Brooks Animal Law Digest

S.2571 and its companion, H.R.4997, would amend the Endangered Species Act (ESA) by fully de-listing grizzly bears in the lower forty-eight states. The bills have been introduced by Senators Jim Risch, Mike Crapo and Cynthia Lummis, along with Representative Russ Fulcher and have been referred to the Senate Committee on Environment and Public Works and the House Natural Resources Committee. The bill text is not yet publicly available.

H.R.5097 would amend the Food, Agriculture, Conservation, and Trade Act by directing the U.S. Department of Agriculture to establish research centers for alternative protein innovation. The bill was introduced by Representative Julia Brownley and has been referred to the House Committee on Agriculture and the House Committee on Education and the Workforce. The bill text is not yet publicly available.

Oregon Governor Tina Kotek signed House Bill 2915, which prohibits the retail sale of dogs and cats. Retail pet stores that violate the new law are subject to civil penalties of $500 for each violation.

Oregon Governor Tina Kotek signed Senate Bill 85, which establishes a multistep process for water quality permitting for new factory farms and pauses an existing exemption for the use of drinking water for livestock without a permit or water right. The legislation also will establish greater oversight by the Oregon Department of Agriculture and empower localities to require setbacks between proposed factory farms and adjacent land.

Oregon Governor Tina Kotek signed House Bill 3213, which, with limited exceptions, prohibits the sales of cosmetics that have been “developed or manufactured using cosmetic animal tests conducted or contracted for by the manufacturer or any supplier of the manufacturer” after January 1, 2024. Violators are subject to civil penalties of up to $5,000 for the first day of a violation and up to $1,000 for each subsequent day.

The Center for Biological Diversity (CBD) reached a settlement with the Environmental Protection Agency (EPA) and U.S. Fish and Wildlife Service (FWS) under which the agencies will be required to complete consultations under the Endangered Species Act (ESA) and assess harms to threatened and endangered wildlife from the direct application of pesticides to waters. The settlement resolves a petition for review that CBD filed in the U.S. Court of Appeals for the Ninth Circuit challenging EPA’s issuance of a Clean Water Act permit without fully assessing the risks posed to freshwater endangered species by pesticides applied directly to water and EPA and FWS’s alleged failures to comply with the ESA.

The U.S. District Court for the District of Columbia denied a motion to dismiss filed by the U.S. Department of Health and Human Services in litigation brought by the White Coat Waste Project (WCW) alleging that the National Institutes of Health has violated the Public Health Services Act by exempting foreign grant recipients from certain guidelines relating to the care of animals used in research.  The Court found that WCW has “adequately established that it has organizational standing and that its interests arguably fall within the zone of interests protected by the statute.” Advancing Law for Animals is representing WCW in the lawsuit.

The U.S. Court of Appeals for the Fourth Circuit ruled that shrimpers don't violate the Clean Water Act (CWA) when they throw bycatch overboard and disturb sediment with their trawl nets as alleged by North Carolina Coastal Fisheries Reform Group and a group of individual plaintiffs. The Fourth Circuit affirmed a lower court’s dismissal of the case, finding that because “[r]eturning bycatch to the ocean is not discharging a pollutant” and “trawl nets merely kick up sediment already present,” the activities do not violate the CWA.

A proposed class of workers at a red meat processing plant have reached a $10 million settlement with Seaboard Foods, LLC and a cooperation agreement with Triumph Foods in their suit alleging that Seaboard, Triumph, JBS USA, Cargill, Tyson Foods, Perdue Farms, and others conspired to keep industry wages low. The settlement class will encompass all persons employed by Seaboard or its subsidiaries between Jan. 1, 2014, and the preliminary approval date of the settlement and both Seaboard and Triumph agreed to provide documents and information to be used as evidence in proceedings against the other defendants who remain in the litigation. Plaintiffs already settled their claims against Perdue Farms for $1,250,000.

The U.S. District Court for the District of Alaska ruled that the Biden administration may lawfully impose a temporary moratorium on implementation of the oil and gas leasing program on the Arctic National Wildlife Refuge's Coastal Plain authorized by Congress in 2017, rejecting contentions from the State of Alaska, the Alaska Industrial Development and Export Authority, and other plaintiffs that President Biden and the Department of Interior exceeded their authority in issuing Executive Order 13990. U.S. District Judge Sharon Gleason dismissed all claims against the Biden administration and federal agencies with prejudice.

