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August News

  Eighth Circuit Court of Appeals gives mixed ruling in appeal of Iowa’s “ag-gag” law. In 2012, a coalition of public interest groups filed a lawsuit in the U.S. District Court for the Southern District of Iowa challenging the constitutionality of Iowa’s  “Agricultural Production Facility Fraud.” This ag-gag law made it illegal to obtain access to an agricultural facility by (1) false pretenses (called the “Access Provision”) or (2) by making a false statement or representation as part of an application or agreement to be employed at an agricultural production facility with the intent to commit an unauthorized act (the “Employment Provision”). Essentially, the law aimed to prohibit undercover audio or video recording of agricultural properties like puppy mills, slaughterhouses, and factory farms. In 2019, the District Court granted summary judgment for the advocacy groups, finding that both the Access Provision and the Employment Provision violated the First Amendment. On August 10, 2021, the 8th Circuit found the Employment Provision of the law might be unconstitutional unless it is drafted more narrowly. However, the court found the Access Provision did not violate free speech because “intentionally false speech” associated with a legally cognizable harm – in this case, trespass - may be proscribed without violating the First Amendment. This ruling is said to be a win for agricultural interests that fear exposure and public concern from recording of events at their operations.

  U.S. Fish and Wildlife Service (USFWS) prepares to list the emperor penguin as a threatened species on the federal Endangered Species List. On August 3rd, the USFWS issued a press release explaining a proposed rule to list the emperor penguin, a flightless seabird endemic to Antarctica, as threatened with under the Endangered Species Act (ESA). The USFWS specifically attributes climate change as the primary threat to the species due to melting sea ice. In fact, one article predicts that this species will be effectively extinct by 2100 if no action is taken. The proposed rule is now open for public comment until October 4th. What makes this listing more important is that it represents a reversal from the Trump administration’s stance on the Endangered Species Act. In September of 2019, Trump issued roll-backs to ESA protections by requiring that risks to species would be based only on the “foreseeable future” and economic impacts would be part of the scientific consideration process in listing a species. The “foreseeable future” language was interpreted to be a push-back to the established science on climate change. While President Biden has signaled a reversal of these Trump-era ESA changes, change federal rules requires engaging in a formal rulemaking process that can take months or even years unless an agency admits fault or withdraws the rules.

   Approaching summer heat means more emergency calls on dogs being left in hot cars. Currently, 31 states have laws that specifically address dogs and sometimes other domestic animals being left unattended in motor vehicles during dangerous weather conditions. A simple Internet search reveals stories of animals being rescued from overheated vehicles beginning around this time of year (in late April, Sarasota, FL police broke a window and rescued “Moose” the dog from an unattended car that had reached 111 degrees). About half of the states with laws have what can be termed “Good Samaritan” rescue laws, meaning any person can rescue an animal in imminent danger after following the steps required by law without fearing civil or criminal liability for property damage. But, be wary: there are misleading stories on social media that misrepresent whether a person can engage in property damage to free a stranded pet (check out this USA Today article that dispels the myth). The remaining states leave the rescue of animals up to first responders and law enforcement. Where does your state stand on these laws?

News archives

Cases

Animal welfare and public interest groups had standing to challenging pig “high-speed slaughter” rule. Farm Sanctuary v. United States Department of Agriculture, --- F.Supp.3d ----, 2021 WL 2644068 (W.D.N.Y. June 28, 2021). Plaintiffs (nonprofit organizations working to protect animals, people, and environments from industrial animal agriculture) filed suit against the USDA and FSIS challenging the implementation of the Modernization of Swine Slaughter Inspection rule ("Slaughter Rule”). Plaintiffs contend that the rule allows nearly all pigs in the U.S. to be slaughtered as "unlimited speeds," thereby posing risks to animal welfare and consumer safety. Plaintiffs' lawsuit was later amended to add a claim that challenges Defendants' failure to ban the slaughter of non-ambulatory or "downed" pigs in the rule. Defendants filed motions to dismiss on the grounds that Plaintiffs have no standing to sue. Plaintiffs contend that they have been injured by Defendants' implementation of the Slaughter Rule. Specifically, Plaintiffs argue that the authorization of the high-speed slaughter rule directly conflicts with their organizational missions and redirects resources to counteracting the Slaughter Rule instead of other activities like rescue of animals and advocacy. Some of the plaintiff organizations further allege that their members include consumers who eat pork products and are concerned about the increased health risks they face from consuming products from pigs who have not been adequately inspected as well as impacts to the environment from increased slaughter. The Court ruled that Plaintiffs have plausibly alleged that Defendants’ unlawful practices have impaired and frustrated their ability to engage in mission-related activities and caused a consequent drain on their limited resources, which “constitutes far more than simply a setback to the organization's abstract social interests" sufficient to survive a motion to dismiss. Taking Plaintiffs allegations in their pleadings as true, the Court finds that the amended complaint contains allegations sufficient to support organizational standing. Defendants' motions to dismiss were denied.

