Brooks Animal Law Digest

H.R. 5289, the Livestock Consolidation Research Act of 2023, would require research and reporting on consolidation and concentration in the animal agriculture industry, including beef, dairy, pork, turkey, broiler chicken, and egg production. The bill was introduced by Representative Elissa Slotkin and has been referred to the House Committee on Agriculture.

Fourteen Black farmers have sued Mississippi-based Nobile Fish Farms in the U.S. District Court for the Northern District of Mississippi, alleging the aquaculture business has illegally favored Mexican seasonal workers at the expense of Black U.S. citizens on staff in violation of the H-2A visa program, which allows U.S. businesses to temporarily fill agricultural positions with migrant workers if the positions can't be filled with U.S. citizens or permanent residents. Plaintiffs also have claimed breach of contract and discrimination on the basis of race and/or alienage in violation of the Civil Rights Act, 42 U.S.C. § 1981. Plaintiffs are seeking declaratory judgment, damages, injunctive relief, and fees and costs.

Chevron U.S.A. Inc., the American Petroleum Institute, and the State of Louisiana filed a motion for preliminary injunction in the U.S. District Court for the Western District of Louisiana. The plaintiffs allege that the Bureau of Ocean Energy Management (BOEM) violated federal law when it added a new lease stipulation (Stipulation No. 4) to protect species, including critically endangered Rice’s whales, to a final notice of sale for a Gulf of Mexico oil and gas lease sale. Plaintiffs argue that BOEM’s announced lease changes, which include reductions in the size of the offered lease area and allowable oil vessel speeds, would irreparably harm the State of Louisiana and the economic interests of the plaintiffs. 

The U.S. Department of Agriculture’s Wildlife Services published a new set of evidentiary standards it will use to determine whether Mexican wolf depredation is the cause of livestock deaths in Arizona and New Mexico. The changes follow a 2022 exposé alleging that “endangered Mexican gray wolf recovery is being ‘sabotaged’ by ranchers who claim the canines are killing cattle—and the federal employees who sign off on reports.” The new standards will require certain indicators of wolf involvement in livestock deaths, such as subcutaneous hemorrhage and tissue-based evidence in large livestock showing that wolves attacked and bit the animals before they died.

The Environmental Protection Agency and the Army Corps of Engineers announced revisions to the final rule interpreting Waters of the United States (WOTUS) under the Clean Water Act (CWA) to comply with the U.S. Supreme Court’s May 25, 2023, ruling in Sackett v. EPA, which significantly limited the agencies’ ability to regulate WOTUS. Under the new rule, wetlands are only considered to be WOTUS, or jurisdictional, if they are adjacent to specific types of bodies of water. For wetlands adjacent to certain “relatively permanent, standing or continuously flowing bodies of water,” the wetlands must have “a continuous surface connection” to those water bodies to qualify. Under Sackett and the new rule, many wetlands now are exempt from CWA protections.

The Kanaloa Octopus Farm (KOF) has shut down following the work of multiple group and individual advocates. Among other efforts, a coalition that included Hawaii-based For the Fishes, Moku o Keawe cultural practitioner Mike Nakachi, and Harvard Law School’s Animal Law & Policy Clinic urged the Hawaii Department of Land and Natural Resources to investigate apparent legal violations at KOF and to deny the octopus petting zoo an aquaculture facility license. The Natural Energy Laboratory Hawaii Authority declined to renew the facility’s license, and KOF owner Jake Conroy confirmed a decision to pivot to offshore tours but did not disclose the disposition of the 20 cephalopods housed at KOF when the lease was not renewed.

H.R. 5289, the Livestock Consolidation Research Act of 2023, would require research and reporting on consolidation and concentration in the animal agriculture industry, including beef, dairy, pork, turkey, broiler chicken, and egg production. The bill was introduced by Representative Elissa Slotkin and has been referred to the House Committee on Agriculture.

Carlos Warren, a Virginia veterinary technician, was sentenced in the U.S. District Court for the Western District of Virginia to twenty months in prison and three years of supervised release in connection with his conviction for animal fighting crimes. In addition to hosting dogfights on his property, Warren allegedly took advantage of his job as a vet tech to steal medication and supplies used to treat dogs during fights until they lost or refused to fight, after which he killed them by electrocution and other cruel means. He also distributed a publication called “The Connector” throughout the United States, which advertised dog fighting results, breeding information, and the availability of steroids and other illegal substances.