Animal protection groups urged the U.S. Supreme Court to deny the petition for writ of certiorari filed by the North Carolina Attorney General and the North Carolina Farm Bureau seeking reinstatement of North Carolina’s Ag-Gag law. In February, the U.S. Court of Appeals for the Fourth Circuit partially enjoined North Carolina from applying the law, holding that undercover investigations “as part of newsgathering constitute[] protected speech.”

The New York State Supreme Court upheld New York City’s “Local Law 202,” which prohibits restaurants and food retailers from selling or serving foie gras and other force-fed products in the city. The decision came in a special proceeding challenging the Commissioner of Agriculture and Markets of the State of New York (“Commissioner”), who determined that Local Law 202 violates state law by unreasonably restricting or regulating farming operations in the two agricultural districts where foie gras is produced in New York state. Acting Justice of the Supreme Court Richard Platkin “annulled as arbitrary and capricious” the Commissioner’s determination and remitted applications for review of the law back to the state.

Animal Partisan filed a petition for rulemaking with the Virginia Department of Agriculture and Consumer Services (“Department”), urging the Department’s Board of Agriculture and Consumer Services (“Board”) to “adopt regulations setting minimum welfare standards for the transport of live poultry to slaughter.” The advocacy organization specifically requests that the Board promulgate regulations “detailing required enclosure specifications and features; minimum ventilation standards and temperature-monitoring hardware and temperature tolerances for conveyances; and guidance for the safe and humane handling of birds by employees and contractors.”

The Journal of Animal Law, Ethics and One Health (LEOH), a new academic journal edited by the Center of Animal Law and Ethics (CALE) at the University of Zurich’s Faculty of Law in Switzerland, is calling for contributions. LEOH is particularly interested in receiving articles discussing legal and ethical issues relating to animals, the “One Health” approach, and case law and legislation relating to animals, with a focus on Europe. LEOH also is welcoming contributions with a comparative perspective that highlight and comment on developments in other countries, which could play a pioneering role for the development of the subject matter in the European legal arena. LEOH is a fully open access journal and is accepting contributions in German, English, and French, with articles published on a rolling basis.

S.2571 and its companion, H.R.4997, would amend the Endangered Species Act (ESA) by fully de-listing grizzly bears in the lower forty-eight states. The bills have been introduced by Senators Jim Risch, Mike Crapo and Cynthia Lummis, along with Representative Russ Fulcher and have been referred to the Senate Committee on Environment and Public Works and the House Natural Resources Committee. The bill text is not yet publicly available.

H.R.5096, the House companion to S.2235, the Healthy Poultry Assistance and Indemnification Act introduced by Senators Chris Coons and 13 original cosponsors in June, would expand the indemnity and compensation program for foreign animal disease outbreaks by making compensation available for poultry growers and layers who have been affected even if their birds have not been infected. The bill was introduced in the House by Representative Lisa Blunt Rochester and 11 original cosponsors and has been referred to the House Committee on Agriculture. Bill text is not yet publicly available.

H.R.5097 would amend the Food, Agriculture, Conservation, and Trade Act by directing the U.S. Department of Agriculture to establish research centers for alternative protein innovation. The bill was introduced by Representative Julia Brownley and has been referred to the House Committee on Agriculture and the House Committee on Education and the Workforce. The bill text is not yet publicly available.

S.J.Res.24 would congressionally disapprove and nullify the U.S. Fish & Wildlife Service’s final rule reclassifying the northern long-eared bat from threatened to endangered under the Endangered Species Act. The primary sponsor of the joint resolution is Senator Markwayne Mullin and while the measure has passed Congress it has not yet been signed by President Biden.

Oregon Governor Tina Kotek signed House Bill 2915, which prohibits the retail sale of dogs and cats. Retail pet stores that violate the new law are subject to civil penalties of $500 for each violation.

Oregon Governor Tina Kotek signed Senate Bill 85, which establishes a multistep process for water quality permitting for new factory farms and pauses an existing exemption for the use of drinking water for livestock without a permit or water right. The legislation also will establish greater oversight by the Oregon Department of Agriculture and empower localities to require setbacks between proposed factory farms and adjacent land.

Oregon Governor Tina Kotek signed House Bill 3213, which, with limited exceptions, prohibits the sales of cosmetics that have been “developed or manufactured using cosmetic animal tests conducted or contracted for by the manufacturer or any supplier of the manufacturer” after January 1, 2024. Violators are subject to civil penalties of up to $5,000 for the first day of a violation and up to $1,000 for each subsequent day.

