John M. Simpson – Animal Law Developments

July 14, 2026July 14, 2026 by John M. Simpson

Feds Repeal Regulatory Definition of “Harm” Under Endangered Species Act

Regulatory Definition

By John M. Simpson. On July 14, 2026, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the “Services”) published a final rule rescinding the longstanding regulatory definition of “harm” under the Endangered Species Act. The rescission removes the definition from 50 CFR Parts 17 and 222, effectively ending the decades-old practice of treating significant habitat modification or degradation as a form of prohibited “take” under Section 9 of the ESA. The rule represents one of the most consequential reinterpretations of the ESA in the statute’s history.

What the Rule Does

Since 1975, FWS’s regulatory definition of “harm” had included habitat modification within the meaning of “take.” The 1981 revision narrowed the definition somewhat, requiring that habitat modification “actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” NMFS adopted a similar definition in 1999. The new final rule eliminates both definitions entirely. Going forward, the Services will rely solely on the plain statutory text of Section 3 of the ESA, which defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

The Agencies’ Core Rationale

The Services’ rescission rests on a single overarching conclusion: the regulatory definition of “harm” does not reflect the “single, best meaning” of the statutory text. Their reasoning proceeds along several lines.

First, the Services invoke the noscitur a sociis canon, reasoning that “harm,” read alongside the other nine verbs in the statutory definition of “take,” must refer to an affirmative act directed immediately and intentionally against a particular animal—not an indirect act or omission that accidentally injures a population. The traditional meaning of “take” is to kill or capture a wild animal, and the other enumerated verbs (harass, pursue, hunt, shoot, wound, kill, trap, capture, collect) all fit comfortably within that core meaning.

Second, the Services point to the structure of the ESA itself. Habitat protection is addressed through distinct statutory mechanisms—Section 7 requires federal agencies to avoid jeopardizing species or adversely modifying critical habitat, and Section 5 authorizes land acquisition for conservation. Reading habitat modification into the Section 9 “take” prohibition would render these other provisions redundant, violating the canon against surplusage.

Third, the Services characterize the regulatory history as one in which FWS arrogated to itself authority that Congress never granted. In 1975, FWS initially proposed to include habitat modification in the definition of “harass,” only shifting it to “harm” at the final-rule stage with minimal explanation. The Services now view this as an effort to prohibit habitat modification by private citizens, irrespective of the statutory text’s actual meaning.

Fourth, the Services rely on the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which abrogated Chevron deference. After Loper Bright, the question is no longer whether an agency’s interpretation is “reasonable” or “permissible,” but whether it reflects the single best meaning of the statute. The Services conclude that the prior definition fails that test.

Finally, the Services determined that no replacement definition is needed. Because “take” is defined in the statute and the meaning of “harm” within that definition was, in the Services’ view, correctly articulated by Justice Scalia’s dissent in Sweet Home, a freestanding regulatory definition would be unnecessary and potentially confusing.

The Statutory Stare Decisis Question

At least one legally significant aspect of the final rule is its treatment of statutory stare decisis. In Loper Bright, the Supreme Court stated that “prior cases that relied on the Chevron framework … are still subject to statutory stare decisis.” Critics of the proposed rule argued that this principle required the Services to maintain the definition of “harm” because it was upheld by the Sweet Home majority.

The Services reject this argument on multiple grounds. They emphasize that Sweet Home held only that FWS’s interpretation was a “permissible” reading of the ESA—not the sole correct one. The Court expressly declined to decide whether the statute “compels” that interpretation. Because a Chevron-era holding establishes only that an interpretation is one of potentially multiple permissible readings, it does not foreclose the executive branch from later concluding that a different reading is actually correct.

More fundamentally, the Services draw a distinction between constraints on courts and constraints on the executive branch. Statutory stare decisis, as articulated in Loper Bright, protects prior judicial holdings from being overturned by lower courts. It does not, the Services argue, prevent the executive branch from independently reevaluating its own regulations and concluding they do not match the best meaning of the statute. The Court “left open the possibility that the executive branch could itself depart from regulations that do not match the single, best meaning of the statute—so long as the new regulations reflect that best meaning.” This makes sense, the Services reason, given Loper Bright‘s emphasis on faithful execution of the laws as written by Congress.

