Brooks Animal Law Digest

172 U.S. Representatives and 30 U.S. Senators bipartisanly representing 35 states sent signed letters to their respective agriculture committees voicing their “opposition to inclusion of the “Ending Agricultural Trade Suppression (EATS) Act” … or any similar legislation in the 2023 Farm Bill.” Representatives Earl Blumenauer and Brian Fitzpatrick, led the letter to the House Committee on Agriculture opposing H.R.4417, and Senators Dianne Feinstein, Cory Booker, and Alex Padilla led the letter to the Senate Committee on Agriculture, Nutrition and Forestry opposing S.2019. Both letters reference the 15 states that have enacted “humane standards for in-state production and sale of products from egg-laying chickens, veal calves, and mother pigs” and the House version mentions the producers and small farmers who “have indicated that they already can or will be able to comply with Proposition 12’s standards to supply the California market.” These members of Congress join a diverse array of individuals and groups opposed to the EATS Act.    

The U.S. District Court for the District of Arizona ruled that the Environmental Protection Agency (EPA) violated the Endangered Species Act in 2016 when it failed to assess harms to endangered species before increasing the levels of the heavy metal cadmium allowed in U.S. waters under the Clean Water Act. The court vacated the EPA’s chronic freshwater cadmium criterion and remanded the criteria back to the agency. The court did not vacate the EPA’s 2016 acute freshwater, chronic marine, and acute marine cadmium criteria. The ruling is the result of a 2022 lawsuit filed by the Center for Biological Diversity.

The U.S. Department of Justice (DOJ), on behalf of the U.S. Fish & Wildlife Service and U.S. Department of Agriculture, announced that it entered a consent decree with Zachery Keeler, dba Even Keel Exotics, LLC, a Michigan roadside zoo, in an enforcement action alleging that Keeler violated the Endangered Species Act (ESA) and the Animal Welfare Act (AWA). The government’s complaint against Keeler alleges that he prematurely separating an endangered lemur from their mother to facilitate public interactions, after which he attempted to sell the ESA-protected baby primate for $3,500. It also alleges that Keeler failed to meet minimum standards of care prescribed by the AWA and did not allow inspectors access to the facility as required. As part of the settlement, Keeler agreed to surrender nearly 150 animals and never apply for another AWA license or undertake AWA-regulated activities.

The U.S. Environmental Protection Agency (EPA) rejected a petition for rulemaking from Earthjustice and over 50 other organizations. The petition requested that the EPA revise Clean Water Act (CWA) regulations to include a rebuttable presumption that Large Concentrated Animal Feeding Operations (CAFOs) with wet manure management systems discharge pollutants. Under such a presumption, CAFOs would need to obtain permits under the CWA unless they could show that they do not discharge pollutants. The EPA responded that while the agency “shares [the petitioners’] deep concern for addressing sources of pollution to the nation’s waters, and . . . sources of harm to human health and the environment,” the requested action was “not meaningfully distinguishable” from previously vacated regulations. In its denial, the EPA articulated its intent to comprehensively review its existing CAFO program to “determine how best to strengthen the CWA permitting program for CAFOs, including as it applies to Large CAFOs using wet manure management systems.” The EPA also announced the establishment of an “Animal Agriculture and Water Quality” subcommittee within the existing Farm, Ranch, and Rural Communities Federal Advisory Committee.

U.S. Department of Agriculture Secretary Thomas Vilsack sent correspondence to Brazilian Minister of Agriculture Carlos Fávaro urging Brazil “to continue its progress in streamlining timely animal disease reporting” given the country’s “recent bovine spongiform encephalopathy (BSE) detections.” Secretary Vilsack noted that Brazil “continues to lag significantly behind the timelines of other major beef exporters” in the “time between BSE initial detection, sampling, and completed test results.”

H.R. 5110, the “Protecting Hunting Heritage and Education Act,” would allow federal education funds to be used for weapons training in hunting, archery, and shooting sports. The bill was introduced by Representatives Mark Green and Richard Hudson, and it has been referred to the House Committee on Education and the Workforce.

H.R. 5161, the “Protecting Hunting and Archery in Schools Act of 2023,” would eliminate an existing prohibition on the use of federal education funds for weapons training in hunting, archery, and shooting sports. The bill was introduced by Representative Claudia Tenney, along with three original cosponsors, and has been referred to the House Committee on Education and the Workforce.

172 U.S. Representatives and 30 U.S. Senators bipartisanly representing 35 states sent signed letters to their respective agriculture committees voicing their “opposition to inclusion of the “Ending Agricultural Trade Suppression (EATS) Act” … or any similar legislation in the 2023 Farm Bill.” Representatives Earl Blumenauer and Brian Fitzpatrick, led the letter to the House Committee on Agriculture opposing H.R.4417, and Senators Dianne Feinstein, Cory Booker, and Alex Padilla led the letter to the Senate Committee on Agriculture, Nutrition and Forestry opposing S.2019. Both letters reference the 15 states that have enacted “humane standards for in-state production and sale of products from egg-laying chickens, veal calves, and mother pigs” and the House version mentions the producers and small farmers who “have indicated that they already can or will be able to comply with Proposition 12’s standards to supply the California market.” These members of Congress join a diverse array of individuals and groups opposed to the EATS Act.    

