BOISE, Idaho -- When a district court threw out Idaho's "ag-gag" law, the state appealed the ruling - and that case is still in court.

Oral arguments in the federal appeals case are expected in April over the Idaho law that makes it illegal for food-safety and animal-rights activists to gain employment at farm facilities under false pretenses, or to document the conditions for animals at those facilities.

Matthew Liebman with the Animal Legal Defense Fund, one of the plaintiffs in the original case, said Idaho isn't the only state with ag-gag laws - but it is the only state where they have been struck down in court.

"Idaho is one of eight states that have passed these statutes that essentially turn whistleblowers into criminals,” Liebman said. "We filed the lawsuit challenging the constitutionality of that statute under the First Amendment, the right of free speech, as well as the Fourteenth Amendment, which guarantees equal protection to everyone under the law."

According to the publication "Food Safety News," Idaho officials contend in written arguments in the appeal that the First Amendment doesn't protect video or audio recording as free speech. Officials also claimed these kinds of whistle-blower activities infringe on agricultural landowners' property rights.

But Liebman said these statutes aren't about property rights, and activists aren't using their cameras to violate landowners' privacy. He contends ag-gag laws are shielding the farm and dairy industries from criticism.

"This really isn't about privacy at all. It's about trying to cover up cruelty to animals and unsafe food practices that people have a right to know about,” Liebman said.

Ag-gag laws are being challenged in federal courts in three other states: North Carolina, Utah and Wyoming. Liebman said he expects a decision in the Utah case soon.




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The U.S. Department of Agriculture has approved field trials for bird flu vaccines among cattle, but one Utah State veterinarian says to his knowledge those trials haven't begun yet.

Dr. Daniel Christensen, state veterinarian for the Utah Department of Agriculture and Food, said the USDA is likely still a long way from having the vaccine developed that would help mitigate the spread of bird flu in livestock.

The initial field study would only involve dairy cows to evaluate the safety of the vaccine. Christensen said H5N1 among cattle isn't a death sentence as it is among birds.

"So, they seem to recover pretty well and return to a decent level of production," said Christensen, "within two to three weeks, something in that range."

But Christensen added that the bird flu can lead to a drop in milk production for a two- to three-week time period while cattle recover.

The current risk level of bird flu in the general public in Utah is low - as there are no human and cattle infections being reported, according to the state's Department of Health and Human Services.

Christensen said as we enter the fall and migratory season, the risk of animals contracting the flu does increase. He said last fall, Utah lost about 140,000 birds.

Christensen said bird flu can pose serious and even lethal health complications for backyard and commercial poultry producers.

The Utah Department of Agriculture and Food encourages folks to practice strong biosecurity measures - such as keeping poultry away from waterfowl, and to be on the lookout for symptoms of bird flu like sudden death, nasal discharge, and decreased appetite or water intake.

"Generally speaking, what we get reported most often is, from our producers, is unexpected mortality," said Christensen, "and can we come down and test to figure out if it is highly pathogenic avian influenza or if it is something else."

Christensen said Utah currently finds itself in a good spot with zero dairy and poultry operations reporting outbreaks, but said that could change as we transition seasons.

By Marlena Williams for Sentient.
Broadcast version by Kathleen Shannon for Greater Dakota News Service reporting for the Sentient-Public News Service Collaboration

On Friday, the Supreme Court handed down their long-awaited opinion in Loper Bright Enterprises v. Raimondo, overruling decades of settled precedent and effectively gutting the power of federal agencies to regulate on behalf of consumers, workers, animals and the environment. Loper Bright threatens a wide range of federal regulations, including policies that govern food safety and water pollution. The decision could undercut the authority of the federal agencies that regulate the meat and dairy industries and protect endangered species, meaning the loss of Chevron could also be a major loss for animals.

The Loper Bright case centered on a 40-year-old administrative law doctrine known as Chevron deference, which requires courts to defer to executive agencies' reasonable interpretations of ambiguous statutes. Under Chevron, agencies like the Environmental Protection Agency, the Securities and Exchange Commission and the Food and Drug Administration had considerable leeway to interpret federal laws and issue regulations based on their specific knowledge and expertise. The Supreme Court's momentous decision on Friday dramatically shifts power away from these federal agencies and towards the increasingly conservative federal courts.

