USDA Removal of Animal Welfare Act Violators

In early February the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) removed information regarding violators of the Animal Welfare Act (AWA) and the Horse Protection Act (HPA).

This data consisted of inspection reports, regulatory correspondence, research facility annual reports, and enforcement records.

The APHIS cited “court rulings and privacy laws” for the removal. APHIS also stated it would review and redact lists of licensees and registrants under the AWA and HPA, and that this information may still be obtained through a Freedom of Information Act (FOIA) request.

The removed records were often used by animal welfare advocates to monitor government regulation at scientific labs, zoos, circuses and universities. The data also contained information concerning dog breeders and pet stores.

Shortly after the data was removed, members of Congress, from both parties, requested the information be fully restored. After a sustained public outcry, small fractions of the previous data was reposted, but this was insufficient. By the end of February, several lawsuits were filed by animal welfare and protection groups, a letter of protest was sent to the USDA from Senate Democrats, and a bipartisan letter from 101 members of the U.S. House of Representatives was delivered to the President demanding immediate reposting of the data.

The most recent lawsuits not only claim a violation of FOIA but also claim a violation of the Administrative Procedures Act (APA) by removing the data. The APA prohibits government agencies from taking actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

On March 2, six Senate Democrats introduced the Animal Welfare Accountability and Transparency Act. This bill not only restores the data for public viewing but also would remove a specific tax benefit from any company that violates the AWA or HPA. The bill was referred to the Senate Finance Committee shortly after its introduction on the Senate floor.

While the new bill is being reviewed, and the lawsuits are being pursued, a preliminary injunction hearing requiring the data be restored for public viewing is set for May 10 in Northern California’s Federal District Court.

Ag-Gag?

Ag-gag is a term typically used to refer to state laws that prohibit filming or photography of activity on farms unless the owner of the farm consents to such activity. These laws are usually targeted at animal welfare groups and activists that send persons undercover into farming operations to document alleged animal abuse. In most states, farm animals are not protected by animal cruelty statutes, so many animal rights activists see this activity as a necessary means for both ensuring animal welfare and securing a safe food supply.

The following introduction to a poll taken by BEEF Magazine illustrates a common reply in favor of such laws:

“’But, Amanda, I know animal abuse is real; I’ve watched all those videos on YouTube of factory farmers beating their animals.” This is a statement made by a college student from Michigan who toured our ranch last summer. Of course, I don’t tolerate the bad apples in our industry -- those who mistreat their animals, that is -- but, I know these individuals are few and far between. Why judge an entire industry based on a few bad actors?

I asked this individual to define factory farming. After all, I don’t know any factory farmers. With 98% of farms and ranches in the U.S. family owned and operated, I know that today’s food is grown by people who care about the animals, the environment and the final retail product.

What’s more, I also know that PETA and HSUS supporters are usually behind these terrible videos depicting animal abuse. And, if they aren’t behind the camera catching the action, they are usually the ones initiating the abuse. And, these organizations strategically release these videos to wreak havoc on the agriculture industry, which usually results in litigation, loss of jobs and a direct shot at the markets.”

Many of the comments to that post, many made by farmers, echoed the author’s sentiments. The comments ranged from “sometimes you need to strike cattle to move them,” to “they’ve never encountered such abuse on their farms and would never tolerate it.” In either case it appeared that the majority of those who commented believed ag gag laws were necessary in order to protect the industry from potentially deceptive journalism. 

Earlier this month, however, in an important, perhaps “landmark,” decision by the U.S. District Court for the District of Idaho, the court found that Idaho’s version of an “ag gag” law was an unconstitutional restraint on First Amendment free speech protections. Chief U.S. District Judge B. Lynn Winmill found the law served to violate protected speech on a vital issue. “The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.” As there are many “ag-gag” laws, similar to Idaho’s, in place throughout the country, it will be important to keep an eye on this issue as those laws come under similar scrutiny.