Fourteen Black farmers have sued Mississippi-based Nobile Fish Farms in the U.S. District Court for the Northern District of Mississippi, alleging the aquaculture business has illegally favored Mexican seasonal workers at the expense of Black U.S. citizens on staff in violation of the H-2A visa program, which allows U.S. businesses to temporarily fill agricultural positions with migrant workers if the positions can't be filled with U.S. citizens or permanent residents. Plaintiffs also have claimed breach of contract and discrimination on the basis of race and/or alienage in violation of the Civil Rights Act, 42 U.S.C. § 1981. Plaintiffs are seeking declaratory judgment, damages, injunctive relief, and fees and costs.

Singapore-based Zeaborn Ship Management (Zeaborn) pleaded guilty in the U.S. District Court for the Southern District of California to crimes relating to the illegal dumping of oily bilge water and disposal of garbage off the coast of San Diego. Under the plea agreement, Zeaborn will pay $2 million in penalties, $500,000 of which will go to the protection of marine resources in or around the Tijuana River National Estuarine Research Reserve. The company’s captain and chief engineer both admitted to roles in the crimes and pleaded guilty to felony failure to maintain accurate record books as required under the Act to Prevent Pollution from Ships. The three defendants will be sentenced at a hearing on December 1, 2023.

The U.S. District Court for the Eastern District of Washington dismissed an antitrust suit brought by cattle rancher Cody Allen Easterday against a  subsidiary of Tyson Foods, Inc. (Tyson) after Easterday was convicted of a “ghost cattle” fraud scheme, sentenced to eleven years in federal prison, and ordered to pay $244 million in restitution for defrauding Tyson and one other company by charging them for costs related to over 265,000 cattle that never existed. In dismissing Easterday’s federal claims, Chief U.S. District Judge Stanley A. Bastian found that Easterday lacked standing to sue for alleged monopsonistic practices because it was Easterday Ranches, not Easterday himself, that entered the contract with the Tyson subsidiary. Easterday is serving his eleven-year sentence at a federal penitentiary in Lompoc, California.

The Organization of Professional Aviculturists (OPA) and the Lineolated Parakeet Society (LPS) appealed a lower court ruling that the U.S. Fish & Wildlife Service had properly denied OPA and LPS’s petitions for rulemaking to allow the import of captive-bred individuals from two parakeet species from certain European countries. Plaintiff-appellants are seeking a ruling that FWS “must list species by country of origin from which they can be imported and . . . consider petitions filed under [the Wild Exotic Bird Conservation Act] that request species be added to the approved import list from specific countries of origin” rather than refusing petitions on the basis that the considerations may only be performed globally.

Chevron U.S.A. Inc., the American Petroleum Institute, and the State of Louisiana filed a motion for preliminary injunction in the U.S. District Court for the Western District of Louisiana. The plaintiffs allege that the Bureau of Ocean Energy Management (BOEM) violated federal law when it added a new lease stipulation (Stipulation No. 4) to protect species, including critically endangered Rice’s whales, to a final notice of sale for a Gulf of Mexico oil and gas lease sale. Plaintiffs argue that BOEM’s announced lease changes, which include reductions in the size of the offered lease area and allowable oil vessel speeds, would irreparably harm the State of Louisiana and the economic interests of the plaintiffs. 

The U.S. Department of Justice (DOJ) filed a civil complaint in the U.S. District Court for the District of Arizona alleging that AniCell Biotech LLC and its CEO, Brandon Ames, have violated the Federal Food, Drug, and Cosmetic Act by manufacturing and distributing new animal drugs that lack federal Food and Drug Administration approval and are thus unsafe and adulterated. The products at issue include injectable and intravenous liquids derived from the amniotic tissue of horses and have been marketed by defendants to treat diseases such as osteoarthritis and renal failure. The DOJ is requesting that the court permanently restrain and enjoin the defendants.

The U.S. Court of Appeals for the Seventh Circuit vacated and remanded a $57.4 million attorney fee award in a $181 million settlement for broiler chicken purchasers in a complex antitrust case. The three-judge panel found that the district court did not properly consider declining fee scale bids made by class counsel in auctions in other cases and attorney fees awarded to class counsel in the Ninth Circuit.

The U.S. Department of Agriculture’s Farm Service Agency announced an increase to its Livestock Indemnity Program (LIP) payment rate to support Midwest livestock producers who have lost cattle as a result of this summer’s extreme heat and humidity. The new rate will provide $1,618—an increase of $374—for the loss of a beef calf over 800 pounds. The revised LIP payment rate will be applied retroactively starting January 1, 2023, and it will apply to all qualifying adverse weather causes of loss.

The U.S. Department of Agriculture announced a partnership with the New Hampshire Community Loan Fund to make an additional $123 million in grants available for meat and poultry processors to expand operations, build and modernize processing facilities and equipment, adopt new technologies, and train workers. Eligible recipients may receive grants from $250,000 to $10 million but must be able to cover at least 70% of total project costs themselves.

