General – 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.

June 12, 2026June 15, 2026 by Flora Lee

The End of an Era: HUD’s 2026 Guidance Upends Emotional Support Animal Accommodations in Housing

By: Flora Lee

On May 22, 2026, the U.S. Department of Housing and Urban Development’s (HUD) Office of Fair Housing and Equal Opportunity (FHEO) permanently rescinded its longstanding guidance on emotional support animals. In its place, the agency announced a sweeping new enforcement standard that fundamentally realigns federal housing law with the Americans with Disabilities Act (ADA). For landlords, property managers, colleges, and tenants alike, this is a seismic shift. It closes a gap between housing and other sectors that has persisted for over a decade.

Service Animals vs. Emotional Support Animals: Understanding the Divide

Under the ADA, a service animal is a dog (or a miniature horse under certain circumstances) individually trained to perform tasks for someone with a disability. Those tasks must be directly related to the person’s disability—such as guiding someone who is blind, alerting someone who is deaf, pulling a wheelchair, assisting during a seizure, or calming a person with PTSD through a trained, specific action. Critically, a dog’s mere presence providing comfort does not qualify. The dog must be trained to take a specific action when needed.

Emotional support animals (ESAs), by contrast, provide comfort, companionship, or emotional well-being—but they have not been trained to perform a specific task related to a disability. As the ADA regulations put it: “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks.” An ESA can be any species and requires no training.

Here is the practical distinction: if a dog is trained to sense an oncoming anxiety attack and respond with a specific action to help avoid it, the dog is a service animal. If the dog simply provides comfort by being present, the dog is an ESA and does not qualify under the ADA. Service animals must be permitted in all public places (restaurants, shops, hospitals, schools, and hotels) even where “no pets” policies apply, with no documentation required. ESAs receive no such protection.

The Housing Exception: How the 2020 Guidance Kept ESAs Alive

The divergence between housing and other sectors was most dramatically illustrated by the airline industry. The Air Carrier Access Act previously permitted ESAs on flights. But in January 2021, the U.S. Department of Transportation revised its rules to limit in-cabin animal access to trained service dogs, eliminating ESA accommodations entirely. After years of what some claimed was widespread abuse, airlines could treat ESAs as ordinary pets.

Housing took a very different path. The Fair Housing Act (FHA) requires landlords to make “reasonable accommodations” so that disabled persons have equal opportunity to use and enjoy a dwelling. Through sub-regulatory guidance issued in 2008, 2013, and culminating in the January 2020 FHEO Notice, HUD expanded its interpretation far beyond the ADA. The agency declared untrained ESAs “are not pets,” prohibited pet fees for them, and treated denials—or even follow-up questions—as potential fair housing violations.

Although framed as nonbinding best practices, the guidance was widely treated as categorical law, causing housing standards to diverge dramatically from the ADA. An entire online “certification” industry emerged, and by 2026, over 20% of FHEO’s caseload revolved around untrained ESAs.

The 2026 Guidance: A Dramatic Realignment

On May 22, 2026, HUD Assistant Secretary Craig W. Trainor permanently rescinded FHEO’s 2020 notice and adopted a fundamentally new enforcement posture. The impetus was twofold. First, President Trump’s February 2025 executive order directed agencies to “de-prioritize actions to enforce regulations that are based on anything other than the best reading of a statute.” Second, a federal court in Henderson v. Five Properties LLC, No. 24-750 (E.D. La. July 16, 2025), found HUD’s prior guidance “unpersuasive.”

The new standard is straightforward: FHEO will now use the ADA’s training requirement to assess animal-related reasonable accommodation complaints under the FHA. In practice, FHEO will find reasonable cause for failure to accommodate only where the animal has been individually trained to perform work or tasks directly related to the complainant’s disability. Requests involving trained assistance animals are “presumptively reasonable.” Requests involving untrained ESAs are not, and FHEO no longer expects housing providers to extend trained-animal accommodations to untrained ESAs as a categorical matter.

Unlike the ADA, which limits service animals to dogs (and miniature horses under certain conditions), the new guidance permits other species—so long as the animal is trained to perform a disability-related task. The operative requirement is training, not mere emotional comfort. The memorandum also directs all open ESA cases to be reevaluated on a case-by-case basis under this new standard.

Practically speaking, how will the legal landscape look different for tenants and residents?

What This Means in Practice: Examples

The Apartment Landlord

Pre 2026 guidance, consider a landlord who owns a building with a “no pets” policy and a standard nonrefundable $500 animal fee for tenants permitted to keep pets. Under the 2020 guidance, if a tenant submitted a letter from a healthcare provider stating she needed her untrained dog for emotional support, the landlord was expected to waive both the no-pet policy and the animal fee. Housing providers could “not charge a deposit, fee, or surcharge for an assistance animal.” Denying the request or even asking follow-up questions risked an FHEO complaint. Under the new standard, that same landlord may treat the untrained ESA request as not presumptively reasonable and apply its standard pet fee.

