Brooks Animal Law Digest

President Biden has signed into law House Bill 1448, the Puppies Assisting Wounded Servicemembers (PAWS) for Veterans Act, which directs the Secretary of Veterans Affairs to establish a program to provide canine training to eligible veterans diagnosed with post-traumatic stress disorder. Veterans who participate in the pilot program may adopt a dog they assisted in training if their health care provider agrees it is in the best interest of the veteran. The law also forbids the use of shock collars or prong collars as canine training tools and mandates the use of positive reinforcement training techniques.

House Bill 4370 would allow “cumulative economic effects” to preclude listing of species that are otherwise warranted in response to petitions under the Endangered Species Act. The bill also would remove the Fish and Wildlife Service’s 12-month response requirement and allow the agency to prioritize petitions other than in the order they were received––with the exception that the agency “may not give general priority to petitions to add species to such a list over petitions to remove a species from such a list.”

H.R. 5244, the “Animal Freedom from Testing, Experiments, and Research (AFTER) Act of 2021” would amend the Animal Welfare Act to direct all federal research facilities to promulgate standards to facilitate the adoption of certain animals used in federal research, or their “non-laboratory placement” with an animal rescue organization, animal sanctuary, or animal shelter. The bill has been referred to the House Committee on Agriculture and is sponsored by Reps. Brendan Boyle and Nancy Mace.

S. 2732, the “John Stringer Rainey Save America’s Forgotten Equines (SAFE) Act” would amend the federal criminal code to prohibit the possession, shipping, transportation, or receiving of “any member of the family Equidae” with the intent for the animal to be slaughtered for human consumption. The bill provides for monetary penalties and up to two years imprisonment and has been referred to the Committee on the Judiciary. Sens. Bob Menendez, Lindsey Graham, Sheldon Whitehouse, and Susan Collins are the lead sponsors.

Maine has passed without the Governor’s signature a measure to provide for the care of companion animals in a divorce. The law directs a judge to award “ownership” of the animal to one party only based on a variety of factors. Those factors include: the well-being of the animal; the amount of time each party has spent with the animal during the marriage; the emotional attachment to the animal; potential benefits of the animal remaining in the primary residence of a child; and any history of domestic abuse, animal abuse, or other unsafe conditions for the animal.

New Hampshire Governor Chris Sununu has signed into law House Bill 529 which will make any person who “purposely beats, cruelly whips, tortures or mutilates . . . any wild animal, fish or wild bird,” or who causes such acts, guilty of a class B felony. Any person who “negligently” takes such action shall be guilty of a misdemeanor. The law includes an affirmative defense for “any manner of taking, open season time limits, permitted scientific investigations or wildlife management practices lawful under title XVIII or administrative rules.”

Illinois Governor J.B. Pritzker has signed into law House Bill 1711 which provides that pet shop operators may only offer dogs or cats for sale if they are obtained from an animal control facility or animal shelter. The law also ensures that any such “animal control facility or animal shelter that supplies dogs or cats to pet shop operators to be offered for sale shall not be a dog breeder or a cat breeder or obtain dogs or cats from a dog breeder, a cat breeder, a person who resells dogs or cats from a breeder, or a person who sells dogs or cats at auction in exchange for payment or compensation.” The law additionally states that pet shops still may provide space to “an animal control facility or animal shelter to showcase dogs or cats owned by these entities for the purpose of adoption.”

Florida Senate Bill 238 would revise the legislative intent of the Florida Endangered and Threatened Species Act to direct the Florida Fish and Wildlife Conservation Commission (FWCC) to protect certain indigenous species of wildlife regardless of their classification by U.S. Fish & Wildlife Service under the federal Endangered Species Act. The bill also precludes FWCC from considering the costs associated with determining the protection level for an endangered or threatened species in Florida.

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.

The Supreme Court declined to take up an appeal by the North American Meat Institute challenging California’s Proposition 12 ballot initiative which bans the use of intensive confinement methods for egg-laying hens, pregnant pigs, and calves raised for veal, as well as the sale of products sourced from such confined animals. The decision lets a Ninth Circuit Court of Appeals ruling upholding the measure stand.

The Ninth Circuit has affirmed the dismissal of a challenge brought by the American Farm Bureau Federation and the National Pork Producers Council to California Proposition 12, a law prohibiting certain confinement methods used in animal agriculture. The court held that the complaint did not plausibly plead that Proposition 12 violates the dormant Commerce Clause by compelling out-of-state producers to change their operations to meet California standards, nor that it imposes excessive burdens on interstate commerce without advancing any legitimate local interest.

The 8th Circuit has restored part of Iowa’s 2012 Ag-Gag law and lifted an injunction against its enforcement, ruling that the provision prohibiting “assuming false pretenses to obtain access to an agricultural production facility is consistent with the First Amendment.” The court upheld the district court’s invalidation of the law’s “Employment Provision” that criminalized making “a false statement or representation as part of an application or agreement to be employed at an agricultural production facility.” The challenge to the Iowa Ag-Gag law was brought by the Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing Out Benji, People for The Ethical Treatment of Animals, and the Center for Food Safety.

