Brooks Animal Law Digest

H.R. 5203, “The Ejiao Act,” would amend the Federal Food, Drug & Cosmetic Act to prohibit the intentional sale or importation of ejiao, a controversial gelatin made from donkey skin which is commonly used in traditional Chinese medicine and cosmetic products, in foreign or interstate commerce. Dubious claims about the medicinal value of ejiao are triggering widespread theft and slaughter of donkeys in developing nations in order to meet the global demand. In an effort to curtail illicit trafficking and negative impacts on communities and animals, eBay and others already have banned its sales. The bill was introduced by Rep. Don Beyer.

City of Pittsburgh Mayor Bill Peduto has signed a new ordinance banning the declawing of cats that imposes a $500 civil penalty for violators. Pittsburgh becomes the twelfth U.S. municipality to prohibit cat declawing along with the State of New York.

PETA has filed a First Amendment lawsuit against the Los Angeles Metro Transit Authority (“Metro”) for refusing to sell advertising space to PETA to promote plant-based diets. Metro based the denial on its noncommercial speech policy, but has sold space to a number of other nonprofit organizations. PETA alleges that Metro’s selectively-applied policy constitutes impermissible viewpoint discrimination and prior restraint on free speech. PETA is asking the U.S. District Court for the Central District of California to rule that Metro’s policy is unconstitutional on its face and as applied and order Metro to grant PETA the same access it has provided to other advocacy organizations and non-profits.

The U.S. Fish & Wildlife Service has proposed removing twenty-three species (primarily birds and mollusks) from the federal endangered species list due to believed extinction. The FWS is seeking comments that address whether the best available scientific evidence supports its delisting proposal. The comment period is open through November 29, 2021.

The National Marine Fisheries Service has promulgated a rule under the Marine Mammal Protection Act that prohibits swimmers and vessels who are within two miles off shore of the Hawaiian Islands from coming within 50 yards of Hawaiian spinner dolphins. The rule, which aims to reduce disturbance of dolphins in areas where human-dolphin interactions are most likely to occur, will become effective on October 28, 2021. The agency simultaneously is proposing an additional regulation that would prohibit any entry into five known Hawaiian spinner dolphin habitats between the hours of 6 a.m. and 3 p.m. daily in order to minimize human-dolphin disturbance. NMFS is accepting public comments on the proposed closure through December 27, 2021.

H.R. 5203, “The Ejiao Act,” would amend the Federal Food, Drug & Cosmetic Act to prohibit the intentional sale or importation of ejiao, a controversial gelatin made from donkey skin which is commonly used in traditional Chinese medicine and cosmetic products, in foreign or interstate commerce. Dubious claims about the medicinal value of ejiao are triggering widespread theft and slaughter of donkeys in developing nations in order to meet the global demand. In an effort to curtail illicit trafficking and negative impacts on communities and animals, eBay and others already have banned its sales. The bill was introduced by Rep. Don Beyer.

California Governor Gavin Newsom has signed California AB 888, an amendment to the California Meat & Poultry Supplemental Inspection Act, which establishes requirements for mobile slaughter operators. The bill requires mobile slaughter operators to be dual-licensed as both a “custom livestock operation” and as a livestock meat inspector and directs the state’s Department of Food & Agriculture to enact relevant oversight and fee regulations. The purpose of the law is to address consolidation and bottle-necks in the industry by allowing smaller producers to slaughter animals on-site.

California Governor Gavin Newsom has signed California SB 815, an amendment to the California Meat & Poultry Supplemental Inspection Act, which extends existing annual licensing requirements and associated fees for meat processing facilities, poultry plants, and processing inspectors. The existing requirements, which were set to expire on January 1, 2022, have been extended until January 1, 2027.

Pennsylvania HB 1919, entitled the “Very Small Meat and Poultry Processor Federal Inspection Reimbursement Grant Program,” would allow for “very small” producers to seek state reimbursement for approved start-up costs––including inspection and other fees associated with obtaining requisite federal approval as well as first-time equipment purchases. “Very small” producers are defined as facilities which have fewer than ten employees or annual sales of fewer than $2.5 million dollars. The bill has been referred to the Pennsylvania House Committee on Agriculture and Rural Affairs.

