USDA and DOJ Announce Top Priorities for Civil Enforcement of the Animal Welfare Act

By Michelle C. Pardo and Brian Pandya

Last month, the Department of Justice Environmental and Natural Resources Division (ENRD), the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) and the USDA Office of General Counsel (OGC) announced the issuance of a Memorandum of Understanding (MOU) on civil judicial enforcement of the Animal Welfare Act (AWA).  What does this mean for USDA licensees and registrants?  Our Q&A breaks it down. Continue reading “USDA and DOJ Announce Top Priorities for Civil Enforcement of the Animal Welfare Act”

Sonoma County Jury Convicts Animal Rights Leader In Farm Trespass Case

by Michelle C. Pardo

Wayne Hsiung, the co-founder of Direct Action Everywhere (DxE), a Berkeley, California based animal activist group, was found guilty of two counts of misdemeanor trespass and one count of felony conspiracy to trespass on November 2, following a two month jury trial.  The jury could not reach a unanimous verdict on a second felony conspiracy charge, resulting in a mistrial on that charge.  Hsiung’s conviction followed six days of deliberations by a jury in Santa Rosa, California.  Hsiung was taken into custody immediately following the verdict. Continue reading “Sonoma County Jury Convicts Animal Rights Leader In Farm Trespass Case”

D.C. Circuit Rejects National Marine Fisheries Service’s “Egregiously Wrong” Decision on Right Whales

By Michelle C. Pardo

On June 16, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Marine Fisheries Service (NMFS or Service), which licenses and regulates fisheries in federal waters, was not permitted to give the “benefit of the doubt” to endangered species or rely on worst-case scenarios or pessimistic assumptions in preparing biological opinions required by the Endangered Species Act (ESA).  Maine Lobstermen’s Association v. National Marine Fisheries Service (D.C. Cir. June, 16, 2023) (slip opinion). Continue reading “D.C. Circuit Rejects National Marine Fisheries Service’s “Egregiously Wrong” Decision on Right Whales”

Breaking Down the FWS’s Interim Rule Implementing the Big Cat Public Safety Act

by Michelle C. Pardo

On June 12, 2023, the U.S. Fish and Wildlife Service (FWS) published an Interim Rule that amends the implementing regulations for the Captive Wildlife Safety Act (CWSA) by “incorporating the requirements” of the Big Cat Public Safety Act (BCPSA). See 88 Fed. Reg. 38358 (6/12/2023).  The amended regulations — which are now in effect as of June 12, 2023 — can be found within the Federal Register publication and at 50 CFR Part 14. Continue reading “Breaking Down the FWS’s Interim Rule Implementing the Big Cat Public Safety Act”

Monterey Bay Aquarium in Hot Water Over Alleged Defamatory Statements About Maine Lobster Industry

by Michelle C. Pardo

Maine is synonymous with lobster.  So states the federal court defamation lawsuit filed this week by a coalition of lobster fishing companies and trade groups against the Monterey Bay Aquarium over its “Seafood Watch” program, which accused Maine fisheries of falsely putting North Atlantic right whales at significant risk of entanglement and risk of extinction.  Bean Maine Lobster, Inc., et al. v. Monterey Bay Aquarium Foundation, No. 2:23-cv-00129 (JAW)(D. Maine). Continue reading “Monterey Bay Aquarium in Hot Water Over Alleged Defamatory Statements About Maine Lobster Industry”

USDA Extends Comment Deadline on Standards for Handling Wild and Exotic Animals

by Michelle C. Pardo

The United States Department of Agriculture  (USDA) has extended the deadline for submitting comments to an advance notice of proposed rulemaking (ANPR) on standards for handling captive wild and exotic and animals and changes to environmental enrichment requirements for all regulated species.

Stakeholders will now have until April 10, 2023 to submit comments.

The ANPR is available to view and comment at

USDA’s Animal and Plant Health Inspection Service (APHIS) has requested comments in three particular areas:

  •  Public handling of wild and exotic animals at licensed exhibitor facilities;
  •  Training of personnel who handle wild and exotic animals at licensed facilities; and
  • Changes to regulated animals’ environments to promote their psychological well-being.

Participating in the comment process is essential for regulated stakeholders, as agencies must consider all “relevant matters presented” and respond in some form to comments received in formulating their rules.  If opposition is exceptionally voluminous or strident, an agency may decide to publish a new notice and/or establish a new comment period.