The Services also note that even under Chevron, agencies were always free to change their interpretations—citing Brand X and Justice O’Connor’s Sweet Home concurrence, which observed that “nothing the Court says today prevents the agency itself from narrowing the scope of its regulation at a later date.” And in response to commenters invoking Kimble v. Marvel Entertainment for the proposition that stare decisis counsels against change, the Services responded bluntly: “there is no such thing as stare decisis for agency interpretation.” Agencies may change positions when warranted by changes in law or interpretive standards.

What This Means Going Forward

The practical implications are significant. Private parties seeking incidental take permits under Section 10(a) will no longer need to address habitat modification in their conservation plans. The Section 7 consultation process remains intact—federal agencies must still avoid jeopardizing species or adversely modifying critical habitat—but the “take” analysis will no longer encompass indirect habitat effects. The rule is prospective only; previously issued permits and incidental take statements will not be reevaluated. The rule will almost certainly face legal challenge. Courts will need to decide whether the Services’ reading of Loper Bright‘s statutory stare decisis carve-out is correct—that is, whether the executive branch may unilaterally depart from a regulation that was judicially upheld under Chevron, even if courts themselves may not disturb the precedent. That question, which sits at the intersection of administrative law, separation of powers, and environmental protection, is likely to define the next chapter of ESA litigation.

May 7, 2026May 7, 2026 by John M. Simpson

California Court of Appeal Rejects “Necessity Defense” in Animal Rights Trespass Case

By John M. Simpson

In recent years, animal rights activists have entered farmland without permission to expose what they believe are inhumane conditions for farm animals. The activists videotape what they see and sometimes “rescue” animals by removing them from the property. When prosecuted for trespass, activists have often asserted the defense of legal necessity—that the harm sought to be prevented outweighed the harm of the criminal trespass. One such organization, Direct Action Everywhere (DxE), is known for such actions. In 2023, DxE’s co-founder was convicted by a Sonoma County, California jury of criminal trespass and conspiracy to commit trespass arising from DxE incursions onto a chicken farm and a duck farm. Defendant appealed, and on April 30, 2026, the Court of Appeal, First Appellate District, reversed two counts due to an erroneous jury instruction and remanded for further action. However, the court affirmed the conviction for misdemeanor trespass by refusing to leave private property. The court also rejected the necessity defense as a matter of law and rejected defendant’s First Amendment challenges to the aiding and abetting and trespass laws. People v. Hsiung, No. A169697 (Cal. App. 1st Dist. Apr. 30, 2026).

The court noted that California law had long established that, for the necessity defense to apply, “[th]e situation presented to the defendant [relying on a necessity defense] must be of an emergency nature, threatening physical harm, and lacking an alternative, legal course of action.” Slip op. at 15 (cleaned up). Here, the “evidence undermine[d] any claim that defendant had no choice but to commit trespass because he was acting in an emergency situation to prevent imminent, significant harm to animals.” Slip op. at 18. This was due to significant advanced planning for the activists’ incursions. As the court observed:

Defendant and other DxE activists described preparations that began well in advance of the Sunrise incident on May 29, 2018, and the Reichardt incident on June 13, 2019. These preparations involved: (1) obtaining legal advice from lawyers regarding the implications of the activists’ plans; (2) hiring a veterinarian to opine on the conditions of the animals living on the poultry farms based on video and photographic evidence previously gathered by activists; and (3) organizing and training groups of activists to participate in various protest activities that included peaceful vigils outside the properties, a lockdown on farm property, and animal rescues from inside barns conducted by activists donning biohazard suits.

Indeed, the fact that both incidents, Sunrise in 2018 and Reichardt in 2019, occurred during or just before the Animal Liberation Conference, a large animal rights activism event in Berkeley, reflect the level of detail and advanced planning that went into them.

This evidence undermines any claim that defendant had no choice but to commit trespass because he was acting in an emergency situation to prevent imminent, significant harm to animals. [Slip op. at 18].

The court had “another concern” about defendant’s claim that he had no choice but to commit criminal trespass. California Penal Code § 559a provides a vehicle for a private party to complain and obtain official action against what the complainant believes is animal cruelty. There was no evidence that defendant pursued that alternative.