New York S. 7401 would amend the state’s social services laws to require humane law enforcement officers and others responsible for investigating allegations of animal cruelty to report any suspected maltreatment or abuse of a child discovered during the course of their duties. It likewise would require individuals investigating child abuse to report any suspected maltreatment or cruelty to animals discovered in the course of fulfilling their professional responsibilities. The bill has been referred to the New York Senate Rules Committee.

Kentucky BR 290 would institute extensive procedures for confiscation of animals as well as bond and seizure requirements for peace officers and animal control officers who are investigating alleged acts of animal cruelty. For felony cruelty convictions, the bill also would allow courts to order forfeiture of the animals involved, reimbursement for costs of care, and a 5-year ban on “having custody of or residing in the same household with other animals.” The bill has not yet been referred to a committee.

City of Pittsburgh Mayor Bill Peduto has signed a new ordinance banning the declawing of cats that imposes a $500 civil penalty for violators. Pittsburgh becomes the twelfth U.S. municipality to prohibit cat declawing along with the State of New York.

PETA has filed a First Amendment lawsuit against the Los Angeles Metro Transit Authority (“Metro”) for refusing to sell advertising space to PETA to promote plant-based diets. Metro based the denial on its noncommercial speech policy, but has sold space to a number of other nonprofit organizations. PETA alleges that Metro’s selectively-applied policy constitutes impermissible viewpoint discrimination and prior restraint on free speech. PETA is asking the U.S. District Court for the Central District of California to rule that Metro’s policy is unconstitutional on its face and as applied and order Metro to grant PETA the same access it has provided to other advocacy organizations and non-profits.

Maine lobster fishers have filed suit against the National Marine Fisheries Service alleging the agency violated the Endangered Species Act and Administrative Procedure Act “by substantially overestimating the effects of the American Lobster Fishery, including the Maine lobster fishery, on the North Atlantic right whale and by imposing unnecessary and inappropriate conservation targets and restrictions on the Maine lobster fishery.” The Maine Lobstermen’s Association argues that NMFS’ mandate of an additional 98% reduction in the injury and mortality to Atlantic right whales would put most of Maine’s lobster fishers out of business. They seek declaratory and injunctive relief.

The U.S. Fish & Wildlife Service has proposed removing twenty-three species (primarily birds and mollusks) from the federal endangered species list due to believed extinction. The FWS is seeking comments that address whether the best available scientific evidence supports its delisting proposal. The comment period is open through November 29, 2021.

The National Marine Fisheries Service has promulgated a rule under the Marine Mammal Protection Act that prohibits swimmers and vessels who are within two miles off shore of the Hawaiian Islands from coming within 50 yards of Hawaiian spinner dolphins. The rule, which aims to reduce disturbance of dolphins in areas where human-dolphin interactions are most likely to occur, will become effective on October 28, 2021. The agency simultaneously is proposing an additional regulation that would prohibit any entry into five known Hawaiian spinner dolphin habitats between the hours of 6 a.m. and 3 p.m. daily in order to minimize human-dolphin disturbance. NMFS is accepting public comments on the proposed closure through December 27, 2021.

The U.S. Fish Wildlife Service has proposed the removal of the Braken Bat Cave meshweaver from the federal endangered species list due to taxonomic revision. The Braken Bat Cave meshweaver is no longer a scientifically recognized species but rather has been reclassified with the existing Madla Cave meshweaver, which remains listed as endangered. Therefore, the spiders will remain protected by the ESA under their amended classification. The comment period is open through November 29, 2021.

The National Oceanic and Atmospheric Administration is seeking comments on the ongoing collection of data and reporting requirements relating to incidental takes of sea turtles in Virginia’s Chesapeake Bay net operations. The ongoing data collection aids the agency in ensuring that sea turtles are being adequately protected under the Endangered Species Act. The comment period will be open until November 1, 2021.

The National Science Foundation is considering a permit application under the Antarctic Conservation Act for “continued research activities studying the health of whale populations in the Southern Ocean and impacts of environmental changes on Antarctic marine ecosystems.” The activities would include aerial observation, drone-collected respiratory (blow) samples, and the collection of remote biopsy samples of whale skin and blubber. The applicant also proposes to conduct opportunistic sampling of dead marine mammals to aid further understanding of killer whale diet and ecology. The proposed activities would occur between December 1, 2021, and April 30, 2026. The comment period is open through November 1, 2021.

