By Michelle Pardo
Question: What do you get when you cross an Austin Blind salamander, a Barton Springs salamander, a golden-cheeked warbler, and a Texas highway project?
Answer: An Endangered Species lawsuit.
On February 28, 2019, environmental advocacy group Save Our Springs (SOS) and frequent litigator Center for Biological Diversity (Center) sent a 60-Day Notice of Intent to Sue letter to the Texas Department of Transportation (TexDOT), the US Department of Interior and the US Fish and Wildlife Service (FWS), which is a prerequisite to filing a lawsuit pursuant to the Endangered Species Act (ESA).
The ESA is a federal law that prohibits the “taking” of threatened and endangered species, 16 USC § 1538; “take” has means to harass, harm, pursue, hunt, shoot, would, kill, trap, capture or collect (or attempt such conduct).
The environmental groups claim that the construction of the MoPac Intersections Project, a federally-funded highway project for which the TexDOT is the lead agency, risks an illegal “take” of three endangered species. According to the city of Austin’s official government website, the Austin Blind Salamander gets its name because it does not have “image-forming eyes”, a result of living in its dark, underground habitat in the waters of Barton Springs. The aptly-named Barton Springs salamander shares this same habitat. The other critter named in the potential lawsuit – the golden-cheeked warbler – was one of the eight endangered species protected by the first major urban habitat plan in the country. The groups claim that tree removal due to construction impacts the warbler’s nesting and foraging behaviors. Continue reading The Case of the Austin Blind Salamander
by: Michelle Pardo
The “You Kill It, You Grill It” headline dominated yesterday’s news across California and other internet media outlets. California State Senator Bob Archuleta (D-Montebello) has introduced legislation that will amend state law to allow drivers who fatally strike certain animals to retroactively apply for a wildlife salvage permit and consume the meat. Drivers of vehicles (and opportunistic non-drivers who come across roadkill) would be able to take advantage of the new law, which requires applying for a wildlife salvage permit, at no cost, within 24 hours of the collision. Existing law allows only state and local agencies to remove roadkill. The bill’s text notes that each year “it is estimated that over 20,000 deer alone are hit by motor vehicles on California’s roadways” and that “this translates into hundreds of thousands of pounds of healthy meat that could be utilized to feed those in need.”
The bill applies to certain species – deer, elk, antelope and wild pig – and does not cover any animal protected by the California Endangered Species Act. If the animal is injured but not killed by the collision, the bill allows the salvager to dispatch the animal “in a safe, legal, and humane manner”. If passed, the law would go into effect in 2021.
California is not a trailblazer in the area of roadkill legislation. Oregon and Washington both have laws that allow certain roadkill to be salvaged, as well as roughly 20 other states. Many states have tight restrictions on harvesting roadkill and limit the practice to licensed hunters. Oregon’s law, which allows salvaging of deer and elk, went into effect in January of this year. Free permits (with online applications) must be obtained within 24 hours of salvage. Oregon requires the antlers and head of any salvaged animal to be surrendered to an Oregon Department of Fish and Wildlife office within five business days of taking the carcass so as not to incentive the practice of selling body parts (such as antlers) to collectors.
The state of Oregon, which offers a helpful link to the key regulations for salvaging roadkill, warns people who take advantage of the law that they “will consume the meat at their own risk”. The U.S. Department of Agriculture does not regulate roadkill.
Perhaps surprisingly, it has been reported that animal rights activists consider roadkill to be one of the most ethical and environmentally friendly meats. Advocates recognize that these animals were not purposefully raised for food and the meat would otherwise go to waste. California appears to be a leader in “wildlife-vehicle conflict” (WVC) which is studied and cataloged by the University of California—Davis. For those who are curious, the UC—Davis publicly-available website shows the “WVC hotspots” along California’s roadways.
by Michelle C. Pardo
We previously blogged about a legal challenge to Missouri’s amended advertising law that regulates what products are permitted to use the term “meat”. Nebraska is the latest state to consider legislation that aims to define what can be marketed and sold as “meat”. This year, Nebraska lawmakers will consider a bill that defines meat as “any edible portion of any livestock or poultry, carcass, or part thereof.” Excluded from the definition of meat: “lab-grown or insect or plant-based food products.” (Yes, you read that right. Edible insects are apparently on trend and being promoted as an “efficient, sustainable source of protein and nutrients”). Continue reading Animal Rights Activists v. Big Agriculture: Who Gets to Claim Ownership of the Term “Meat”
by Michelle C. Pardo
Last week, New Jersey became the first state in the nation to enact a law prohibiting the use of elephants and other wild or exotic animals in traveling animal acts. Governor Phil Murphy signed a bill authorizing the statewide ban after it received a significant margin of votes in the Legislature. The bill had passed last session but was pocket vetoed by Governor Chris Christie. Continue reading Lions and Tigers and Bears (No Way!): New Jersey Bans Exotic Animals in Traveling Shows
by Michelle C. Pardo
On November 16, 2018, the U.S. Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) announced that the two Agencies will jointly oversee the production of cell-cultured food products derived from livestock and poultry (referred to by some as “clean meat”). This announcement follows October meetings between the two Agencies and stakeholders about issues related to regulatory oversight for this new technology, including issues related to potential hazards in production.