The Homeowner’s Association

Similarly, prior guidance required a Homeowner’s Association with a dog weight limit to waive this limit to accommodate ESAs. Now, if the resident’s 80-pound dog is not trained to perform a specific disability-related task, the HOA is no longer expected by FHEO to waive its breed or size restrictions as a categorical matter. The HOA may enforce its rules, though it should still evaluate any request on a case-by-case basis and remain mindful of applicable state laws that may provide broader protections.

Important Caveats and What Comes Next

Despite this sweeping change, the memorandum has important limitations. First, it expressly preserves private rights of action. Complainants may still file civil actions in federal or state court within two years. So even though FHEO will not pursue enforcement for untrained ESAs, private litigants can still sue under the FHA.

Second, state and local laws are unaffected. Many jurisdictions have independent fair housing laws that may impose broader ESA obligations than the new federal standard.

Third, HUD intends to engage in formal notice-and-comment rulemaking to harmonize its regulations with the ADA. The agency acknowledges that its animal-related accommodation rules have not been updated in 35 years. This upcoming rulemaking will give all stakeholders an opportunity to shape the permanent framework.

Finally, housing providers should document accommodation decisions carefully and consult counsel, as courts will continue applying fact-specific analyses to FHA claims regardless of HUD’s enforcement posture.

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.

March 17, 2026March 17, 2026 by Michelle Pardo

Coral Reefs Won’t Enjoy “Personhood” Legal Rights in Hawaii

By Michelle C. Pardo

A controversial legislative effort to grant coral reefs and watersheds “legal personhood” in Hawaii has been voted down by the state legislature. The Na Aina no I’a Act (NANI Act) sought to grant the respective ecosystems all “rights, powers, and protections of a legal person” including “the capacity to be represented in legal proceedings” and to “exercise rights and protections under the law.” Had the legislation passed, it would have joined a small but vocal “rights-of-nature” movement to grant ecosystems inherent legal rights.

The environmental benefits of coral reefs and the threats to their vitality by climate change and other damage hardly need to be debated. These important ecosystems already are protected by environmental regulations. However, those advocating for “legal personhood” for reefs, rivers, and forests argue that environmental regulations are too weak or not enforced effectively to provide appropriate protections. The NANI Act would have allowed any individual to bring a lawsuit on behalf of a coral reef or watershed to seek an injunction to stop the harmful activity and order additional relief like restoration plans, monitoring and long-term stewardship obligations.

While granting legal personhood to coral may sound offbeat and perplexing, it would not have been the first time that “nature” would have been recognized as legal persons. In 2017, the Whanganui River in New Zealand was granted legal personhood through the Te Awa Tupua Act, making it the first river in the world to be recognized as a living entity with the same legal rights as people.

Environmental personhood laws typically emerge from indigenous or local community practices and cultural values about nature’s role in society. The personhood status of the Whanganui River brought the “longest running litigation in New Zealand’s history” to an end and paved the way for other countries to follow suit. In 2022, Spain recognized the Mar Menor lagoon in the Iberian Peninsula as having the rights of a legal person. Canada has done so for the Magpie River.

In the United States, to date the movement has not been very successful, although the Klamath River in Northern California was granted personhood rights under tribal law. In 2019, the City of Toledo, Ohio voted to establish the Lake Erie Bill of Rights (LEBOR) which would have given personhood status to Lake Erie and granted the people of Toledo the right to sue on behalf of Lake Erie. A federal lawsuit defeated LEBOR, despite the law being recognized as a well-intentioned effort for environmental protection.

In holding that the law was unconstitutionally vague, a federal court stated: “LEBOR’s authors failed to make hard choices regarding the appropriate balance between environmental protection and economic activity. Instead, they employed language that sounds powerful but has no practical meaning.” According to the court, this language could “trap the innocent [agricultural companies] by not providing fair warning” and invited arbitrary enforcement by prosecutors, judges and juries. Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d 551, 556 (N.D. Ohio 2020).

The unsuccessful Hawaii bill, likely suspecting that private citizens with their own ideologies and agendas could burden the judicial system, attempted to qualify the personhood right of action by requiring that any lawsuit brought on behalf of the coral reefs or watersheds be “accompanied by a science-backed claim.” NANI Act, SB 3323, § 4. Nonetheless, it also mandated that courts “liberally grant standing to persons enforcing this chapter, in recognition of their kuleana (responsibility) as stewards of the affected ecosystem person.”

Recently, a Minnesota state senator advocated for SF 3749, which would amend Minnesota Statutes 2024, section 1.148 — the state law governing wild rice — to “recognize the inherent right of uncultivated wild rice to exist and thrive in Minnesota.” The amendment would also require photographs of wild rice to be displayed in the office of the Minnesota Secretary of State.

For now, the rights of nature movement and those that seek to grant nonhuman animals legal personhood, have gained more headlines than legal victories.

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.