Arizona House Bill 2692 would augment the existing definition of veterinary malpractice or gross negligence to include failure to “provide the animal's owner or caretaker with all the medical information about the animal that is relevant to the animal's health, including disclosing all of the animal's medical issues that are necessary for the owner or caretaker to make a fully informed decision whether to pursue further treatment of the animal with that veterinarian or with another veterinarian.” Failing to provide such records, including radiographs, to the owner or subsequent veterinarians in a timely fashion also would be considered “Unprofessional or dishonorable conduct.” The bill further would establish a private right of action against veterinarians who fail to comply with specific disclosure requirements.
This Week's Spotlights
Legislative Updates - Pending State Actions
Arizona Bill Would Create Private Right of Action Against Negligent Veterinarians
Case Law Updates - Federal Case Law Updates
Conservation Groups Sue to Protect Florida Manatees
The Center for Biological Diversity, Defenders of Wildlife, and Save the Manatee Club sued the U.S. Fish & Wildlife Service (FWS) for unreasonable delay in implementing revisions to critical habitat designation for Florida manatees, which FWS found “warranted” more than a decade ago. More than 1,100 manatees died in 2021, with many of the record-breaking number of deaths attributable primarily to pollution of critical manatee habitat. Plaintiffs argue that FWS has violated the Endangered Species Act and Administrative Procedure Act, and they are asking the U.S. District Court for the District of Columbia to enter an order requiring FWS to publish a proposed rule to revise the critical habitat for Florida manatees within 120 days of the court’s order.
The Center for Biological Diversity, Defenders of Wildlife, and Save the Manatee Club sued the U.S. Fish & Wildlife Service (FWS) for unreasonable delay in implementing revisions to critical habitat designation for Florida manatees, which FWS found “warranted” more than a decade ago. More than 1,100 manatees died in 2021, with many of the record-breaking number of deaths attributable primarily to pollution of critical manatee habitat. Plaintiffs argue that FWS has violated the Endangered Species Act and Administrative Procedure Act, and they are asking the U.S. District Court for the District of Columbia to enter an order requiring FWS to publish a proposed rule to revise the critical habitat for Florida manatees within 120 days of the court’s order.
Federal Judge Grants USDA’s Motion to Remand Question of Line Speed Waivers
A D.C. federal judge has granted the United States Department of Agriculture’s (USDA) motion to remand its waivers for poultry line speed limits for reconsideration by the agency in light of recent pig slaughter line speed trials. The order was granted in a lawsuit brought by five local labor unions and their international affiliate that challenged the waiver program in 2020 because it was implemented “without considering worker safety.” The judge found that the agency could resolve plaintiffs’ safety concerns “faster than the court” and ordered the USDA to produce reports on its review to the court within 90 and 150 days of the decision. The National Chicken Council had intervened in support of the USDA.
A D.C. federal judge has granted the United States Department of Agriculture’s (USDA) motion to remand its waivers for poultry line speed limits for reconsideration by the agency in light of recent pig slaughter line speed trials. The order was granted in a lawsuit brought by five local labor unions and their international affiliate that challenged the waiver program in 2020 because it was implemented “without considering worker safety.” The judge found that the agency could resolve plaintiffs’ safety concerns “faster than the court” and ordered the USDA to produce reports on its review to the court within 90 and 150 days of the decision. The National Chicken Council had intervened in support of the USDA.
Case Law Updates - State Case Law Updates
Poultry Rendering Plant Sued Over Water Permit Violations
A coalition of environmental groups reportedly have filed suit against a Maryland-based poultry rendering facility, Valley Proteins, alleging violations of environmental laws, while the State of Maryland also filed suit against Valley Proteins for violation of its water permits and seeks fines of up to $35,000 for each day of water permit violations.
A coalition of environmental groups reportedly have filed suit against a Maryland-based poultry rendering facility, Valley Proteins, alleging violations of environmental laws, while the State of Maryland also filed suit against Valley Proteins for violation of its water permits and seeks fines of up to $35,000 for each day of water permit violations.
Agency Updates
USDA Urged to Take Enforcement Action in Connection with Oklahoma Elephant Attack
People for the Ethical Treatment of Animals (PETA) sent the U.S. Department of Agriculture (USDA) a request for enforcement action under the Animal Welfare Act (AWA) against the Endangered Ark Foundation, an Oklahoma elephant breeding and training facility, and related entities in connection with a March, 2021 elephant attack that left a woman disabled and disfigured after surviving life-threatening injuries. The request claims that Endangered Ark leases the elephants and exhibits them under Carson & Barnes Circus' USDA license, listing a long history of the companies’ AWA violations. Dana Garber, O.D., the woman attacked at the elephant facility, had been participating in an elephant encounter that she purchased through Oklahoma Awesome Adventures. Dr. Garber filed a negligence lawsuit against the circus and its affiliates in 2021, that is still pending in state court in Oklahoma County. PETA’s 2022 complaint urges the USDA to take enforcement action against the various companies for continuing to offer public encounters with dangerous wild animals and for failing to report the serious incident to the federal agency as their USDA licensure requires.