The USDA’s Food Safety Inspection Service has announced the recall of approximately 2,048 pounds of Espi’s Sausage and Tocino Co. chicken and pork hot dog products “that may be adulterated with Listeria monocytogenes.” FSIS discovered that the producer had confirmation from a third-party lab that a product contact surface had tested positive for listeria, after the products already had been shipped to a distributor in California and further distributed to retail locations.

The U.S. Fish Wildlife Service has announced the results of its requisite 90-day review on four petitions to add species to the endangered species list. FWS found that there is sufficient scientific justification to proceed with a twelve-month review for possible listing of the American bumble bee, Long Valley speckled dace, and Siuslaw hairy-necked tiger beetle. However, FWS did not find sufficient scientific justification to proceed with possible listing for the Tucson shovel-headed snake. The FWS will consider any public input it receives relating to the American bumble bee, Long Valley speckled dace, and Siuslaw hairy-necked tiger beetle during the course of the agency’s twelve-month review.

The U.S. Fish Wildlife Service has announced its findings that there is insufficient scientific justification to proceed with listing the Black Creek Crayfish as either endangered or threatened. FWS’ announcement comes in response to a petition for listing more than 400 aquatic species (including the Black Creek crayfish) that the Center for Biological Diversity, Gulf Coast Restoration Network, and others submitted more than a decade ago. FWS’ lengthy delay in adequately responding to the 2010 petition is the subject of ongoing litigation between the environmental organizations and FWS.

The National Marine Fisheries Service Northeast Fisheries Science Center (NFSC) has applied for a permit to take Atlantic sturgeon and five species of sea turtles over a period of five years for purposes of scientific research. The NFSC proposes to catch and tag turtles, attach transponders, take genetic samples, and weigh the animals in the course of its research to mitigate sea turtle-sturgeon interactions in fisheries. The comment period will be open through October 29, 2021.

The Sonoma County Water Agency has applied for a letter of authorization to incidentally harass pinnipeds in the Russian River (California) during estuary management activities that require the presence of humans, heavy equipment, and boats over the next five years. Sonoma County Water Agency is undertaking the estuary management in order to prevent flooding and enhance the habitat for ESA-listed juvenile salmonids. NMFS is accepting comments through October 9, 2021.

Following the recommendation of an administrative law judge, NMFS is soliciting comments on its proposal to grant a waiver under the Marine Mammal Protection Act in order to allow the Makah Indian Tribe to hold “a tribal hunt” of Eastern North Pacific gray whales off the northwest coast of Washington State “for ceremonial and subsistence purposes and the making and sale of handicrafts.” The ALJ held a 6-day hearing and found that the waiver would not have a significant detrimental impact on the existing stock of affected gray whales. The proposal was opposed in the ALJ proceedings by the Animal Welfare Institute, Sea Shepherd Conservation Society, and Peninsula Citizens for the Protection of Whales. The comment period is open through October 19, 2021.

The U.S. Fish & Wildlife Service has announced its decision that Endangered Species Act listing for seventeen animal species (including species of slugs, snails, snakes, and butterflies) is not warranted at this time. The decision was made in response to numerous listing petitions submitted by the Center for Biological Diversity, WildEarth Guardians, and others between 2009 and 2012. The agency announcement does “ask the public to submit to us at any time any new information relevant to the status of any of the species…or their habitats.”

The National Marine Fisheries Service has announced the availability of the final restoration plan for birds, marine mammals, oysters, and sea turtles pursuant to the requirements of the consent decree following the April 20, 2010, Deep Water Horizon explosion and oil spill. The cost of implementing the final plan is $99.6 million, and the specifics of the plan are available at a number of locations in the geographically-affected region.

The U.S. Fish & Wildlife Service has announced its proposal to list the Peñasco least chipmunk as an endangered species under the Endangered Species Act and to designate 6,574 acres of critical habitat in New Mexico for the chipmunk under the Act. The 12-month finding was made in response to a petition by WildEarth Guardians. The agency is soliciting public comments on a number of specific criteria relating to best available scientific information and will accept comments through November 29, 2021.

Food Law: A Practical Guide is now available for purchase on the American Bar Association website. The treatise covers all areas of practice within the context of “food law,” including intellectual property, litigation, regulatory law, and policy.