Brooks Animal Law Digest

H.R. 5550, the “Endangered Species Management Self-Determination Act,” would relax certain provisions within the ESA and remove most Migratory Bird Treaty Act protections for black vultures and ravens. The bill proposes to remove listed species from the ESA every five years unless Congress approves recommendations for their continued listing from FWS and the governors of the states where critical habitats are located. The bill would make it easier for property owners and lessees to use critical habitat for commercial purposes and would transfer exclusive regulatory and oversight authority of “intrastate species” to the governors of respective states with protected species whose critical habitat is believed to be located in only one state. The bill is sponsored by Rep. Scott Perry and has been referred to the House Committee on Natural Resources.

The Center for Biological Diversity, Humane Society of the United States, and Humane Society International have sued the U.S. Fish & Wildlife Service for disregarding its legal obligation to conduct a 12-month review for determination of whether the agency will add giraffes to the Endangered Species List. In 2016, Plaintiffs petitioned FWS to add giraffes to the Endangered Species List, and FWS issued a long-overdue 90-day finding in 2019 that listing may be warranted. The complaint claims that since that determination, the agency has failed to continue its legally mandated review process, and plaintiffs now seek declaratory and injunctive relief for FWS to complete a 12-month review.

The Center for Biological Diversity, Earthjustice, Greenpeace Mexico, Waterkeeper Alliance, and 142 other organizations joined by 151 academics, scientists, and other individuals have requested a hearing with the Inter-American Commission on Human Rights to present detailed information on the impacts and threats to human rights associated with Concentrated Animal Feeding Operations (CAFOs). The international coalition seeks to present information about the ways in which CAFO operations threaten access to food, clean water, and clean air, as well as the release of dangerous pathogens. The petitioners seek to present this information when the Inter-American Commission on Human Rights meets in December 2021.

H.R. 5550, the “Endangered Species Management Self-Determination Act,” would relax certain provisions within the ESA and remove most Migratory Bird Treaty Act protections for black vultures and ravens. The bill proposes to remove listed species from the ESA every five years unless Congress approves recommendations for their continued listing from FWS and the governors of the states where critical habitats are located. The bill would make it easier for property owners and lessees to use critical habitat for commercial purposes and would transfer exclusive regulatory and oversight authority of “intrastate species” to the governors of respective states with protected species whose critical habitat is believed to be located in only one state. The bill is sponsored by Rep. Scott Perry and has been referred to the House Committee on Natural Resources.

California Governor Gavin Newsom has signed Senate Bill 790 which authorizes the California Department of Fish & Wildlife to approve “compensatory mitigation credits” from its established fund for actions that further wildlife conservation and migration (“wildlife connectivity”), pursuant to state and federal requirements.

California Governor Gavin Newsom has signed Senate Bill 80 which sets several new standards for Dungeness crab fishers and the Dungeness crab task force. The law also requires commercial fishers to relinquish fish or fish parts caught or landed in California to the California Department of Fish & Wildlife at no charge upon request of the agency.

California Governor Gavin Newsom has signed Assembly Bill 614 which increases the cost of game bird and duck hunt validations to boost the Fish & Game Preservation Fund and other habitat preservation programs for game birds and waterfowl. The newly enacted legislation also authorizes the Department of Fish & Wildlife to enter and incentivize agreements with landowners for the cultivation of waterfowl and game bird habitats on their land.

Florida Senate Bill 448, the “Providing Equity in Telemedicine Services (PETS) Act,” would authorize veterinarians to practice telemedicine and would set professional standards for veterinarians who use telemedicine in their practices. The bill also would broaden the category of individuals who are authorized to administer veterinary vaccines beyond licensed veterinarians.

Pennsylvania House Bill 1967 would authorize the transfer of elk hunting licenses between individuals under certain standards, including a prohibition on transfers for pecuniary gain. Violations of the standards would be subject to a number of potential penalties, including a $10,000 fine, a five-year elk hunting suspension, a ban on applying for an elk hunting license, and confiscation of any animals taken. The bill has been referred to the Pennsylvania House Committee on Game & Fisheries.

Michigan House Bill 5390 would authorize year-round hunting of squirrels without a license and would authorize the unlicensed hunting of bobcats when the unlicensed individual is accompanied by a licensed hunter and does not carry a firearm, bow, or crossbow, or use dogs in the course of the hunt.

Quality Seafood Company is a named plaintiff representing the putative class of seafood companies and commercial fishers in a class action lawsuit against Amplify Energy in connection with the October 1, 2021 oil spill off of the coast of Huntington Beach, California. To date, at least 144,000 gallons of crude oil have been dispersed over 8,320 acres from the spill which has been classified as an “environmental catastrophe.” The complaint claims that the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act provides for strict liability for Defendant’s ultra-hazardous activities. Plaintiffs are seeking injunctive relief, damages, and restitution to themselves and other class members.

The Center for Biological Diversity is seeking review of the Environmental Protection Agency’s issuance of a general permit for the discharge of biological and chemical pesticides into U.S. waters. CBD argues that the EPA has failed to comply with its statutory obligations under the Clean Water Act and the Endangered Species Act to ensure that issuance of the permit will not jeopardize any listed species or designated critical habitat.

The Center for Biological Diversity has sued the U.S. Maritime Association alleging that the agency’s Marine Highway Program, designed to expand America’s navigable waterways for commercial transport, violates the Endangered Species Act by failing to ensure that the program does not jeopardize protected species or designated critical habitats. The complaint claims that while many of the Marine Highway Program projects are in ESA habitats, the association failed to consult with U.S. Fish & Wildlife Service as required––which plaintiff hold is “the only way to avoid piecemeal destruction of species and habitat.” Plaintiff seeks declaratory and injunctive relief.

