Animal Law Developments

June 27, 2022 by Rebecca E. Bazan

“Habitat” Flip Flop – Fish and Wildlife and National Marine Fisheries Services Rescind Trump Administration Definition of “Habitat”

Shortly after the new regulatory definition of “habitat” went into effect, the agencies that promulgated it (the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)) have rescinded it.

The Endangered Species Act (ESA) has been described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978). One of the ways it purports to do so is through the designation and protection of “critical habitat.” The Secretaries of the Interior (FWS) and Commerce (NMFS) designate “critical habitat” for threatened and endangered species. 16 U.S.C. § 1533(a)(3)(A)(i). Once “critical habitat” is designated, the ESA requires federal agencies to ensure that none of their activities (such as granting permits) will “result in the destruction or adverse modification” of the “critical habitat.” 16 U.S.C. § 1536(a)(2).

The term “critical habitat” is defined by the ESA itself, 16 U.S.C. § 1532(5)(A), but the broader term “habitat,” is not. This may seem insignificant, but the difference between “critical habitat” and “habitat” became—one might say, critical—in the Supreme Court’s 2018 opinion Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018). There, the Supreme Court held that an area cannot be designated a “critical habitat” unless it is also a “habitat,” which does not have a statutory definition. Id. at 368-369. The Supreme Court commented that “the statutory definition of ‘critical habitat’ tells us what makes habitat ‘critical,’ not what makes it ‘habitat.’” Id. at 368. The case, however, did not address what is or should qualify as “habitat.”

In response to this decision, FWS and NMFS promulgated the following regulatory definition of “habitat”: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” 50 C.F.R. § 424.02. The “habitat definition rule” was published on December 16, 2020 became effective on January 15, 2021.

Then came a change in administration and an about-face on the “habitat definition rule.” On January 20, 2021 President Biden issued an Executive Order that required agencies to review federal regulations and actions taken between January 20, 2017 and January 20, 2021 (i.e., during the Trump administration) to determine their consistency with the Biden administration’s policy considerations.

Following that review, the agencies (FWS and NMFS) decided to rescind their own “habitat definition rule.” 87 FR 37757. They noted that the regulatory definition was unclear, confusing, and inconsistent with the conservation purposes of the ESA. Id. The agencies’ main criticism of their own previous rule is that it prevented the designation of areas that did not currently meet a species’ needs, even if the area could in the future do so due to natural processes or reasonable restoration. Id. at 37758. Rather than replace it with a different definition of “habitat,” however, the agencies determined that there should not be a single regulatory definition and that the determination should be made on a case by case basis. Id. at 37759.

The agencies gave a somewhat dissatisfying acknowledgement to the Weyerhaeuser case that set off this regulatory whiplash: “[W]e recognize the importance of the Supreme Court’s ruling in Weyerhaeuser and intend to designate as critical habitat only areas that are habitat for the given listed species.” Id. In other words, while the agencies now claim that it is impossible for them to define “habitat,” they apparently know it when they see it.

Seem clear as mud? We would not be surprised if there is future litigation regarding what constitutes “habitat,” now that the Supreme Court has made it clear that falling within the statutory definition of “critical habitat” is not sufficient and there is not currently a case law, statutory, or regulatory definition of “habitat.”

June 14, 2022 by John M. Simpson

New York’s Highest Court Declares that Elephants are NOT “Legal Persons”

Today, in a major blow to animal rights and nonhuman animal “personhood” advocates, the New York Court of Appeals, in a 5-2 decision, rejected the effort by the NonHuman Rights Project (NhRP) to employ the common law writ of habeas corpus to free an Asian elephant named “Happy” from the Bronx Zoo. In re Nonhuman Rights Project, Inc. v. Breheny, No. 52 (N.Y. June 14, 2022). The case caps a long line of baseless efforts by NhRP in New York to obtain habeas relief for animals. Continue reading “New York’s Highest Court Declares that Elephants are NOT “Legal Persons””

June 10, 2022 by John M. Simpson

PETA’s Defense of Its High Euthanasia Rate Is Unconvincing

In an interview posted on Youtube on June 6, 2022, Ingrid Newkirk, founder of the animal rights group People for the Ethical Treatment of Animals (PETA), discussed several subjects, including claims made in 2004 by comedy team Penn & Teller that PETA kills dogs and cats. Ms. Newkirk described the Penn & Teller claims as “cheap” and “misinformed.” (We have reported in the past (see, for example, here) on the statistics compiled by the Virginia Department of Agriculture and Consumer Services (VDACS) showing that PETA’s shelter in Norfolk, Virginia has a high rate of euthanasia when compared to other shelters operating in the Commonwealth of Virginia.) According to Ms. Newkirk, PETA’s shelter is an “open admission shelter” that takes in “animals that are on their last legs” — “the dregs, if you will” — that “have the door slammed shut on them in other places.” The implication is that this is the reason for the high euthanasia rate. Ms. Newkirk stated that PETA would “never” euthanize a healthy animal.

