On February 3, 2025, the United States Department of Agriculture’s (USDA) Office of Inspector General (OIG) released a report of an audit that OIG had performed of the Animal Care Program Oversight of Dog Breeder Inspections. Audit Report 33601-0001-22 (Audit Report).
OIG’s objective? To determine: (1) whether selected dog breeders corrected Animal Welfare Act (AWA) noncompliances previously identified in USDA inspections; and (2) whether the USDA carried out enforcement actions on dog breeders with substantiated AWA violations during the audit period. Audit Report at 3.
Southern Californians have been reeling from the devastation caused by the recent record-breaking wildfires and now face the daunting task of rebuilding their lives. As is the case in the wake of many disasters, a need for answers and accountability as to what caused or contributed to the disaster remains paramount. Just days after the fires started, headlines suggested that a small, nondescript fish – the Delta smelt (Hypomesus transpacificus) is to blame for the Palisades and other Los Angeles area wildfires. Did environmental protections for the Delta smelt really cause a statewide water crisis? Or is the Delta Smelt blame game but a fishy theory that has become a political football?
The Delta smelt is a 2-2.8 inch long fish that lives in the Sacramento-San Joaquin River Delta – a place that has been the center of the fight over water in California. Once present in abundance, the smelt began its decline around the mid-20th century and is now nearing extinction. Most Delta smelt live for only one year and even temporary environmental conditions can greatly affect their population. The largest impact on the fish has occurred after extended periods of drought, which increased the need for California’s cities and farms to pump more delta water – leaving the fish with less fresh, cold water. Other threat factors include disease, competition (including with invasive clams and mussels that were introduced to the river) and predation. Additionally, pumps operated by the state and federal government can suck smelt and other fish into the system.
The Delta Smelt’s Protections
The listing of the Delta Smelt – first, in 1993 as threatened under the federal Endangered Species Act (ESA) and the state analog, California Endangered Species Act (CESA), and later uplisted to endangered in California (2010) – affects how much water can be pulled from the delta.
When listed as threatened or endangered under the federal ESA, several protections kick in. The ESA makes it illegal to import, export, take, posses, sell or transport an endangered species. 16 U.S.C. § 1538. It also provides that land or water necessary for the survival of the species may be designated as “critical habitat.” While the designation of critical habitat does not prevent all development or other activities in a designated area, activities that involve a federal permit, license or funding and are likely to destroy or adversely modify critical habitat, must undergo analysis and amendments to the project to proceed without adversely affecting critical habitat. Highly-charged disputes often occur when the government uses controversial or methods not ground in accepted science to assess what areas are actually occupied by the species and what physical and biological features a species needs to survive.
According to the U.S. Fish and Wildlife Service, “An area may be excluded from critical habitat designation based on economic, national security, or other relevant impacts. In some cases, we may determine that the benefits of excluding it outweigh the benefits of including it.” https://www.fws.gov/sites/default/files/documents/critical-habitat-fact-sheet.pdf.
While an oversimplification of a complex issue, this is where the competing interests of those cities and farms that have a desperate need for water come head to head with the needs of the Delta smelt and other fish endemic to California to survive.
Swimming Into Political Controversy
California’s water management policies have long clashed with environmentalists, agricultural interests and urban planners. Why? As it turns out, water is universally necessary, but agricultural, fishing, municipal and wildlife uses all have different priorities.
During President Trump’s first Administration, new rules would have allowed farmers to access more water from California’ s largest river systems. Environmentalists claimed it would push the Delta smelt and other species to the brink of extinction. In 2019, two federal agencies issued biological opinions under the ESA that despite finding federal action would not jeopardize listed species, the water projects actually reduce protections for the species and their critical habitat in contravention of the ESA and its purpose. An ESA biological opinion – required when a federal agency is authorizing, funding or carrying out an action – is a document that analyzes how a proposed action may impact listed species and critical habitats. 16 USC § 1536(a)(2). If the federal action is likely to harm or jeopardize the listed species, the government may propose alternatives that will minimize the effect on the listed species, or scrap the project. 16 USC § 1536 (b)(1)(3)(A).
In 2020, California sued the federal government, alleging that the biological opinions “failed to take a ‘hard look’ at the environmental impacts of planned the federal water project.” The lawsuit further alleged:
The Central Valley Project harms ESA-listed fish species in the Sacramento River and San Joaquin River watersheds by, for example, directly taking fish at the project’s South Delta pumping facility, redirecting fish from their migratory pathways, and altering the species’ natural habitat. Habitat alterations resulting from project operations include changes to river flow, hydrology, salinity, and water temperature.
Becerra v. Ross et al., No. 3:20-cv-01299 (N.D. Cal) at p. 8.
The Trump Administration described the lawsuit as a “catastrophic halt” of “enormous amounts of water to flow from the snow melt and rainwater in rivers in North California to beneficial use in the Central Valley and Southern California.”
Fast forward to January 7, 2025, when parts of Southern California was hit with the most devastating wildfires on record. The wildfires – and what contributed to them – has revived this contentious debate. The Delta smelt – previously described by President Trump as “an essentially worthless fish” was targeted as the culprit for why farmers and cities had limitations on the amount of water they could receive.
But in addition to the water needed by farmers and major cities, endangered and threatened species like the Delta smelt require their own flow of fresh water, known as “outflow.” Without the needed outflow, salt water can move upstream making the delta waters too brackish and potentially harm certain species of fish. To counter this risk, water must be allowed to flow out of the system. The flows needed to protect the region’s ecosystem – which help support migration and spawning of delta smelt, salmon, longfin smelt and other fish species, – account for about 10% of all available flows. Some have called the wildlife-protection outflow as having an insignificant role in water projects.