People for the Ethical Treatment of Animals (PETA) sent the U.S. Department of Agriculture (USDA) a request for enforcement action under the Animal Welfare Act (AWA) against the Endangered Ark Foundation, an Oklahoma elephant breeding and training facility, and related entities in connection with a March, 2021 elephant attack that left a woman disabled and disfigured after surviving life-threatening injuries. The request claims that Endangered Ark leases the elephants and exhibits them under Carson & Barnes Circus' USDA license, listing a long history of the companies’ AWA violations. Dana Garber, O.D., the woman attacked at the elephant facility, had been participating in an elephant encounter that she purchased through Oklahoma Awesome Adventures. Dr. Garber filed a negligence lawsuit against the circus and its affiliates in 2021, that is still pending in state court in Oklahoma County. PETA’s 2022 complaint urges the USDA to take enforcement action against the various companies for continuing to offer public encounters with dangerous wild animals and for failing to report the serious incident to the federal agency as their USDA licensure requires.
U.S. Fish & Wildlife Service Quadruples Annual Take Limit for Bald Eagles
The U.S. Fish & Wildlife Service published notice that it is increasing the maximum take limit for bald eagles effective immediately for all flyways but for the Alaska and Pacific Flyway, for which it was impractical to conduct an assessment with the agency’s existing resources. The agency has increased the total annual take limit for bald eagles across all other flyways from 3,731 to 15,832. The majority of the take permits issued are for incidental harm and harassment to bald eagles.
The U.S. Fish & Wildlife Service published notice that it is increasing the maximum take limit for bald eagles effective immediately for all flyways but for the Alaska and Pacific Flyway, for which it was impractical to conduct an assessment with the agency’s existing resources. The agency has increased the total annual take limit for bald eagles across all other flyways from 3,731 to 15,832. The majority of the take permits issued are for incidental harm and harassment to bald eagles.
USDA Announces Intent to Update Rules Concerning Meat Labeling Requirements
The U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) announced its intent to collect information to help gauge consumer awareness and understanding of current “Product of USA” labeling claims on beef and pork products, as well as customer understanding of other USDA labeling on meat products. Following the information collection, FSIS intends to initiate rulemaking to clarify requirements for certain labeling terms used on meat products. The agency is accepting public comments on its proposed information collection through April 4, 2022. In January 2022, Senate Bill 3439 was introduced seeking to eliminate the “Product of the U.S.A.” label and instead “establish, and allow for the voluntary use of” three more specific labels: “Processed in the U.S.A.,” “Raised and Processed in the U.S.A.,” and “Born, Raised, and Processed in the U.S.A.”
The U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) announced its intent to collect information to help gauge consumer awareness and understanding of current “Product of USA” labeling claims on beef and pork products, as well as customer understanding of other USDA labeling on meat products. Following the information collection, FSIS intends to initiate rulemaking to clarify requirements for certain labeling terms used on meat products. The agency is accepting public comments on its proposed information collection through April 4, 2022. In January 2022, Senate Bill 3439 was introduced seeking to eliminate the “Product of the U.S.A.” label and instead “establish, and allow for the voluntary use of” three more specific labels: “Processed in the U.S.A.,” “Raised and Processed in the U.S.A.,” and “Born, Raised, and Processed in the U.S.A.”
International Updates
China Includes Cultivated Meat in its Five-Year Agricultural Plan for the First Time
The Chinese Ministry of Agriculture and Rural Affairs released its five-year agricultural plan, which specifically mentions cultivated meat for the first time. Research suggests that acceptance of cultivated meat is higher in China than in the West, and the report describes how innovation could be boosted in “frontier and cross-disciplinary technologies,” a category that includes cultivated meat. The country’s first cultivated company, Joes Future Food, recently raised over $10 million to build a cell-based pork production line, while Shanghai-based HEROTEIN is collaborating with United States-based Mission Barns to bring hybrid cultivated/plant-based meats to market.
The Chinese Ministry of Agriculture and Rural Affairs released its five-year agricultural plan, which specifically mentions cultivated meat for the first time. Research suggests that acceptance of cultivated meat is higher in China than in the West, and the report describes how innovation could be boosted in “frontier and cross-disciplinary technologies,” a category that includes cultivated meat. The country’s first cultivated company, Joes Future Food, recently raised over $10 million to build a cell-based pork production line, while Shanghai-based HEROTEIN is collaborating with United States-based Mission Barns to bring hybrid cultivated/plant-based meats to market.
Swiss Voters will Decide on a Total Ban on Animal Testing in February
Switzerland will consider a nationwide ban on animal testing and the import of products tested on animals during a vote that is scheduled for February 13, 2022. The ban would apply to all animal testing and experiments, including those for scientific purposes. On the same day, residents of the canton of Basel-Stadt, Switzerland, will vote on a controversial referendum to establish fundamental rights for primates.
Switzerland will consider a nationwide ban on animal testing and the import of products tested on animals during a vote that is scheduled for February 13, 2022. The ban would apply to all animal testing and experiments, including those for scientific purposes. On the same day, residents of the canton of Basel-Stadt, Switzerland, will vote on a controversial referendum to establish fundamental rights for primates.
European Union Establishes Limits on Live Animal Export Transport Times
The European Union (EU) Parliament has approved restrictions on live animal transport times, including an eight-hour limit on road transport and a twenty-four-hour limit on sea transport of live animals intended for slaughter in other countries. Until now, there was no time limit on shipping transport of live animals from the EU. A 2021 report prepared by an EU Parliament committee documented extreme suffering of animals from dehydration, starvation, and disease during weeks-long transport of animals from the EU to countries like Saudi Arabia, Libya, and Israel. Advocates and countries like Germany, Luxembourg, and the Netherlands are calling for a total ban on live animal export, citing the fact that most exported animals end up in countries that do not meet their standards for animal welfare or slaughter.
