Federal

Summary: Several animal welfare organizations including PETA sought to conduct undercover animal cruelty investigations in North Carolina, but were unable to do so because North Carolina's Property Protection Act prohibited employees from entering nonpublic areas of employer's premises to record or remove information and using that information to breach their duty of loyalty. PETA and other plaintiffs argue that the act violates their protected First Amendment rights and functions as a discriminatory speech restriction. North Carolina argues that the restrictions on speech are incidental, and the act protects against trespass and disloyalty. The United States District Court for the Middle District of North Carolina dismissed the complaint and the organizations appealed. The Court of Appeals then reversed and remanded. On remand here, the District Court held that the information gathered by the animal welfare organizations was protected speech and, thus, subject to strict scrutiny. .

Summary: In 2019, Plaintiff-Appellant the American Society for the Prevention of Cruelty to Animals (“ASPCA”) sued Defendants-Appellees the U.S. Department of Agriculture and the Animal and Plant Health Inspection Service (“APHIS”) alleging that APHIS followed a "policy or practice" of violating FOIA for failing to comply with requests for records related to the agency response to maintenance of animal welfare standards and licensing of animal dealers/exhibitors. This suit was prompted by APHIS' 2017 decommissioning of two public databases that allow users (including the ASPCA) to access records on commercial breeding facilities including inspection reports and photographs. APHIS contends that there was not a policy or practice that violated FOIA because it was corrected as the result of an intervening act of Congress, specifically, the Consolidated Appropriations Act of 2020. In April of 2020, APHIS moved for summary judgment on the pleadings arguing that ASPCA failed to state a policy or practice claim related to the decommissioned databases and that it makes every effort to respond to FOIA requests within the statutory timeframe. The district court granted the motion for summary judgment on the pleadings, finding that while the decommissioning of the databases did indeed impair the ability of the ASPCA to receive prompt FOIA requests, ASPCA did not establish that the court must intervene to correct such a policy or practice and Congress already acted to correct the breakdown through the appropriations bill. On ASPCA's timely appeal here, the Second Circuit agreed with the district court that the Consolidated Appropriations Act of 2020 reversed the records access problems. While the ASPCA contended that there were certain records like photographs that were removed from the database, there is nothing in the complaint to suggest that such record requests would not be processed in the future. In essence, this court agreed that the intervening act of Congress by the change in law corrected the action. Thus, a broad order by the court mandating changes to the FOIA process would amount to an unlawful advisory opinion because there is no policy or practice currently occurring by APHIS. The district court's judgment was affirmed.

Summary: The plaintiff (“Whiteaker”) filed this action against Defendant, the City of Southgate, Michigan for violations of the Fair Housing Act (“FHA”) and Michigan's Persons with Disabilities Civil Rights Act (“PDCRA”). Specifically, Whiteaker contends that the City violated the FHA by denying Whiteaker's request for an exemption from City Ordinance 610.13, which prohibits City residents from maintaining chickens (or other typical farm animals) on their property. The events underlying this action began after Whiteaker moved to Southgate in early March 2021. On March 24, 2021, Whiteaker was issued a citation by the City for a violation of Ordinance 610.13. Whiteaker appeared in district court to defend himself, claiming he had a right to keep the chickens under Michigan's Right to Farm Act. However, it turned out the Right to Farm law was inapplicable because Whiteaker's chicken coop was within 250 feet of a dwelling. Thus, Whiteaker was issued a second citation in May and was denied a permit to keep the chickens by the city. Since Whiteaker was a longtime sufferer of depression and anxiety, he sought a waiver from the ordinance as a reasonable accommodation for his disability and presented a letter from his mental health provider as support. Again, his request was denied by the City. In the instant motion for summary judgement by the City, the court examined the "reasonableness" of Whiteaker's request for a reasonable accommodation under the FHA. The court found that the balancing test required under the FHA, to wit, weighing Whiteaker's disability-related need to keep the chickens as a source of comfort and support against the City's claims that the chickens pose a threat to public health, is a triable issue of fact. Indeed, the court observed that the City's citation of documentation from the CDC only lists the "potential dangers" chickens can pose to public health without sufficient evidence to supports its claim that the chickens will burden the City financially and administratively. In contrast, Whiteaker claims a disability and has provided evidence of his disability. Likewise, as to the remaining elements of necessity and equal opportunity for a reasonable accommodation claim, the court again cites Whiteaker's evidentiary support for his claim of disability and need for the chickens to alleviate those symptoms against the fact the City has not presented any testimony, affidavits, or "evidence of any kind" to support its claim. Thus, the court denied the motion for summary judgment.

