Moses & Singer LLP

Conservationists Prevail in Recent Federal Cases

May 20, 2021

By: Patrick J. Trostle and Benjamin Danieli

Conservationists and animal-rights supporters have won four major victories in recent decisions from the federal courts.

The decisions permitted Freedom of Information Act (“FOIA”) requests against trophy hunters and animal-skin importers, affirmed the rights of parties in interest to demand environmental impact studies before “predator control efforts” can occur, blocked avian-culling practices that disproportionately harmed humane-chicken-farming entrepreneurs, and upheld San Francisco’s city-wide ban on fur sales.  Together, the cases show that the federal courts are becoming more receptive to the claims of animal rights groups, including the Humane Society and similar entities.1

The most significant ruling involves the Humane Society’s efforts to obtain federal records from exotic animal importers and trophy-hunting groups. In Humane Society International v. United States Fish and Wildlife Service, the Humane Society argued that FOIA’s exemption for confidential commercial information did not apply to various animal-skin and trophy-kill importers and exporters because the companies failed “customarily and actually” to keep their business information private and secret.2 The District Court for the District of Columbia agreed and authorized the Humane Society to obtain import records and other related data that the federal government collected from companies that profit from trophy kills, animal skins, and other goods derived from exotic and often endangered species. Future FOIA requests for additional data related to the trophy-hunting industry are likely, as the Humane Society and other animal-rights groups seek to expose the killing of, and profit from, many endangered species, including African elephants and lions.

Another recent decision, Center for Biological Diversity v. Walsh,3  confirmed that animal rights supporters have standing to use the National Environmental Protection Act (“NEPA”) to require a specific environmental impact statement (“EIS”) when federal authorities (often in concert with State governments) seek to cull predators such as mountain lions, bears, and coyotes to preserve popular game animals, including mule deer. The U.S. District Court in Colorado agreed with the Center for Biological Diversity and the Humane Society in the case, finding that preliminary and general “environmental assessments” and related “FONSIs” were “arbitrary and capricious” and thus insufficient under federal law in cases where significant predator culls were contemplated.4  To that end, the Court stated that “[t]he touchstone of the Court’s inquiry is whether the [federal] agency ‘took a hard look at information relevant to the decision,’ that is, whether the agency ‘did a careful job at gathering and otherwise supporting its position.’”5 The Court held that only a full EIS satisfied NEPA’s informational requirements before the government-mandated predator culling could occur. 

The Humane Society was also successful in the U.S. District Court for the Central District of California. There, the Court supported the Society’s efforts to prevent chicken and other bird culling in connection with Avian Influenza where the government failed to provide sufficient EISs. The Humane Society had argued that birds should be given more space to prevent the spread of the disease, an argument that the government rejected.  While the Court did not impose such rules, it did suggest the government undertake a more comprehensive analysis of the effects of its decisions before undertaking the mass extermination of birds.6

Finally, the fur industry has been put on notice that courts are willing to uphold local bans on fur sales. The U.S. District Court for the Northern District of California held that San Francisco’s 2018 ban on fur sales was constitutional, a decision that likely will be tested in 2023 when a California law that bans all fur sales becomes effective.7  California has joined a number of EU countries that have banned or will ban fur production and sales within their borders. Two additional states are also considering similar legislation.8

 

1 Despite these recent victories for animal-rights groups, “[t]he U.S. is the main destination for exotic and endangered wild animals.” PETA, Inside the Exotic Animal Trade https://www.peta.org/issues/animal-companion-issues/animal%20companion-factsheets/inside-exotic-animal-trade/ (last visited May 10, 2021).

2 No. CV 16-720 (TJK), 2021 WL 1197726, at *3-5 (D.D.C. March 29, 2021). The decision followed the United States Supreme Court’s decision in Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2363-66 (2019), discussing Exemption 4 of the FOIA, which “shields from mandatory disclosure ‘commercial or financial information obtained from a person and privileged or confidential.’” (quoting 5 U.S.C.A. § 552 (West, 2016)).

3 No. 18-CV-00558-MSK, 2021 WL 1193190 (D. Colo. Mar. 30, 2021).

4 “FONSI” stands for “Finding of No Significant Impact.”  See id. at *1 (discussing coordination efforts between Colorado’s Parks and Wildlife and the Wildlife Services division of the US Department of Agriculture’s Animal and Plant Health Inspection Service regarding “predator damage management.” The regulatory action at issue concerned “the killing of some bears and cougars in the study area over a 3-year period to compare mule deer survival rates to those where no predator control occurred.”).

5  Id. at *4 (quoting New Mexico ex rel. Richardson v. Bureau of Land Mgt., 565 F.3d 683, 704 (10th Cir. 2009)).

6 Humane Soc’y of the United States v. US Dep’t of Agriculture, No. 20-03258 AB (GJSX), 2021 WL 1593243, at *8 (S.D. Cal. March 26, 2021). (“Here, undertaking a full EIS would redress Plaintiffs’ alleged procedural injury, and the result may alleviate the alleged harm to their concrete interests.”).

7  Int’l Fur Trade Fedn. v. City and County of San Francisco, No. 20-CV-00242-RS, 2021 WL 1742248, at *4 (N.D. Cal. Mar. 30, 2021) (holding that the fur industry had failed to show that San Francisco’s fur ban was unconstitutional).

8 Rhode Island and Hawaii are considering bills similar to the California law to ban future fur sales and more than a dozen EU countries currently ban fur production within their borders.  See Humane Soc’y of the United States, Several States Introduce Bills Banning Fur, Voicing Concerns over Cruelty, Pandemic Risk, February 4, 2021, https://blog.humanesociety.org/2021/02/several-states-introduce-bills-banning-fur-voicing-concerns-over-cruelty-pandemic-risk.html; PETA, A Guide to the Fur-Free Revolution: These Places Have Banned Fur https://www.peta.org/features/fur-bans-fur-free-future/ (last visited, May 10, 2021).

 

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