Update on Elephant Habeas Corpus Case

by John M. Simpson.

We recently reported on a case in which an animal rights group, the Nonhuman Rights Project,  sought habeas corpus relief for three Asian elephants maintained in a zoo in Connecticut.  The Connecticut Appellate Court affirmed the lower court’s judgment and ruled that the plaintiff had no standing  because the elephants themselves had no standing. Continue reading Update on Elephant Habeas Corpus Case

First Import Permit Issued for Sport Hunted Threatened Lion Trophy

For the first time since the United States protected lions under the Endangered Species Act (“ESA”) in 2016, the Fish and Wildlife Service (“FWS”) has issued a permit to allow an American sport hunter to bring back parts of a lion he killed on a trophy hunt in Tanzania.

Before 2016, lions were not protected by the ESA, so sport hunters could bring lion trophies back to the United States without a permit. While the timing may have been coincidental, in January 2016, months after the 2015 high-profile incident in which a Minnesota dentist killed Cecil the lion during a trophy hunt, however, FWS extended ESA protection to lions. The sub-species of lions found in central and West Africa was listed as endangered and the sub-species found in southern and East Africa (including Tanzania) was listed as threatened. The threatened sub-species, Panthera leo melancochaita, has larger numbers and is considered less vulnerable than the endangered sub-species, Panthera leo leo.

When a species (or sub-species) is listed as “endangered” under the ESA, certain activities with regard to that species are prohibited without a permit from FWS. Those include import/export, “take” (which includes harm, hunting, shooting, killing, trapping, capturing, etc.), transport in interstate commerce, and sale or offer for sale in interstate commerce. 16 U.S.C. § 1538(a). While these prohibitions only expressly apply to species listed as “endangered,” as opposed to “threatened,” the ESA also provides that the Secretary of the Interior may by regulation extend some or all of those prohibitions to any species listed as threatened. That is what the Secretary of the Interior did with Panthera leo melancochaita – issuing a specific regulation, 50 C.F.R. § 17.40(r), which applies all of the “endangered” prohibitions to the “threatened” populations of lions, and requires a threatened species import permit for the import of all specimens, which includes sport trophies.

To obtain a threatened species import permit, the applicant must demonstrate that the permit is for a defined set of purposes: (1) scientific purpose; (2) the enhancement of propagation or survival of the species; (3) economic hardship; (4) zoological purposes; (5) educational purposes; or (6) incidental taking. 50 C.F.R. § 17.32. It might seem counter-intuitive, but FWS anticipates granting permits to allow the import of sport hunted lion trophies on the basis that sport hunting of the threatened species could “enhance the propagation or survival” of the species hunted. On a FWS webpage, (https://www.fws.gov/international/permits/by-activity/sport-hunted-trophies-lions.html), the agency advises trophy hunters: “In your permit application, we are looking for information demonstrating how your import will help improve the status of lions in the wild.” For example, the hunting license or trophy fees paid could be used by the safari outfitter, guide, land owner, etc., in a way that provides a conservation benefit to the species hunted (e.g., habitat improvement efforts, anti-poaching efforts, etc.).

Applications to import hunted lion trophies will now be reviewed on a case by case basis. FWS has a webpage devoted to advice regarding import of hunted lions that includes a list of factors the agency will consider when evaluating permit applications. It also includes a link to the IUCN Species Survival Commission document entitled “Guiding Principles on Trophy Hunting as a Tool for Creating Conservation Incentives.” That document sets out guidance about how trophy hunting can “creat[e] incentives for the conservation of species and their habitats” and, according to FWS, “provides useful principles, which, considered in conjunction with our permit issuance criteria, aid the Service when making findings and determinations regarding import of hunted animals.” (https://www.fws.gov/international/permits/by-activity/sport-hunted-trophies-lions.html). This suggests that sport hunters who wish to apply for a permit to import lion trophies should review the IUCN document and incorporate its guidance into the hunter’s application.

Will California Be the First to Ban Fur Sales Statewide?

by Michelle C. Pardo

The California legislature has passed a bill to ban the sale of new fur products anywhere within the state. The bill would make it unlawful to “sell, offer for sale, display for sale, trade, or otherwise distribute for monetary or nonmonetary consideration a fur product, as defined, in the state.” AB 44 (as amended). Should Governor Gavin Newsom sign AB44, California would be the first state in the nation to enact such legislation. Los Angeles, San Francisco, West Hollywood and Berkeley already have fur bans in place. Illegal items would include fur from undomesticated animals, including mink, rabbit and coyote.  The legislation excludes certain products, such as pelts or skins preserved through taxidermy, animal skin that is to be converted into leather, and fur products used for religious or traditional Native American tribal, cultural or spiritual purposes. The bill carries civil penalties. Continue reading Will California Be the First to Ban Fur Sales Statewide?