Chicken buyers including Campbell Soup Co. and Target Corp. filed a petition seeking a panel rehearing or a rehearing en banc after the U.S. Court of Appeals for the Seventh Circuit court affirmed dismissal of their antitrust claims against Rabobank for its role allegedly assisting chicken producers orchestrate an industry-wide price-fixing conspiracy. Petitioners argue that the appellate panel applied the wrong standard and overlooked or misapprehended allegations in the complaint.

The National Wildlife Refuge Association, Friends of Blackwater, and The Sierra Club sued the U.S. Fish & Wildlife Service (FWS) in the U.S. District Court for the District of Columbia, alleging that the agency’s September 2022 decision to withdraw its plan to phase out lead ammunition in the Canaan Valley National Wildlife Refuge in West Virginia by 2026 violates the National Wildlife Refuge System Improvement Act (Improvement Act) and has “irreparably injured” wildlife preservation interests. Plaintiffs are seeking declaratory judgment and an order remanding FWS’s decision for a new decision consistent with the Improvement Act.

The Center for Biological Diversity (CBD) reached a settlement with the Environmental Protection Agency (EPA) and U.S. Fish and Wildlife Service (FWS) under which the agencies will be required to complete consultations under the Endangered Species Act (ESA) and assess harms to threatened and endangered wildlife from the direct application of pesticides to waters. The settlement resolves a petition for review that CBD filed in the U.S. Court of Appeals for the Ninth Circuit challenging EPA’s issuance of a Clean Water Act permit without fully assessing the risks posed to freshwater endangered species by pesticides applied directly to water and EPA and FWS’s alleged failures to comply with the ESA.

The U.S. District Court for the District of Columbia denied a motion to dismiss filed by the U.S. Department of Health and Human Services in litigation brought by the White Coat Waste Project (WCW) alleging that the National Institutes of Health has violated the Public Health Services Act by exempting foreign grant recipients from certain guidelines relating to the care of animals used in research.  The Court found that WCW has “adequately established that it has organizational standing and that its interests arguably fall within the zone of interests protected by the statute.” Advancing Law for Animals is representing WCW in the lawsuit.

Wild Fish Conservancy and the Washington Department of Fish and Wildlife Washington settled Endangered Species Act (ESA) litigation that sought to prevent the release of millions of hatchery-raised fish into the Puget Sound. The settlement agreement resolves Wild Fish Conservancy’s ESA claims by establishing parameters for the state’s management of hatchery programs for salmon and steelhead and requiring snorkel surveys and compliance reviews.

The U.S. Court of Appeals for the Fourth Circuit ruled that shrimpers don't violate the Clean Water Act (CWA) when they throw bycatch overboard and disturb sediment with their trawl nets as alleged by North Carolina Coastal Fisheries Reform Group and a group of individual plaintiffs. The Fourth Circuit affirmed a lower court’s dismissal of the case, finding that because “[r]eturning bycatch to the ocean is not discharging a pollutant” and “trawl nets merely kick up sediment already present,” the activities do not violate the CWA.

A proposed class of workers at a red meat processing plant have reached a $10 million settlement with Seaboard Foods, LLC and a cooperation agreement with Triumph Foods in their suit alleging that Seaboard, Triumph, JBS USA, Cargill, Tyson Foods, Perdue Farms, and others conspired to keep industry wages low. The settlement class will encompass all persons employed by Seaboard or its subsidiaries between Jan. 1, 2014, and the preliminary approval date of the settlement and both Seaboard and Triumph agreed to provide documents and information to be used as evidence in proceedings against the other defendants who remain in the litigation. Plaintiffs already settled their claims against Perdue Farms for $1,250,000.

The U.S. District Court for the District of Alaska ruled that the Biden administration may lawfully impose a temporary moratorium on implementation of the oil and gas leasing program on the Arctic National Wildlife Refuge's Coastal Plain authorized by Congress in 2017, rejecting contentions from the State of Alaska, the Alaska Industrial Development and Export Authority, and other plaintiffs that President Biden and the Department of Interior exceeded their authority in issuing Executive Order 13990. U.S. District Judge Sharon Gleason dismissed all claims against the Biden administration and federal agencies with prejudice.

Buyers are seeking class certification in a case alleging American Tuna, Inc. and its parent company, World Wise Foods, Ltd., misrepresent that their tuna products are sourced from fish caught in U.S. waters when a significant portion are not. The case is pending in the U.S. District Court for the Southern District of California.