What is Chevron Deference?

Chevron deference has been law since 1984, when the Supreme Court decided the landmark case Chevron U.S.A., Inc. v. Natural Resources Defense Council. In the decades after the case was decided, Chevron became shorthand for the idea that courts should defer to federal agencies when they are interpreting and applying ambiguous parts of federal statutes. As long as an agency's interpretation of a statute was reasonable, a court could not substitute its own interpretation of a law for that of an agency.

As a result, Chevron deference gave executive agencies wide latitude to fill in the gaps Congress left in sprawling, complex pieces of federal legislation. Federal agencies were able to issue regulations based on their specific expertise and respond to developing situations and needs, including climate change and the Covid pandemic.

Loper Bright and its companion case, Relentless, Inc. v. Department of Commerce, take that power away from expert agencies and give judges the massive authority to make complicated, often highly technical or scientific policy decisions about everything from dangerous pollutants to life-saving medications, as well as the meat and dairy industries.

The twin cases were brought by Atlantic herring fisherman who challenged a National Marine Fisheries Service (NMFS) policy that required them to pay out-of-pocket for federal monitors onboard their ships to enforce limits designed to prevent overfishing. But the fishermen's victory at the Supreme Court was also a win for major corporations, conservative politicians and even several members of the current Supreme Court who have long been hostile to Chevron deference and the power it granted federal agencies.

In January, The New York Times reported that the two cases were bankrolled by the conservative Koch Network, founded by the petrochemical giants Charles and David Koch. Overruling Chevron culminates a decades-long conservative project to roll back federal regulations and eviscerate what some call "the administrative state."

A Closer Look At the Opinion

In the 35-page opinion issued on June 28, just days before the belated end of the Supreme Court's latest controversial term, Chief Justice John Roberts outlined the Court's reasoning for overturning Chevron. The Court described the Chevron decision as a misguided and inconsistently applied "fiction" riddled with a "byzantine set of preconditions and exceptions" that have led some lower courts to ignore the doctrine altogether.

Relying on a novel interpretation of the Administrative Procedure Act, as well as timeworn constitutional arguments about the separation of powers, the Court asserted that it is the job of the neutral judicial system, not the executive branch, to decide complicated legal and statutory questions. While it appears that courts may still consult agency expertise for guidance, under Loper Bright, they are no longer required to give agencies deference as required by Chevron. The Court also seemed to suggest that Congress can, under certain circumstances, confer discretionary authority to an agency, but such authority will no longer be presumed.

In a forceful dissent joined by the court's three liberal justices, Justice Elena Kagan criticizes the majority for ignoring precedent, dismissing the value of agency expertise and dismantling what has become a cornerstone of modern law and governance.

"In one fell swoop, the majority today gives itself exclusive power over every open issue - no matter how expertise-driven or policy-laden - involving the meaning of regulatory law," wrote Justice Kagan. "As if it did not have enough on its plate, the majority turns itself into the country's administrative czar."

What Overruling Chevron Means for Animals and the Environment

Since the Court handed down its ruling on Friday, many groups have voiced their opposition to the decision, including the Sierra Club, the Natural Resource Defense Council, and the Southern Environmental Law Center. Environmental groups worry that the decision could have profound consequences for the agencies tasked with keeping our land, water and air healthy and clean. Without Chevron, it may be easier for polluting industries or other actors to challenge the actions of agencies like the Environmental Protection Agency or the Department of the Interior, in turn imperling regulations meant to curb pollution, protect the environment and slow the progress of climate change.

Earlier this year, Sentient reported on how overruling Chevron could impact farmed animals and wildlife. Many federal agencies - including the United States Department of Agriculture, the Food and Drug Administration and the U.S. Fish and Wildlife Service - play crucial roles in regulating animal industries and protecting wildlife. Animal advocates worry that losing Chevron will make it easier for courts to overturn regulations that directly or indirectly benefit animals.

For example, the end of Chevron may threaten pending emissions limitations for slaughterhouses and rendering plants and potentially undo new animal welfare standards rolled out by the USDA.

