The self-proclaimed activist “Prince of Whales,” Richard Strahan, received a partial victory this week in his lawsuit alleging that Massachusetts’ regulations requiring lobster fisherman to use certain gear violate the Endangered Species Act.
In 2002 Congress made clear that the Animal Welfare Act (“AWA”) protects birds, but the USDA has not issued bird-specific Animal Welfare Act regulations in the ensuing 18 years, much to the chagrin of animal rights groups. But their luck may be changing.
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.
A federal judge in the Northern District of California recently dismissed a false advertising case brought by two non-profit groups, finding that their own testimony sunk their claims.
The two plaintiffs, the Center for Food Safety and Friends of the Earth, sued Sanderson Farms Inc. (“Sanderson”), alleging that Sanderson’s advertisements of its chicken as “100 percent natural” was misleading in violation of California’s Unfair Competition Law (“UCL”) and False Advertising Law (“FAL”). The organizations alleged that reasonable consumers would interpret the statement “100 percent natural” to mean that the chicken was raised without any antibiotics ever, whereas Sanderson’s chicken products are raised with antibiotics, but such antibiotics have cleared prior to sale. In December 2018, the judge denied Sanderson’s motion to dismiss, finding that the organizations had adequately alleged violations of the UCL and FAL. The case then proceeded into discovery.
On July 31, 2019, however, the judge granted Sanderson’s new motion to dismiss, holding that the organizations lacked standing to bring the case. Friends of the Earth, et al. v. Sanderson Farms, Inc., No. 3:17-cv-03592-RS (N.D. Cal. July 31, 2019) (ECF 221). While the organizations alleged in their complaint that they had diverted resources to combat Sanderson’s allegedly misleading advertising, the evidence produced in discovery revealed that to be false. The judge found that the activities the organizations undertook were related to antibiotic use generally, and were not in reaction to Sanderson’s advertising. “Perhaps most damaging,” the judge found, were the organizations’ own depositions, in which they admitted “they did not divert resources because of Sanderson’s advertising” and stated that “they would have undertaken the same advocacy activities—including advocating against the use of antibiotics in animal agriculture and discouraging consumers from purchasing meat raised with routine antibiotics—even if Sanderson had never aired the challenged advertisements,” and that “they would have encouraged Sanderson’s customers to avoid Sanderson and other products that used routine antibiotics regardless of the existence of the advertising.” Id. at 5-6. In other words, the organizations’ real issue was with Sanderson’s practices, not its advertising. But, as the judge found, “This is a false advertising case, and Plaintiffs must establish that their alleged injury is traceable to the challenged ads at issue.” Id. at 6. Because the organizations fatally undercut their own claim that any “injury” they had was caused by Sanderson’s advertising, the judge dismissed their case.
This case is a good reminder of two points for companies who might find themselves on the defense side of a federal case brought by an advocacy group—
First, for a plaintiff to have a successful case, not only must they have a substantive claim (here, alleged violation of false advertising statutes), but they also must have a valid theory of standing. In federal court, to have standing a plaintiff must have an injury that is caused by the action of the defendant and redressable by a favorable ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). For cases involving individual plaintiffs, standing theories can often be straightforward (e.g., “I sustained a physical injury when the defendant ran the red light and hit me” or “I spent money on this product that was falsely advertised that I wouldn’t have spent if it was truthfully advertised”). When organizations decide to become plaintiffs, they often have to use other standing theories. Some common theories: informational injury standing (a statute requires that the organization be provided certain information that was withheld). See, e.g., Federal Election Commission v. Akins, 524 U.S. 11 (1998)); organizational injury standing (defendant’s conduct frustrates the organization’s mission and caused it to divert resources away from programmatic activities towards combatting the defendant’s conduct). See, e.g., La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083 (9th Cir. 2010)); and associational standing (at least one of the organization’s members has standing to sue in their own right; the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members). See, e.g., Friends of the Earth v. Laidlaw Envtl. Servs., (TOC), Inc., 528 U.S. 167 (2000).