The European Union (EU) Parliament has approved restrictions on live animal transport times, including an eight-hour limit on road transport and a twenty-four-hour limit on sea transport of live animals intended for slaughter in other countries. Until now, there was no time limit on shipping transport of live animals from the EU. A 2021 report prepared by an EU Parliament committee documented extreme suffering of animals from dehydration, starvation, and disease during weeks-long transport of animals from the EU to countries like Saudi Arabia, Libya, and Israel. Advocates and countries like Germany, Luxembourg, and the Netherlands are calling for a total ban on live animal export, citing the fact that most exported animals end up in countries that do not meet their standards for animal welfare or slaughter.
Legislative Updates
Pending Federal Actions
Federal Bill Would Require Warning Label about Toxicity of Xylitol for Dogs
U.S. Rep. David Schweikert introduced H.R. 5261, the “Paws Off Act of 2021,” which would amend the Federal Food, Drug, and Cosmetic Act to deem foods containing xylitol as misbranded unless the label contains a warning specifying the toxic effects of xylitol for dogs. Xylitol is a form of low-calorie sugar alcohol that is frequently used as a sweetener in chewing gum, mints, toothpaste, and peanut butter. Even small amounts ingested by dogs can cause hypoglycemia, liver failure, seizures, and death. The bill has been referred to the House Committee on Energy and Commerce.
U.S. Rep. David Schweikert introduced H.R. 5261, the “Paws Off Act of 2021,” which would amend the Federal Food, Drug, and Cosmetic Act to deem foods containing xylitol as misbranded unless the label contains a warning specifying the toxic effects of xylitol for dogs. Xylitol is a form of low-calorie sugar alcohol that is frequently used as a sweetener in chewing gum, mints, toothpaste, and peanut butter. Even small amounts ingested by dogs can cause hypoglycemia, liver failure, seizures, and death. The bill has been referred to the House Committee on Energy and Commerce.
Pending State Actions
Arizona Bill Would Create Right to Enter Homeless Shelter with Service Animal
Arizona Senate Bill 1663 would create the “Homeless Persons’ Bill of Rights,” establishing a number of express rights for individuals who are unhoused, including the right to enter a homeless shelter with their service animal.
Arizona Senate Bill 1663 would create the “Homeless Persons’ Bill of Rights,” establishing a number of express rights for individuals who are unhoused, including the right to enter a homeless shelter with their service animal.
Kentucky Bill Would Penalize Individuals Who Misrepresent Animal as Service Animal
Kentucky House Bill 403 would amend the existing state provisions relating to service animals in a number of ways, including by clarifying the type of therapeutic relationship that an individual must have for service animal documentation to be considered valid. The bill also adds a penalty provision which would fine individuals up to $1,000 for misrepresenting an animal as a service animal in order to take advantage of a disability accommodation for which they do not qualify. Collected penalties would be allocated for spay and neuter and general animal shelter block grants.
Kentucky House Bill 403 would amend the existing state provisions relating to service animals in a number of ways, including by clarifying the type of therapeutic relationship that an individual must have for service animal documentation to be considered valid. The bill also adds a penalty provision which would fine individuals up to $1,000 for misrepresenting an animal as a service animal in order to take advantage of a disability accommodation for which they do not qualify. Collected penalties would be allocated for spay and neuter and general animal shelter block grants.
Maryland Bill Would Give Tax Credits for Companion Animal-Friendly Landlords
Maryland House Bill 681, cross-filed with Senate Bill 443 would establish an income tax credit for landlords who allow tenants to live with companion animals. The bill has been referred to the House Committee on Ways and Means.
Maryland House Bill 681, cross-filed with Senate Bill 443 would establish an income tax credit for landlords who allow tenants to live with companion animals. The bill has been referred to the House Committee on Ways and Means.
West Virginia Bill Would Allow Big Game Hunting with Air Rifles
West Virginia House Bill 4441 would allow hunters to pay $8 for a “Class M stamp,” allowing them to use air rifles to hunt big game. The bill has been referred to the House Committee on Agriculture and Natural Resources.
West Virginia House Bill 4441 would allow hunters to pay $8 for a “Class M stamp,” allowing them to use air rifles to hunt big game. The bill has been referred to the House Committee on Agriculture and Natural Resources.
Kentucky Bill Would Establish Official State Dog Breed
Kentucky Senate Bill 128 would designate the Treeing Walker Coonhound as the official state dog of Kentucky. The bill has been referred to the Senate Committee on Committees.
Kentucky Senate Bill 128 would designate the Treeing Walker Coonhound as the official state dog of Kentucky. The bill has been referred to the Senate Committee on Committees.
South Dakota Bill Would Establish Elk Hunting Licensing Limits
South Dakota Senate Bill 184 would establish the conditions under which landowner licenses may be issued for “hunting, taking, or killing of elk” and establish who is eligible to apply for licenses.
South Dakota Senate Bill 184 would establish the conditions under which landowner licenses may be issued for “hunting, taking, or killing of elk” and establish who is eligible to apply for licenses.