While the court rejected the necessity defense, it ruled that defendant was entitled to present mistake of law as a defense to two charges—the mistake being the belief that necessity was a defense. This is because “mistake of law may be a defense to a specific intent crime when the mistake negates the defendant’s specific intent to commit the crime.” Slip op. at 23. The charges of conspiracy and trespass with intent to interfere with business are both specific intent crimes. Nonetheless, the evidence must show the claimed belief was held in good faith. Here the proffered, excluded evidence could have supported this defense because defendant had obtained legal opinions from a law professor and a former prosecutor that his planned conduct was lawful. The trial judge’s refusal of a jury instruction on this point was error. “Accordingly, defendant should have been permitted to present to the jury a mistake of law defense based on his good faith, albeit incorrect, belief that committing a trespass was legally justified by necessity, notwithstanding his awareness that trespassing was a crime.” Id. at 26-27. Whether the legal opinions were inadmissible on other grounds and whether defendant actually relied on them in good faith the court left for another day.

Finally, the court made short work of defendant’s constitutional arguments. The criminal aiding and abetting statute raised no First Amendment concerns because “[i]t does not regulate speech but conduct.” Slip op. at 35 (emphasis in original). Nor did the trespass crime of refusing to leave when asked under Penal Code § 602 constitute a content-based restriction of speech due to its exclusion of labor union activities. This is because the statute itself “’does not apply to persons on the premises who are engaging in activities protected by the California or United States Constitution.’” Id. at 36 (citation omitted).

This case has three important takeaways for agricultural landowners in the animal protein business:

► While the conviction on two charges was reversed, the court affirmed defendant’s conviction for misdemeanor trespass by refusing to leave private property. This is a general intent crime and easier to prove than the specific intent crime of trespass to interfere with lawful business. It also is not subject to a mistake of law defense that the trespasser believed trespass was permissible. The penalty for trespass by refusing to leave is jail time up to 6 months, a maximum fine of $1000 and stay away orders.

► Given how animal rights activists plan and orchestrate their activities in advance, the requirement of a true emergency situation significantly narrows the circumstances supporting necessity as a defense.

► Even where mistake of law might apply, the mistake must be made in good faith. A result-oriented legal opinion by an animal rights lawyer will likely undermine an assertion of good faith reliance.

April 24, 2026April 24, 2026 by John M. Simpson

PETA Strikes Out in Challenge to Iowa “Ag Gag” Law

By John M. Simpson. In Iowa, it is a crime to trespass on private property. Given recent actions by animal rights activists invading private farm land to film what is claimed to be animal mistreatment, Iowa amended the criminal trespass statute to prohibit use of a camera during a trespass. The law was originally sustained against a facial First Amendment challenge. Animal rights group People for the Ethical Treatment of Animals (PETA) and another organization then brought an as-applied challenge arguing that the statute violated the First Amendment if it prevented them from recording on private property that is otherwise open to the public after being asked to leave by the owner but not asked to stop recording. The U.S. Court of Appeals for the Eighth Circuit disagreed and affirmed dismissal of the case. People for the Ethical Treatment of Animals v. Reynolds, No. 25-1750 (8th Cir. Apr. 23, 2026).

The court assumed that a trespasser has “general rights of free speech on property privately owned and used nondiscriminatory for private purposes” – an issue that the Supreme Court has yet to decide. Slip. op. at 8. Even so, the challenge to the statute failed because the application of the statute at issue survived intermediate scrutiny under the First Amendment. The law promotes a substantial government interest that would be achieved less effectively absent the statute, and it did not burden speech more than is necessary to further the interest.

The court rejected appellants’ arguments that the statute is not narrowly tailored.

First, appellants’ assertion that privacy and property rights are not furthered if the owner objects to the trespasser’s presence but not to the recording “is nonsensical. When a property owner uses his ‘power to exclude’ by ejecting a trespasser — ‘one of the most treasured strands in [his] bundle of property rights’ — he necessarily exercises his lesser right to stop the trespasser from unlawfully recording on his property.” Slip op. at 11.

Second, Iowa’ interests in protecting privacy and property rights are implicated even if the locations at issue are otherwise open to the public: “[P]roperty owners forfeit neither their right to exclude nor to control their property by opening it to the public for a certain purpose.” Slip op. at 11.

Third, the assertion that the state failed to produce evidence that “Iowa needed to proscribe all the speech covered by the statute to achieve its interests . . . lacks merit because § 727.8A is subject to intermediate rather than strict scrutiny.” Slip op.at 12.

So in Iowa, pig farm trespassers with cameras beware. The first offense is an aggravated misdemeanor with a fine between $855 and $8,540 and up to two years of imprisonment. The second offense is a class D felony with a fine between $1,025 and $10,245 and up to five years of imprisonment.