The U.S. District Court for the District of Columbia granted summary judgment in favor of the Natural Resources Defense Council, Center for Biological Diversity, and Friends of Minnesota Scientific and Natural Areas in their challenge to the U.S. Fish & Wildlife’s (FWS) 2020 decision to not designate critical habitat for the rusty patched bumblebee after listing the species as endangered under the Endangered Species Act. The court found that FWS had applied the incorrect legal standard in its refusal to designate critical habitat. The court vacated and remanded the decision to FWS. 

The U.S. District Court for the District of Arizona ruled that the Environmental Protection Agency (EPA) violated the Endangered Species Act in 2016 when it failed to assess harms to endangered species before increasing the levels of the heavy metal cadmium allowed in U.S. waters under the Clean Water Act. The court vacated the EPA’s chronic freshwater cadmium criterion and remanded the criteria back to the agency. The court did not vacate the EPA’s 2016 acute freshwater, chronic marine, and acute marine cadmium criteria. The ruling is the result of a 2022 lawsuit filed by the Center for Biological Diversity.

The Center for Biological Diversity (CBD) sued the U.S. Fish & Wildlife Service (FWS) in the U.S. District Court for the District of Arizona for significantly reducing designated critical habitat for two endangered snakes in Arizona and New Mexico as compared with its original proposal. CBD is seeking declaratory judgment that FWS violated the Endangered Species Act and the Administrative Procedure Act as well as an order requiring FWS to revise its critical habitat designations for the northern Mexican gartersnake and the narrow-headed gartersnake.

Aldi Inc. settled a lawsuit pending in the U.S. District Court for the Central District of California alleging that the supermarket chain falsely advertises its tuna as “dolphin safe” even though the product is sourced from fisheries that use methods known to harm or kill dolphins. According to the joint notice of settlement, the parties will file a stipulation of dismissal within thirty days. The notice does not disclose the settlement terms.

The U.S. District Court for the District of Maryland approved an agreement between parties to a lawsuit challenging the National Marine Fisheries Service’s (NMFS) alleged failure to adequately protect endangered Rice’s whales and other imperiled marine animals from oil and gas drilling in the Gulf of Mexico. Under the agreement, litigation filed by the Sierra Club, Center for Biological Diversity, Friends of the Earth, and Turtle Island Restoration Network will be stayed for up to a year from September 1, 2023, the Bureau of Ocean Energy Management (BOEM) will exclude certain Rice’s whale habitat from lease sales, and BOEM will require future oil and gas leaseholders to reduce risks of vessel strikes and other disturbances to Rice’s whales. On August 17, 2023, BOEM notified existing leaseholders of their obligation to avoid the “take” of protected Rice’s whales and recommended protective measures. 

The U.S. Department of Justice (DOJ), on behalf of the U.S. Fish & Wildlife Service and U.S. Department of Agriculture, announced that it entered a consent decree with Zachery Keeler, dba Even Keel Exotics, LLC, a Michigan roadside zoo, in an enforcement action alleging that Keeler violated the Endangered Species Act (ESA) and the Animal Welfare Act (AWA). The government’s complaint against Keeler alleges that he prematurely separating an endangered lemur from their mother to facilitate public interactions, after which he attempted to sell the ESA-protected baby primate for $3,500. It also alleges that Keeler failed to meet minimum standards of care prescribed by the AWA and did not allow inspectors access to the facility as required. As part of the settlement, Keeler agreed to surrender nearly 150 animals and never apply for another AWA license or undertake AWA-regulated activities.

The U.S. Environmental Protection Agency (EPA) rejected a petition for rulemaking from Earthjustice and over 50 other organizations. The petition requested that the EPA revise Clean Water Act (CWA) regulations to include a rebuttable presumption that Large Concentrated Animal Feeding Operations (CAFOs) with wet manure management systems discharge pollutants. Under such a presumption, CAFOs would need to obtain permits under the CWA unless they could show that they do not discharge pollutants. The EPA responded that while the agency “shares [the petitioners’] deep concern for addressing sources of pollution to the nation’s waters, and . . . sources of harm to human health and the environment,” the requested action was “not meaningfully distinguishable” from previously vacated regulations. In its denial, the EPA articulated its intent to comprehensively review its existing CAFO program to “determine how best to strengthen the CWA permitting program for CAFOs, including as it applies to Large CAFOs using wet manure management systems.” The EPA also announced the establishment of an “Animal Agriculture and Water Quality” subcommittee within the existing Farm, Ranch, and Rural Communities Federal Advisory Committee.

U.S. Department of Agriculture Secretary Thomas Vilsack sent correspondence to Brazilian Minister of Agriculture Carlos Fávaro urging Brazil “to continue its progress in streamlining timely animal disease reporting” given the country’s “recent bovine spongiform encephalopathy (BSE) detections.” Secretary Vilsack noted that Brazil “continues to lag significantly behind the timelines of other major beef exporters” in the “time between BSE initial detection, sampling, and completed test results.”