The 10th Circuit Court of Appeals has upheld a lower court ruling blocking a Kansas law that banned recording and entering factory farms without the facilities’ owners’ consent. The court reasoned that the relevant sections of the law “concern speech because they include deception as a possible element and are viewpoint discriminatory because they apply only to persons who intend to damage the enterprise of an animal facility.” The case was filed by the Animal Legal Defense Fund, Center for Food Safety, Shy 38, and Hope Sanctuary and included three dozen additional Amici Curiae.

A federal judge has dismissed a challenge to California’s Proposition 12 brought by the Iowa Pork Producers Association, finding that the court lacked personal jurisdiction over defendants. The court reasoned that the "quality, quantity, and relationship” of the defendants’ contacts to the plaintiffs’ claims did not support a finding that the California defendants had the contacts necessary to support personal jurisdiction in Iowa. This was the third such dismissed lawsuit brought by producers challenging California’s anti-confinement ballot measure that is due to take effect on January 1, 2022.

A putative consumer class action has been filed in the U.S. District Court for the Northern District of California alleging that Kellogg Sales Company’s advertisement of its MorningStar brand “Veggie” products (including “Veggie Burgers” and “Veggie Dogs”) violates numerous California consumer protection laws. Plaintiffs allege that the “Veggie” labeling is false or misleading because it suggests that vegetables are the primary ingredients in such products when they instead are predominantly comprised of grain and oil. Plaintiffs are seeking a recall of Kellogg’s MorningStar products labeled in this manner, a corrective advertising campaign, disgorgement, and restitution.

PETA has filed suit against the National Institutes of Health (NIH), NIH Director Francis Collins, the Department of Health and Human Services (HHS), and HHS Secretary Xavier Becerra alleging that the agency violated the Administrative Procedure Act when it continued to fund sepsis experiments on animals despite NIH’s acknowledgement that mice are not a suitable substitute for humans in these experiments. The complaint states that the NIH has spent “more than $20 million for new [animal-sepsis] projects in the past twenty months and at least $10 million for new projects in fiscal year 2021.” PETA argues this funding is a waste of taxpayer money and violates NIH’s obligation to fund research to improve human health and minimize the number of animals used in research.

The 8th Circuit has revived a First Amendment challenge to Arkansas’ ag-gag law, finding that plaintiffs do have standing under Article III because they could reasonably fear private parties would enforce the law against them. The Court of Appeals rejected an argument made in the dissent that animal advocates would need to start investigating in order to have standing.

In a suit filed by a Maryland family whose dog was shot and killed by a police officer, a $1.26 million jury award has been reduced to $7,500. In the decision, Maryland’s Court of Appeals held that an existing state law cap applies to all compensatory damages for the tortious death or injury of a companion animal, not just the economic damages expressly listed in the statute. The decision overruled the state Court of Special Appeals and reverses existing precedent set by that court in the 2014 Brooks v. Jenkins case where it previously held that non-economic damages are not bound by the state legislative cap when gross negligence is involved. After the jury determined that the Reeves’ dog was not attacking the officer at the time of the shooting, their original award included $10,000 for trespass to chattel, $1.25 million for gross negligence ($500,000 in economic damages and $750,000 in noneconomic damages), and no damages for the state constitutional claims. The court hinted that had the jury awarded damages for the Reeves’ state constitutional claims, as in Brooks, those may have withstood scrutiny since such damages are intended to compensate persons for violations of their constitutional rights, not the actual loss of property. It should be noted that had the Reeves’ claims been filed under the US Constitution, any damages awarded would not have been bound by Maryland’s legislative cap.

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.

The U.S. Fish & Wildlife Service has issued a 90-day finding that two petitions presented “substantial scientific or commercial information” justifying possible listing of a distinct population segment of gray wolves in western North America under the Endangered Species Act. More specifically, the agency determined the petitions contained “credible and substantial information” about the threats posed to gray wolves by hunting in Idaho and Montana, habitat modification due to a reduced prey base, disease, and loss of genetic diversity caused by isolation and small population size. FWS now will conduct a 12-month status review to determine which listing status is warranted and will accepting any information that will guide its analysis at any point during that process. The petitions were filed by the Humane Society of the United States, Center for Biological Diversity, Sierra Club, Western Watersheds Project and dozens of other organizations, several of whom also have filed federal litigation challenging FWS’ November 3, 2020, removal of the gray wolf from the endangered species list.

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.

Islamabad High Court Chief Justice Athar Minallah has ruled that a proposed importation of elephants would violate Pakistan’s international obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) treaty. Justice Minallah entered the equivalent of a temporary restraining order to prevent the import in response to a petition from the Pakistan Animal Welfare Society. The Ministry of Climate Change and the Federal Board of Revenue will be required to return to court on September 28, 2021, with sufficient evidence that the proposed transfer does not violate wildlife protection laws. Justice Minallah is the same IHC justice who ordered the release of a solitary-confined elephant named Kaavan from the Marghazar Zoo to the Cambodia Wildlife Sanctuary in 2020. 

A bill has been filed that would make Colombia the first country to include paid leave for companion animal bereavement in nationwide labor laws. Colombians currently are entitled to five days of paid leave following the death of a direct human family member, and the new bill would add two days of paid leave to mourn the death of a companion animal. The bill must pass four debates between the Colombia House of Representatives and the Senate in order to become law.