Arizona Bill Would Create Private Right of Action Against Negligent Veterinarians
Arizona House Bill 2692 would augment the existing definition of veterinary malpractice or gross negligence to include failure to “provide the animal's owner or caretaker with all the medical information about the animal that is relevant to the animal's health, including disclosing all of the animal's medical issues that are necessary for the owner or caretaker to make a fully informed decision whether to pursue further treatment of the animal with that veterinarian or with another veterinarian.” Failing to provide such records, including radiographs, to the owner or subsequent veterinarians in a timely fashion also would be considered “Unprofessional or dishonorable conduct.” The bill further would establish a private right of action against veterinarians who fail to comply with specific disclosure requirements.
Arizona House Bill 2692 would augment the existing definition of veterinary malpractice or gross negligence to include failure to “provide the animal's owner or caretaker with all the medical information about the animal that is relevant to the animal's health, including disclosing all of the animal's medical issues that are necessary for the owner or caretaker to make a fully informed decision whether to pursue further treatment of the animal with that veterinarian or with another veterinarian.” Failing to provide such records, including radiographs, to the owner or subsequent veterinarians in a timely fashion also would be considered “Unprofessional or dishonorable conduct.” The bill further would establish a private right of action against veterinarians who fail to comply with specific disclosure requirements.
West Virginia Bill Would Create State Veterinary Blood Bank
West Virginia House Bill 4548 would establish a state veterinary blood bank to be used for animals in need. The bill would require blood bank donations to be made on a voluntary basis and would prohibit payment to donors in exchange for their animals’ blood donations. The bill has been referred to the House Judiciary Committee.
West Virginia House Bill 4548 would establish a state veterinary blood bank to be used for animals in need. The bill would require blood bank donations to be made on a voluntary basis and would prohibit payment to donors in exchange for their animals’ blood donations. The bill has been referred to the House Judiciary Committee.
Enacted Municipal Actions
Ohio Municipality Enacts Ordinance to Crack Down on Pigeons and Stray Animals
The City of Portsmouth, Ohio, enacted a new ordinance, “Prohibiting the Feeding of Stray Animals and Wild Pigeons.” While the language of the new ordinance has not yet been posted to the city’s website, it reportedly was introduced in response to the volume of pigeons and stray dogs found in abandoned properties around the city and allows residents to feed stray dogs and cats as long as the food is placed in a container. Violations may be punishable by a fine of up to $750, but the city announced its intent to give first-time offenders a warning.
The City of Portsmouth, Ohio, enacted a new ordinance, “Prohibiting the Feeding of Stray Animals and Wild Pigeons.” While the language of the new ordinance has not yet been posted to the city’s website, it reportedly was introduced in response to the volume of pigeons and stray dogs found in abandoned properties around the city and allows residents to feed stray dogs and cats as long as the food is placed in a container. Violations may be punishable by a fine of up to $750, but the city announced its intent to give first-time offenders a warning.
Case Law Updates
Federal Case Law Updates
Texas Agency Sues to Remove Rare Bird Species from Endangered Species List
The General Land Office of the State of Texas (TXGLO) sued the U.S. Fish & Wildlife Service (FWS), alleging that FWS has applied an “impermissibly heightened standard of review” in continuing to deny petitions to delist the golden-cheeked warbler under the Endangered Species Act. TXGLO, which owns properties that encompass critical habitat for the imperiled warblers, first sued FWS to challenge the warbler’s listing status in 2017. The district court upheld FWS’ findings and decision to maintain the warbler’s listing status, but the 5th Circuit reversed and vacated FWS’ findings on appeal, ordering the federal agency to engage in a new analysis of whether the warbler still met the statutory requirements for listing under the Endangered Species Act. In 2021, FWS published its new analysis, again finding that delisting the warbler was not warranted. In the instant case, TXGLO is seeking vacatur of FWS’ 2021 analysis and a new 90-day finding.
The General Land Office of the State of Texas (TXGLO) sued the U.S. Fish & Wildlife Service (FWS), alleging that FWS has applied an “impermissibly heightened standard of review” in continuing to deny petitions to delist the golden-cheeked warbler under the Endangered Species Act. TXGLO, which owns properties that encompass critical habitat for the imperiled warblers, first sued FWS to challenge the warbler’s listing status in 2017. The district court upheld FWS’ findings and decision to maintain the warbler’s listing status, but the 5th Circuit reversed and vacated FWS’ findings on appeal, ordering the federal agency to engage in a new analysis of whether the warbler still met the statutory requirements for listing under the Endangered Species Act. In 2021, FWS published its new analysis, again finding that delisting the warbler was not warranted. In the instant case, TXGLO is seeking vacatur of FWS’ 2021 analysis and a new 90-day finding.
Ninth Circuit Revives Fight Against Logging Plans in Forests Where Endangered Fishers Live
A Ninth Circuit panel ruled that a lower court erred when it declined to stop several logging operations in a portion of a California national forest that is home to the endangered fisher, a small weasel-like mammal whose populations have diminished due to hunting, logging, and other habitat encroachment. The appellate court ruled that the lower court should have granted a preliminary injunction to Unite the Parks, Earth Island Institute, and Sequoia Forestkeeper––wildlife advocacy groups dedicated to the conservation and recovery of the Pacific fisher in the Sierra Nevada mountains. Plaintiffs argued that defendants U.S. Forest Service and U.S. Fish & Wildlife Service failed to account for a new population count that was performed after the devastating wildfire seasons that may have even further reduced the population levels of the imperiled animal. The Ninth Circuit vacated the lower court decision to deny the preliminary injunction and remanded the case for consideration of plaintiffs’ request for preliminary injunction in light of the new population count.
