D.C. Circuit Rejects National Marine Fisheries Service’s “Egregiously Wrong” Decision on Right Whales

By Michelle C. Pardo

On June 16, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Marine Fisheries Service (NMFS or Service), which licenses and regulates fisheries in federal waters, was not permitted to give the “benefit of the doubt” to endangered species or rely on worst-case scenarios or pessimistic assumptions in preparing biological opinions required by the Endangered Species Act (ESA).  Maine Lobstermen’s Association v. National Marine Fisheries Service (D.C. Cir. June, 16, 2023) (slip opinion). Continue reading “D.C. Circuit Rejects National Marine Fisheries Service’s “Egregiously Wrong” Decision on Right Whales”

Breaking Down the FWS’s Interim Rule Implementing the Big Cat Public Safety Act

by Michelle C. Pardo

On June 12, 2023, the U.S. Fish and Wildlife Service (FWS) published an Interim Rule that amends the implementing regulations for the Captive Wildlife Safety Act (CWSA) by “incorporating the requirements” of the Big Cat Public Safety Act (BCPSA). See 88 Fed. Reg. 38358 (6/12/2023). https://www.federalregister.gov/documents/2023/06/12/2023-12636/regulations-to-implement-the-big-cat-public-safety-act.  The amended regulations — which are now in effect as of June 12, 2023 — can be found within the Federal Register publication and at 50 CFR Part 14. Continue reading “Breaking Down the FWS’s Interim Rule Implementing the Big Cat Public Safety Act”

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”

During COVID-19 Pandemic, Zoos Need Our Support

by Michelle C. Pardo

The COVID pandemic has affected nearly every aspect of our daily lives.  While the media has been rightly focused on the overwhelming effect on our health care system and impacts on hourly and tipped workers and small businesses, coverage of our country’s zoological institutions during this worldwide crisis has been largely absent.  But the impact on zoological facilities across our country is real and profound.  The loss of revenue from ticket and concession sales, special events, and donations will likely hamper zoo operations for the foreseeable future.  Cash-strapped Americans may have less available funds to donate to non-profit organizations.  But zoological institutions may have much more difficulty cutting costs and limiting operations than other types of businesses and face a much more severe financial impact from the pandemic.

Unlike businesses that can order all employees to work from home and shut their doors, zoos, aquariums, marine mammal and wildlife parks have much more complex operational challenges.  First and foremost, even during a pandemic, our zoological facilities must continue to provide their animals with daily care, including husbandry, veterinary care, and enrichment.  That means that animal caregivers, veterinarians, veterinary technicians, zoo management and personnel cannot just shelter in place at home and wait out the pandemic.  Maintaining zoo operations requires a healthy staff that can come to work, even if children and family members are home from school or sick.  Zoos are also struggling with supply chain issues.  The amount of food, products and supplies that zoos require to maintain their animal collection is staggering, and the impact on deliveries and product availability will likely continue to be a pressing issue.

Some zoos are turning to creative measures to engage with the public in a “virtual” way.  From posting animal videos on social media, to animal sponsorship (“adopting” an animal), these methods attempt to link the public with animals during this time of crisis and create avenues for sponsorship and donations.

What can we do to support our zoos, aquariums, marine mammal and wildlife parks during this difficult time?

  1.  Consider a donation, no matter how small.  Non-profit zoos have platforms to “donate” that are accessible online.  Visit their websites and search for the “donate” options.  Donations need not be sizeable — there is great power in $10 donations if thousands of people are making them.  For-profit zoological institutions often have non-profit partners that fund important animal rescue, conservation and research programs.  These programs need your help as well.
  2. Become a member.  Zoo memberships which often have additional perks like discounts at gift shops and concessions or free parking and access to VIP events.  Membership fees greatly assist with zoo operating expenses and zoos will be even more dependent on these funds during and post-pandemic.
  3. Make plans to visit!  When life returns to normal — and it will — make plans to visit your local zoos, aquariums, and marine mammal parks either as a daily visitor or attending special events.  Many zoological institutions offer creative and exciting programs — such as summer camps, special access and VIP programs, food and wine experiences and family sleepovers.  These are great ways to learn about a myriad of species and support our zoological institutions’ bottom line.
  4. Corporate sponsorship and donations.  Corporate sponsorship and in-kind donations are important to zoological institutions, even in normal operating times.  While many businesses may be suffering from loss of revenue, for those that get back on their feet and want to make meaningful contributions, reach out to zoological institutions and consider a sponsorship or donation of necessary products.  Zoos patrons and visitors will appreciate your generosity.

And, if you know someone who works with animals — from caregivers, to veterinary staff, to those who maintain their food supply and habitats, thank them for what they are doing and pledge your support.  We are, after all, in this together!

 

Will California Be the First to Ban Fur Sales Statewide?

by Michelle C. Pardo

The California legislature has passed a bill to ban the sale of new fur products anywhere within the state. The bill would make it unlawful to “sell, offer for sale, display for sale, trade, or otherwise distribute for monetary or nonmonetary consideration a fur product, as defined, in the state.” AB 44 (as amended). Should Governor Gavin Newsom sign AB44, California would be the first state in the nation to enact such legislation. Los Angeles, San Francisco, West Hollywood and Berkeley already have fur bans in place. Illegal items would include fur from undomesticated animals, including mink, rabbit and coyote.  The legislation excludes certain products, such as pelts or skins preserved through taxidermy, animal skin that is to be converted into leather, and fur products used for religious or traditional Native American tribal, cultural or spiritual purposes. The bill carries civil penalties. Continue reading “Will California Be the First to Ban Fur Sales Statewide?”

Michelle Pardo Interviewed on The Lars Larson Show

Michelle PardoThe Lars Larson Show interviewed Duane Morris partner Michelle Pardo in a podcast interview titled, “Do Animals and Humans Have a ‘Right to Wilderness?'” Michelle discussed ALDF et al. v. United States, which she also discusses in her blog post, “Animal Activist Group Loses ‘Right to Wilderness’ Lawsuit.

To listen to Michelle’s interview, please visit The Lars Larson Show website.

Animal Activist Group Loses “Right to Wilderness” Lawsuit

by Michelle C. Pardo

If you thought animal and environmental activists had already pushed the envelope far enough in the world of federal court litigation, think again.

This week, an Oregon federal judge ruled that a group of plaintiffs – made up of animal and environmental activist organizations and individuals – do not have a constitutional “right to wilderness” and dismissed with prejudice their lawsuit which sought to force the federal government to cease policies that contributed to climate change that, in turn, harmed plaintiffs’ enjoyment of nature and wildlife.   ALDF et al. v. United States, (6:18-cv-01860-MC)(D. Oregon). Continue reading “Animal Activist Group Loses “Right to Wilderness” Lawsuit”

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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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