Summary: Plaintiff animal welfare advocates sued the National Institute of Health (NIH) for failing to transfer all chimpanzees housed at the Alamogordo Primate Facility to a retirement sanctuary known as “Chimp Haven." According to plaintiffs, transfer is required under the federal Chimpanzee Health Improvement, Maintenance and Protection Act (“CHIMP Act”), 42 U.S.C. § 283m, as well as the Administrative Procedure Act (APA). In 2015, NIH officially announced that it would cease biomedical research on chimpanzees and establish a working group to transfer all 288 surplus chimpanzees owned by NIH to Chimp Haven. In 2019, the NIH announced that not all chimpanzees would be transferred to Chimp Haven because 44 of those individuals were too frail for transfer due to medical conditions. After cross-motions for summary judgment, this court considers whether transfer is legally required. On appeal, Plaintiffs contend that the plain language of the CHIMP Act requires the transfer of all chimps and the court owes no deference to agency interpretation. In contrast, the Government argues that the decision is consistent with the CHIMP Act because the plain language of the act only requires that surplus chimpanzees offered by NIH be "accepted" into CHIMP Haven. The court found that the plain and unambiguous language, and use of the word "shall," in the CHIMP Act requires the NIH to transfer ALL chimpanzees to the federal sanctuary system. In addition, the legislative history of the CHIMP Act reinforces that reading of the statute. While the court recognized NIH's concern toward the frailest chimpanzees, the proper avenue is within the legislative branch. Notably, the court was unsure as to the proper remedy in this particular matter (e.g., whether a remand or vacatur is more appropriate). As a result, Plaintiffs' motion for partial summary judgment was granted and the Government's cross motion was denied as was the motion to dismiss. The court directed the parties to file a joint status report report with views on the relief Plaintiff seeks and how the matter should proceed in light of the instant opinion.

Summary: This matter concerns defendant Olympic Game Farm, Inc.'s Motion for Summary Judgment after plaintiff sued those owners and operators of an animal-based attraction on the Olympic Peninsula for violating the federal Endangered Species Act (“ESA”) by taking and possessing protected species and creating a public nuisance in violation of Washington state law. Specifically, defendants seek a summary determination that its brown bears, wolves, and Canada lynx are not listed species for purposes of the ESA, that it has not harmed, harassed, or possessed any species in violation of the ESA, and that it is not a public nuisance. In granting the motion in part, the court held that grizzly bears found in Washington state are protected under the Endangered Species Act and wolves with some domestic dog ancestry are also protected by the Endangered Species Act. However, the animal welfare group did not give the operators enough notice of their claims regarding the housing and care of the grizzly bears. The court also found it unclear whether allowing tourists to feed grizzly bears large amounts of bread is a violation of accepted animal care practices. With regard to the wild cats, the animal welfare group did not prove that the operators' lion enclosures failing to meet the aspirational Association of Zoos and Aquariums (“AZA”) standards, a standard met by only a minimum of USDA exhibitors, showed a failure to meet a "generally accepted standard" of care. In contrast, the court found that it was unclear whether the operators provided adequate veterinary care for their tigers and thus, this aspect of the ESA claim may proceed. On the state nuisance claim, the court held that the operators' alleged violations of the Endangered Species Act did not constitute a public nuisance. Finally, it was unclear whether the operators' treatment of a Canada lynx's fractured femoral bone violated Washington's animal cruelty laws. Said, the court, "[a]lthough it is not clear that mere negligence in providing veterinary care violates Washington's animal cruelty laws, in the absence of any countervailing argument or facts, plaintiff has raised a triable issue of fact regarding this claim." The motion was granted in part and denied in part.