A Ninth Circuit panel ruled that a lower court erred when it declined to stop several logging operations in a portion of a California national forest that is home to the endangered fisher, a small weasel-like mammal whose populations have diminished due to hunting, logging, and other habitat encroachment. The appellate court ruled that the lower court should have granted a preliminary injunction to Unite the Parks, Earth Island Institute, and Sequoia Forestkeeper––wildlife advocacy groups dedicated to the conservation and recovery of the Pacific fisher in the Sierra Nevada mountains. Plaintiffs argued that defendants U.S. Forest Service and U.S. Fish & Wildlife Service failed to account for a new population count that was performed after the devastating wildfire seasons that may have even further reduced the population levels of the imperiled animal. The Ninth Circuit vacated the lower court decision to deny the preliminary injunction and remanded the case for consideration of plaintiffs’ request for preliminary injunction in light of the new population count.
Conservation Groups Sue to Protect Florida Manatees
The Center for Biological Diversity, Defenders of Wildlife, and Save the Manatee Club sued the U.S. Fish & Wildlife Service (FWS) for unreasonable delay in implementing revisions to critical habitat designation for Florida manatees, which FWS found “warranted” more than a decade ago. More than 1,100 manatees died in 2021, with many of the record-breaking number of deaths attributable primarily to pollution of critical manatee habitat. Plaintiffs argue that FWS has violated the Endangered Species Act and Administrative Procedure Act, and they are asking the U.S. District Court for the District of Columbia to enter an order requiring FWS to publish a proposed rule to revise the critical habitat for Florida manatees within 120 days of the court’s order.
The Center for Biological Diversity, Defenders of Wildlife, and Save the Manatee Club sued the U.S. Fish & Wildlife Service (FWS) for unreasonable delay in implementing revisions to critical habitat designation for Florida manatees, which FWS found “warranted” more than a decade ago. More than 1,100 manatees died in 2021, with many of the record-breaking number of deaths attributable primarily to pollution of critical manatee habitat. Plaintiffs argue that FWS has violated the Endangered Species Act and Administrative Procedure Act, and they are asking the U.S. District Court for the District of Columbia to enter an order requiring FWS to publish a proposed rule to revise the critical habitat for Florida manatees within 120 days of the court’s order.
Federal Judge Grants USDA’s Motion to Remand Question of Line Speed Waivers
A D.C. federal judge has granted the United States Department of Agriculture’s (USDA) motion to remand its waivers for poultry line speed limits for reconsideration by the agency in light of recent pig slaughter line speed trials. The order was granted in a lawsuit brought by five local labor unions and their international affiliate that challenged the waiver program in 2020 because it was implemented “without considering worker safety.” The judge found that the agency could resolve plaintiffs’ safety concerns “faster than the court” and ordered the USDA to produce reports on its review to the court within 90 and 150 days of the decision. The National Chicken Council had intervened in support of the USDA.
A D.C. federal judge has granted the United States Department of Agriculture’s (USDA) motion to remand its waivers for poultry line speed limits for reconsideration by the agency in light of recent pig slaughter line speed trials. The order was granted in a lawsuit brought by five local labor unions and their international affiliate that challenged the waiver program in 2020 because it was implemented “without considering worker safety.” The judge found that the agency could resolve plaintiffs’ safety concerns “faster than the court” and ordered the USDA to produce reports on its review to the court within 90 and 150 days of the decision. The National Chicken Council had intervened in support of the USDA.
Conservation Groups Prevail in Legal Challenge to Federal Agency’s Environmental Assessment for Pipeline Project
The 4th Circuit Court of Appeals sided with a coalition of environmental organizations who sued the U.S. Fish & Wildlife Service (FWS), challenging the agency’s biological opinion and incidental take statement for the Mountain Valley Pipeline Project––a 304-mile natural gas pipeline project extending from West Virginia to Virginia and crossing 1,100 streams through 6,951 acres of land. Appalachian Voices, Wild Virginia, West Virginia Rivers Coalition, Preserve Giles County, Preserve Bent Mountain, West Virginia Highlands Conservancy, Indian Creek Watershed Association, Sierra Club, Defenders of Wildlife, Chesapeake Climate Action Network, and the Center for Biological Diversity argued that FWS’ 2020 Biological Opinion and Incidental Take Statement (“2020 Opinion”) for the project was “inadequate” under the Endangered Species Act and did not sufficiently consider the environmental context in assessing the project’s impact on federally-listed Roanoake logperch and candy darters. In its order, the 4th Circuit vacated the 2020 Opinion, effectively halting the almost-completed pipeline project and remanding for the FWS to prepare a new assessment.
The 4th Circuit Court of Appeals sided with a coalition of environmental organizations who sued the U.S. Fish & Wildlife Service (FWS), challenging the agency’s biological opinion and incidental take statement for the Mountain Valley Pipeline Project––a 304-mile natural gas pipeline project extending from West Virginia to Virginia and crossing 1,100 streams through 6,951 acres of land. Appalachian Voices, Wild Virginia, West Virginia Rivers Coalition, Preserve Giles County, Preserve Bent Mountain, West Virginia Highlands Conservancy, Indian Creek Watershed Association, Sierra Club, Defenders of Wildlife, Chesapeake Climate Action Network, and the Center for Biological Diversity argued that FWS’ 2020 Biological Opinion and Incidental Take Statement (“2020 Opinion”) for the project was “inadequate” under the Endangered Species Act and did not sufficiently consider the environmental context in assessing the project’s impact on federally-listed Roanoake logperch and candy darters. In its order, the 4th Circuit vacated the 2020 Opinion, effectively halting the almost-completed pipeline project and remanding for the FWS to prepare a new assessment.