March 25, 2026March 26, 2026 by John M. Simpson

Lab-Grown Meat Meets the Supremacy Clause: 11th Circuit Weighs In on Federal Pre-Emption

By John M. Simpson. Can a state state ban a product that the federal government has affirmatively approved for sale? In Upside Foods, Inc. v. Commissioner, Florida Department of Agriculture and Consumer Services, No. 24-13640 (11th Cir. Mar. 23, 2026), the Eleventh Circuit answered yes, holding that Florida’s ban on lab-grown meat is not expressly pre-empted by the federal Poultry Products Inspection Act (“PPIA”). The ruling reinforces a growing consensus among the circuits that a pure product ban is fundamentally different from a regulation of how a federally inspected facility operates, and it carries significant implications for food-technology companies, state regulators, and practitioners alike.

The Parties and Background

Upside Foods, Inc. produces lab-grown chicken by banking embryonic chicken cells, placing them in a “cultivator,” and supplying them with nutrients to form a product that, according to the company’s CEO, “looks, cooks, and tastes, like a conventional boneless, skinless chicken cutlet.” Upside has completed a pre-market consultation with the FDA and received a Grant of Inspection from the USDA’s Food Safety and Inspection Service, making it an “official establishment” subject to the PPIA and authorized to sell its product interstate commerce.

The defendants are the Commissioner of Florida’s Department of Agriculture and Consumer Services and several Florida State Attorneys. The dispute arose from Florida’s SB 1084, which makes it “unlawful for any person to manufacture for sale, sell, hold or offer for sale, or distribute cultivated meat” in the state, with criminal and civil penalties for violators. Upside challenged the law as expressly pre-empted by the PPIA and moved for a preliminary injunction.

Upside’s Pre-Emption Claims

Upside’s complaint rested on the PPIA’s two express pre-emption provisions. The “Ingredients Provision” pre-empts state laws that impose additional or different “ingredient requirements . . . with respect to articles prepared at any official establishment”. The “Facilities Provision” pre-empts state laws that impose additional or different requirements “with respect to premises, facilities and operations of any official establishment.” Upside argued that SB 1084 functioned as both an impermissible ingredient requirement and an impermissible regulation of its facilities and operations, because a ban on its product was effectively a ban on a specific production method that could force its facilities to close. After disposing of two threshold issues, the court reached the merits of the pre-emption claims and affirmed the lower court’s denial of injunctive relief.

The Facilities Provision

Writing for a unanimous panel, Judge Brasher concluded that a pure product ban like SB 1084 does not regulate the premises, facilities, or operations of any official establishment. The central distinction driving the court’s reasoning is between laws that tell a facility how to operate and laws that simply prohibit a product from being made or sold.

The court anchored the Facilities Provision’s three key terms—premises, facilities, and operations—to the physical, onsite activities of a poultry processing plant, applying the canon noscitur a sociis to prevent the broader term “operations” from expanding beyond its narrower neighbors. It further required a direct relationship between the state law and those onsite activities, noting that a looser reading would make the three terms redundant and would swallow the PPIA’s savings clause, which preserves state authority over other matters regulated under the statute. Fifth and Seventh Circuit cases reinforced this reading, upholding state horsemeat bans on the ground that prohibiting a product is not the same as regulating how a slaughterhouse operates.

The court’s distinction came into sharpest focus when it addressed National Meat Association v. Harris, 565 U.S. 452 (2012). In Harris, the pre-empted California law directed slaughterhouses to handle non-ambulatory pigs in specific ways, effectively commanding facilities to restructure their onsite operations. SB 1084 does nothing of the sort—it does not prescribe cell-harvesting methods, cultivator materials, or waste-disposal procedures, but instead categorically prohibits the end product. That difference, the court held, places SB 1084 outside the Facilities Provision’s reach.

The Ingredients Provision

The court applied the same product-ban-versus-operations-rule distinction to the Ingredients Provision. It concluded that an ingredient requirement is a rule specifying what must go into a product—not a categorical ban on the product itself. Upside had recast SB 1084 as targeting the “ingredient” of lab-grown cells, but the court found that framing inconsistent with how both ordinary usage and the PPIA itself treat ingredients, which are items like preservatives, spices, and coloring agents rather than a product’s underlying cellular composition. Other circuits again supported the holding: both the Ninth Circuit (foie gras) and the Fifth Circuit (horsemeat) have held that an outright product ban is not the kind of ingredient requirement the statute pre-empts.

