animal law – Animal Law Developments

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

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

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

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

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

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

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

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

The rulemaking presents several issues worth considering.

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

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

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

April 7, 2025April 7, 2025 by Tim Stafford

Divorcees in Massachusetts may be forced to have the conversation: ‘You want Tom’s game winning jersey or Brady the Basset Hound?’”

Massachusetts is looking to become the ninth state to standardize a framework for judges to use in determining care and custody of companion animals during divorce.

Pets are property. As much as owners, individually, give their animals value akin to children or siblings, the legal system still considers them property. Yet, pets are continually recognized more and more as beings under state laws.

Recently, states have begun creating frameworks for determining with whom the pet should live based on the “best interest of the animal.” This phrase comes from a parallel phrase in family law: a core principle in determining child custody and visitation. These frameworks are a split from the common considerations in court where the owner is whoever paid the pet’s adoption fee or on a simple community vs. separate property analysis.

An Act standardizing consideration of pets in divorce and separation—Senate Bill 1205 (“S.1205”) and House Bill 1817 (“H.1817”)—has been referred to the Joint Committee on the Judiciary. If passed, an additional section would be added to Chapter 208 (Divorce) of the General Laws which gives four factors for the court to consider in awarding sole or shared custody of a pet:

(i) Whether the parties are seeking sole or shared custody of the animal;
(ii) Each party’s history with the animal, including in acquiring the animal and subsequent amount of time spent, expenses incurred, and caregiving responsibilities undertaken such as feeding, walking, playing, grooming, training, and veterinary visits;
(iii) The emotional attachment of each party to the animal and, if relevant, of any children in the household; and
(iv) Whether any party or person residing with any party has a history of abuse, cruelty, neglect, or violence toward animals or humans including those resulting in a conviction, continuance without a finding, or abuse prevention order.

The factors are written to assess the health, safety, comfort, and well-being of the pet.

It is important to note that Massachusetts recently set new precedent for pet custody, though the decision was limited to disputes between unmarried partners. In 2024, the Massachusetts Court of Appeals held that pets, though property, are “special.” Lyman v. Lanser, 231 N.E.3d 358, 366 (2024). In Lyman, an unmarried couple acquired a Pomeranian dog named Teddy Bear during their relationship. They orally agreed to share custody of Teddy Bear if they ever split up. Upon their split, Plaintiff sought specific performance of their agreement against his ex-girlfriend who had, for two years, refused to let him visit Teddy Bear. Plaintiff’s attorneys, Boston Dog Lawyers, argued that pets should warrant special consideration under the law because of their distinct personalities and emotional value. The Lyman case will likely be discussed at the upcoming hearing on S.1205/H.1817.

Senate Bill 1205; House Bill 1817

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

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

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

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

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

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

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

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

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

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

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

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

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

March 10, 2025March 10, 2025 by John M. Simpson

PETA Claims First Amendment Right to Communicate with Monkeys

The Beach Boys wrote a song called “Pet Sounds.” In a recently filed federal lawsuit, animal rights organization People for the Ethical Treatment Animals (“PETA”) claims that it has a First Amendment right to receive monkey sounds (as well as monkey movements).

The lawsuit, filed on March 6, 2025 in the U.S. District Court for the District of Maryland, is entitled People for the Ethical Treatment of Animals v. National Institute of Mental Health, et al., No. 8:25-cv-00736-PX. The case centers on research done in an NIMH laboratory that utilizes the Rhesus Macaque. According to the Tulane University National Primate Research Center, Rhesus Macaques are placed within the Cercopithecidae family (Old World Monkeys), So, for simplicity, we’ll refer to them as monkeys.

The gravamen of the lawsuit is that the federal defendants turned down PETA’s request for a live-stream audiovisual feed of the monkeys in the laboratory. PETA claims that the monkeys are “willing speakers” who “regularly communicat[e]” about their physical and psychological condition. According to PETA’s complaint, experts in monkey communication claim the ability to understand the information that the animal sounds, body posture, facial expression and other actions purportedly convey. PETA claims that denying it the ability to communicate with “fellow primates” violates PETA’s First Amendment rights, and PETA therefore wants the court to permanently enjoin the defendants from “withholding from PETA … access to the rhesus macaques’ communications.”