Overruling Chevron may also undermine the power of the Endangered Species Act, which is administered by two federal agencies: the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration. Courts have often deferred to these agencies' interpretations of the Endangered Species Act in litigation involving endangered wildlife, but the ruling in Loper Bright could make endangered animals even more vulnerable by making courts less deferential to the agencies tasked with protecting them.

The U.S. Fish and Wildlife Service recently issued finalized rules designed to revise habitat and species classifications and help the ESA to respond more readily to the effects of climate change on wildlife. Without Chevron deference, any challenge to these new rules is more likely to prevail.

However, some animal lawyers and advocates think overturning Chevron will ultimately have little impact on farmed animals, and may even benefit them. Without Chevron, judges might have room to look more critically at actions by agencies like the USDA or the EPA that have negative impacts on animals and rule in favor of advocates seeking more protections.

An Uncertain Future

Future litigation will likely be necessary before we understand the true contours of the new legal landscape the Supreme Court created last week. But it is clear that Loper Bright and Relentless signal a definitive turn towards deregulation, one that will make it even harder for agencies to regulate on the behalf of people, animals and the environment.


Marlena Williams wrote this article for Sentient.


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By Jessica Scott-Reid for Sentient.
Broadcast version by Suzanne Potter for California News Service reporting for the Sentient-Public News Service Collaboration

A growing number of consumers want to know that their meat, dairy and eggs come from animals who were treated well. The trend has become so widespread, in fact, that in the past decade, animal welfare labels have become a familiar sight on grocery store shelves. Now, a growing number of industry and animal welfare groups say fish welfare labels are the next frontier. The once-pervasive "happy cow" marketing campaign of the early-aughts may soon find a new life with the fish industry, as we enter the era of the "happy fish." But just as with labels for meat and dairy, the promise does not always meet the reality. In other words, there's no reason to believe the practice described as humane-washing won't be a problem for fish too.

The Rise of 'Sustainably Raised' Fish

Americans are saying they want to eat a lot more fish these days, citing a mix of health and environmental concerns. Just as many consumers of meat are drawn to cuts marked "sustainable," fish shoppers too are looking for an environmental seal of approval. So much so, in fact, that the "sustainable" seafood market is predicted to reach more than $26 million by 2030.

One popular sustainability certification program for wild caught fish is the blue check from the Marine Stewardship Council (MSC), one of the oldest fish certifications, used for an estimated 15 percent of the global wild fish catch. The blue check signals to consumers that the fish "comes from healthy and sustainable fish stocks," according to the group, meaning that the fisheries considered the environmental impact and how well the fish populations were managed to avoid overfishing. So while restricting how many fish a company harvests doesn't address how fish die, it at least avoids wiping out entire populations.

Yet the pledge does not always match the practice. According to a 2020 analysis, researchers found that MSC blue check marketing materials often misrepresent the typical environment of the fisheries it certifies. Even though the certifying group "disproportionately features photographs of small-scale fisheries," most of the fish certified by MSC Blue Check are "overwhelmingly from industrial fisheries." And while around half of the group's promotional content "featured small-scale, low-impact fishing methods," in reality, these types of fisheries represent a mere "7 percent of the products it certified."

In reaction to the study, the Marine Stewardship Council "raised concerns" about the authors' connection to a group that had criticized MSC in the past. The journal conducted a post-publication editorial review and found no errors in the study's findings, though it did revise two characterizations of the council in the article and revise the competing interest statement.

Sentient reached out to the Marine Stewardship Council to ask about what, if any, animal welfare standards the blue check promises. In an email response, Jackie Marks, senior communications and public relations manager for MSC replied that the organization is "on a mission to end overfishing," with a focus on environmentally sustainable fishing" and "ensuring that the health of all species and habitats are protected for the future." But, she continues, "humane harvest and animal sentience sit outside the MSC's remit."

Another resource for conscious consumers is the Monterey Bay Seafood Watch Guide. The online tool shows consumers which species and from which regions to "responsibly" purchase, and which ones to avoid, covering wild fisheries and aquaculture operations alike. Here too, the emphasis is on environmental sustainability: "Seafood Watch's recommendations address the environmental impacts of seafood production to help ensure that it is fished and farmed in ways that promote the long-term well-being of wildlife and the environment," according to its website.