Beware of the Backyard Chicken

“Farm Fresh!” “All Natural!” “Free Range!” These statements and others like them have certainly caught the attention of the American consumer. But, what do they really mean when it comes to purchasing something as simple as an egg?  Here’s one perspective:

http://www.npr.org/sections/thesalt/2014/12/23/370377902/farm-fresh-natural-eggs-not-always-what-they-re-cracked-up-to-be

Due to the distrust of “factory farms” and “big agriculture” held by many consumers, a do-it-yourself trend is emerging in food production, even as to livestock. The backyard chicken is a prime example. To be fair though, raising chickens in this manner is really more than a trend, probably “subculture” and “movement” are more apt descriptions. (See, for example, http://www.backyardchickens.com or http://www.the-chicken-chick.com.) In any event, I’ve always wanted to be a farmer when I grow up, so I decided to raise some birds of my own. I was amazed by the amount of information readily available about how to select, raise and care for the many varieties of chickens. While there are many variables involved in tending to a backyard chicken flock, it is a relatively easy method of producing your own food. But, is it legal?

As I started gathering the information necessary to start a backyard flock, I was living in a neighborhood that was split between two municipalities. As I pressed into my research, I found that the municipality that had jurisdiction over my neighbor’s property (but not mine) allowed chickens to be kept only if they were separated from neighboring dwellings by at least 150 feet.  (No chickens for my neighbors.) The municipality that had jurisdiction over my property, however, allowed the raising of poultry without such restrictions, but it did have a fairly strict noise ordinance, so housing a rooster would not be feasible.

Municipal ordinances were not the only obstacle to navigate, however. I was informed that most homeowners’ associations do not allow the keeping of “livestock.” Fortunately, my neighborhood’s homeowners’ association had become inactive and had no power to enforce any such restriction. Interestingly, I recently started searching for acreage to purchase in a more rural area, and I’ve found that much of the higher quality land is contained in large developments that have restrictive covenants, prohibiting the raising of livestock … in the “country!” So, make sure, regardless of where you live, that not only are you in compliance with local ordinances but also any restrictions or covenants that are tied to the land you own.

Apart from municipal laws and homeowners’ association restrictions, there are a number of other legal issues to be mindful of:

1. Will your homeowner’s insurance cover injuries resulting from the keeping of chickens? (Some insurers will even cancel your policy if you have chickens on the property.)

2. There are legal causes of action which an upset neighbor could bring against you in a lawsuit as a result of smells or noises that constitute “nuisances.”

3.  Certain legal risks revolve around that fact that chickens, especially if not properly cared for, can be susceptible to a wide variety of diseases. Poultry and eggs can carry bacteria, such as salmonella, that could make anyone consuming the meat or eggs seriously ill.

That is not an exhaustive list, yet with all of that in mind, keeping chickens in suburbia is definitely doable. It proved a wonderful experience for my family. But, you cannot go in blindly. Among other things, know your municipal and county restrictions. Know your homeowners’ association restrictions. Make sure your neighbors are good with the plan, and take care to keep your birds healthy.

David A. Root, Esquire

Animal Law Committee – Agriculture Subcommittee Chair

About Us

Where did this morning's eggs come from, and are they safe? How about that milk … how was the cow who provided it treated? What if you're a meat eater—can you be sure your steak or pork chops are disease free? If these questions are important to you, you're not alone. All levels of government are heavily involved in determining what can and cannot be done with agricultural animals. Likewise, farmers big and small have a vested interest in producing safe, and tasty, food products—their livelihood depends on it. Yet, among these various groups there are competing interests.

"A farm regulated to production of raw commodities is not a farm at all. It is a temporary blip until the land is used up, the water polluted, the neighbors nauseated, and the air unbreathable. The farmhouse, the concrete, the machinery, and outbuildings become relics of a bygone vibrancy when another family farm moves to the city financial centers for relief.” ― Joel Salatin, Everything I Want to Do Is Illegal: War Stories from the Local Food Front.

This quote from "alternative" farmer and lecturer Joel Salatin expresses the sentiment of a growing number of small farmers, folks who believe their ability to make a living providing quality food (for example, pastured chickens and cattle, raw milk and organic veggies (grown with animal manure)) is under constant attack from governmental forces. On the other hand, many consider that the aggressive enforcement of the laws governing the use of animals in agriculture is vitally essential to public health—think swine flu, E. coli, etc.

My name is David Root. I'm an attorney located in Charleston, S.C., and I serve as chair of the Agriculture Subcommittee of the South Carolina Bar Animal Law Committee. We are publishing this periodic "blawg" to provide information addressing the many legal issues that are related to animals and agriculture, from backyard chickens to vast industrial poultry factories. As the question of where our food comes from and how agricultural animals are used and treated continues to rise to the forefront of public debate, we hope to use this setting to keep you informed of these essential questions.