State Case Law Updates
Poultry Rendering Plant Sued Over Water Permit Violations
A coalition of environmental groups reportedly have filed suit against a Maryland-based poultry rendering facility, Valley Proteins, alleging violations of environmental laws, while the State of Maryland also filed suit against Valley Proteins for violation of its water permits and seeks fines of up to $35,000 for each day of water permit violations.
A coalition of environmental groups reportedly have filed suit against a Maryland-based poultry rendering facility, Valley Proteins, alleging violations of environmental laws, while the State of Maryland also filed suit against Valley Proteins for violation of its water permits and seeks fines of up to $35,000 for each day of water permit violations.
Agency Updates
Oil Company Obtains Federal Approval to Harm and Harass Numerous Cetacean Species During Drilling
The National Marine Fisheries Service announced the issuance of a Letter of Authorization (LOA) to Total Energies E&P USA, LLC (Total Energies), for the harm and harassment of seventeen cetacean species incidental to oil drilling in the Gulf of Mexico. The LOA authorizes Total Energies to harm and harass Rice’s whales, sperm whales, beaked whales, melon-headed whales, false killer whales, pygmy killer whales, short-finned pilot whales, pygmy sperm whales, rough-toothed dolphins, bottlenose dolphins, Clymene dolphins, Atlantic spotted dolphins, pantropical spotted dolphins, spinner dolphins, striped dolphins, Fraser’s dolphins, and Risso’s dolphins between April 20, 2022 and April 19, 2023.
The National Marine Fisheries Service announced the issuance of a Letter of Authorization (LOA) to Total Energies E&P USA, LLC (Total Energies), for the harm and harassment of seventeen cetacean species incidental to oil drilling in the Gulf of Mexico. The LOA authorizes Total Energies to harm and harass Rice’s whales, sperm whales, beaked whales, melon-headed whales, false killer whales, pygmy killer whales, short-finned pilot whales, pygmy sperm whales, rough-toothed dolphins, bottlenose dolphins, Clymene dolphins, Atlantic spotted dolphins, pantropical spotted dolphins, spinner dolphins, striped dolphins, Fraser’s dolphins, and Risso’s dolphins between April 20, 2022 and April 19, 2023.
National Marine Fisheries Service Considers Application for Harassment of Marine Mammals During Railway Bridge Maintenance Project
The National Marine Fisheries Service (NMFS) received an application from BNSF for authorization to harass numerous marine mammal species during a railway bridge maintenance project in King County, Washington. If issued, the incidental harassment authorization would allow BNSF to harass the following species during its construction project: Minke whales, bottlenose dolphins, long-beaked dolphins, harbor porpoises, California sea lions, Stellar sea lions, and harbor seals. NMFS is accepting public comments on the application through March 2, 2022.
The National Marine Fisheries Service (NMFS) received an application from BNSF for authorization to harass numerous marine mammal species during a railway bridge maintenance project in King County, Washington. If issued, the incidental harassment authorization would allow BNSF to harass the following species during its construction project: Minke whales, bottlenose dolphins, long-beaked dolphins, harbor porpoises, California sea lions, Stellar sea lions, and harbor seals. NMFS is accepting public comments on the application through March 2, 2022.
USDA Urged to Take Enforcement Action in Connection with Oklahoma Elephant Attack
People for the Ethical Treatment of Animals (PETA) sent the U.S. Department of Agriculture (USDA) a request for enforcement action under the Animal Welfare Act (AWA) against the Endangered Ark Foundation, an Oklahoma elephant breeding and training facility, and related entities in connection with a March, 2021 elephant attack that left a woman disabled and disfigured after surviving life-threatening injuries. The request claims that Endangered Ark leases the elephants and exhibits them under Carson & Barnes Circus' USDA license, listing a long history of the companies’ AWA violations. Dana Garber, O.D., the woman attacked at the elephant facility, had been participating in an elephant encounter that she purchased through Oklahoma Awesome Adventures. Dr. Garber filed a negligence lawsuit against the circus and its affiliates in 2021, that is still pending in state court in Oklahoma County. PETA’s 2022 complaint urges the USDA to take enforcement action against the various companies for continuing to offer public encounters with dangerous wild animals and for failing to report the serious incident to the federal agency as their USDA licensure requires.
People for the Ethical Treatment of Animals (PETA) sent the U.S. Department of Agriculture (USDA) a request for enforcement action under the Animal Welfare Act (AWA) against the Endangered Ark Foundation, an Oklahoma elephant breeding and training facility, and related entities in connection with a March, 2021 elephant attack that left a woman disabled and disfigured after surviving life-threatening injuries. The request claims that Endangered Ark leases the elephants and exhibits them under Carson & Barnes Circus' USDA license, listing a long history of the companies’ AWA violations. Dana Garber, O.D., the woman attacked at the elephant facility, had been participating in an elephant encounter that she purchased through Oklahoma Awesome Adventures. Dr. Garber filed a negligence lawsuit against the circus and its affiliates in 2021, that is still pending in state court in Oklahoma County. PETA’s 2022 complaint urges the USDA to take enforcement action against the various companies for continuing to offer public encounters with dangerous wild animals and for failing to report the serious incident to the federal agency as their USDA licensure requires.