The Center for Biological Diversity (CBD) and Trap Free Montana (TFM) sent a sixty-day notice of intent to sue the U.S. Fish & Wildlife Service (FWS) under the Endangered Species Act (ESA) over the permitting of a Montana gray wolf pelt export program that the groups contend may harm endangered Canada lynx. CBD and TFM allege FWS violated the ESA by failing to consider new threats to the lynx from the 2021 wolf regulations in Montana, which extended the state’s wolf trapping season and allowed snaring on private and public land, and by not reinitiating consultation over impacts of the pelt export program approval.

The Center for Biological Diversity and Nokuse Education, Inc. sued the U.S. Fish & Wildlife Service and the Department of the Interior in the U.S. District Court for the Middle District of Florida for denying Endangered Species Act protections to gopher tortoises despite FWS’s projection that “68-70% of gopher tortoise populations are likely to be lost by 2100.” Plaintiffs are seeking declaratory judgment and an order vacating and remanding FWS’s “not-warranted” finding with a timeline to conduct a new finding.

The U.S. District Court for the District of Columbia denied a motion to dismiss filed by several federal agencies in a lawsuit brought by the Center for Biological Diversity challenging the U.S. Environmental Protection Agency’s (EPA) failure to “perform statutorily required consultations with the U.S. Fish & Wildlife Service and the National Marine Fisheries Service” pursuant to the Endangered Species Act (ESA) prior to the EPA’s approval of Washington state limits on aquatic cyanide pollution. U.S. District Judge Beryl Howell concluded that the EPA has an “ongoing obligation” to ensure those standards do not imperil endangered species and that the plaintiff had pleaded “sufficient facts to assert that defendants violated [consultation regulations under the ESA].”

Animal protection groups urged the U.S. Supreme Court to deny the petition for writ of certiorari filed by the North Carolina Attorney General and the North Carolina Farm Bureau seeking reinstatement of North Carolina’s Ag-Gag law. In February, the U.S. Court of Appeals for the Fourth Circuit partially enjoined North Carolina from applying the law, holding that undercover investigations “as part of newsgathering constitute[] protected speech.”

The Ohio Supreme Court upheld the Ohio Power Siting Board’s approval of a proposed wind farm project despite objections from nineteen residents and the Black Swamp Bird Observatory who argued the project “could disrupt the area’s water supply, create excessive noise . . . , and kill bald eagles and migrating birds.” The court concluded that there was “sufficient probative evidence” of the 71-turbine project’s environmental and economic impact and that petitioners had “not established that the board’s order was unlawful or unreasonable.”

The New York State Supreme Court upheld New York City’s “Local Law 202,” which prohibits restaurants and food retailers from selling or serving foie gras and other force-fed products in the city. The decision came in a special proceeding challenging the Commissioner of Agriculture and Markets of the State of New York (“Commissioner”), who determined that Local Law 202 violates state law by unreasonably restricting or regulating farming operations in the two agricultural districts where foie gras is produced in New York state. Acting Justice of the Supreme Court Richard Platkin “annulled as arbitrary and capricious” the Commissioner’s determination and remitted applications for review of the law back to the state.

Animal Partisan filed a petition for rulemaking with the Virginia Department of Agriculture and Consumer Services (“Department”), urging the Department’s Board of Agriculture and Consumer Services (“Board”) to “adopt regulations setting minimum welfare standards for the transport of live poultry to slaughter.” The advocacy organization specifically requests that the Board promulgate regulations “detailing required enclosure specifications and features; minimum ventilation standards and temperature-monitoring hardware and temperature tolerances for conveyances; and guidance for the safe and humane handling of birds by employees and contractors.”

The U.S. Fish & Wildlife Service (FWS) published notice of its intent to prepare an updated Bison and Elk Management Plan and environmental impact statement for the National Elk Refuge. FWS will accept public comments on the proposed actions through August 31, 2023.

The National Institutes of Health announced upcoming meetings of the Scientific Advisory Committee on Alternative Toxicological Methods (SACATM), a federally chartered external advisory group of scientists, including representatives from regulated industries and animal protection organizations. SACATM advises on statutorily mandated duties of the Interagency Coordinating Committee on the Validation of Alternative Methods and activities of the National Toxicology Program Interagency Center for the Evaluation of Alternative Toxicological Methods. The meetings are open to the public and will be held in person and virtually on September 21 and 22, 2023.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced its intention to request a revision to and extension of approval of an information collection associated with the export of animals and animal products from the United States. APHIS will accept public comments on the information collection through October 3, 2023.