All perspectives are helpful, but keep in mind the following:

DO attempt to respond to the questions asked by the agency.  Additional material may be appropriate to include, but try to at least provide the agency with guidance on the requested topics.

DO highlight the financial ramifications to your facility with any significant additions or changes to the regulations.  For example,  would increased regulations demanding a certain type of training program or experience erect an impractical barrier to staffing?  Are certain formal training programs less effective than apprenticeships or on-the-job training?  Would such regulations practically require “form” over “substance”?

DO provide comments on whether more particularized regulations on animal enrichment would unnecessarily limit an exhibitor’s ability to provide effective enrichment to their animal populations.  Would regulations diminish the ability to be innovative about the nature and type of enrichment?  Would they lag behind science and research and therefore create worse, and not better, animal welfare circumstances?

DO describe in detail any unintended, negative effects that further regulation can produce, either to the well-being of particular species or a licensed facility’s ability to practically care for its animals.

DO include “myth-busting” in your comments that call out speculative and philosophical-driven theories of animal welfare and pseudo-science that are not backed by science and research.  Include peer-reviewed research or other resources that supports your comments or successful anecdotal cases that are relevant to the issues.

Most importantly, do not assume that another exhibitor will represent your particular interests.  Participate and influence regulations that affect your businesses and organizations.


Animal Rights Activist Gets Rammed by NFL Player

By Michelle C. Pardo

The video of NFL linebacker Bobby Wagner tackling an animal rights activist who had charged the field with a smoke bomb at last week’s Los Angeles Rams – San Francisco 49ers game in Santa Clara was the subject of much (and some amusing) color commentary.  But Direct Action Everywhere (DxE), the radical animal rights group behind the dangerous stunt, raises significant issues regarding player, referee, security staff and spectator safety.

The DxE activist was protesting and trying to bring attention to criminal charges against two of his fellow activists who are facing trial for the “open rescues” – the act of illegally entering and stealing animals from farms to “save” them and prevent them from entering the food supply.  Wayne Hsiung, the founder of DxE (who stepped down from his leadership position due to his multiple criminal cases (see our blog post, here) is currently on trial in Utah for a 2017 raid of a pork production facility.  Hsiung was previously convicted in North Carolina for another “open rescue” but received no jail time, a sentence he actually had wanted according to his social media postings.  (Read our blog post about it, here).  Hsiung and DxE member Paul Picklesimer are currently on trial in St. George, Utah, on felony burglary and theft charges for “Operation Deathstar” — their infiltration of a Smithfield owned pig farm in Utah.  If convicted, they could face more than 10 years in prison.  Other DxE protestors accepted pleas deals, but the two remaining defendants sought to go to trial to raise awareness of their cause.

Wagner noticed that security was having trouble intercepting the protestor and stepped in to stop him, with linebacker Takkarist McKinley giving him an assist.  According to DxE’s press release, the protestors were cited and released from custody that night.  A similar protest occurred at the season-opener Bills-Rams game, which, according to DxE, resulted in a head injury to one of its protestors.  DxE also took responsibility for a protest at a Minnesota Timberwolves game back in April.

It has been reported that the protestor subsequently filed an assault complaint (with the Santa Clara police) against the Rams players, describing their conduct as “blatant assault.”  But was the conduct justified under a theory of self-defense or defense of others?  While an unruly fan charging the field may have done so “merely” for publicity, an unauthorized person, running onto the field and near other players and personnel, while waiving an unidentified smoking device, and resisted attempts to stop him, could reasonably be interpreted as someone who could do harm.  As Wagner later told media, you “never know” the intruder’s intentions or whether they are carrying or concealing a weapon.  In California, self-defense (or defense of others) is a valid defense to assault where the individual reasonably believes that he or someone else was in imminent danger of suffering bodily injury.  In acting in self-defense, however, one may only use the amount of force that is reasonably necessary to defend oneself or others.

While some may view Wagner’s action as excessive force, as the video shows, prior to the tackle, others had tried to stop the protestor and failed.

Apart from self-defense, under a theory of assumption of the risk – if you run onto a football field during a game, it is reasonably foreseeable that you could be tackled and suffer injury (particularly if you choose to storm the field in a t-shirt without pads or a helmet).