It is important for defendants to think not just about how to defend themselves on the substance/merits of the claims in a lawsuit, but also to think about whether the person/entity bringing the lawsuit actually has the right to do so. If the plaintiff does not have standing, the case should be dismissed regardless of the strength of the underlying claim. In the Sanderson case, the judge previously found that the plaintiff organizations had adequately alleged their substantive UCL and FAL claims, but ultimately dismissed the entire case because the organizations could not establish the organizational injury standing they pled—they could not show that they had diverted organizational resources as a result of the alleged false advertising.
Second, a defendant can raise a plaintiff’s lack of standing at any point in the case. Defendants often want to bring such a challenge in a motion to dismiss at the beginning of a case before expending resources on discovery. However, on a motion to dismiss, the judge is required to assume that the allegations in the complaint are true. For example, if an organizational plaintiff alleges that it diverted funds from one of its activities to combatting a defendant’s false advertising, the judge must assume that is true, making it difficult for a defendant to succeed in getting a well-pleaded case dismissed for lack of standing at the motion to dismiss stage. However, defendants should take heart that if forced to go into discovery on the merits, they should take the opportunity to get discovery on the plaintiff’s standing theory. The deposition testimony given by the plaintiffs in the Sanderson case is ultimately what led to their demise and the dismissal of the case. Defendants should remember that even if they fail at getting a case dismissed for lack of standing early in the case, that they should try, try again. The burden to prove standing is on the plaintiffs throughout a case, and the bar for what they must demonstrate gets raised at each stage. Adequately alleging standing is not the same thing as proving it. Sometimes, as in the Sanderson case, discovery can reveal that it is a plaintiff’s standing theory (not the defendant’s advertising) that is false.
People for the Ethical Treatment of Animals (PETA) recently filed a complaint alleging animal cruelty at a Maine lobster processing plant. PETA claims that an undercover video recorded at the processing plant shows lobsters being dismembered while still alive, causing them unjustifiable pain and suffering. Maine’s animal cruelty statute prohibits killing an animal by a method that does not cause instantaneous death, and also prohibits injuring, torturing, or intentionally mutilating an animal. Me. Rev. Stat. Ann. tit. 17, § 1031(1)(B), (1)(D). PETA notes that other companies use alternative methods for killing lobsters instantly by using high water jets or electro-stunning devices.
PETA has tried and failed at this before. When PETA previously filed a complaint about alleged animal cruelty of lobsters by another Maine processing plant, the district attorney refused to prosecute, finding that Maine’s animal cruelty laws were not intended to cover invertebrate species like lobsters and crabs. Maine’s statute defines “animal” to include “every living, sentient creature not a human being.” Me. Rev. Stat. Ann. tit. 17, § 1011. This could explain why PETA now cites to research purporting to show that lobsters can feel pain—i.e., are sentient. If PETA can convince this prosecutor that lobsters are sentient and therefore covered by Maine’s animal cruelty act, perhaps its complaint could get past step one this time.
This is only the most recent chapter of PETA’s crustacean crusade. In addition to its previous lobster cruelty complaint, it also unsuccessfully sought to erect a roadside marker dedicated to lobsters who died when a truck crashed at that location, and purchased a billboard in Maryland trying to dissuade people from eating crabs. One seafood restaurant fought back by erecting its own pithy billboards and engaging in a social media campaign promoting consumption of crabs, as previously blogged about here.
An advocacy group called the White Coat Waste Project has filed a lawsuit in federal court arguing that the United States Department of Agriculture (“USDA”) has wrongfully withheld documents related to experiments conducted on cats at its Beltsville, Maryland Agricultural Research Center. White Coat Waste Project v. United States Department of Agriculture, No. 1:18-cv-02070 (D.D.C.). Using the federal Freedom of Information Act (“FOIA”), the White Coat Waste Project requested records related to the USDA’s “Toxoplasmosis in Cats” study, including veterinary records for all cats and kittens used in the experiment, as well as a complete project budget. Having received no response to its FOIA request within the statutory time limit, the White Coat Waste Project filed the lawsuit seeking a declaration that the USDA’s failure to respond to its FOIA request was unlawful, ordering USDA to produce the requested records, and for its attorneys’ fees. Continue reading “A Bipartisan Challenge to Animal Experimentation”