Summary: Plaintiff animal welfare organizations sued the National Marine Fisheries Service (NMFS) and its parent agency, the National Oceanic and Atmospheric Administration, seeking to enforce conditions in permits held by SeaWorld. The permits authorize the capture and display of orcas and require display facilities to transmit medical and necropsy data to the NMFS following the death of an animal displayed under the terms of a permit. In 1994, the Marine Mammal Protection Act (MMPA) was amended such that it shifted authority to oversee conditions of marine mammals at exhibitors from NMFS to the Animal and Plant Health Inspection Service (APHIS). After three pre-1994 orcas died at SeaWorld, plaintiffs tried to convince NMFS that it still had the authority to enforce the pre-1994 rules related to release of records, but NMFS contended that its authority was extinguished in 1994. Plaintiffs brought suit, arguing that the NMFS's policy rests upon an arbitrary and capricious interpretation of the MMPA, and that its refusal to enforce the permit conditions was also arbitrary and capricious. The district court dismissed the plaintiffs’ suit for lack of standing. On appeal here, the court examined plaintiffs' standing under the three-part Lujan test. The court found a lack of redressability for the plaintiffs. Plaintiffs fail to allege any facts from which the court could infer the relief they seek would likely cause the NMFS to redress their alleged harms. In fact, because the MMPA language on permits is permissive, NMFS has discretion whether to enforce them. This is coupled with the fact that there is no evidence that third-party SeaWorld will turn over the reports even if NMFS were to direct them. Therefore, this court held that the district court did not err in determining that the plaintiffs lacked standing to pursue this case. Affirmed.

Summary: California prohibits the in-state sale of products that are “the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.” Cal. Health & Safety Code § 25982. The law had a 7.5-year grace period before it went into effect. The law has two components: first, it bans the practice of force-feeding ducks and geese to produce foie gras; and second, the law banned the in-state sale of products that are "the result" of that practice. After nine years of litigation and in their third set of appeals before this Court, the parties ask the court here to decide whether California's sales ban is preempted by the Poultry Products Inspection Act (“PPIA”) or violates the dormant Commerce Clause. As to the first issue of preemption, the plaintiff sellers contend that at least one USDA Policy Book defines foie gras as liver from poultry that has been "specially fed and fattened" and other USDA documents suggest this is done via forced-feeding. Thus, contend the sellers, it is impossible to produce and properly label foie gras, as is required by the PPIA, and then also comply with the California law. The court disagreed with the assertion, finding that the sellers can still force feed birds to make their products, but not sell those in California. Said the court, "The sales ban is neither a command to market non-force-fed products as foie gras nor to call force-fed products something different." Further, the sellers raise a new suggestion that the ban constitutes express preemption because force feeding operates as an "ingredient requirement." Essentially, they contend you cannot have foie gras without force-feeding birds. This was also rejected, as the court found nothing new that would reverse the precedent established in the prior decision by the court. Finally, the sellers appeal dismissal of their dormant Commerce Clause claim, arguing that the sales ban is impermissibly extraterritorial because force-feeding is only banned in California and therefore, only regulates out-of-state conduct. The court dismissed this, noting states are free to regulate commerce within their boundaries provided such regulation does not affect transactions from out of that state. Moreover, the sellers' argument that the ban is "unduly burdensome" for this reason also failed since there is not requirement that a state impose the "least burdensome" method for in-state commerce. The court held that the sales ban is neither preempted nor unconstitutional and that the specified transactions are out-of-state sales permitted by California law.