U.S. Fish & Wildlife Service Quadruples Annual Take Limit for Bald Eagles
The U.S. Fish & Wildlife Service published notice that it is increasing the maximum take limit for bald eagles effective immediately for all flyways but for the Alaska and Pacific Flyway, for which it was impractical to conduct an assessment with the agency’s existing resources. The agency has increased the total annual take limit for bald eagles across all other flyways from 3,731 to 15,832. The majority of the take permits issued are for incidental harm and harassment to bald eagles.
The U.S. Fish & Wildlife Service published notice that it is increasing the maximum take limit for bald eagles effective immediately for all flyways but for the Alaska and Pacific Flyway, for which it was impractical to conduct an assessment with the agency’s existing resources. The agency has increased the total annual take limit for bald eagles across all other flyways from 3,731 to 15,832. The majority of the take permits issued are for incidental harm and harassment to bald eagles.
USDA Announces Intent to Update Rules Concerning Meat Labeling Requirements
The U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) announced its intent to collect information to help gauge consumer awareness and understanding of current “Product of USA” labeling claims on beef and pork products, as well as customer understanding of other USDA labeling on meat products. Following the information collection, FSIS intends to initiate rulemaking to clarify requirements for certain labeling terms used on meat products. The agency is accepting public comments on its proposed information collection through April 4, 2022. In January 2022, Senate Bill 3439 was introduced seeking to eliminate the “Product of the U.S.A.” label and instead “establish, and allow for the voluntary use of” three more specific labels: “Processed in the U.S.A.,” “Raised and Processed in the U.S.A.,” and “Born, Raised, and Processed in the U.S.A.”
The U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) announced its intent to collect information to help gauge consumer awareness and understanding of current “Product of USA” labeling claims on beef and pork products, as well as customer understanding of other USDA labeling on meat products. Following the information collection, FSIS intends to initiate rulemaking to clarify requirements for certain labeling terms used on meat products. The agency is accepting public comments on its proposed information collection through April 4, 2022. In January 2022, Senate Bill 3439 was introduced seeking to eliminate the “Product of the U.S.A.” label and instead “establish, and allow for the voluntary use of” three more specific labels: “Processed in the U.S.A.,” “Raised and Processed in the U.S.A.,” and “Born, Raised, and Processed in the U.S.A.”
U.S. Fish & Wildlife Service Issues Correction to Statement about Critical Jaguar Habitat Acreage
The U.S. Fish & Wildlife Service (FWS) announced a correction and clarification relating to revisions to the critical habitat designation for jaguars that FWS announced in 2021. On July 21, 2021, FWS issued a final rule designating 764,207 acres of critical habitat for jaguars in New Mexico and Arizona. The agency erroneously published that the revision removed 110,438 acres of critical habitat, but in actuality, it removed 59,286 acres. The critical habitat maps were correct as published.
The U.S. Fish & Wildlife Service (FWS) announced a correction and clarification relating to revisions to the critical habitat designation for jaguars that FWS announced in 2021. On July 21, 2021, FWS issued a final rule designating 764,207 acres of critical habitat for jaguars in New Mexico and Arizona. The agency erroneously published that the revision removed 110,438 acres of critical habitat, but in actuality, it removed 59,286 acres. The critical habitat maps were correct as published.
U.S. Fish & Wildlife Service Considering 2022-2023 Hunting Regulations for Migratory Game Birds
The U.S. Fish & Wildlife Service (FWS) published notice of its intent to establish the 2022-2023 hunting regulations for certain migratory game birds under the Migratory Bird Treaty Act. FWS is accepting comments on its proposed regulations through March 4, 2022.
The U.S. Fish & Wildlife Service (FWS) published notice of its intent to establish the 2022-2023 hunting regulations for certain migratory game birds under the Migratory Bird Treaty Act. FWS is accepting comments on its proposed regulations through March 4, 2022.
U.S. Fish & Wildlife Service Reviewing Listing Status for Eighteen Protected Animal Species
The U.S. Fish & Wildlife Service (FWS) is conducting a five-year review under the Endangered Species Act for the Chiricahua leopard frog, desert pupfish, Loach minnow, Mexican spotted owl, Mount Graham red squirrel, Sonora chub, spike dace, Three Forks spring snail, Yuma clapper rail, Northern Aplomado falcon, Braken bat cave meshweaver, Clear Creek gambusia, Devils River minnow, and leopard darter to determine if circumstances still warrant current listing status. FWS published an additional notice of its intent to conduct a five-year review for the Cui-ui, Carson wandering skipper, Lahontan cutthroat trout, and Arroyo toad. FWS is accepting comments on the five-year review status for each of the above species through April 4, 2022.
The U.S. Fish & Wildlife Service (FWS) is conducting a five-year review under the Endangered Species Act for the Chiricahua leopard frog, desert pupfish, Loach minnow, Mexican spotted owl, Mount Graham red squirrel, Sonora chub, spike dace, Three Forks spring snail, Yuma clapper rail, Northern Aplomado falcon, Braken bat cave meshweaver, Clear Creek gambusia, Devils River minnow, and leopard darter to determine if circumstances still warrant current listing status. FWS published an additional notice of its intent to conduct a five-year review for the Cui-ui, Carson wandering skipper, Lahontan cutthroat trout, and Arroyo toad. FWS is accepting comments on the five-year review status for each of the above species through April 4, 2022.