Takeaways

The Eleventh Circuit’s decision in Upside Foods draws a clear line between state laws that regulate how a federally inspected facility operates—which the PPIA pre-empts—and state laws that ban a category of product outright, which it does not. For the growing cultivated-meat industry, the ruling means that federal inspection and approval do not, by themselves, guarantee market access in every state. For state legislators, the opinion provides a roadmap: a flat product ban is more likely to survive pre-emption scrutiny than a law that dictates specific production methods or facility requirements. Practitioners should watch for whether Upside seeks rehearing en banc or files a petition for certiorari.

March 19, 2026March 20, 2026 by John M. Simpson

PETA’s Monkey Speech Claim Fails

By John M. Simpson. As we previously reported, animal rights group, People for the Ethical Treatment of Animals (PETA), sued the National Institutes of Health and Mental Health in federal court seeking to compel the defendants to install a live video feed in the defendants’ laboratories so that PETA can receive the communications of the rhesus macaques that are being used in medical research. PETA claimed a First Amendment right “as a listener” to the live feed and a Fifth Amendment “liberty and property interest” in the same channel of communication. The court granted the defendants’ motion to dismiss for lack of jurisdiction. PETA v. Nat’l Inst. of Mental Health, No. 8:25-cv-00736-PX, 2026 WL 39219 (D. Md. Feb. 13, 2026).

The court lacked jurisdiction, first, because defendants had sovereign immunity. While the Administrative Procedure Act could be the basis for waiving sovereign immunity, it could only do so if the agency action at issue was final. The action here was not final because “the challenged agency action is neither discrete nor specific, but rather cuts to the very kind of programmatic decisions that would require reconciling needs of the experimenters with the public’s video access of the same.” 2026 WL 39210, at *3. Nor had PETA shown that the defendants had determined PETA’s rights or obligations. PETA could cite “neither binding nor persuasive authority” that animal communications implicate a First Amendment right as a “listener” or a Fifth Amendment “’life, liberty, or property’ interest in the asserted ‘open channel of communications.’” Id. at *4. Finally, PETA failed to persuade the court that defendants were required by law to provide the access to the macaques that PETA demanded. Id.

The court also lacked jurisdiction because PETA had no Article III standing to sue. PETA’s claimed injury to its First Amendment right to listen “is not, as pleaded, a legally protected interest sufficient to confer standing.” Id. at *5. As the court observed:

Nowhere does PETA establish any authority whatsoever for the extraordinary proposition that the macaques’ sounds and movements constitute protected speech to which a companion right-to-listen exists.  Rather, PETA relies on a legion of inapposite law concentrating on the public’s right to receive human speech. . . .  But PETA gives the Court nothing that comes close to establishing a constitutional right to receive “non-human primate” sounds or behaviors.  [Id.]

The court also found PETA’s reliance on the decision in Murthy v. Missouri, 603 U.S. 43 (2024) – in which social media users challenged government censorship during COVID-19 – to be misplaced:

Like the plaintiffs in Murthy, PETA relies on a “boundless” theory of the “right to listen” to animal sounds and behavior. As in Murthy, the scope of this theory is breathtaking; it would confer standing to sue on anyone who claims interest in the sounds and movements that animals use to communicate with each other. This is the very kind of overly broad articulation of “injury” that the Murthy Court eschewed. PETA, therefore, has not pointed to any legal authority which supports a constitutionally protected interest in receiving communications from the macaques.  [Id. at *6].

Whether PETA intends to appeal this ruling remains to be seen.

February 5, 2026February 7, 2026 by John M. Simpson

PETA’s Shelter Kill Rate Is Down But Still Deadly

Animal rights group People for the Ethical Treatment of Animals (PETA) runs a facility in Norfolk, Virginia that it calls an animal shelter. As with any other shelter operator in Virginia, PETA must submit an annual report to the Virginia Department of Agriculture and Consumer Services (VDACS) that reports on the fate of the animals that the shelter took in during the preceding year. As we have reported over the years (e.g., here, here and here), PETA’s VDACS reports show that PETA euthanizes a substantial number of the dogs and cats that it takes in and does so at a rate that exceeds the rates of public and private shelters in Virginia.

