By Michelle Pardo
Question: What do you get when you cross an Austin Blind salamander, a Barton Springs salamander, a golden-cheeked warbler, and a Texas highway project?
Answer: An Endangered Species lawsuit.
On February 28, 2019, environmental advocacy group Save Our Springs (SOS) and frequent litigator Center for Biological Diversity (Center) sent a 60-Day Notice of Intent to Sue letter to the Texas Department of Transportation (TexDOT), the US Department of Interior and the US Fish and Wildlife Service (FWS), which is a prerequisite to filing a lawsuit pursuant to the Endangered Species Act (ESA).
The ESA is a federal law that prohibits the “taking” of threatened and endangered species, 16 USC § 1538; “take” has means to harass, harm, pursue, hunt, shoot, would, kill, trap, capture or collect (or attempt such conduct).
The environmental groups claim that the construction of the MoPac Intersections Project, a federally-funded highway project for which the TexDOT is the lead agency, risks an illegal “take” of three endangered species. According to the city of Austin’s official government website, the Austin Blind Salamander gets its name because it does not have “image-forming eyes”, a result of living in its dark, underground habitat in the waters of Barton Springs. The aptly-named Barton Springs salamander shares this same habitat. The other critter named in the potential lawsuit – the golden-cheeked warbler – was one of the eight endangered species protected by the first major urban habitat plan in the country. The groups claim that tree removal due to construction impacts the warbler’s nesting and foraging behaviors. Continue reading The Case of the Austin Blind Salamander
by John M. Simpson.
As recently reported by the BBC, and by other media outlets, PETA went off the rails on Friday by disparaging the name of Steve Irwin on the occasion of what would have been his 57th birthday. Irwin was a wildlife conservationist, enthusiast and television performer well known for his interesting and often breath-taking interactions with wildlife, crocodiles in particular. Irwin died in 2006 after a fatal interaction with a stingray during a wildlife program shoot. Continue reading PETA Jumps the Shark with Steve Irwin Tweets
by: Michelle Pardo
The “You Kill It, You Grill It” headline dominated yesterday’s news across California and other internet media outlets. California State Senator Bob Archuleta (D-Montebello) has introduced legislation that will amend state law to allow drivers who fatally strike certain animals to retroactively apply for a wildlife salvage permit and consume the meat. Drivers of vehicles (and opportunistic non-drivers who come across roadkill) would be able to take advantage of the new law, which requires applying for a wildlife salvage permit, at no cost, within 24 hours of the collision. Existing law allows only state and local agencies to remove roadkill. The bill’s text notes that each year “it is estimated that over 20,000 deer alone are hit by motor vehicles on California’s roadways” and that “this translates into hundreds of thousands of pounds of healthy meat that could be utilized to feed those in need.”
The bill applies to certain species – deer, elk, antelope and wild pig – and does not cover any animal protected by the California Endangered Species Act. If the animal is injured but not killed by the collision, the bill allows the salvager to dispatch the animal “in a safe, legal, and humane manner”. If passed, the law would go into effect in 2021.
California is not a trailblazer in the area of roadkill legislation. Oregon and Washington both have laws that allow certain roadkill to be salvaged, as well as roughly 20 other states. Many states have tight restrictions on harvesting roadkill and limit the practice to licensed hunters. Oregon’s law, which allows salvaging of deer and elk, went into effect in January of this year. Free permits (with online applications) must be obtained within 24 hours of salvage. Oregon requires the antlers and head of any salvaged animal to be surrendered to an Oregon Department of Fish and Wildlife office within five business days of taking the carcass so as not to incentive the practice of selling body parts (such as antlers) to collectors.
The state of Oregon, which offers a helpful link to the key regulations for salvaging roadkill, warns people who take advantage of the law that they “will consume the meat at their own risk”. The U.S. Department of Agriculture does not regulate roadkill.
Perhaps surprisingly, it has been reported that animal rights activists consider roadkill to be one of the most ethical and environmentally friendly meats. Advocates recognize that these animals were not purposefully raised for food and the meat would otherwise go to waste. California appears to be a leader in “wildlife-vehicle conflict” (WVC) which is studied and cataloged by the University of California—Davis. For those who are curious, the UC—Davis publicly-available website shows the “WVC hotspots” along California’s roadways.
by John M. Simpson.
