Key legal gains of 2017: Wolves protected in Great Lakes, California farm animal protection laws and local puppy mill rules survive challenges
As we enter the final month of the year, I’ll blog frequently on the highlights of 2017, beginning today with a pretty extraordinary year in the courts. The HSUS’s cadre of two dozen in-house lawyers has been pushing the cause forward in the courts and in legislative assemblies at the state and federal level. Each year, the Animal Protection Litigation team pursues a bevy of lawsuits and legal petitions to support our major campaigns. They also work to defend laws under attack by government officials and by our political adversaries. And they work at the front-end of new lawmaking, by helping draft and review state and federal animal protection bills and ballot measures. They are aided in their efforts by a network of hundreds of lawyers throughout the country, including some of the best-known firms in the legal profession, from Latham & Watkins to Schiff Hardin, and many more.
This year, our legal team secured a series of wins in the federal courts, affirming the authority of states and local jurisdictions to regulate the trade in animals and animal products and to eliminate local market activity that fuels the inhumane treatment of animals, and cruel conditions in which the animals are raised. We’ve racked up big wins in our campaigns against trophy hunting, puppy mills, inhumane confinement and other factory farming abuses, and much more. In particularly, the U.S. Courts of Appeals issued a series of rulings affirming the rights of states to adopt strong animal protection and food safety laws, including by restricting the sale of inhumanely produced animal parts and products.
Here is a look at the top legal victories of 2017.
Endangered Species Act protections restored to Great Lakes wolves: In August, the Court of Appeals for the D.C. Circuit rejected the U.S. Fish and Wildlife Service’s decision to remove Endangered Species Act protection for wolves in the Great Lakes region, affirming the outcome by a U.S. District Court. The HSUS brought the original lawsuit, after polling and ballot measures showed the citizens of the Great Lakes region strongly favored wolf protection and thought federal delisting was premature. The court agreed that the Fish and Wildlife Service violated federal law by engaging in a piecemeal approach to wolf conservation, ruling that the agency must consider the impact of regional ESA listing and delisting decisions on all wolves in the lower 48 states. The decision has broader implications for ESA-listed species that exist in only small pockets of their former range. We are working hard to protect the federal court rulings from an override by some Congressional lawmakers.
California’s long-standing mountain lion protection law affirmed: Just a few weeks ago, I wrote about a legal victory for America’s majestic lions, also upheld in a critical decision by the 9th Circuit. More than 25 years ago, California voters approved Proposition 117 to codify a long-standing moratorium on lion hunting, first imposed by then Gov. Ronald Reagan in 1972. Proposition 117 prohibits the killing or injuring of any mountain lion, as well as the import into California and sale within the state of any mountain lion or any part thereof, regardless of the origin of the animal. Following the ouster of a California Fish and Game Commissioner for going to Idaho and shooting a lion in order to import it to California—even though that practice was forbidden under Proposition 117, a state law he was charged with enforcing—Safari Club International brought a belated challenge to the import provision of the 1990 law. In November, the Ninth Circuit upheld Proposition 117, rejecting the Safari Club’s claims that the law unduly burdened interstate commerce and that the law unfairly extended protected status to mountain lions when other species remain subject to hunting.
Aquarium fish collection industry permits disallowed without assessment of impacts: In September, the Supreme Court of Hawaii ruled in favor of The HSUS and co-plaintiffs, requiring the state of Hawaii to review the environmental impacts of commercial aquarium fish collection prior to issuing permits for those activities. This industry wreaks havoc on marine ecosystems by capturing hundreds of thousands of coral reef fish annually, often using cruel methods such as “fizzing” the fish by puncturing their swim bladders. The Hawaii Supreme Court decision overturned rulings by lower courts and held that the aquarium fish collection industry is subject to the Hawaii Environmental Policy Act.
Ninth Circuit revives California law banning the sale of products from force-fed birds: In September, the Ninth Circuit Court of Appeals issued a unanimous ruling reinstating California’s law banning the sale of foie gras—a fattened bird liver product—made by the practice of force-feeding birds. The court rejected foie gras producers’ contentions that the California law, which is focused on the way the birds are treated on the farm, was preempted by federal food safety and meat inspection laws. The court held that force-feeding is not a physical component in poultry meat and therefore the California law is not an “ingredient requirement” that can only be established by the federal government. Thus, the producers’ attempt to overturn California’s humane law fared no better than in 2013, when they failed to convince the same court that the California law violates the commerce clause of the U.S. Constitution. The court held then that California has every right to regulate activity within its state market to prevent complicity in a practice it deems cruel to animals.