PETA’s track record in opposing animal-based medical and mental health research is well-known. Thus, most of the complaint is devoted to describing the research that is performed, the conditions of the laboratory and in making PETA’s overall case for the abolition of animal-based research. However, the First Amendment predicate for the case is extremely thin, if not nonexistent. PETA cites a number of cases to the effect that there is a First Amendment right to receive information even though the speaker may not, itself, have a First Amendment right. But PETA cites no case (and we are aware of none) holding that the sounds and body gestures of a monkey constitute speech that is protected under the First Amendment – whether it concerns the speaker’s right to speak or the listener’s right to receive.

PETA’s complaint also pleads a denial of due process under the Fifth Amendment but is very vague on what “property” or “liberty” interest of PETA was allegedly violated.

This isn’t the first time that PETA and other animal rights groups have sought attention by trying to get a court to confer human rights on an animal, but very few of these efforts has succeeded. Thus, killer whales are not subject to the Thirteenth Amendment, elephants are not covered by the writ of habeas corpus, a Bengal tiger can’t pursue a Freedom of Information Act request, humans don’t have “next friend” standing to pursue a copyright claim on behalf of a monkey or a bill of attainder claim on behalf of a barn owl, and dogs, birds and dugongs don’t have standing in federal court to sue. PETA’s current effort to have a federal court declare monkey speech protected by the First Amendment would clearly seem to be headed for a similar fate. Indeed, the U.S. Court of Appeals for the Eleventh Circuit rejected an effort to invoke the First Amendment on behalf of “Blackie the Talking Cat,” an animal that allegedly “spoke, for a fee, on radio and on television shows such as ‘That’s Incredible.’” Miles v. City Council of Augusta, Ga., 710 F.2d 1542, 1543 (11th Cir. 1983) (per curiam). Affirming dismissal of the First Amendment claim, the court ruled that it “will not hear a claim that Blackie’s right to free speech has been infringed. . . . [A]lthough Blackie arguably possesses a very unusual ability, he cannot be considered a ‘person’ and is therefore not protected by the Bill of Rights.” Id. at 1544 n.5.

February 4, 2025February 4, 2025 by John M. Simpson

PETA’s Animal Shelter Still Shows Grim Euthanasia Results

Animal rights group People for the Ethical Treatment of Animals (PETA) runs a facility that it calls an animal “shelter” in Norfolk, Virginia. All animal shelters in the Commonwealth of Virginia must report annually the number of animals the shelter takes in and what happened to them. These reports are filed with the Virginia Department of Agriculture and Consumer Services (VADCS) and are publicly available through that agency’s website.

PETA’s reports for 2024 show a high percentage of euthanized animals. PETA has maintained over the years that this death rate is because PETA accepts all types of animals, regardless of how poor the physical condition or likelihood of survival the animal’s situation may be. However, the public shelter in Norfolk — the Norfolk City Animal Control and Public Animal Shelter (NACC) — which also has an open admission policy, has a much lower euthanization rate. PETA has tried to claim that it serves a broader area, but NACC and PETA are only about 6 miles apart, so the differing euthanasia rates are not likely attributable to proximity. Furthermore, the overall euthanasia rate in the Commonwealth of Virginia for dogs and cats also is significantly lower than PETA’s. These trends are shown below in the graph that is based on 2024 filings with VDACS:

PETA’s euthanasia rates for dogs and cats have been consistently high over the last ten years, as the chart below (also based on VDACS collected data) illustrates:

The overall totals for this ten-year period are shown below:

PETA winces at the claim that it kills animals, but it does exactly that and in outsized numbers. If every single one of the dogs and cats that PETA puts down is beyond saving, then PETA ought to be able to say that in their intake policy, which they also must file with VDACS. But they don’t say that. The resulting silence is deafening, particularly when coupled with PETA’s well known, negative views on “pet” ownership:

Consider it from the perspective of animals who are kept as companions: Humans control every aspect of their lives-when and what they eat, whom they interact with, what they have to entertain themselves, even when and where they are allowed to relieve themselves. Dogs long to run, sniff, play with other dogs, and mark their territory. Cats yearn to scratch, climb, perch, and play. But they can’t satisfy these natural desires unless the people they depend on give them the opportunity to do so – and they often don’t.

