Oregon Court of Appeals Rules Animals Are Not Entitled to Legal Personhood

by Michelle C. Pardo

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”

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.

 

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?”

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”

Animal Rights Group’s “Purely Speculative” Changes to Wildlife Management Plan Don’t Support Emergency Relief for Tule Elk

By Michelle C. Pardo

On June 22, 2021, Animal Legal Defense Fund (ALDF) and three individuals (represented by Harvard University’s Animal Law & Policy Clinic) brought an Administrative Procedure Act (APA) case against the Secretary of the Interior, the Acting Director of the National Park Service, and the Superintendent of Point Reyes National Seashore, regarding what plaintiffs allege is the federal government’s inhumane management practices of Tule elk, a species of elk native to California. At issue: the government’s alleged failure to revise the 1980 General Management Plan for the Tomales Point portion of the Point Reyes National Seashore (located in Marin County, California) where 293 Tule elk live as well as the 1998 Tule Elk Management Plan, which provided for elk restoration and conservation. Continue reading “Animal Rights Group’s “Purely Speculative” Changes to Wildlife Management Plan Don’t Support Emergency Relief for Tule Elk”

Animal Rights Group Sues USDA Over “Non-Enforcement” of Animal Welfare Act

By Michelle C. Pardo

Earlier this month, animal rights group The American Society for the Prevention of Cruelty to Animals (ASPCA) filed a lawsuit under the Administrative Procedure Act (APA) against the U.S. Department of Agriculture (USDA) for what it alleges to be the agency’s non-enforcement of the Animal Welfare Act (AWA) as it pertains to commercially bred dogs. ASPCA v. Animal and Plant Health Inspection Service, et al. (1:21-cv-01600) (D.D.C.). Continue reading “Animal Rights Group Sues USDA Over “Non-Enforcement” of Animal Welfare Act”

Emotional Support Animals Lose Status on U.S. Flights

by Michelle C. Pardo

As Americans begin to ramp up air travel, they may notice less four-legged passengers on their flights.  On January 11, 2020, the Department of Transportation’s (DOT) new rules regarding service animals on flights went into effect and may have a material effect on the type and volume of animals that travel on domestic flights. Continue reading “Emotional Support Animals Lose Status on U.S. Flights”

Animal Activist Group’s “Open Rescue” Violates California’s Unfair Competition Law

by Michelle C. Pardo

Animal activist group Direct Action Everywhere (“DxE”), which made headlines for its members’ multiple criminal charges as a result of trespassing and removing animals from agriculture operations, has been enjoined for its violation of California’s Unfair Competition Law (“UCL”) for its “open rescue” actions against Diestel Turkey Ranch.  After targeting Diestel’s turkey farms with its tactics, and launching an “investigation” of its turkey raising practices, back in January of 2017, DxE sued Diestel in the Alameda County Superior Court under the UCL and the False Advertising Law (FAL).  DxE alleged that Diestel Turkey Ranch’s marketing had made misleading and deceptive claims about how its turkeys are raised.  Direct Action Everywhere SF Bay Area v. Diestel Turkey Ranch (RG17847475) (Superior Court, Alameda County). Continue reading “Animal Activist Group’s “Open Rescue” Violates California’s Unfair Competition Law”

California Federal Court Serves Up a Win to Foie Gras Producers

by Michelle C. Pardo

In 2004, after a strong push from animal rights activists, California banned the production and sale of foie gras, a luxury gourmet food and traditional French delicacy that is made from duck or geese liver.   See CA Health & Safety Code, Section 25982 (“A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond a normal size.”).  The ban went into effect in 2012.  Years of litigation by a restaurant operator and a coalition of foie gras producers, which challenged the law as vague and unreasonably interfering with interstate commerce, had been unsuccessful.  In 2017, the Ninth Circuit upheld the statute, and last year, the U.S. Supreme Court declined to hear arguments in the foie gras industry’s challenge to the ban.

This week Stephen V. Wilson, U.S. District Court for the Central District of California, granted plaintiffs’ motion for summary judgment and ruled that the ban did not cover the shipment of foie gras by out-of-state producers to California customers. Association des Eleveurs de Canards et d’Oies du Quebec et al. v. Kamala J. Harris, et al. (2:12-cv-05735-SVW-RZ) (C.D. Cal. July 14, 2020).  Continue reading “California Federal Court Serves Up a Win to Foie Gras Producers”

Pets, Vets, and COVID-19

by Michelle C. Pardo

In these difficult pandemic times, medical talent and personal protective equipment (PPE) have become the most treasured and necessary resources as our nation battles this fast-moving virus.  States and municipalities have been forced to think outside the box to try to source more equipment and identify additional, trained professionals to address the escalating needs of those individuals and facilities treating COVID-19 patients. Continue reading “Pets, Vets, and COVID-19”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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