The U.S. Department of Agriculture’s Food Safety and Inspection Service issued a public health alert relating to a Cargill-produced raw beef product that may be contaminated with clear plastic. The products were shipped to ALDI grocery store locations nationwide, and a recall has not been triggered because the product is no longer available for purchase.

The U.S. Fish & Wildlife Service is offering a $5,000 reward for information leading to the successful prosecution of the individual(s) responsible for killing a federally protected red wolf in Washington County, North Carolina. The wolf was discovered dead—fatally shot in the torso—on May 18, 2023.

The National Oceanic and Atmospheric Administration announced the availability of a final management plan and final environmental assessment for the Stellwagen bank National Marine Sanctuary, situated between Cape Ann and Cape Cod, Massachusetts.

The U.S. Fish & Wildlife Service announced the public availability of revised marine mammal stock assessment reports for the Pacific walrus and for each of the three northern sea otter stocks in Alaska.

The U.S. Department of Agriculture’s Food Safety and Inspection Service announced that New Jersey-based E.N.A. Meat Packing Inc. is recalling approximately 58,721 pounds of frozen, raw halal beef tripe, beef feet, and lamb tribe products because the products were not inspected by FSIS. The products were received by distributors and retailers in New Jersey and New York. 

The U.S. Fish & Wildlife Service (FWS) announced its receipt of multiple applications for permits to conduct activities intended to enhance the propagation or survival of Endangered Species Act-protected species, including insects, birds, reptiles, fish, amphibians, and mammals. FWS will accept public comments on the proposed permits through September 8, 2023.

The National Marine Fisheries Service announced its designation of critical habitat for five threatened Caribbean coral species. The new designations will become effective September 8, 2023.

The Journal of Animal Law, Ethics and One Health (LEOH), a new academic journal edited by the Center of Animal Law and Ethics (CALE) at the University of Zurich’s Faculty of Law in Switzerland, is calling for contributions. LEOH is particularly interested in receiving articles discussing legal and ethical issues relating to animals, the “One Health” approach, and case law and legislation relating to animals, with a focus on Europe. LEOH also is welcoming contributions with a comparative perspective that highlight and comment on developments in other countries, which could play a pioneering role for the development of the subject matter in the European legal arena. LEOH is a fully open access journal and is accepting contributions in German, English, and French, with articles published on a rolling basis.

Animal Law Reform South Africa published a report entitled “Laying Down the Facts: Animal Welfare Standards of the Companies Providing Your Favourite Foods,” which focuses on the South African egg industry and the ways in which “the law does not sufficiently protect the interests of the millions of animals implicated in animal agriculture [in South Africa], including egg Laying Hens [sic] and their Chicks [sic].”

According to a recent presentation given at Nutrition 2023 (a conference of the American Society for Nutrition) by researchers at the University of Minnesota, cow’s milk is more nutrient-dense than plant-based alternatives, particularly when comparing vitamin D, protein, and calcium content in unfortified alternatives. Describing the results of a new, unpublished study, the researchers found “so much variability” in the nutritional content of plant-based alternatives and reported their assumptions that the plant-based industry has been more concerned with flavor, “mouthfeel,” and “other properties” than with matching the nutritional content of cow’s milk. The Director of the Stanford Diabetes Research Center pushed back, saying the claim that “plant milks aren’t as nutritious as cow’s milk” is “bunk.”

The Wall Street Journal reported on the ways states like Iowa are insulating hog farmers from nuisance liability despite their emissions of “ammonia, methane and other noxious gases.” 

A Michigan judge ordered Darin Wilbur, the owner of U.S. Guys Processing, to pay $1,143 in fines and costs in addition to “any residual restitution” to an underage employee who lost his hand while operating a meat grinder at a Michigan meat processing facility in 2019. According to the Michigan Attorney General’s Office, Wilbur had violated the state’s Youth Employment Standards Act and did not have the requisite work permit required to employ minors. Wilbur pleaded guilty to employing a minor in a dangerous profession and the judge declined to impose jail time or probation. 

Smithfield Foods, an asset of the Chinese company WH Group and the biggest pork producer in the world, announced the permanent closure of 35 hog farms in Missouri and the layoff of 92 Missouri employees, effective October 2023.

An article in Outside Magazine alleges that “hunting is the reason we have such abundant populations of wild animals in North America” and defends trophy hunting as a critical component of wildlife conservation. The author argues that trophy hunting “provides the tools for science-based [brown bear] management.”