Summary: Plaintiffs, five non-profit organizations dedicated to animal protection, food safety, and other advocacy issues, filed suit challenging Iowa Code § 717.3B, which they contend infringes on their constitutional rights. Specifically, these organizations contend that Iowa's new "ag-gag" law criminalizes their actions in gathering information through undercover investigations at animal production facilities. These organizations must misrepresent or conceal their identities to gather gather evidence of animal abuse and other alleged illegal conduct in day-to-day activities at facilities where they suspect wrongdoing occurs. Iowa Code § 717A.3B is the second in a series of laws passed by the Iowa legislature aimed at criminalizing undercover investigations such as the ones conducted by Plaintiffs. The previous law was challenged by these same plaintiffs and a permanent injunction was passed by the United States District Court. The defendants challenged the injunction in the Eighth Circuit, but before that was decided, the Iowa legislature passed the new section (§ 717A.3B). Here, both parties have filed Cross-Motions for Summary Judgment. Plaintiffs contend that the new law violates the First Amendment of the United States Constitution because it discriminates based on content and viewpoint and cannot survive strict scrutiny. Defendants argue that the law does not regulate protected speech under the First Amendment or, if it does regulate protected speech, it is content-neutral and viewpoint-neutral and passes intermediate scrutiny. The court first noted that the issue with § 717A.3B, and other laws aimed at prohibiting trespassers at agricultural facilities, is the law seeks to single out specific individuals for punishment based on their viewpoint regarding such facilities. This law operates in a viewpoint discriminatory fashion because it prohibits the deceptive trespasser who gains access or obtain employment at an agricultural facility with the intent to cause “economic harm ... to the agricultural production facility's ... business interest" as opposed to trespassers with an intent to benefit the facility. Thus, Section 717A.3B does not focus solely on the right to exclude, the legally cognizable harm of trespass, but only on the right to exclude those with particular viewpoints. While the court noted that a state legislature may determine whether specific facilities—such as agricultural facilities, nuclear power plants, military bases, or other sensitive buildings—are entitled to special legal protections, the First Amendment does not allow those protections to be based on a violator's viewpoint. Plaintiffs' Motion for Summary Judgment was granted and Defendant's was denied.

Summary: This appeal centers around an Iowa statute called the “Agricultural Production Facility Fraud" law that prohibited accessing agricultural production facilities by false pretenses and making false statements as part of an employment application to an agricultural production facility. Animal rights organizations filed a § 1983 action against state and county officials contending the law violated the the First Amendment free speech clause. The district court ruled that both provisions are unconstitutional and entered an injunction against enforcement of the entire statute. Here, the Eighth Circuit affirmed in part and reversed in part. The court found both the Access Provision and the Employment Provision constitute direct regulations of speech. However, the court held the conclude that the Access Provision's prohibition on assuming false pretenses to obtain access to an agricultural production facility is consistent with the First Amendment. In contrast, the Employment Provision did not survive strict scrutiny because is proscribes speech that is protected by the First Amendment and was not narrowly tailored. The court affirmed the district court's grant of summary judgment for the plaintiffs on Iowa Code § 717A.3A(1)(b), reversed the judgment declaring unconstitutional § 717A.3A(1)(a), vacated the injunction against enforcement of § 717A.3A(1)(a), (2), and (3), and remanded for further proceedings.

Summary: Plaintiffs are animal rescue organizations and an individual consumer alleging that the Defendants import non-rescue dogs into California and sell these dogs under the fraudulent misrepresentation that the dogs are rescued animals. Plaintiffs allege that the Rothman Defendants broker the sale of dogs bred for profit from “puppy mills” in the Midwest to pet stores in southern California which harms consumers by defrauding them and making them believe they are adopting a "rescue animal" (what the Plaintiffs have termed as "pet laundering"). In addition, plaintiffs alleged Lanham Act violations for trademark infringement. Before the court is a motion to dismiss filed by Defendants. In denying the motion to dismiss, the court held that Plaintiffs alleged sufficient facts to state a claim that the Moving Defendants engaged in a fraudulent scheme to sell non-rescue dogs as rescue dogs under the “Pet Connect Rescue” name.