Construction of a fence through a common area was not a necessary accommodation under the FHA. Guenther v. Walnut Grove Hillside Condominium Regime No. 3, Inc., 961 N.W.2d 825 (Neb., 2021). Plaintiff Christine Guenther appeals her dismissal of her complaint for declaratory judgment against her condominium complex. Guenther contended that Walnut Grove refused to make a reasonable accommodation under the federal Fair Housing Act and the Nebraska Fair Housing Act (collectively FHA) by denying her request to secure her daughter's emotional support dogs through construction of a fence in a common area. In 2018, Guenther made a request to Walnut Grove to construct a fence through part of the common area behind her condominium so that her dogs can safely spend time outside. Guenther stated that she made this request because she witnessed (via sounds) her first emotional support animal killed by either another dog or a car shortly after she moved in. However, Walnut Grove denied Guenther's request, contending that it lacked the authority to divide or partition the "common elements" of the property. As a result, Guenther filed a complaint in the district court for Douglas County seeking a declaration that Walnut Grove refused a reasonable accommodation under the FHA. A trial was held and the lower court dismissed Guenther's complaint, holding that Guenther's daughter did not suffer from a physical or mental impairment which substantially limits one or more of her major life activities and that therefore, Guenther failed to show that N.G. is a handicapped person. Additionally, the court held that Guenther failed to prove that her requested accommodation is necessary to afford the daughter an equal opportunity to use and enjoy the home. On appeal to the Nebraska Supreme Court, the court found the case boiled down to whether Guenther "carried her burden of proving her request to build a fence in Walnut Grove's common area (1) is reasonable and (2) necessary (3) to afford a handicapped person the equal opportunity to use and enjoy a dwelling." As to the factors, the court found that while it is undisputed that the daughter suffered from mental health disorders that were benefited by the interaction with the family dogs, there was insufficient proof that a fence was necessary. In fact, testimony revealed that the daughter freely enjoyed the use of the animals while at Walnut Grove. The fence was not a necessary part of Guenther's ability to use and enjoy the dwelling. Further, Guenther failed to prove that the alternatives proposed by Walnut Grove would not have been effective. Because Guenther failed to meet her burden to prove that construction of the fence is necessary, her claim for refusal of a reasonable accommodation under the FHA failed the judgment was affirmed.

California's Proposition 12 does not violate the dormant Commerce Clause by forcing out-of-state producers to sell pork consistent with the new welfare standards. Nat'l Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021). This case concerns a challenge to Proposition 12, a measure passed by California voters in 2018 that bans the sale of whole pork meat (no matter where produced) from animals confined in a manner inconsistent with California standards. Proposition 12 amended sections 25990–25993 of the California Health and Safety Code to “prevent animal cruelty by phasing out extreme methods of farm animal confinement." The National Pork Producers Council and the American Farm Bureau Federation (collectively referred to as “the Council”) filed an action for declaratory and injunctive relief on the ground that Proposition 12 violates the dormant Commerce Clause. The court noted that under its precedent, a state law violates the dormant Commerce Clause only in narrow circumstances. The court held that the complaint here does not plausibly allege that such narrow circumstances apply to Proposition 12; thus, the court ruled that the district court did not err in dismissing the Council's complaint for failure to state a claim.

Case Archives

Articles

From Factory Farming to A Sustainable Food System: A Legislative Approach, Michelle Johnson-Weider, 32 Geo. Envtl. L. Rev. 685 (2020).

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot, 85 Tenn. L. Rev. 707 (2018).

When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing, Kate O'Reilly-Jones, 52 Colum. J.L. & Soc. Probs. 427 (Spring, 2019).

Does Every Dog Really Have Its Day?: A Closer Look at the Inequity of Iowa's Breed-Specific Legislation, Olivia Slater, 66 Drake L. Rev. 975 (2018).