PETA’s report for 2025 continues to show this trend. Although the kill rate was down from 2024, PETA still euthanized nearly 60% of the dogs and cats that it took in. The table and graph below show the PETA euthanasia rate for the period 2014 through 2025:

PETA’s kill rate still greatly exceeds the rate at which dogs, cats and animals in general are euthanized in public and private shelters in Virginia. The following graph shows the results based on 2025 VDACS filings:

The results in PETA’s shelter also stand in stark contrast to the 2025 national euthanasia rate for shelters and rescues. The Shelter Animals Count (SAC), a data collection program that was acquired by the American Society for the Prevention of Cruelty to Animals, employs a machine learning model to analyze and interpret data from animal shelters across the United States. SAC describes itself as “a neutral, industry-wide data collection entity.” According to SAC, in 2025, 5.8 million cats and dogs entered shelters and rescues across America. Of that number, however, 597,000 – or about 10% — were euthanized. Thus, PETA’s kill rate, even though modestly down in 2025, was still nearly six times more than the national average.

PETA’s VDACS filing goes on at length about its sterilization services, free dog houses and bedding and so forth, but it doesn’t address the fact that its euthanasia rate vastly exceeds that of other Virginia shelters, including public shelters, many of which are open admission. As we have observed before, if all of the dogs and cats that PETA puts down are fatally ill or unadoptable, it would be a simple matter for PETA to say so. The response? Crickets.

December 5, 2025December 5, 2025 by John M. Simpson

What Happens When Endangered Species Endanger Each Other?

The U.S. Court of Appeals for the Ninth Circuit decided an interesting Endangered Species Act (ESA) case this week. San Luis Obispo Coastkeeper v. County of San Luis Obispo, No. 24-7807 (9th Cir. Dec. 3, 2025).

Certain environmental NGO’s claimed that San Luis Obispo County’s operation of a dam potentially harms the steelhead trout, a fish listed as threatened under the ESA. Plaintiffs sought a mandatory preliminary injunction directing changes in the dam’s water flow operation to help the trout. The county opposed, arguing that the mandated operational changes would harm the California red-legged frog and the tidewater goby, both of which live in the same habitat and are listed as endangered under the ESA. The district court granted the injunction without considering the impact on the frog and the goby. The Ninth Circuit reversed.

The appellate court noted that, in ESA cases, only the first two parts of the four-part standard for an injunction – (1) probability of success, (2) irreparable harm, (3) balance of the equities; (4) public interest – apply. This is because, in line with the famous “snail darter” case – TVA v. Hill, 437 U.S. 153 (1978) – Congress has already balanced the equities in favor of the listed species which take precedence over other competing equities “whatever the cost.” So, if there is probability of a take, then the endangered species at issue wins, regardless of how the relief impacts other interests. However, in a case like this one where the relief in favor of one listed species will affirmatively harm other listed species, the TVA rationale “collapses.” Slip op. at 19. In such a case, “[t]he exception to the traditional test, created in TVA, does not apply. The court must balance the equities and consider the public interest as to the other listed species.” Slip op. at 20.

So far so good. But how is a court supposed to do this? The district court here directed the parties to work it out with the National Marine Fisheries and U.S. Fish and Wildlife Services, but those agencies declined to get involved. So now it’s up to the district court. The guidance from the Ninth Circuit was not particularly illuminating:

Species are interconnected. Sometimes, what looks harmful to one species in the short term may benefit it, or others, in the long run. And if there is no way to reconcile the risks to multiple listed species, the equities and public interest in species conservation, to which the ESA gave precedence, do not counsel a single outcome and judgments may need to be made about the relative strength of these considerations in relation to the protected species at issue. [Slip op. at 21].

In other words, do your best. But this can get tricky. As the concurring opinion observed, it may turn out to be a “zero sum game.” Slip op. at 27. Steelheads actually eat red-legged frog tadpoles and gobies, so relief that preserves more trout means that more red-legged frogs and gobies may become trout breakfast. Moreover, the steelhead is threatened while the red-legged frog and goby are endangered. When push comes to shove on who gets to survive, does the threatened species have to give way to the endangered one? This Solomonic decision is left to the district court.

October 21, 2025 by John M. Simpson

Nonhuman Rights Project Loses Another “Personhood” Case

On October 17, 2025 the Michigan Court of Appeals affirmed a trial court’s summary denial of a writ of habeas corpus brought by the Nonhuman Rights Project seeking to have seven chimpanzees released from the DeYoung Family Zoo and transferred to an animal sanctuary. Nonhuman Rights Project, Inc. v. DeYoung Family Zoo, LLC, No. 369247 (Mich. App. Oct. 17, 2025). Plaintiff never got out of the blocks. The courts did not even require the zoo to show cause or file an opposition to the writ.