Governor Newsom’s office rebuffed President Trump’s claims, denying that President Trump ever asked him to sign a “water restoration declaration” and others insist that the Delta smelt is not the source of the controversy regarding water projects.
“immediately start” the work from his first Administration to “route more water from the Sacramento-San Joaquin Delta to other parts of the state for use by the people there who desperately need a reliable water supply.”
The Memo requires the Secretaries of Commerce and the Interior to report to the President regarding progress made in implementing policies in the memo and providing recommendations regarding future implementation.
Governor Gavin Newsom and others in California regulatory agencies have disputed that the Delta smelt and its environmental protections are to blame for water shortages in the state (while also disputing the fact or extent of water shortages in the first place). Some scientists insist that hydrology and outflow to ensure freshwater for human use has much more of an effect on the projects ability to deliver water than the current ESA safeguards. Regardless of who is right, President Trump has suggested that federal disaster aid to recover from the wildfires may be conditioned upon California cooperating with federal government water policies, making it difficult for the state to cling to existing water policy.
One thing remains clear: as urban development continues, and natural resources grow scarce, the clash between a state or municipality’s ability to deliver necessary resources in a manner that does not risk extinction of threatened or endangered species will likely continue.
Last month, the Department of Justice Environmental and Natural Resources Division (ENRD), the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) and the USDA Office of General Counsel (OGC) announced the issuance of a Memorandum of Understanding (MOU) on civil judicial enforcement of the Animal Welfare Act (AWA). What does this mean for USDA licensees and registrants? Our Q&A breaks it down. Continue reading “USDA and DOJ Announce Top Priorities for Civil Enforcement of the Animal Welfare Act”
Wayne Hsiung, the co-founder of Direct Action Everywhere (DxE), a Berkeley, California based animal activist group, was found guilty of two counts of misdemeanor trespass and one count of felony conspiracy to trespass on November 2, following a two month jury trial. The jury could not reach a unanimous verdict on a second felony conspiracy charge, resulting in a mistrial on that charge. Hsiung’s conviction followed six days of deliberations by a jury in Santa Rosa, California. Hsiung was taken into custody immediately following the verdict. Continue reading “Sonoma County Jury Convicts Animal Rights Leader In Farm Trespass Case”
Maine is synonymous with lobster. So states the federal court defamation lawsuit filed this week by a coalition of lobster fishing companies and trade groups against the Monterey Bay Aquarium over its “Seafood Watch” program, which accused Maine fisheries of falsely putting North Atlantic right whales at significant risk of entanglement and risk of extinction. Bean Maine Lobster, Inc., et al. v. Monterey Bay Aquarium Foundation, No. 2:23-cv-00129 (JAW)(D. Maine). Continue reading “Monterey Bay Aquarium in Hot Water Over Alleged Defamatory Statements About Maine Lobster Industry”
The United States Department of Agriculture (USDA) has extended the deadline for submitting comments to an advance notice of proposed rulemaking (ANPR) on standards for handling captive wild and exotic and animals and changes to environmental enrichment requirements for all regulated species.
Stakeholders will now have until April 10, 2023 to submit comments.
USDA’s Animal and Plant Health Inspection Service (APHIS) has requested comments in three particular areas:
Public handling of wild and exotic animals at licensed exhibitor facilities;
Training of personnel who handle wild and exotic animals at licensed facilities; and
Changes to regulated animals’ environments to promote their psychological well-being.
Participating in the comment process is essential for regulated stakeholders, as agencies must consider all “relevant matters presented” and respond in some form to comments received in formulating their rules. If opposition is exceptionally voluminous or strident, an agency may decide to publish a new notice and/or establish a new comment period.
All perspectives are helpful, but keep in mind the following:
DO attempt to respond to the questions asked by the agency. Additional material may be appropriate to include, but try to at least provide the agency with guidance on the requested topics.
DO highlight the financial ramifications to your facility with any significant additions or changes to the regulations. For example, would increased regulations demanding a certain type of training program or experience erect an impractical barrier to staffing? Are certain formal training programs less effective than apprenticeships or on-the-job training? Would such regulations practically require “form” over “substance”?
DO provide comments on whether more particularized regulations on animal enrichment would unnecessarily limit an exhibitor’s ability to provide effective enrichment to their animal populations. Would regulations diminish the ability to be innovative about the nature and type of enrichment? Would they lag behind science and research and therefore create worse, and not better, animal welfare circumstances?
DO describe in detail any unintended, negative effects that further regulation can produce, either to the well-being of particular species or a licensed facility’s ability to practically care for its animals.
DO include “myth-busting” in your comments that call out speculative and philosophical-driven theories of animal welfare and pseudo-science that are not backed by science and research. Include peer-reviewed research or other resources that supports your comments or successful anecdotal cases that are relevant to the issues.
Most importantly, do not assume that another exhibitor will represent your particular interests. Participate and influence regulations that affect your businesses and organizations.
We previously blogged about the Oregon negligence lawsuit that animal activist group Animal Legal Defense Fund (ALDF) brought on behalf of “Justice” — an American Quarter Horse — and his self-described “guardian” against the horse’s former owner. Back in 2017, Justice (formerly named “Shadow” and renamed ostensibly for this lawsuit) was removed from his prior owner’s care for neglect and relocated to a new caretaker. Months later, Justice’s former owner pleaded guilty to first degree animal neglect and was ordered to pay for the cost of Justice’s care prior to July, 2017. Continue reading “Oregon Court of Appeals Rules Animals Are Not Entitled to Legal Personhood”
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.