The Center for Biological Diversity, Humane Society of the United States, and Humane Society International have sued the U.S. Fish & Wildlife Service for disregarding its legal obligation to conduct a 12-month review for determination of whether the agency will add giraffes to the Endangered Species List. In 2016, Plaintiffs petitioned FWS to add giraffes to the Endangered Species List, and FWS issued a long-overdue 90-day finding in 2019 that listing may be warranted. The complaint claims that since that determination, the agency has failed to continue its legally mandated review process, and plaintiffs now seek declaratory and injunctive relief for FWS to complete a 12-month review.

A coalition of over-snow vehicle (OSV) organizations has sued the U.S. Forest Service in federal court, challenging the agency’s decision to reduce available acreage for OSV trails in Stanislaus National Forest, California. In designating OSV trails, “the Forest Service must consider and apply specific criteria with the objective of minimizing damage to forest resources, harassment of wildlife, disruption of wildlife habitat, and conflicts between motor vehicle use and existing or propped recreational uses of the national forest.” Plaintiffs allege the agency made its decision without evidence of substantial adverse impact by OSV operation on any one species in the affected area and are seeking declaratory and injunctive relief.

The National Marine Fisheries Service has announced the immediate closure of the Mid-Atlantic Scallop Access Area for the remainder of the 2021 fishing season. NMFS has found that the Limited Access General Category (LAGC) fleet already has completed the 571 authorized annual trips. The area will be closed to the LAGC fleet from October 7, 2021, through March 31, 2022. The agency waived notice, comment, and 30-day advanced notice due to the urgency of the situation.

The National Marine Fisheries Service has received an application from the U.S. Navy for a Letter of Authorization to allow incidental harm and harassment to several marine mammal species during the Navy’s construction project at Naval Station Newport in Narragansett Bay, Rhode Island, between 2022-2027. The affected species include Atlantic white sided dolphin, common dolphins, harbor porpoises, harbor seals, harp seals, gray seals, and hooded seals. The public comment period is open through November 12, 2021.

NMFS has received an application from the Chesapeake Tunnel Joint Venture for authorization to harass harbor seals, gray seals, bottlenose porpoises, harbor porpoises, and humpback whales during the course of the pile driving and removal phase of a tunnel construction project in Virginia Beach, Virginia. CTJV represents that 252 days of pile driving activity will be necessary, and any issued authorization will be effective for one year from the date of issuance. NMFS is seeking public comments and the comment period is open through November 12, 2021.

The U.S. Department of Agriculture has announced a first-of-its-kind grant to establish an Institute for Cellular Agriculture at Tufts University. The week prior, on October 7, 2021, Tufts researcher Natalie Rubio made history by completing the world’s first PhD in cellular agriculture.

The USDA’s Food Safety and Inspection Service has announced the recall of 14,107 pounds of Butterball LLC’s ground turkey products following consumer complaints of blue plastic embedded in the products. Products included in the recall include “farm to family all natural Butterball ground turkey” and “Kroger ground turkey.”

The U.S. Fish & Wildlife Service has announced its intention to add the bog buck moth, a species native to Oswego County, New York and Ontario, Canada, to the Endangered Species List. FWS has proposed to classify the species as endangered without designating a critical habitat, finding that designation “is not prudent at this time” due to the fact that the bog buck moth co-occurs with another highly sought-after species and that specification of a critical habitat might put the bog buck moth at a greater risk for unauthorized takes. The comment period on the proposed listing status, as well as the agency’s proposal to omit a critical habitat designation, is open through December 13, 2021.

The National Marine Fisheries Service is considering an application submitted by the Northeast Sector Service Network for an Exemption Fishing Permit (EFP) to allow a single commercial fishing vessel to participate in exploratory haddock fishing in the Gulf of Maine using a 6-inch mesh gillnet. The purpose of the EFP is to explore the feasibility of using a 6-inch mesh net to target haddock while minimizing cod bycatch. The EFP would authorize the participatory vessel to make 25-35 trips between January 1, 2022, and May 31, 2022.

The National Marine Fisheries Service has received a permit application for the import, export, and receipt of parts from at least twelve whale species for scientific research over the next five years. The applicant is a Baylor University researcher who seeks to evaluate the impacts of environmental stressors on cetaceans by studying anthropogenic contaminants, reproductive hormones, and evidence of physiological stress present in the parts of blue, bowhead, Bryde’s, humpback, fin, gray, North Atlantic right, North Pacific right, Rice’s, sei, Southern right, and sperm whales. NMFS is seeking comments through November 15, 2021.

The Center for Biological Diversity, Earthjustice, Greenpeace Mexico, Waterkeeper Alliance, and 142 other organizations joined by 151 academics, scientists, and other individuals have requested a hearing with the Inter-American Commission on Human Rights to present detailed information on the impacts and threats to human rights associated with Concentrated Animal Feeding Operations (CAFOs). The international coalition seeks to present information about the ways in which CAFO operations threaten access to food, clean water, and clean air, as well as the release of dangerous pathogens. The petitioners seek to present this information when the Inter-American Commission on Human Rights meets in December 2021.

Interagency Food Safety Analytics Collaboration. Foodborne illness source attribution estimates for 2019 for Salmonella, Escherichia coli O157, Listeria monocytogenes and Campylobacter using multi-year outbreak surveillance data, United States. GA and D.C.: U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention and U.S. Food and Drug Administration, U.S. Department of Agriculture’s Food Safety and Inspection Service. October 2021.

Good Food Institute, State of the Industry Report: Alternative Seafood, January 2020-June 2021 (October 15, 2021).