Brooks Animal Law Digest

Missouri Senate Bill 84, the “Freedom to Farm Act,” would provide that the right to farm “shall be guaranteed free from government intervention and … shall not be infringed upon by the federal government under the regulation of interstate commerce.” The bill would eliminate almost all circumstances under which animal agriculture facilities can be subject to nuisance liability. The bill has been pre-filed and has not yet been assigned to a committee. 

The Clark County Commission unanimously passed an ordinance banning the sale of dogs, cats, rabbits, or potbellied pigs at retail pet stores. Retailers in Clark County, which encompasses the unincorporated Las Vegas area, have one year to comply.

An appeals court has again ruled that federal laws and policies do not shield Swift Beef Company, a subsidiary of JBS USA, from workers’ COVID-related health liability claims. The U.S. Court of Appeals for the Fifth Circuit vacated a lower court dismissal of the workers’ claims and remanded the case back to Texas State Court. The Court ruled that the defendant failed to prove that the federal government’s “heavy regulation” of the meat processing industry protected the firm from a liability lawsuit. The Swift decision marks at least the sixth time an appeals court has ruled against a meat processor claiming federal actions insulated companies from COVID-related liability claims.

A federal court ruled in favor of the Center for Biological Diversity and Friends of the Earth in an Endangered Species Act (ESA) lawsuit challenging the alleged failure of the National Oceanic and Atmospheric Administration Fisheries and the U.S. Coast Guard to protect endangered fin, blue, and humpback whales and leatherback sea turtles from being struck by ships using California ports. In granting plaintiffs’ motion for summary judgment, the court ruled that the 2017 Biological Opinion (2017 BiOp), upon which the agencies relied, violated the ESA, and therefore their reliance on the 2017 BiOp was arbitrary and capricious.

The Animal Legal Defense Fund petitioned the Oregon Supreme Court to review a lower court order denying relief to a horse named Justice, who is a survivor of animal cruelty. The groups argue on Justice’s behalf that the horse has legal rights under Oregon’s anticruelty law and is therefore a limited legal person who is entitled to a civil remedy for the violation of those rights.

More than a decade after the Center for Biological Diversity petitioned the U.S. Fish & Wildlife Service (FWS) to protect the Pacific walrus under the Endangered Species Act (ESA), twelve scientists urged FWS to finally take “[s]wift action.” The scientific experts note in their correspondence that Arctic warming driven by climate change is reducing the walrus’ sea ice habitat and presenting a dire threat to the survival of the species.

Members of the Congressional Animal Protection Caucus wrote to Secretary of Agriculture Thomas Vilsack and Animal and Plant Health Inspection Service Administrator Kevin Shea, urging them to exercise greater Animal Welfare Act oversight of Neuralink, Elon Musk’s brain implant company, which experiments on monkeys, sheep, pigs, and rats. According to the letter, multiple complaints of  “botched experiments” and “unnecessary animal suffering” are reportedly the subject of an investigation by the U.S. Department of Agriculture (USDA)’s Office of the Inspector General.

House Resolution 9456 would amend the Endangered Species Act to exclude certain populations of the lesser prairie chicken. The bill was introduced by Representative Ron Estes and has been referred to the House Committee on Natural Resources. Introduction of this bill follows the U.S. Fish & Wildlife Service’s November 17, 2022, announcement that the agency is listing southwestern Texas and eastern New Mexico populations of the lesser prairie chicken as endangered under the Endangered Species Act, and listing a separate northern population in northeastern Texas, western Oklahoma, southcentral to western Kansas and southeastern Colorado as threatened under the ESA. The bill’s text has not yet been published publicly.

Missouri Senate Bill 91 and Missouri House Bill 300 would create an obligation for certain child and adult protective service workers to report suspected companion animal abuse and neglect. The bills have been pre-filed and have not yet been assigned to a committee.

Missouri Senate Bill 84, the “Freedom to Farm Act,” would provide that the right to farm “shall be guaranteed free from government intervention and … shall not be infringed upon by the federal government under the regulation of interstate commerce.” The bill would eliminate almost all circumstances under which animal agriculture facilities can be subject to nuisance liability. The bill has been pre-filed and has not yet been assigned to a committee. 

Missouri House Bill 40 would classify all animal abuse crimes as felonies and would require the Missouri State Highway Patrol to establish a publicly accessible animal abuser registry beginning January 1, 2024. The bill has been pre-filed and has not yet been assigned to a committee. 

Missouri House Bill 88 would amend the state’s requirements relating to veterinary services by exempting animal chiropractors from the prohibition against practicing veterinary medicine without a veterinarian’s license. The bill has been pre-filed and has not yet been assigned to a committee. 