The appellate court noted that while the writ is protected by the state constitution, its availability is prescribed by statute. A habeas action can be brought by any person on behalf of a prisoner, i.e., a person with a cognizable interest in personal liberty. But neither the constitution nor the statute provides detail on who qualifies as a “person.” The court therefore looked to the common law. Centuries of English common law plainly established that the category of persons was confined to human beings and artificial entities such as corporations. Animals were treated as objects of property. Slip op. at 10-11.

In this regard, the court rejected plaintiff’s “odious” analogy to the plight of women and enslaved persons:

Plaintiff’s analogies to habeas proceedings involving women or enslaved persons do not alter this landscape. Plaintiff cites no authority suggesting that women were not “persons” at common law. The slavery analogy cuts the other way: The atrocity of slavery was that the law permitted persons to be treated as property. Blackstone observed that the origins of slavery were “built upon false foundations” and that “the law of England abhors, and will not endure the existence of, slavery within this nation.” . . . Those episodes reflect failures to honor human personhood, not expansions of it beyond the human species. [Slip op. at 12; citations omitted.]

As the court summed it up:

[C]himpanzees are animals, and as the common law authorities all make clear, animals – including wild animals, such as these chimpanzees – are treated as property. No exception exists for “intelligent” animals, which in any event has no natural stopping point – “[e]ven a dog distinguishes between being stumbled over and being kicked.”

. . .

A central aspect of personhood is mankind’s capacity to “give[] up a part of his natural liberty” and oblige[] himself to conform to those laws, which the community has thought proper to establish.” . . . Chimpanzees – and nonhuman animals generally – are incapable of making this exchange. [Slip op. at 13; citations omitted.]

In addition to Michigan, the Nonhuman Rights Project has now lost on this same habeas corpus issue with respect to chimpanzees and elephants in the states of New York, Connecticut and California.

April 17, 2025April 17, 2025 by John M. Simpson

Feds Propose Rescinding Rule Defining “Harm” in Endangered Species Act

On April 17, 2025, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) published a notice of proposed rulemaking to rescind the agencies’ respective regulatory definitions of “harm” as that term appears in the statutory definition of “take” in the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Comments on the proposed rescission are due by May 19, 2025. See 90 Fed. Reg. 16102 (Apr. 17, 2025).

The ESA is the principal U.S. law protecting plants and animals that have been designated as likely to face extinction. The statute therefore broadly prohibits the “taking” of an endangered species. The statute itself defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). By regulation, FWS further defined the word “harm” to mean “an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. NMFS issued a materially identical definition of “harm.” 50 C.F.R. § 222.102.

The Supreme Court in Babbitt v. Sweet Home Chapter, 515 U.S. 687 (1995), upheld the regulatory definition of “harm,” giving it Chevron deference. Since Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), overruled Chevron, the agencies now contend that the current definitions do not constitute the “best reading” of the statutory term “harm.” Instead, the agencies point to the dissenting opinion in Sweet Home, which interpreted “harm” in light of the traditional understanding of “take,” which is to kill or capture a wild animal. Under this view, “take” requires an affirmative act against the species, not actions that affect the species indirectly.

The agencies recognize that Loper Bright itself stated that prior cases that relied on Chevron are still subject to statutory stare decisis. However

under the then prevailing Chevron framework, Sweet Home held only that the existing regulation is a permissible reading of the ESA, not the only possible such reading. Our rescission of the regulation definition on the ground that it does not reflect the best reading of the statutory text thus would not only effectuate the Executive Branch’s obligation to “take Care that the Laws be faithfully executed,” but would also be fully consistent with Sweet Home.
90 Fed. Reg. at 16103

The rescission of the regulatory definition of “harm” seems geared to address scenarios in which, for example, a construction project does not directly kill or injure a species but modifies the species’ habitat and thereby forces it to vacate the area.

The rulemaking presents several issues worth considering.

First, on the substance, while the agencies propose to rescind the definition of “harm,” they do not propose rescinding the regulatory definition of “harass.” “Harass” is defined in part to mean “annoying [the species] to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 C. F. R. § 17.3. (NMFS has no parallel definition of “harass.”) It would seem that most actions that amount to “harm” on the basis of habitat degradation would also constitute “harassment.”