For DxE members, the threat of injury or prison goes with the activist territory.  In a recent Harper’s Magazine story about DxE’s press coordinator, Matt Johnson said that it made “practical sense” to go to prison for a piglet – presumably more practical than his 2018 idea to set himself on fire in order to gain attention for climate change.  But for the NFL – or  other sport teams or high profile entertainers that pack venues across the country – these publicity stunts can create real threats to the safety of players, security guides and even participants.  This time, it may have been just a smoke bomb, but a copycat seeking to “one up” this stunt could use something far more destructive to bring attention to a cause.

In California, employers may seek a Workplace Violence Restraining Order (WVRO) on behalf of an employee, which prohibits unlawful violence or credible threats of violence against an employee.  Cal. Civil Proc. §527.8. An employer must prove that the employee has suffered unlawful violence (like assault or battery) or a credible threat of violence.  WVROs can order the restrained person to stay away from the employee’s workplace or not go near the employee.

An exception exists where the accused person is engaging in constitutionally protected activity, which can be a significant barrier to obtaining a WVRO against a protestor.  But for those protestors that repeatedly target a business or organization or its employees, and their conduct advances from peaceful protest to threatening or engaging in bodily harm, the constitutional protections will not insulate their actions.  The California WVRO procedure has been used to stop individual animal activists whose protests resulted in conduct that threatened a business’s employees.

Unfortunately, the threat of legal action against its members may not concern DxE, which reportedly saw the “biggest spike” to its website following the NFL stunt.  Unfortunately, until sidelined with legal action or an actual criminal conviction with prison time, DxE protestors may continue to threaten the safety of players and other employees in pursuit of their goal: to “achieve revolutionary social and political change for animals in one generation.”

Oregon Court of Appeals Rules Animals Are Not Entitled to Legal Personhood

by Michelle C. Pardo

We   previously blogged about the Oregon negligence lawsuit that animal activist group Animal Legal Defense Fund (ALDF) brought on behalf of “Justice” — an American Quarter Horse — and his self-described “guardian” against the horse’s former owner.  Back in 2017, Justice (formerly named “Shadow” and renamed ostensibly for this lawsuit) was removed from his prior owner’s care for neglect and relocated to a new caretaker.  Months later, Justice’s former owner pleaded guilty to first degree animal neglect and was ordered to pay for the cost of Justice’s care prior to July, 2017. Continue reading “Oregon Court of Appeals Rules Animals Are Not Entitled to Legal Personhood”

Sound Fishy? California Court Rules That Bees are “Fish” Under State’s Endangered Species Act

by Michelle C. Pardo

A California Court of Appeal in Sacramento has created a buzz in ruling that bumblebees can be considered “fish” under the California Endangered Species Act (CESA).  This decision reverses a lower court’s ruling that bumblebees – which are terrestrial invertebrates — do not fall within the categories of endangered, threatened or candidate species that the state law protects.  The California Endangered Species Act (previously known as the endangered and rare animal legislation) directs the Fish and Game Commission (Commission) to establish a list of endangered and threatened species.  Fish & G. Code § 2070.  Originally, Section 45 of the CESA defined “fish” as “wild fish, mollusks, or crustaceans, including any part, spawn or ova thereof,” but was amended in 1969 to include invertebrates and amphibians.  See Stats. 1969, ch. 689, Section 1.  Subsequent amendments made only stylistic changes.  See Stats. 2015, ch. 154 § 5.

In 2018, several public interest groups petitioned to list the Crotch bumblebee, the Franklin bumblebee, the Suckley cuckoo bumblebee and the Western bumblebee as endangered under the CESA.

After the Commission designated the four bumblebees as candidate species under consideration for listing as endangered, in 2019 the Almond Alliance of California, and a coalition of growers’ associations and farm and agriculture organizations, filed a petition for writ of administrative mandate, which challenged the Commission’s decision to list the bumblebees, arguing that as terrestrial invertebrates, they did not fall within the definition of protected species and are not birds, mammals, fish, amphibians, reptiles or plants.  The trial court granted the writ petition, finding that the Commission had violated its legal duty, was clear legal error, and was an abuse of discretion.  The trial court concluded invertebrates were denoted only as connected to a marine habitat, and therefore would not cover insects such as bumblebees.

The Court of Appeal, however delivered a stinging defeat by ruling that bees fall within the definition of “fish” in the CESA. Wait, what? While headlines jeered the “bees are now fish” ruling, a journey through the CESA’s legislative history provides the explanation.