U.S. Supreme Court lets appellate court ruling stand to affirm California’s anti-confinement law for laying hens: In May, the U.S. Supreme Court declined to hear an appeal by several Big-Ag-aligned state attorneys general and governors, including former Oklahoma Attorney General Scott Pruitt, who were seeking to overturn California’s landmark egg sales law, AB 1437, which requires eggs sold in the state come from hens not subjected to cruel confinement practices. This was the latest in a long string of failed attempts by Big Ag and its allies to overturn AB 1437 and Proposition 2, a ballot initiative which went into effect the same year mandating that laying hens, breeding sows, and veal calves must have room to “stand up, lie down, turn around freely, and extend their limbs.” In a 2016 decision concluding that several attorneys general bringing the case did not have standing to sue, the Ninth Circuit noted that AB 1437 does not distinguish among eggs based on their state of origin and therefore is not discriminatory. We recently launched a new initiative in California, which will be on the ballot in 2018, to build on that law by assuring that eggs, veal, and pork sold in the state, regardless of where they originate, meet even higher animal welfare and food safety standards.
Federal court vacates exemption for emissions reporting by industrial farming operations: In April, the D.C. Circuit vacated a 2008 Bush-era EPA regulation exempting the largest industrialized animal ag facilities, called CAFOs (Concentrated Animal Feeding Operations) from their legal obligations to report releases of harmful air emissions of ammonia and hydrogen sulfide. The HSUS and a coalition of public interest groups filed suit challenging the regulation, arguing that it violated the Emergency Planning and Community Right-to-Know Act and the Comprehensive Environmental Response, Compensation & Liability Act. Compliance with the D.C. Circuit’s ruling will mean that CAFOs must report their dangerous emissions, and there will be more opportunity for citizens and public interest groups to expose the harm that factory farms cause to humans, animals, and the environment, and for local government officials to plan for disasters and other emergency events.
New York and Chicago pet store ordinances upheld: Earlier this year, the Courts of Appeals for the Second and Seventh Circuits upheld laws restricting retail sales of companion animals from puppy mills and other unscrupulous breeders where animals are often raised in overcrowded and unsanitary conditions, leading to health and behavioral problems for the animals, and emotional and financial burdens on consumers. The laws at issue—a New York City ordinance prohibiting pet stores from selling puppies obtained from middleman brokers and breeders lacking a strong record of compliance with the Animal Welfare Act, and a Chicago ordinance requiring that pet stores only sell dogs, cats, and rabbits that have been obtained from animal control or animal rescue organizations—are aimed at curbing the sale of puppy mill dogs, and encouraging adoption of animals from the many overwhelmed animal shelters around the country.
Ohio prohibitions on bestiality and animal fighting upheld: Three separate state courts in Ohio issued rulings preserving certain provisions of a law that make bestiality and animal fighting felony crimes in the state. The multifaceted law was challenged by municipal governments arguing that it violated a state constitutional requirement that legislation address only a single subject. The plaintiffs centered their challenge on provisions unrelated to the animal protection provisions of the law, and The HSUS filed briefs in the cases successfully arguing that the animal protection provisions are the primary subject and original focus of the law and should be retained. The new law was recently used to bring the first ever prosecution for bestiality in Ohio.
New Georgia cost-of-care law implemented in cruelty prosecution: Following up on a 2016 law that our legal team helped secure, the team assisted Habersham County (Georgia) officials with recovering almost $70,000 in costs of care in the first case involving the application of the new law. In passing the law, the Georgia legislature shifted the burden for the cost of caring for animals in cruelty cases to where it rightly belongs—the owner or custodian charged with cruelty. In April 2017, the HSUS Animal Rescue Team assisted Habersham County with a large scale animal cruelty case involving the seizure and rescue of more than 400 animals, more than 370 of who were surrendered. This fall, our lawyers were instrumental in helping the county government to recoup the costs of caring for the surrendered animals. This is an important precedent in our effort to ensure that enforcing anti-cruelty laws is not cost-prohibitive for law enforcement officials.
Public access to data concerning animal research facilities and hunting trophy imports: In February 2017, our lawyers sent the U.S. Department of Agriculture a notice of legal violation after the Trump administration eliminated public access to an online searchable database that included research facility annual reports, inspection reports for zoos and puppy mills, and enforcement records for Animal Welfare Act and Horse Protection Act violations. The notice alleged that the agency’s action violated a 2009 settlement agreement whereby the USDA agreed to make research facility annual reports available, which led the agency to re-post those reports. In May, in response to the filing of a lawsuit over the U.S. Fish and Wildlife Service’s unlawful withholding of records regarding the importation of wildlife and wildlife parts, including hunting trophies, the federal government agreed that it had wrongfully withheld some of the redacted information and began producing responses to our requests. These advances in government transparency will help ensure that The HSUS and humane-conscious citizens have access to information so that we can advocate for policy change that benefits animals. The USDA is still withholding an enormous number of documents, and our work on this betrayal of the public trust is far from complete.
So many of the legal issues on which we work are intertwined with ongoing political fights at the state and federal level – from ballot measures to federal rulemaking to Congressional lawmaking. While we work in the courts to protect lawmaking we’ve done, we also work in Congress and in state legislatures to protect favorable court rulings. We build on all of this work through our public policy work, including groundbreaking ballot initiatives.