In an official statement:
“the Agencies are today announcing agreement on a joint regulatory framework wherein FDA oversees cell collection, cell banks and cell growth and differentiation. A transition from FDA to USDA oversight will occur during the cell harvest stage. USDA will then oversee the production and labeling of food products derived from the cells of livestock and poultry.”
The Agencies noted that this joint oversight takes advantage of the FDA’s and the USDA’s respective experience with new food technologies, living bio systems, and regulation of livestock and poultry products for human consumption. The Agencies and the Administration have taken the position that no new legislation on this topic is necessary. While many in the meat industry had presumed that the two Agencies would share regulatory oversight, the respective roles were not defined prior to this announcement. Cell-cultured meat companies seemed to have favored the FDA as the primary regulatory agency, while those that raise livestock and poultry for slaughter tended to favor the USDA taking the lead.
Some traditional meat companies have criticized cell-cultured meat technology as “fake meat”. We previously blogged about a lawsuit challenging state laws that limit what type of product can be labeled as “meat”. (“What’s Your Beef: Legal Challenge to Missouri’s Meat Advertising Law) https://blogs.duanemorris.com/animallawdevelopments/tag/clean-meat/. Whatever the products marketed and sold to consumers are eventually called — be it “cell-cultured food products”, “clean meat”, “lab grown meat”, “synthetic meat” or “in vitro meat” — this technology is bound to spark further debate among stakeholders in the food industries, the scientific community, consumers, and animal rights activists.
The public comment period on this issue is extended until December 26, 2018.
We’re hitting the road to attend exciting industry conferences that focus on animal businesses and organizations. If you are attending, please look us up!
On September 24 through 26, Duane Morris animal law attorneys Michelle Pardo and Rebecca Bazan will be attending the Association of Zoos & Aquariums’ Annual Conference in Seattle, Washington. We are looking forward to attending the Icebreaker event at the Seattle Aquarium and a host of informative animal-related sessions.
On October 18, Duane Morris Partner Michelle Pardo will be speaking at the North American Meat Institute’s Animal Care and Handling Conference in Kansas City, MO. The Animal Care and Handling Conference for the Food Industry is the leading animal welfare educational opportunity for meat companies, their customers and those involved in the production and management of livestock and meat products. This important conference has doubled in size since it was launched in 1999 – testament to the increasing significance of animal care and handling in the meat industry.
by Michelle C. Pardo
In August, we updated you about a lawsuit filed by the Animal Legal Defense Fund (ALDF) in which a horse called Justice was the named plaintiff. On September 17, 2019, an Oregon judge rejected the “creative” theory that an animal has legal capacity to sue its former owner and dismissed the case with prejudice, delivering another blow to various animal activist groups’ movement to open the courthouse doors to non-human animal litigants. Continue reading Justice the Horse Will NOT Have his Day in Court
by Michelle C. Pardo
Animal rights and environmental activists have long led the charge into federal and state courts with consumer fraud actions challenging representations made about animal products, ostensibly arguing that consumers are misled by animal welfare claims on labels, but often with the ultimate goal of removing from a label something that the activists fear is influencing consumers’ purchase of an animal product.
Missouri’s new, first-in-the-nation law (amending its prior meat advertising law) prohibits companies from “misrepresenting a product as meat that is not derived from harvested livestock or poultry.” Mo. Rev. Stat. § 265.494(7). This amendment may put animal and environmental activist groups on their heels as it changes the way that products not derived from animals can be labeled.
Continue reading “What’s Your Beef”? Legal Challenge to Missouri’s New Meat Advertising Law
by Michelle Pardo
Last week, a federal district court in the Northern District of California granted in part and denied in part the United States Department of Agriculture’s (USDA’s) motion to dismiss a lawsuit brought by a coalition of environmental and animal rights organizations which sought to challenge the USDA’s withdrawal of a rule requiring new standards for raising, transporting and slaughtering organic animals. Center for Environmental Health, et al. v. Perdue (No. 3:18-cv-01763-RS, N.D. Cal.). The plaintiffs, various organic and environmental groups, together with the Humane Society of the United States and the Animal Legal Defense Fund, had sued the federal government over its withdrawal of a hotly-debated and commented upon Rule that proscribed animal welfare standards for livestock and poultry. Continue reading Court Narrows Lawsuit Challenging Withdrawal of Organic Livestock and Poultry Practices Rule
by: Michelle C. Pardo
“Justice” (formerly named “Shadow”) is an American Quarter Horse who had been subject to neglect by his prior owner. According to a complaint recently filed in state court in Oregon, the horse was left outside, underfed, and suffered from a variety of serious medical problems, including frostbite, trauma and infection. After complaints by a neighbor, the former owner surrendered Justice to a rescue organization back in March of 2017 and thereafter pleaded guilty to criminal neglect. The owner also agreed to pay restitution to the equine rescue organization for the costs of Justice’s care incurred prior to the plea. Media reports indicate that the owner paid more than $3,700 in restitution, was sentenced to three years probation, and may not possess any pets or livestock for five years (and only after completing 96 hours of community service). Typically, as disturbing as such court cases may be, that is the end of a legal proceeding involving animal abuse or neglect.
Justice’s story, however, has a “Part Two”. Justice is suing his former owner for negligence and has filed a lawsuit in his new name in a county court in Oregon. Continue reading A Horse is a Horse (Of Course) . . .But a Plaintiff?