Second, the rulemaking probably has no impact on endangered species maintained in a captive environment. Even if the “harm” definition is rescinded, the “harass” definition remains and, as it applies to captive wildlife, “harass” has been consistently defined by FWS to exclude “animal husbandry practices that meet or exceed the minimum standards for facilities and care under the Animal Welfare Act.” 50 C.F.R. § 17.3. That is, while a captive endangered species cannot be lawfully “harassed” under the ESA, there is no such harassment if the endangered species is held under conditions that comply with the Animal Welfare Act (“AWA”). However, since “harm” was not defined with a link to the AWA, the deletion of the “harm” definition would eliminate the potential ambiguity that a captive species can be “harmed” even if the actions at issue are AWA-compliant.

Third, the rulemaking will likely test the contours of the Loper Bright pronouncement on statutory stare decisis. Sweet Home was a Chevron-based case, but the agencies seem to be taking the position that statutory stare decisis will not control the outcome because their actions are required by the Executive Branch’s constitutional duty to take care that the laws be faithfully executed. 90 Fed. Reg. at 16103 (citing U.S. Const. art. II, § 3).

March 24, 2025March 27, 2025 by John M. Simpson

D.C. Circuit: Machine Using AI to Create Artwork Cannot Own a Copyright in the Artwork

On March 18, 2025, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court ruling that a work created with artificial intelligence (AI) using a machine cannot be registered in the name of the machine itself because the Copyright Act requires that a copyright owner be a human being. Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. Mar. 18, 2025).

The plaintiff had created a picture entitled “A Recent Entrance to Paradise” with a machine called the “Creativity Machine” that generated the artwork using AI. The plaintiff applied for copyright protection, listing the machine as the author and the plaintiff as the owner. Plaintiff argued (1) that, under the Copyright Act, an “author” need not be a human being but can be a machine; and (2) that plaintiff could be the owner of the work under the work-for-hire doctrine because non-humans such as corporations can be authors under this doctrine. As did the Copyright Office and the district court, the appellate court rejected both arguments.

As to the first point, the court noted that, while the Copyright Act does not define “author,” the statute’s use of that term is incompatible with a machine being an author. This is because, under the Copyright Act an “author”

must have the legal capacity to own property;
must have a lifespan since copyrights generally last for the author’s life plus 70 years;
must have surviving spouses or children under the statute’s inheritance provision;
must have a signature;
must have a nationality or domicile;
must have intentions since authors of joint works intend that the contributions be merged together.

[Slip op. at 11-12.] Machines can do none of these things. Furthermore, the Copyright Act at several places discusses machines and makes it clear that machines are tools not authors.

As to plaintiff’s work-made-for-hire argument, the court observed that that provision “allows the copyright and authorship protections attaching to a work originally created by a human author to transfer instantaneously, as a matter of law, to the person who hired the creator.” [Slip op. at 17.] The fact remains that the author of the work for hire must still be a human being.

While the plaintiff also argued that he should be considered the “author” of the work because he made and used the Creativity Machine, the court deemed this argument waived because it was not made to the Copyright Office. [Slip op. at 23.]

So, one might ask, what does this case have to do with animal law? Well, the Thaler case illustrates the arguments made by litigants seeking to get courts to convey to animals or other non-humans rights and privileges conventionally held only by human beings. One such argument in Thaler was the plaintiff’s point that the dictionary defined “author” as “one that originates or creates something” and therefore was not limited to human beings. However, as the court observed:

[S]tatutory construction requires more than just finding a sympathetic dictionary definition. We “do not read statutes in little bites,” or words in isolation from their statutory context. Kircher v. Putnam Funds Tr., 547 U.S. 633, 643 (2006). The judicial task when interpreting statutory language, instead, is to discern how Congress used a word in the law.
[Slip op. at 16.]

In fact, the D.C. Circuit made a specific connection to animal law by citing the decision in Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), in which the Ninth Circuit held that a monkey cannot be an “author” under the Copyright Act. And, like Thaler, animal rights groups have tried to base their arguments on dictionary definitions. See, e.g., Animal Leg. Def. Fund v. U.S. Dep’t of Agriculture, 933 F.3d 1088, 1094 (9th Cir. 2019) (the term “individual” in the Freedom of Information Act cannot reasonably be interpreted to include a Bengal tiger).

As AI continues to develop and grow more robust, stayed tuned for more novel arguments in this space.