PETA had $69,874,898 in revenue and $28,958,530 in net assets in 2023 according to its Form 990 filed with the IRS. Maybe PETA could take some of that money and do a better job of adopting out some of the dogs and cats that come into their possession.

July 1, 2024 by John M. Simpson

Supreme Court Guts USDA’s Power to Assess Civil Penalties Under the Animal Welfare Act

Somewhat overshadowed by Chevron’s spectacular crash and burn last week was the Supreme Court’s decision the day before in SEC v. Jarkesy, No. 22-859 (U.S. June 27, 2024), holding that the SEC’s assessment of civil penalties in an administrative proceeding is unconstitutional because it deprives the party assessed of its Seventh Amendment right to trial by jury. This result has particular significance for those regulated by the U.S. Department of Agriculture (USDA) under the Animal Welfare Act (AWA). Continue reading “Supreme Court Guts USDA’s Power to Assess Civil Penalties Under the Animal Welfare Act”

June 13, 2024June 14, 2024 by John M. Simpson

Supreme Court Puts an End to “Resource Drain” Standing

To paraphrase the line from “Forrest Gump,” Supreme Court opinions are like “a box of chocolates; you never know what you are going to get.” For standing nerds, there was a gem in today’s opinion in FDA v. Alliance for Hippocratic Medicine, No. 23-25 (U.S. June 13, 2024). Continue reading “Supreme Court Puts an End to “Resource Drain” Standing”

February 26, 2024 by John M. Simpson

Fourth Circuit Sends Family Dog Shooting Case to Trial

The U.S. Court of Appeals for the Fourth Circuit recently reversed a summary judgment in favor of a police officer who had been sued for an unreasonable seizure under the Fourth Amendment arising out of an incident that had resulted in the shooting death of a pet dog. According to the appellate court, the conflicting accounts of what happened could only be resolved by a jury. Ray v. Roane, No. 22-2120 (4th Cir. Feb. 22, 2024). Continue reading “Fourth Circuit Sends Family Dog Shooting Case to Trial”

February 7, 2024 by John M. Simpson

PETA’s Animal “Shelter” Continues as a Leader in Animal Death

Animal rights group People for the Ethical Treatment of Animals (PETA) recently posted the “news” that it had “newly obtained public records” showing that certain research universities had euthanized laboratory animals during the COVID-19 pandemic and that PETA had complained about this to the National Institutes of Health. In its zeal to attack the use of animals in medical research, PETA described this as a “mass killing spree.” What this ignores, however, as reported by The Chronicle of Higher Education back in 2020 when all this happened, is that universities made these difficult decisions because they had no choice. Social distancing requirements that forced animal care personnel to stay out of the labs, precluded the delivery of proper animal care. It was not humane to allow the animals to go without food, water and other husbandry. But what we thought was particularly interesting is PETA’s use of the rhetoric “mass killing spree” in light of what goes on in its own facility in Norfolk, Virginia. Continue reading “PETA’s Animal “Shelter” Continues as a Leader in Animal Death”

January 9, 2024 by John M. Simpson

Eighth Circuit Animal Rights “Ag Gag Law” Challenge Fail – Part II

Yesterday, we reported on a decision by the U.S. Court of Appeals for the Eighth Circuit that rejected a challenge by animal rights activists to a so-called “ag gag law” in Iowa. In a parallel decision the same day, the court issued another opinion rejecting a First Amendment challenge by animal rights groups to another aspect of the same law. Animal Legal Defense Fund v. Reynolds, No. 22-3464 (8th Cir. Jan. 8, 2024). Continue reading “Eighth Circuit Animal Rights “Ag Gag Law” Challenge Fail – Part II”