National Marine Fisheries Service Announces Overfished Status for Porbeagle Sharks
The National Marine Fisheries Service (NMFS) announced its determination that the Northwest Atlantic porbeagle shark is still being overfished, as required by the Magnuson-Stevens Fishery Conservation and Management Act. NMFS said it intends to continue working with the International Commission for the Conservation of Atlantic Tunas to rebuild this population of porbeagle sharks.
The National Marine Fisheries Service (NMFS) announced its determination that the Northwest Atlantic porbeagle shark is still being overfished, as required by the Magnuson-Stevens Fishery Conservation and Management Act. NMFS said it intends to continue working with the International Commission for the Conservation of Atlantic Tunas to rebuild this population of porbeagle sharks.
U.S. Fish & Wildlife Service Reclassifies Endangered Species Status for Rare California Snail
The U.S. Fish & Wildlife Service announced that it is reclassifying the Morro shoulderband snail from endangered to threatened under the Endangered Species Act because of its finding that the population has rebounded sufficiently to warrant downlisting. The change will be effective March 7, 2022.
The U.S. Fish & Wildlife Service announced that it is reclassifying the Morro shoulderband snail from endangered to threatened under the Endangered Species Act because of its finding that the population has rebounded sufficiently to warrant downlisting. The change will be effective March 7, 2022.
U.S. Fish & Wildlife Service Reopens Comment Period on Proposal to Downlist Rare Woodpeckers
The U.S. Fish & Wildlife Service announced that it is reopening the public comment period on its October 8, 2020 proposal to reclassify the Red-cockaded woodpecker from endangered to threatened under the Endangered Species Act. The new public comment period will close March 7, 2022.
The U.S. Fish & Wildlife Service announced that it is reopening the public comment period on its October 8, 2020 proposal to reclassify the Red-cockaded woodpecker from endangered to threatened under the Endangered Species Act. The new public comment period will close March 7, 2022.
International Updates
China Includes Cultivated Meat in its Five-Year Agricultural Plan for the First Time
The Chinese Ministry of Agriculture and Rural Affairs released its five-year agricultural plan, which specifically mentions cultivated meat for the first time. Research suggests that acceptance of cultivated meat is higher in China than in the West, and the report describes how innovation could be boosted in “frontier and cross-disciplinary technologies,” a category that includes cultivated meat. The country’s first cultivated company, Joes Future Food, recently raised over $10 million to build a cell-based pork production line, while Shanghai-based HEROTEIN is collaborating with United States-based Mission Barns to bring hybrid cultivated/plant-based meats to market.
The Chinese Ministry of Agriculture and Rural Affairs released its five-year agricultural plan, which specifically mentions cultivated meat for the first time. Research suggests that acceptance of cultivated meat is higher in China than in the West, and the report describes how innovation could be boosted in “frontier and cross-disciplinary technologies,” a category that includes cultivated meat. The country’s first cultivated company, Joes Future Food, recently raised over $10 million to build a cell-based pork production line, while Shanghai-based HEROTEIN is collaborating with United States-based Mission Barns to bring hybrid cultivated/plant-based meats to market.
Swiss Voters will Decide on a Total Ban on Animal Testing in February
Switzerland will consider a nationwide ban on animal testing and the import of products tested on animals during a vote that is scheduled for February 13, 2022. The ban would apply to all animal testing and experiments, including those for scientific purposes. On the same day, residents of the canton of Basel-Stadt, Switzerland, will vote on a controversial referendum to establish fundamental rights for primates.
Switzerland will consider a nationwide ban on animal testing and the import of products tested on animals during a vote that is scheduled for February 13, 2022. The ban would apply to all animal testing and experiments, including those for scientific purposes. On the same day, residents of the canton of Basel-Stadt, Switzerland, will vote on a controversial referendum to establish fundamental rights for primates.
European Union Establishes Limits on Live Animal Export Transport Times
The European Union (EU) Parliament has approved restrictions on live animal transport times, including an eight-hour limit on road transport and a twenty-four-hour limit on sea transport of live animals intended for slaughter in other countries. Until now, there was no time limit on shipping transport of live animals from the EU. A 2021 report prepared by an EU Parliament committee documented extreme suffering of animals from dehydration, starvation, and disease during weeks-long transport of animals from the EU to countries like Saudi Arabia, Libya, and Israel. Advocates and countries like Germany, Luxembourg, and the Netherlands are calling for a total ban on live animal export, citing the fact that most exported animals end up in countries that do not meet their standards for animal welfare or slaughter.
The European Union (EU) Parliament has approved restrictions on live animal transport times, including an eight-hour limit on road transport and a twenty-four-hour limit on sea transport of live animals intended for slaughter in other countries. Until now, there was no time limit on shipping transport of live animals from the EU. A 2021 report prepared by an EU Parliament committee documented extreme suffering of animals from dehydration, starvation, and disease during weeks-long transport of animals from the EU to countries like Saudi Arabia, Libya, and Israel. Advocates and countries like Germany, Luxembourg, and the Netherlands are calling for a total ban on live animal export, citing the fact that most exported animals end up in countries that do not meet their standards for animal welfare or slaughter.