UK Advertising Standards Authority Bans PETA Ad As “Misleading” and Lacking Substantiation

by John M. Simpson.

On September 4, 2019 the Advertising Standards Authority (ASA), which describes itself as “the UK’s independent advertising regulator,” upheld a challenge to an advertisement  that had been displayed for People for the Ethical Treatment of Animals (PETA) on the side of buses in February 2019.  As the authority described it, the ad “included the text ‘Don’t let them pull the wool over your eyes.  Wool is just as cruel as fur.  GO WOOL-FREE THIS WINTER PeTA.’  Beside the text was an image of a woman with the neck of her jumper pulled over her face.”   Ten complainants challenged whether the claim “wool is just as cruel as fur” was misleading and could be substantiated.  ASA upheld the challenge and ruled that the ad “must not appear in its current form” and “told PETA not to use the claim ‘wool is just as cruel as fur’ in [the] future.”  Continue reading UK Advertising Standards Authority Bans PETA Ad As “Misleading” and Lacking Substantiation

Goodbye Big Food, Hello Lawsuit: Animal Rights Group Files Case Over Dairy Product Marketing

By:  Michelle C. Pardo

Known for its “Dairy Done Right” marketing campaign, Tillamook County Creamery Association (“Tillamook”), which produces dairy products like cheese, yogurt, ice cream and butter, is the latest target of a consumer fraud lawsuit filed this week in Oregon state court (Multnomah County). Animal rights group Animal Legal Defense Fund (ALDF) is co-counsel to four Oregon residents and a class of similarly situated consumers who claim Tillamook uses deceptive representations when advertising and marketing its dairy products, which is likely to confuse or mislead customers. Continue reading Goodbye Big Food, Hello Lawsuit: Animal Rights Group Files Case Over Dairy Product Marketing

Connecticut Appellate Court Denies Habeas Relief for Elephants

by John M.  Simpson.

On August 20, 2019, a panel of the State of Connecticut Judicial Branch Appellate Court officially released a decision affirming the dismissal of an action that had been brought seeking habeas corpus relief for three elephants maintained at a zoo in Goshen, Connecticut.  Nonhuman Rights Project, Inc. v. R. W. Commerford and Sons, Inc., No. AC 41464 (Conn. App.  Aug. 20, 2019).  The petitioner Nonhuman Rights Project sought to represent the elephants as their “next friend” seeking to vindicate what was described as the animals’ “common-law right to bodily liberty.”  The lower court dismissed the case on the grounds that petitioner lacked standing and, alternatively, that the petition was “wholly frivolous.”  Continue reading Connecticut Appellate Court Denies Habeas Relief for Elephants

Bid By Humane Society International To Get Information On Sport Hunters Fails

by John M.  Simpson.

On August 15, 2019, the U.S. District Court for the District of Columbia entered a partial summary judgment upholding a decision by the U.S. Fish and Wildlife Service (FWS) to withhold certain information pertaining to sport hunters from records produced pursuant to a  Freedom of Information Act (FOIA) request by Humane Society International (HSI).  Humane Soc’y Internat’l v. U.S. Fish & Wildlife Serv., et al., No. 16-720 (TJK) (D.D.C. Aug. 15, 2019).    HSI is an organization related to the animal rights organization Humane Society of the United States (HSUS).  HSUS has long been known for its opposition to sport hunting. Continue reading Bid By Humane Society International To Get Information On Sport Hunters Fails

9th Circuit Rejects Animal Rights Organization’s Claim That a Bengal Tiger is an “Individual” Under FOIA

by John M. Simpson.

Yesterday, in Animal Legal Defense Fund v. U.S. Department of Agriculture, et al., ___ F.3d ___, No. 18-16327 (9th Cir. Aug. 12, 2019), the U. S. Court of Appeals for the Ninth Circuit affirmed a summary judgment of the Northern District Court of California holding that a Bengal tiger is not an “individual” within the meaning of the Freedom of Information Act (FOIA).   The case had been brought by the Animal Legal Defense Fund (ALDF) after the U.S. Department of Agriculture (USDA) denied ALDF’s request for expedited treatment of its FOIA request for records concerning an inspection request regarding a tiger named “Tony.”     Continue reading 9th Circuit Rejects Animal Rights Organization’s Claim That a Bengal Tiger is an “Individual” Under FOIA

DOT Clarifies Enforcement Priorities Concerning Air Travel With Service Animals

by John M. Simpson.