Yet in Seafood Watch's extensive standards for aquaculture, and for fisheries, (all 89 and 129 pages, respectively), standards that "promote the long-term well-being of wildlife," neither animal welfare nor humane treatment are mentioned. For now, most fish labels with claims about sustainability primarily cover environmental practices, but a new crop of labels that investigate fish welfare are on the horizon.

The Future of Fish Labels Includes Fish Welfare

Up until a few years ago, most consumers didn't give much thought to fish, how they lived or whether they were capable of suffering. But a growing body of research has uncovered evidence of fish sentience, including that some fish recognize themselves in the mirror, and are quite capable of feeling pain.

As the public learns more about the inner lives of all sorts of animals, including fish, some consumers are willing to pay more for products that assure them the fish was treated well. Fish and seafood companies are taking notice of this, along with some labeling bodies, including the Aquaculture Stewardship Council, which has called animal welfare "a key factor in defining 'responsible production."

In 2022, ASC published its Fish Health and Welfare Criterion draft, where the group called for certain welfare considerations to be included, including "anesthesia of fish during handling operations that can inflict pain or injury if fish are moving," and "maximum time fish can be out of water," that "shall be signed off by a veterinarian."

Much like most meat industry labels, the group leaves oversight mainly to farmers. ASC spokesperson Maria Filipa Castanheira tells Sentient that the group's "work on Fish Health and Welfare consists of a set of indicators that allows farmers to continuously monitor and evaluate their farming systems and the status of fish species." These are "real daily actions that take into account some key indicators defined as Operational Welfare Indicators (OWI): water quality, morphology, behavior and mortality," she adds.

Heather Browning, PhD, a researcher and lecturer on animal welfare at the University of Southampton, raised concerns about the measures. Browning, telling industry publication The Fish Site that these measures mostly focus more on animal health than well-being.

Other measures that could address animal well-being specifically include preventing overcrowding - which is common and can lead to stress - and avoiding sensory deprivation caused by a lack of natural stimuli. Mishandling during capture or transport can also cause fish to suffer, and slaughter methods for farmed fish, also often considered by animal protection advocates to be inhumane, are overlooked by many labeling schemes.

Fish Welfare for Wild and Farmed Fish

In the U.S., "wild caught" labeled fish do tend to experience some welfare benefits as compared to farmed fish, at least during their lives.

According to Lekelia Jenkins, PhD, associate professor of sustainability at Arizona State University, who specializes in solutions for sustainable fisheries, these animals "grow up in their natural environments, are allowed to engage in the ecosystem and provide their ecological function in their natural environment." This, she adds, "is a healthy thing for the environment and the fish up to the point of capture." Compare this to many fish raised in industrial aquaculture operations, where overcrowding and living in tanks can cause stress and suffering.

That all takes a drastic turn for the worse, however, when fish are caught. According to a 2021 report by Eurogroup for Animals, fish can die in any number of painful ways, including "chased to exhaustion," crushed or asphyxiated. Numerous other fish called bycatch are also caught up in nets and killed in the process, often in the same painful manner.

Is a Better Death for Fish Even Possible?

While regulating "humane slaughter" is notoriously difficult, a number of national welfare organizations are trying, including Australia's RSPCA, Friends of the Sea, RSPCA Assured and Best Aquaculture Practices, by making stunning before slaughter mandatory. Advocacy group Compassion in World Farming created a table that lists the standards - and lack thereof - for a variety of fish labeling schemes, including whether the way the fish is slaughtered is humane and whether stunning prior to killing is mandatory.

CIWF tells Sentient that for the group "humane slaughter" is codified as "slaughter without suffering, which can take one of those three forms: death is instantaneous; stunning is instantaneous and death intervenes before consciousness returns; death is more gradual but is non-aversive." It adds that "Instantaneous is interpreted by the EU as taking less than a second."

Included on CIWF's list is the Global Animal Partnership (GAP), which also requires stunning before slaughter, but unlike the others, also requires larger living conditions, minimized stocking densities and enrichment for farmed salmon. However, a representative from GAP tells Sentient that, for now, there are no GAP-certified salmon operations.

Still, there are other efforts, some more ambitious than others. One, the Ike Jime slaughtering method, aims to fully kill the fish in seconds, while the other, cell cultivated fish, requires no slaughter at all.


Jessica Scott-Reid wrote this article for Sentient.


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