Montana LC 2810 would revise state laws relating to emotional support animals. The bill text is not yet available.

New Jersey Assembly Bill 4920 would impose restrictions on the number of dogs kept on residential properties and establish inspection and maintenance requirements for residential kennels. The bill has been referred to the Assembly Agriculture and Food Security Committee.

New Jersey Assembly Bill 4936 would empower certain employees of the Division of Children Protection and Permanency to report suspected acts of animal abuse and neglect to humane law enforcement officers. The bill has been referred to the Assembly Agriculture and Food Security Committee.

New Jersey Senate Bill 3371 would establish a veterinary medicine loan redemption program for certain veterinarians who work in underserved areas for at least five years. The bill has been referred to the Senate Higher Education Committee.

Virginia House Bill 1406 would amend the state requirements for companion animal licensure and would eliminate the companion animal license tax. The bill has been pre-filed and committee assignment is still pending.

Wyoming Senate File 29 would amend the state’s brucellosis management program by amending the requirements for tagging, branding, and disposition of cattle who have tested positive for brucellosis. The bill has been pre-filed and committee assignment is still pending.

Florida House Bill 17 would change Florida’s official state bird from the mockingbird to the scrub-jay. The mockingbird has been the official state bird of Florida since 1927. The bill has been filed and committee assignment is still pending.

Montana LC 379 would update the state’s laws related to live and video livestock auctions. The bill has not yet been assigned to a committee.

Michigan House Bill 6556 would amend state requirements for invasive species listing by including a requirement to consider listing species identified by the Midwest Invasive Species Information Network, a regional effort to respond to invasive species. The bill has been referred to the Committee on Natural Resources and Outdoor Recreation.

Missouri House Bill 403 would amend the state’s large animal veterinary student loan program by doubling the maximum number of recipients and increasing the maximum loan amount. The bill has been pre-filed and has not yet been assigned to a committee.

Missouri Senate Bill 132 would modify the state’s procedures for confiscation of animals and would impose penalties for improper euthanasia or sterilization of confiscated animals. The bill has been pre-filed and has not yet been assigned to a committee.

South Carolina Bill 3238 would amend the state’s cruelty to animals code by holding convicted offenders responsible for “all reasonable costs” incurred in connection with any animals confiscated from the offender, and by prohibiting repeat offenders from owning animals for up to five years following their second conviction.

The Clark County Commission unanimously passed an ordinance banning the sale of dogs, cats, rabbits, or potbellied pigs at retail pet stores. Retailers in Clark County, which encompasses the unincorporated Las Vegas area, have one year to comply.

Rancher Cody Allen Easterday sued Tyson Foods for breach of contract and unjust enrichment. Easterday alleges that Tyson failed to follow through on an alleged joint venture agreement whereby Tyson agreed to pay Easterday for use of his name and likeness to sell the product 'Cody’s Beef' through Tyson’s customer Nippon Ham in Japan. Easterday recently was sentenced to eleven years in federal prison and ordered to pay $244 million restitution for defrauding Tyson Foods and others by selling them hundreds of thousands of cattle that did not exist.

The Center for Biological Diversity (CBD) sued the U.S. Bureau of Land Management (BLM) to protect Amargosa voles from unmanaged recreational use within their federally protected critical habitat. CBD alleges that recreational overuse has resulted in “catastrophic impacts on the Amargosa vole and its designated critical habitat.” CBD is seeking declaratory judgment and injunctive relief pursuant to the Endangered Species Act citizen suit provision.

A federal magistrate judge recently recommended dismissing a claim against the Army Corps of Engineers regarding permits for commercial shellfish operations. The suit, brought by The Coalition to Protect Puget Sound Habitat and The Center for Food Safety, claimed that “the Corps continues an unlawful pattern and practice of issuing [individual permits] for shellfish aquaculture operations in jurisdictional waters without properly considering their impacts . . .” The magistrate judge found this claim too generalized and recommended that the federal court dismiss the claim. Even if the recommendation is adopted in this instance, the lawsuit will continue with regard to Plaintiffs’ challenge of the Army Corps’ decision to reissue and broaden a nationwide permit that has allowed commercial shellfish aquaculture across tens of thousands of acres of Washington waters.

An appeals court has again ruled that federal laws and policies do not shield Swift Beef Company, a subsidiary of JBS USA, from workers’ COVID-related health liability claims. The U.S. Court of Appeals for the Fifth Circuit vacated a lower court dismissal of the workers’ claims and remanded the case back to Texas State Court. The Court ruled that the defendant failed to prove that the federal government’s “heavy regulation” of the meat processing industry protected the firm from a liability lawsuit. The Swift decision marks at least the sixth time an appeals court has ruled against a meat processor claiming federal actions insulated companies from COVID-related liability claims.