On August 8, 2019, the U.S. Department of Transportation’s (DOT’s) Office of Aviation Enforcement and Proceedings (Enforcement Office) issued a Final Statement of Enforcement Priorities Regarding Service Animals (Final Statement).  This action apprises the public of DOT’s “enforcement focus with respect to the transportation of service animals in the cabin of aircraft” which DOT regulates under the Air Carrier Access Act (ACAA).  Last year, DOT initiated an advanced notice of proposed  rulemaking under the ACAA to respond to concerns expressed by individuals with disabilities, airlines, flight attendants and other stakeholders about the need for a change in DOT’s service animal requirements.  Recognizing that the rulemaking process can be lengthy, DOT also issued an Interim Statement of Enforcement Priorities to give notice of how the statute would be enforced during the rulemaking process.  While “not legally binding in its own right,” the August 8 Final Statement provides the public with “greater transparency” with respect to the interpretation and enforcement of existing requirements by the Enforcement Office, based upon the comments that the agency has received from the public. Continue reading DOT Clarifies Enforcement Priorities Concerning Air Travel With Service Animals

Animal Activist Leader Steps Down In Advance of Multiple Criminal Trials

by Michelle C. Pardo

The leader and co-founder of West-coast based animal activist group Direct Action Everywhere (DxE), Wayne Hsiung, announced yesterday that he will be stepping down from his leadership position at DxE and explained to his followers “why that’s a good thing.”  DxE had become known for its “open rescues” — essentially stealing farm animals in order to “liberate” them — and mass arrests of the activist participants.  In these raids, activists openly enter farms, usually at night, and “rescue” animals.  They often videotape the incident and release it to various media forums.  DxE’s “Organizer’s Handbook” states that the activists involved do not hide their identities so as to avoid being compared to “criminals, vandals and terrorists.”  DxE has also favored storming into restaurants and yelling at patrons about eating meat and entering grocery stores and climbing into food cases to protest.   One particular disgusting protest involved a DxE activist covering herself in feces at a San Francisco grocery store to protest that eggs come from laying hens that allegedly sit in their own waste.   Many of DxE’s members have boldly embraced these extremist techniques even if they involve criminal activity, such as trespassing or stealing.  Former leader Hsiung has asked fellow activists before such raids if they are “comfortable” with the possibility of doing jail time.

Hsiung may soon be speaking to his followers from prison.  As the result of multiple raids on farms in North Carolina, Utah, and California, Hsiung, along with other activists, was arrested and charged with multiple felonies and misdemeanors.  Hsiung has stated that he faces from 85 to 100 years in prison for these criminal activities.  Various media reports have indicated that trials in these jurisdictions will take place before the end of 2019.  We will be sure to update you about the verdicts in those cases.

Several years ago, DxE was plagued with accusations of racist, sexist and homophobic behavior among activists and were roundly criticized for not policing sexual harassment within the organization.  One former member stated that a sexual abuser remained in a leadership position in DxE and the victim was pressured into staying silent about her concerns and accepting apologies.

In various social media posts, Hsiung stated that he has stepped down “as felony trials approach” “to make sure we continue to grow.”  Hsiung urged his supporters that DxE “has no single ‘head'” and that new leadership is ready to step up and lead the organization.  In his August 7, 2019 blog post, regarding DxE members going to prison, Hsiung proclaimed “Bring it on! We’ve got 10 more ready to step up.”  Hsiung has since turned the leadership reins over to DxE member Almira Tanner.  While Hsiung will not maintain any leadership position, he stated that he will remain a “rank-and-file organizer” and even suggested that he may volunteer for a political campaign “and try to inject animal rights into the 2020 race.”  If that happens, query whether it will be executed better than the DxE disruption at Senator Kamala Harris’s speech on June 1, 2019 — where a DxE activist rushed the stage and grabbed the microphone from the Democratic senator.  In the wake of bad press on this disruption, former leader Hsiung penned an apology note to Harris (posted on DxE’s website) entitled “I Messed Up.  So did DxE.”  https://www.directactioneverywhere.com/theliberationist/2019/6/18/i-messed-up-so-did-dxe.  Whether DxE’s “mistake” turned into “an important learning experience” is yet to be seen.