Ms. Newkirk’s interview came on the heels of an event recently sponsored by PETA called the “Poochella Festival” which PETA described as a “multishelter adoption event” designed to help “Virginia dogs find loving homes.” According to PETA, “[o]ur shelters” — presumably PETA and the four other local animal shelters that participated in the event — “are bursting at the seams with wonderful dogs who would love to become great companions.”

Given its history of euthanizing the vast majority of dogs that it receives, the assertion that PETA is “bursting at the seams” with dogs to be adopted struck us as questionable. So, we decided to look at the reported data to see how PETA compares with the four shelters that PETA stated participated in “Poochella:” Chesapeake Animal Services, the Norfolk SPCA, Virginia Beach Animal Control, and the Virginia Beach SPCA.

Continue reading “PETA’s Defense of Its High Euthanasia Rate Is Unconvincing”

June 9, 2022June 10, 2022 by Michelle Pardo

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.

April 14, 2022 by John M. Simpson

COVID-19 In Animals Continues To Be Minor Issue In U.S.

While the overwhelming focus of the COVID-19 pandemic has been on the effect that the virus has had on humankind, there have been documented cases of the SARS-CoV-2 virus infecting animals. The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) tracks the incidence of the the virus in animals in the U.S. That analysis continues to show that infection in animals is quite small. Continue reading “COVID-19 In Animals Continues To Be Minor Issue In U.S.”

April 5, 2022 by John M. Simpson

Ecuadorian Animal Rights Decision is Mixed Bag

Animal rights activists have pointed to a recent decision by the highest court in Ecuador — the Constitutional Court (Corte Constitucional Del Ecuador) — as a breakthrough for animal rights. As the NonHuman Rights Project (NHRP) described it, the decision “constitutes one of the most important advances in the field of animal rights and environmental law in recent years. . . . The Court’s groundbreaking ruling advances the constitutional protection of animals — ranging from the level of species to the individual animal — with their own inherent value and needs.”

Upon closer examination, the Court’s Final Judgment is not as far-reaching as has been claimed. Continue reading “Ecuadorian Animal Rights Decision is Mixed Bag”

March 2, 2022March 2, 2022 by Michelle Pardo

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?”

February 14, 2022February 16, 2022 by John M. Simpson

Two Major Animal Rights Initiatives Rejected in Switzerland

On February 13, as millions of people in the U.S. prepared for and watched the Super Bowl, voters in Switzerland rejected two significant animal rights initiatives. As reported (here and here) by SWI swissinfo.ch — the international unit of the Swiss Broadcasting Corporation — the proposed measures included a country-wide ban on animal testing and a measure that would have given non-primate humans certain rights in the canton of Basel-Stadt. Continue reading “Two Major Animal Rights Initiatives Rejected in Switzerland”

February 7, 2022June 24, 2022 by John M. Simpson

PETA’s Animal “Shelter” Continues High Euthanasia Rate

It’s that time of year again when animal shelters in the Commonwealth of Virginia must submit their annual summary of animal custody records to the Virginia Department of Agriculture and Consumer Services (VDACS). Any shelter operating in Virginia must report how many animals it had on hand at the beginning of the year, how many it had at the end of the year and what happened to them. Specifically, VDACS requires that the shelter report the number of animals euthanized. Continue reading “PETA’s Animal “Shelter” Continues High Euthanasia Rate”

December 17, 2021December 17, 2021 by Michelle Pardo

Animal Rights Groups Don’t Want FSIS to Mandate Identification of Lab-Grown Meat Production Process on Product Labels

By Michelle C. Pardo

Four animal rights groups have submitted a joint public comment in response to the Food Safety and Inspection Service’s (FSIS) advanced notice of proposed rulemaking on the labeling of meat and poultry products comprised of or containing cultured cells derived from animals subject to the Federal Meat Inspection Act or the Poultry Products Inspection Act.

While cell-cultured or lab grown meat (also referred to as “clean meat” or “fake meat”) has been in the headlines for years, the road to federal regulation of such products and their debut on store shelves is still a work in progress. We previously blogged about animal rights groups’ efforts to stop state consumer fraud laws from limiting their ability to label and market lab-grown, insect or plant-based foods. (Read those blog entries here; here; here; and here). But, the bigger stakes (steaks?) regarding meat labeling are set to occur at the federal level during the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS)’s rulemaking. Continue reading “Animal Rights Groups Don’t Want FSIS to Mandate Identification of Lab-Grown Meat Production Process on Product Labels”