A federal court ruled in favor of the Center for Biological Diversity and Friends of the Earth in an Endangered Species Act (ESA) lawsuit challenging the alleged failure of the National Oceanic and Atmospheric Administration Fisheries and the U.S. Coast Guard to protect endangered fin, blue, and humpback whales and leatherback sea turtles from being struck by ships using California ports. In granting plaintiffs’ motion for summary judgment, the court ruled that the 2017 Biological Opinion (2017 BiOp), upon which the agencies relied, violated the ESA, and therefore their reliance on the 2017 BiOp was arbitrary and capricious.

The Animal Legal Defense Fund petitioned the Oregon Supreme Court to review a lower court order denying relief to a horse named Justice, who is a survivor of animal cruelty. The groups argue on Justice’s behalf that the horse has legal rights under Oregon’s anticruelty law and is therefore a limited legal person who is entitled to a civil remedy for the violation of those rights.

The Center for Biological Diversity, the Big Valley Band of Pomo Indians, the Robinson Rancheria of Pomo Indians, the Habematolel Pomo of Upper Lake, and the Scotts Valley Band of Pomo Indians, petitioned the U.S. Fish and Wildlife Service to provide emergency Endangered Species Act protections to the Clear Lake hitch––a fish that has great cultural significance and has been a primary food source for the Tribes. Petitioners argue that extinction of the California fish is imminent if the agency doesn’t take swift action.

The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced a public health alert for ground beef sold at La Michoacana Meat Market, in Greenville, Texas, after a sample of the product tested positive for E. coli. FSIS also announced that Kraft Heinz Foods Company is recalling approximately 2,400 pounds of ready-to-eat ham and cheese loaf products due to possible cross-contamination with under-processed products. The products were sent to distribution centers in Ohio and Virginia and further distributed for retail sales.

The U.S. Department of Agriculture’s Agriculture Marketing Service (AMS) announced the establishment of the Cattle Contracts Library pilot program. Under the pilot program, AMS will collect, maintain, and report aggregated information on contracts between packers and cattle producers for the purchase of fed cattle. The library will include different types of contracts and contract terms, including contract terms on any schedules of premiums or discounts, delivery and transportation, terms and payments, financing, risk-sharing or profit sharing, and other financial arrangements. The program will become effective January 6, 2023.

The National Marine Fisheries Service (NMFS) published notice that UK-based Echo Pictures Ltd. has applied for a Marine Mammal Protection Act permit to conduct commercial and educational photography on marine mammals. NMFS will accept public comments on the permit application through January 6, 2023.

More than a decade after the Center for Biological Diversity petitioned the U.S. Fish & Wildlife Service (FWS) to protect the Pacific walrus under the Endangered Species Act (ESA), twelve scientists urged FWS to finally take “[s]wift action.” The scientific experts note in their correspondence that Arctic warming driven by climate change is reducing the walrus’ sea ice habitat and presenting a dire threat to the survival of the species.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced its intention to request an extension of approval of an information collection associated with the regulations for the importation of live fish, fertilized eggs, and gametes from tilapia lake virus-susceptible species into the United States. APHIS will accept public comments through February 7, 2023.

The National Marine Fisheries Service (NMFS) announced a proposal to amend regulations governing limits on Pacific halibut bycatch. NMFS will accept public comments on the proposed regulatory amendments through January 23, 2023.

Members of the Congressional Animal Protection Caucus wrote to Secretary of Agriculture Thomas Vilsack and Animal and Plant Health Inspection Service Administrator Kevin Shea, urging them to exercise greater Animal Welfare Act oversight of Neuralink, Elon Musk’s brain implant company, which experiments on monkeys, sheep, pigs, and rats. According to the letter, multiple complaints of  “botched experiments” and “unnecessary animal suffering” are reportedly the subject of an investigation by the U.S. Department of Agriculture (USDA)’s Office of the Inspector General.

The number of delegates representing big agriculture more than doubled at the recent UN Climate Change Conference (COP27), from 76 in 2021 to at least 160 this year. Agriculture, which is responsible for about one-third of all global emissions, was a larger part of the agenda at COP27 than at previous climate talks. Meat company JBS further gained direct access to negotiations by becoming part of Brazil’s country delegation.

A new report examines the “determinants considered by exporting farmers in China and Thailand when adopting international voluntary certification schemes for farmed fish and shrimp.” The report finds that, in 2015, “less than 6% of global production that was compliant with major international or Chinese [certification schemes] came from China or Thailand.” These lower rates may be explained by misaligned incentives: “For large-scale farmers, national, rather than international, certification schemes may offer cheaper ways to gain the same benefits” while “[f]or small-scale farmers, costs tend to outweigh the benefits and poor business and technical infrastructure make certification less feasible.” The report recommends that advocates “consider strategies to more strongly incentivize higher standards for the world's lowest-welfare fish and shrimp farming practices.” The report was authored by Jojo Lee, a research fellow at Rethink Priorities.