In making its determination, the Court of Appeal noted that the application of definitional Section 45 in the CESA created “textual tension” with the Legislature’s inclusion of amphibians in various sections of the CESA and in the definition of fish.  Recognizing that statutory canons are not “infallible,” the Court of Appeal looked to legislative intent. The Court found that legislative history supports the liberal interpretation of “fish” in the CESA:

“Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.”

Opinion, Almond Alliance of California et al. v. Fish and Game Commission (Ct. of Appeal, Sacramento)(C09352) at 2.

But the legislative history behind invertebrates and the CESA has a bit of a tortured past.  As it turns out, in 1980, the Commission passed an amendment to the California Code of Regulations to include two butterflies as endangered and one butterfly and a Trinity bristle snail as “rare” (language later amended to “threatened”).  For those needing a brush up on critter biology, the Trinity bristle snail is a terrestrial gastropod that is both a mollusk and an invertebrate.  After the amendment was submitted to the Office of Administrative Law for approval and publication, it was disapproved because the Office determined that the CESA could not be construed to include “insects” within the definition of “birds, mammals, fish, amphibians or reptiles.”

A 1984 subsequent proposed amendment to the CESA contemplated adding “invertebrates” to the definitions of endangered and threatened species to clarify that they were protected, as well as any species the Commission previously had determined to be endangered or threatened prior to January 1, 1985 (which included invertebrates).  Nevertheless, it was removed from the proposed definitions.  Why was it left out?  The of Department of Fish and Game concluded that sufficient authority already existed to designate invertebrates and that adding the term would be confusing.

In response to a 1998 Assembly member request to clarify whether insects are eligible for listing under the CESA, the Attorney General’s office published an opinion recognizing that insects do not fall within any of CESA’s definitional categories and therefore were not eligible for listing as threatened or endangered species.

So whose interpretation carried the day?  While recognizing that formal opinions of the Attorney Generally are normally persuasive authority and entitled to great weight, the court was not persuaded that the Attorney General’s Opinion properly considered the definition section of the CESA.  Opinion at 24.  The court did find that the Department had a “long history of regulation and management of numerous classes of invertebrates” and indeed, three species of invertebrates already had been designated as endangered or rare (threatened) by the Commission.  Id. at 21.  The court also relied upon the fact that the Legislature did not act to clarify the CESA after the 2007 California Forestry Association decision (156 Cal. App.4th 1535), which ruled that Section 45’s “fish” definition applied to the endangered and threatened sections of the CESA.  “When the legislature amends a statute without changing the statute in response to a prior judicial construction, it is presumed the Legislature knew of the interpretation and acquiesced to it.”  Opinion at 22 (citing People v. Blakeley (2000) 23 Cal.4th 82, 89).  The inclusion of the snail by the Legislature also was the “hook” that made the Court of Appeal find that a protected “invertebrate” could be of the terrestrial or the aquatic variety.

The Court concluded that the term “fish” was therefore a “term of art” and could encompass species that reach far beyond its colloquial meaning — a rationale that takes a bit of the “sting” out of the seemingly absurd “a bee is now a fish” headlines that followed the decision.

What are the practical effects of this ruling?  For the four bumblebee species, it means that mitigation measures and alternatives may need to be considered before certain activities (hunt, pursue, catch, capture, or kill or attempt to undertake these actions) can be undertaken.  Exceptions exist, including for acts of “lawful routine agricultural activities.” See Fish & Game Code  §  2087 (“accidental take”).

But what of the transportation of bees into California to pollinate almond crops?  California is the source of approximately 80% of the world’s almond supply and roughly 80% of all commercial bee colonies in the United States visit California to pollinate almonds.  Will this “transport” of an endangered species into and throughout California be considered to be part of the routine agriculture process, require an incidental take permit, or be outright illegal?  The practical effect on the California almond industry – which is extremely reliant on bees – may face an uncertain regulatory future.


Is California’s Dog and Cat Bill of Rights a Trojan Horse?

by Michelle C. Pardo

On February 8, 2022, California Assemblyman Miguel Santiago (D-Los Angeles) introduced Assembly Bill 1881, referred to as the Dog and Cat Bill of Rights.  The purported purpose of the bill is to inform potential adopters of the care needed to create a healthy environment for their adopted pets.

While recognizing that existing animal welfare laws address animal abuse and neglect, the pet-centric Bill of Rights seeks to codify dog and cats fundamental rights and impose new duties on local public officials and organizations to post these rights so that adoptive families can be informed of pet ownership responsibilities. Continue reading “Is California’s Dog and Cat Bill of Rights a Trojan Horse?”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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