People for the Ethical Treatment of Animals (PETA), an animal rights organization well-known for attention-grabbing tactics, often inserts itself into a wide variety of issues to promote its views. In the past several days, PETA complained about performer Big Boi wearing a fur coat during the Super Bowl; complained that the character “Little Bo Peep” will be portrayed with a shepherd’s crook in the animated feature Toy Story 4; and insisted that wildlife art be displayed on President Trump’s Wall (if it is ever built). Continue reading PETA Animal “Shelter” Continues to Show High Rate of Euthanization
By John M. Simpson.
Last week, we reported on an Australian animal rights group that published an interactive map providing the names, locations and other identifying details of farmers and other animal enterprises across Australia. This week, an organization in the U.K. followed suit and published a similar map targeting dairy famers in England and Wales. Continue reading British Dairy Farmers Also Caught in the Activist Cross-Hairs
by Michelle C. Pardo
We previously blogged about a legal challenge to Missouri’s amended advertising law that regulates what products are permitted to use the term “meat”. Nebraska is the latest state to consider legislation that aims to define what can be marketed and sold as “meat”. This year, Nebraska lawmakers will consider a bill that defines meat as “any edible portion of any livestock or poultry, carcass, or part thereof.” Excluded from the definition of meat: “lab-grown or insect or plant-based food products.” (Yes, you read that right. Edible insects are apparently on trend and being promoted as an “efficient, sustainable source of protein and nutrients”). Continue reading Animal Rights Activists v. Big Agriculture: Who Gets to Claim Ownership of the Term “Meat”
by John M. Simpson.
Aussie Farms, an animal rights organization in Australia, recently published an interactive map on its website and Facebook page that provides particulars on a wide range of animal enterprises in Australia. The map includes street addresses and actual map grid coordinates for farms and similar enterprises located throughout Australia. Each of the map locations has a live link to a database of information that Aussie Farms claims it has assembled on the targeted businesses. Continue reading Australian Animal Rights Group Stirs Controversy With Map Targeting Farmers
by John M. Simpson.
On January 2 of this year, a trial court in the Canadian province of Ontario declared unconstitutional certain provisions of the Ontario Society for the Prevention of Cruelty to Animals Act (“OSPCA Act”). Bogaerts v. Attorney General of Ontario, 2019 ONSC 41, No. 749/13 (Jan. 2, 2019). The OSPCA Act is the organic legislation that governs the operations of the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”), an animal welfare organization established in 1873. Continue reading Canadian Court Declares Ontario SPCA Unconstitutional
by Michelle C. Pardo
You may have heard the well-known proverb, “a man who is his own lawyer has a fool for his client.” It stands for the concept that while individuals in our country are free to represent him or herself in a criminal or civil trial – acting pro se – many caution that this is not the wisest course.
The issue is even more precarious when an attorney attempts to participate as a fact witness in a case he or she has brought. Rule 3.7 of the ABA Model Rules of Professional Conduct (a rule substantially echoed in many jurisdictions) states that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.” This rule applies absent certain narrow circumstances, such as the testimony relates to an uncontested issue or the nature and value of legal services. The reason for the rule is straightforward: combining roles of advocate and witness can prejudice the court and the opposing party and create a conflict of interest between lawyer and client.
Friends of Animals, an animal rights organization headquartered in Connecticut, recently was called out by a federal judge in Oregon when its in-house counsel, Michael Harris, tried to serve as a declarant in support of Friends of Animals’ summary judgment motion. The declaration was intended to establish the requisite “injury in fact” for Friends of Animals’ members to establish a critical element of “standing” – the threshold inquiry that permits a litigant to have an injury remedied by the federal courts. Continue reading The Pitfalls of Serving as Activist Attorney and Client: Should We Give A Hoot?
by John M. Simpson.
The American Farm Bureau Federation (AFBF), a prominent non-governmental organization in the U.S. representing farm and ranch families, held its annual meeting earlier this month in New Orleans. Among the topics discussed (in addition to the address by President Trump), was the increase in “alternative protein” production, namely meat-like substances that are derived from plant ingredients or that are cell-based and grown in a laboratory from animal cells. Plant-based “meat” products (e.g., “tofurky”) are currently available at retail. Cell-cultured “meat” products are not yet available but could be seen in 2019. Continue reading “Fake Meat” Discussed at Farm Bureau Federation Annual Meeting