Several NGOs, including Equalia and Compassion in World Farming, collaborated with the Spanish Aquaculture Industry Association (APROMAR), the Spanish Ministry of Agriculture, Fisheries and Food, and the scientific community to create the First Animal Welfare Guidelines for Spanish Aquaculture. The guidelines describe the context of Spanish aquaculture and the state of animal welfare in the Spanish industry to help promote the adoption of measures to promote fish welfare. “The guide is aimed at companies and professionals in the aquaculture sector, as well as public administrations, legislators, scientific-technological and educational sectors, and society in general.”

China has opened the world’s largest single-building pig farm: a 26-story skyscraper capable of slaughtering over one million pigs per year. China sees this as an answer to high pork demand in the country, while critics say the facility will increase the risk of large animal disease outbreaks.

Indigenous leaders from Northwestern tribes called on the Biden administration to pressure Canada to halt mining activity in British Columbia. The tribes are concerned with contamination of waterways that threatens wildlife and Native American customs in Alaska, Montana, and Idaho. Leaders met in Washington D.C. with members of Congress and the U.S. departments of State and Interior, the Environmental Protection Agency, and the Canadian consulate to address their concerns.

The Rajya Sabha, one of India’s bicameral legislative houses, passed a bill that seeks to regulate or prohibit the trade in endangered species. The Lok Sabha, India’s other legislative body, passed the amendments earlier in the year. According to animal advocates, the amendments do not sufficiently protect Asian elephants and leaves them vulnerable to further exploitation.

Muller, S. Marek and Z. Zane McNeill. “Toppling the Temple of Grandin: Autistic-Animal Analogies and the Ableist-Speciesist Nexus.”  Rhetoric, Politics & Culture, vol. 1 no. 2, 2021, p. 195-225. Project MUSE muse.jhu.edu/article/869732 is “an ideological rhetorical criticism of Temple Grandin’s rhetorical texts.” The article examines “the analogical necropolitics central to Grandin’s portrayals of livestock and autistic people” and fuses critical autism studies with critical animal studies.

The Routledge Handbook of Animal Welfare has contributions from fifty authors and is a “comprehensive exploration of the rapidly growing fields of animal welfare and law.” The book “explores the biological foundations for the moral consideration of animals and for evolving conceptualisations of animal welfare” and “reviews in detail the welfare concerns associated with numerous forms of animal use.”

JBS Foods announced that JBS USA, one of the largest pork producers in the world, will acquire “certain assets” of Iowa’s fourth-largest swine supplier, TriOak Foods. According to JBS, which has been TriOak’s exclusive purchaser since 2017, “TriOak Foods hog farms include multiple open pen gestation facilities and farms compliant with California’s Proposition 12 rule.”

Faunalytics, a group dedicated to conducting research for animal advocates, published a report on “whether local laws have laid the groundwork for laws at the state level of government, and whether this is a viable avenue for creating meaningful change for animals.” The report finds that when similar local animal protection laws are adopted by multiple jurisdictions, states are more likely to create laws on that issue. The report also notes that preemption of specific issues by higher levels of government is “the biggest barrier for animal advocates to effect change in their community.”

Compassion in World Farming has released their sixth annual EggTrack report. The report captures the progress of food companies towards their commitments to transition to 100% cage-free eggs. The report is designed to “[e]nsure food companies can and will stick to their cage-free egg commitments; [e]ncourage transparency in the marketplace; and [a]ssist food companies during their transition to a 100% cage-free egg supply.”

A joint effort between the Plant Based Foods Institute and Kroger Foods launched a report examining plant-based shopper dynamics and the growing shift from animal- to plant-based foods. The report found that 95% of plant-based consumers surveyed “are increasing or maintaining their plant-based consumption compared to the year prior” and 43% of these are choosing plant-based milks over animal dairy milk. The majority of consumers who buy plant-based foods are motivated by “personal health concerns (such as cardiovascular or cancer concerns)” and 49% believe “plant-based alternatives are healthier than animal-based foods.”

In a new report from Mercy for Animals, the authors review recent evidence and provide recommendations on how social norms can help and hinder farmed animal advocacy. Among other recommendations, the report advises animal advocates to “[c]reate campaigns that creatively contrast the social norm of compassion toward animals with eating meat” and “[f]ind ways to signal positive norms around veganism in a wide variety of public spaces.”