft charges they faced after rescuing two dying piglets from a Smithfield pork production facility. Hsiung admitted that he took the sick piglets, but successfully argued that the state had not met its burden of demonstrating that he had taken anything of value, a necessary element of both charges, after the state veterinarian testified that the two piglets had a value of approximately $42 and were unlikely to survive the night. Picklesimer, who reportedly served strictly as a camera person for purposes of documenting facility conditions, did not testify. Three other co-defendants previously took plea bargains.

Agency Updates

October 1, 2022
FDA Proposes Updated Definition of “Healthy” for Human Food Labels

The U.S. Food and Drug Administration (FDA) has announced a proposed update to guidance on how the term “healthy” can be used in marketing and labeling food products. The FDA also is researching a symbol for manufacturers to use to indicate that a product has met the “healthy” standard. The FDA will accept comments on its proposed changes through December 28, 2022.

October 1, 2022
FSIS Issues Public Health Alert for Possible Listeria Monocytogenes in Chili Cheese Wieners

The U.S. Department of Agriculture’s Food Safety and Information Service (FSIS) issued a public health alert in connection with chili cheese wieners, produced by Wisconsin-based Family Fare, that may be contaminated with Listeria monocytogenes. FSIS did not issue a recall because it is believed that the wieners, which were produced on September 21, 2022, and shipped to a retail location in Cannon Falls, Minnesota, are no longer available in commerce. Routine testing revealed the contamination.

October 3, 2022
USDA Proposes Rule Changes to Packers and Stockyards Act to Prevent Anticompetitive Behavior in Animal Agriculture

The U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) announced proposed revisions to the regulations under the Packers and Stockyards Act to promote inclusive competition and market integrity in the livestock, meats, poultry, and live poultry markets. AMS will accept comments on the proposed rule change through December 2, 2022.

October 3, 2022
USDA Seeks Public Comments on Proposed Change to APHIS’ Veterinary Diagnostic Fees

The U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced its proposal to amend the regulations concerning user fees that it charges for veterinary diagnostic services and for certain import-related and export-related services for live animals, animal products and byproducts, birds, germplasm, organisms, and vectors. APHIS will accept public comments on the proposal through December 2, 2022.

October 3, 2022
FWS Announces Public Meetings to Discuss Red Wolf Recovery Program Plans

The U.S. Fish and Wildlife Service (FWS) announced that it would be holding meetings on October 4 and October 5 to update private landowners and the general public on the Red Wolf Recovery Program, including revitalized recovery efforts for the species, the status of recovery efforts in the eastern North Carolina Red Wolf Population area, and future planning efforts for the recovery of the species.

October 4, 2022
USDA Adds Arkansas to the List of States that Participate in State Meat and Poultry Inspection Program

The U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) announced that it entered a cooperative agreement with Arkansas, under which the state’s inspection program may inspect meat products produced for shipment within the state. Arkansas is the twenty-ninth state to participate in FSIS’ State Meat and Poultry Inspection Program.

October 4, 2022
FWS Seeks Public Comments on ESA Recovery Permit Applications

The U.S. Fish and Wildlife Service (FWS) announced its receipt of multiple Endangered Species Act (ESA) recovery permit applications for activities intended to enhance the survival of protected species of reptiles, amphibians, birds, and fish. FWS will accept public comments on the applications through November 3, 2022.

October 5, 2022
FWS Announces ESA Delisting of the Snail Darter

The U.S. Fish and Wildlife Service (FWS) announced that it is removing the snail darter, a small freshwater fish native to the Tennessee River watershed, from the Federal List of Endangered and Threatened Wildlife. The de-listing is effective November 4, 2022. The snail darter was the subject of early high-profile Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) litigation and legislation, reaching the Supreme Court in Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) which upheld its protection. In response, Congress passed legislation specifically exempting the Tellico Dam from the ESA allowing the project to be completed in 1979 despite its potential impact on the fish.

October 5, 2022
FWS Releases Final Revised Mexican Gray Wolf Recovery Plan

The U.S. Fish & Wildlife Service (FWS) released its final revised Mexican Wolf Recovery Plan which includes court-ordered measures to reduce the number of wolf deaths by increasing law enforcement presence in “mortality hot spots.” Mexican gray wolves are highly endangered animals, with fewer than 200 counted in Arizona and New Mexico in 2022.

Department of Homeland Security Eliminates Procedural Hurdle for Trophy Hunters

The Department of Homeland Security updated the U.S. Customs and Border Protection Form 4457 to eliminate the form’s expiration date and streamline procedural hurdles for gun owners. The form is required for trophy hunters and other gun owners to travel abroad with firearms. Senator Lisa Murkowski and Safari Club International lead the effort to achieve this outcome.

October 6, 2022
FWS Proposes ESA Critical Habitat Designation for Louisiana Pinesnake

The U.S. Fish and Wildlife Service (FWS) announced its Endangered Species Act (ESA) proposal to designate critical habitat in Texas and Louisiana for the threatened Louisiana pinesnake. FWS will accept public comments on the proposed critical habitat designation through December 5, 2022.

October 6, 2022
USDA Confirms Highly Pathogenic Avian Influenza in New Mexico

The U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) has confirmed the presence of highly pathogenic avian influenza in a non-commercial backyard flock in Bernalillo County, New Mexico. Samples from the flock were tested and confirmed at the APHIS National Veterinary Services Laboratories in Ames, Iowa. APHIS is working closely with state animal health officials in New Mexico on a joint incident response.

October 7, 2022
FWS Proposes ESA Protection for Imperiled Fish Found in San Francisco Bay

The U.S. Fish and Wildlife Service (FWS) announced its proposal to list the San Francisco Bay-Delta distinct population segment of longfin smelt, a fish species of the Pacific Coast, as an endangered species under the Endangered Species Act (ESA). FWS will accept public comments on the proposed listing through December 6, 2022.

October 7, 2022
U.S. Navy Seeks MMPA Permit from NMFS for Harassment of Marine Mammals Incidental to Pier Replacement Construction

The National Marine Fisheries Service (NMFS) has received a request from the U.S. Navy for authorization to take marine mammals incidental to construction activities associated with the replacement of a pier at Naval Station Norfolk over five years. NMFS will accept public comments on the Navy’s Marine Mammal Protection Act permit application through November 7, 2022.

Academic Updates

October 1, 2022
Temple Grandin Argues that Grazing Cattle and Other Livestock are Critical to Sustainable Agriculture in New Article

Temple Grandin argues in a new scholarly article, Grazing Cattle, Sheep, and Goats are Important Parts of a Sustainable Agriculture Future, Animals Vol. 12, No. 16 (2022), that well-managed livestock grazing is consistent with sustainable practices and can have a positive impact on soil health, biodiversity, and animal welfare.  

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