The U.S. District Court for the District of Oregon entered an interim injunction, ordering the U.S. Army Corps of Engineers (ACE) to “provide volitional downstream fish passage and water quality measures to mitigate irreparable harm” to threatened Upper Willamette River Chinook salmon and steelhead. The court found that ACE and the National Marine Fisheries Service violated the Endangered Species Act by failing to implement several measures required by a 2008 report to protect the fish who have been driven to near-extinction by the ACE’s operation of several dams in the Pacific Northwest. The order will become final after appointment of an independent expert panel which will set specific guidelines that the ACE must follow to minimize detrimental impacts on the critical habitat for spawning of endangered species of salmon and steelhead. The case was brought by the Northwest Environmental Defense Center, Wild Earth Guardians, and Native Fish Society.
Issue 102: September 6, 2021
This Week's Spotlights
Case Law Updates - Federal Case Law Updates
Agency Updates
USFWS Seeks Comment on Delisting Snail Darter in Tennessee
The U.S. Fish & Wildlife Service has proposed removing the snail darter, a freshwater fish found in the Tennessee River watershed, from the Endangered Species list after finding that the species no longer meets requirements for protected listing status. If the proposed rule is finalized after the requisite 60-day comment period concludes on November 1, 2021, all existing conservation measures and protections relating to the snail darter will be removed. The snail darter was the subject of early high-profile ESA and 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.
FSIS Solicits Comments to Guide Labeling of Cell-Cultured Meat and Poultry
The USDA’s Food Safety and Inspection Service has published an advanced notice of proposed rulemaking, soliciting comments to guide the agency’s future labeling requirements for cell-cultured animal products. The FSIS and FDA agreed in 2019 that both agencies will retain regulatory oversight of certain aspects of the production and distribution of products produced using animal cell culture technology, determining that FSIS will have authority over the labeling process. FSIS is accepting comments through November 2, 2021.
Case Law Updates
Federal Case Law Updates
Federal Judge Grants Injunctive Relief to Protect Chinook Salmon and Steelhead
The U.S. District Court for the District of Oregon entered an interim injunction, ordering the U.S. Army Corps of Engineers (ACE) to “provide volitional downstream fish passage and water quality measures to mitigate irreparable harm” to threatened Upper Willamette River Chinook salmon and steelhead. The court found that ACE and the National Marine Fisheries Service violated the Endangered Species Act by failing to implement several measures required by a 2008 report to protect the fish who have been driven to near-extinction by the ACE’s operation of several dams in the Pacific Northwest. The order will become final after appointment of an independent expert panel which will set specific guidelines that the ACE must follow to minimize detrimental impacts on the critical habitat for spawning of endangered species of salmon and steelhead. The case was brought by the Northwest Environmental Defense Center, WildEarthGuardians, and Native Fish Society.
Agency Updates
USFWS Seeks Comment on Protection for Subspecies of Caribou
More than a decade after the International Fund for Animal Welfare petitioned for Endangered Species Act protection of two subspecies of caribou, the U.S. Fish & Wildlife Service announced its decision to deny protection for Peary caribou but to solicit comments for proposed 4(d) listing status for Dolphin and Union caribou. Listing under Section 4(d) establishes a “Distinct Population Segment” (“DPS,” or population that is protected only within a specified geographical area). As required for all ESA listing proposals, FWS opened a 60-day comment period on its proposal to establish a 4(d) rule for Dolphin and Union caribou. The comment period closes November 1, 2021.
USFWS Seeks Comment on Delisting Snail Darter in Tennessee
The U.S. Fish & Wildlife Service has proposed removing the snail darter, a freshwater fish found in the Tennessee River watershed, from the Endangered Species list after finding that the species no longer meets requirements for protected listing status. If the proposed rule is finalized after the requisite 60-day comment period concludes on November 1, 2021, all existing conservation measures and protections relating to the snail darter will be removed. The snail darter was the subject of early high-profile ESA and 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.
FSIS Solicits Comments to Guide Labeling of Cell-Cultured Meat and Poultry
The USDA’s Food Safety and Inspection Service has published an advanced notice of proposed rulemaking, soliciting comments to guide the agency’s future labeling requirements for cell-cultured animal products. The FSIS and FDA agreed in 2019 that both agencies will retain regulatory oversight of certain aspects of the production and distribution of products produced using animal cell culture technology, determining that FSIS will have authority over the labeling process. FSIS is accepting comments through November 2, 2021.
APHIS Seeks Comment on Continued Collection of Data on Imported Dogs to Reduce Risk of African Swine Fever
USDA’s Animal and Plant Health Inspection Service previously ordered numerous restrictions on the importation of dogs from international regions with known or suspected African Swine Fever (ASF), a highly contagious and deadly disease commonly found in wild and domestic pigs, but also transmissible by dogs. APHIS is seeking public comments on its request for a three-year extension of its collection of specific data about dogs who are imported from these regions that the agency has deemed critical to reducing the risk of importing ASF-infected animals into the United States.
International Updates
Mexico Legislature Unanimously Bans Animal Testing for Cosmetics
The Mexico Senate has unanimously approved (103-0) a decree prohibiting the use of animals in cosmetic product experiments. The legislation will reform the General Law of Health by prohibiting testing of individual cosmetic ingredients or finished cosmetic products on animals, as well as banning the import, manufacture, or sales of products that have been tested on animals. The penalties for violation include substantial fines and prison sentences of two to seven years. The bill will become law after ratification by the federal executive power and publication in the Official Gazette of the Federation, at which time Mexico will make history as the first North American country to ban animal testing for cosmetic purposes.
The US Edition of the Animal Law Digest is published weekly with the support of the Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School.