The U.S. Fish & Wildlife Service (FWS) announced its receipt of two sets of applications for Endangered Species Act permits to conduct activities intended to enhance the propagation or survival of endangered and threatened species. One set of applications announced regards the rusty patched bumble bee and bat and mussel species. The other set of applications concerns species of bats, turtles, birds, and fish. FWS will accept public comments on both sets of applications through September 27, 2023.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) is reopening the public comment period for a proposed rule that would amend regulations to provide a National List of Reportable Animal Diseases. APHIS is reopening the comment period to allow for additional public input on a proposed modification to address confidentiality concerns related to reporting requirements. APHIS now will accept comments through September 27, 2023.

The U.S. Fish & Wildlife Service announced a final rule determining endangered status for two distinct population segments (DPS) of the foothill yellow-legged frog native to Oregon and California. The rule also determines threatened status for two other DPSs of the rare amphibian. The rule does not designate critical habitat for any of the DPSs. The new listing will be effective September 28, 2023.

The U.S. Department of Agriculture’s Wildlife Services published a new set of evidentiary standards it will use to determine whether Mexican wolf depredation is the cause of livestock deaths in Arizona and New Mexico. The changes follow a 2022 exposé alleging that “endangered Mexican gray wolf recovery is being ‘sabotaged’ by ranchers who claim the canines are killing cattle—and the federal employees who sign off on reports.” The new standards will require certain indicators of wolf involvement in livestock deaths, such as subcutaneous hemorrhage and tissue-based evidence in large livestock showing that wolves attacked and bit the animals before they died.

The Environmental Protection Agency and the Army Corps of Engineers announced revisions to the final rule interpreting Waters of the United States (WOTUS) under the Clean Water Act (CWA) to comply with the U.S. Supreme Court’s May 25, 2023, ruling in Sackett v. EPA, which significantly limited the agencies’ ability to regulate WOTUS. Under the new rule, wetlands are only considered to be WOTUS, or jurisdictional, if they are adjacent to specific types of bodies of water. For wetlands adjacent to certain “relatively permanent, standing or continuously flowing bodies of water,” the wetlands must have “a continuous surface connection” to those water bodies to qualify. Under Sackett and the new rule, many wetlands now are exempt from CWA protections.

The Pennsylvania Department of Agriculture and Pennsylvania Governor Josh Shapiro announced that, after experiencing an outbreak of Highly Pathogenic Avian Influenza (HPAI) that limited trade conditions for Pennsylvania’s $7.1 billion poultry industry and caused the loss of over 4.6 million domestic birds since April 2022, the commonwealth has reached “HPAI-free status recognized by the World Animal Health Organization.” Pennsylvania remains under a general quarantine to limit virus spread and protect the poultry industry.

The Food and Drug Administration (FDA) is soliciting comments on the reporting requirements associated with the extralabel use of drugs in animals. The FDA will accept public comments through October 30, 2023.

The U.S. Fish & Wildlife Service announced that it will no longer require that Tribes submit annual hunting and management proposals to FWS for review and approval under the Migratory Bird Treaty Act. The final rule, effective September 1, 2023, includes elements of the agency’s current guidelines for establishing migratory game bird hunting regulations on Federal Indian reservations and certain other lands.

Animal Partisan filed a petition with the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) seeking clarification that the Federal Meat Inspection Act, Humane Methods of Slaughter Act, and Poultry Products Inspection Act do not preempt state enforcement of relevant anti-cruelty laws. The petition seeks express clarification from FSIS following multiple state refusals to enforce cruelty laws on the basis of federal preemption. The petition also requests that FSIS cooperate with state officials to enforce state anti-cruelty laws.

New research published in the journal Nutrients found that half of all beef eaten in the United States is consumed by 12% of the population. It also determined that gender is the “most consistent predictor of disproportionate beef intake,” with males more likely to consume disproportionate beef diets. Researchers concluded that “efforts to address climate change through diet modification could benefit from targeting campaigns to the highest consumers of beef, as their consumption accounts for half of all beef consumed.”

The Kanaloa Octopus Farm (KOF) has shut down following the work of multiple group and individual advocates. Among other efforts, a coalition that included Hawaii-based For the Fishes, Moku o Keawe cultural practitioner Mike Nakachi, and Harvard Law School’s Animal Law & Policy Clinic urged the Hawaii Department of Land and Natural Resources to investigate apparent legal violations at KOF and to deny the octopus petting zoo an aquaculture facility license. The Natural Energy Laboratory Hawaii Authority declined to renew the facility’s license, and KOF owner Jake Conroy confirmed a decision to pivot to offshore tours but did not disclose the disposition of the 20 cephalopods housed at KOF when the lease was not renewed.