The U.S. Fish & Wildlife Service (FWS) announced a proposal to list the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell species of mussels as endangered under the Endangered Species Act. FWS will accept comments on the proposed listing decisions through October 23, 2023.

The U.S. Fish & Wildlife Service (FWS) announced a proposal to list the Brawleys Fork crayfish as a threatened species under the Endangered Species Act. The proposed rule also designates critical habitat for the freshwater crayfish in Tennessee. FWS will accept comments on the proposed listing decision and habitat designation through October 23, 2023.

The U.S. Fish & Wildlife Service (FWS) announced a proposal to list two cavefish species in Texas, the toothless blindcat and the widemouth blindcat, as a threatened under the Endangered Species Act. The proposed rule does not designate critical habitat. FWS will accept comments on the proposed listing decisions through October 23, 2023.

The U.S. Fish & Wildlife Service (FWS) announced its finding that nine species do not yet meet criteria for listing status under the Endangered Species Act: the Alexander Archipelago wolf, Chihuahua catfish, Cooper’s cave amphipod, Georgia blind salamander, minute cave amphipod, Morrison’s cave amphipod, narrow-foot hygrotus diving beetle, pristine crayfish, and Tennessee heelsplitter. FWS requests that the public submit any relevant new information as it may arise.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced that it has added Ecuador and Peru to the list of regions it considers to be affected by highly pathogenic avian influenza (HPAI). APHIS determination and its imposition of HPAI-related restrictions on avian commodities originating in or passing through Ecuador or Peru became effective in December 2022.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) published notice of a draft supplemental environmental assessment (EA) and draft finding of no significant impact (FONSI) related to APHIS’s emergency responses to highly pathogenic avian influenza outbreaks in commercial and backyard poultry operations located in migratory bird flyways. The draft EA supplements the initial EA and FONSI that APHIS published in September 2022. APHIS will accept public comments on the supplemental EA and FONSI through September 25, 2023.

The U.S. Department of Agriculture’s Agriculture Marketing Service announced a final rule establishing the Dairy Donation Program as required by the Consolidated Appropriations Act of 2021. The program facilitates dairy product donations from eligible organizations and seeks to minimize food waste. The final rule is effective August 25, 2023.

Researchers at Stanford University published an article in One Earth finding that the EU and US have been “slow to act decisively to mitigate the environmentally damaging role played by the dominant animal production systems” and have “largely ignored the mitigation potential of niche technologies that provide viable alternatives” (such as precision fermentation and animal cell cultivation) to help curtail the vast environmental impacts of industrial animal agriculture. The article determined that “[p]ublic funding for the[se] novel technologies is smaller than that for animal products by factors of 1,200 in the EU and 800 in the US.” The authors concluded that “[a] shift in food policy is required to improve technologies to produce sustainable alternatives to animal-source products and reduce the environmental impact of the food system.”

A new article published in Frontiers in Nutrition finds that plant-based diets may help ameliorate public health challenges, including chronic disease and food insecurity, worsened by with climate-driven emergencies. The report determined that “plant-based diets substantially reduce risks for chronic disease and hospitalization and . . . . could also meaningfully modify climate-related and zoonotic disease risks by reducing livestock production.” The report was authored by an affiliate of the Center for Biological Diversity.

Senators Cindy Hyde-Smith and Amy Klobuchar announced the formation of the bipartisan Senate Veterinary Medicine Caucus to “raise awareness” of the veterinary field and “inform public policy that recognizes the crucial roles of veterinarians in all forms of clinical practice and in non-clinical roles, including federal inspection of meat, poultry, and catfish products; comparative medical research benefitting both people and animals; and animal and zoonotic disease prevention, detection and response.”

A new report published by Farm Forward suggests that American consumers are increasingly wary of humane-washing and desire more verification of animal-raising claims on labels. The report synthesizes data from a survey conducted by Farm Forward with Data for Progress. It found that nearly half of consumers are skeptical of labels such as “humane” and “ethically raised,” “believing they are often misleading about companies’ practices around animal welfare.” The survey also found that 88% of Americans believe it is important “that companies provide transparent and independently verified information about their animal welfare practices,” and it determined that animal welfare is second only to affordability in consumer purchasing priorities for animal products.

The Dallas Police Department (DPD) served four search warrants in connection with an ongoing animal cruelty investigation and seized multiple animals including dogs, roosters, chickens, and a tiger from a residence. The U.S. Fish & Wildlife Service, Texas Parks and Wildlife, Dallas Zoo, and Dallas Animal Services are assisting DPD with the investigation or care of the confiscated animals.

Procter & Gamble (P&G) recently published an update on its global effort to end animal testing, calling for “change and paradigm shifts in global ingredient regulations needed to unleash animal free safety science.” P&G, which no longer tests on animals unless mandated by government regulations, also published a peer-reviewed paper in May 2022 as “a map to the road ahead to end animal testing in safety assessments and how to get those adopted in global safety regulations.” P&G’s update noted its sponsorship of the 12th World Congress on Alternatives and Animal Use in the Life Sciences being held in Canada from August 27–31, 2023.