Tuesday, October 07, 2014

Did the dismissal of Missouri v. Harris have an unanticipated effect?

Source:  Center for Food Safety
The latest chapter in the California battery cage saga ended last week.  State of Missouri, et al. v. Harris is no more.

Background:  California’s Prevention of Farm Cruelty Act was enacted in a 2008 ballot initiative (Prop 2).  The law, which takes effect on January 1, 2015, criminalizes production practices that involve confining or tethering a farmed animal “for all or the majority of the day, in a manner that prevents such animal from (a) lying down, standing up, and fully extending his or her limbs; and (b) turning around freely.”  One such confinement practice is the use of battery cages for laying hens, so the department of agriculture issued specific hen housing standards.  At the urging of California egg producers, in 2010 the legislature enacted AB 1437, which, as of January 1, will ban the sale of eggs for human consumption produced in violation of the new standards.  In February the state of Missouri filed for declaratory relief, alleging that AB 1437 violates the “dormant” commerce clause and is otherwise preempted by the Poultry Products Inspection Act.  Alabama, Kentucky, Nebraska, Oklahoma, and Governor Branstad of Iowa joined as plaintiffs in Missouri v. Harris shortly thereafter.)  The Humane Society of the U.S. (HSUS) and the Association of California Egg Farmers joined as Defendant-Intervenors in March and April, respectively.

Last week, the U.S. District Court for the Eastern District of California dismissed the case for lack of standing.  Plaintiffs based their standing on the parens patriae doctrine, claiming to represent the interests of their respective citizenry.  The court disagreed, finding it "patently clear" that Plaintiffs were actually representing the interests of “a discrete group of egg farmers,” and an undefined group at that.

Plaintiffs' standing argument suffered from a lack of evidence of its projected injuries.  Most telling was the insistence that allegations as to California's "effort to restrain interstate commerce" were sufficient for "alleg[ing] injury to quasi-sovereign interests."  Further, Plaintiffs argued that imminent injuries to egg producers (that is, to those which have not begun converting production methods) would reverberate to their citizenries at large.  Stated plainly, business interests = public interests. The court wasn't having it.  Characterizing the states' attempts at parens patriae standing as “futile,” the court dismissed with prejudice.

How could the challengers have made such a fundamental mistake?  More to the point, who and where were the "discrete group of egg farmers"?  Not a single producer or trade organization moved to intervene or file an amicus brief.  The only friend of the court was the Missouri Liberty Project, formed in March 2014 by the attorney representing Hobby Lobby in last term’s Burwell v. Hobby Lobby Stores.  California was joined by eleven amici, including the Animal Legal Defense Fund and the Center for Food Safety.

Where were the trade organizations?  

To be sure, United Egg Producers (UEP) would have been an obvious choice of plaintiff.  However, given the UEP’s very public support for the Egg Products Inspection Act Amendments in 2012 and 2013 (S. 820 / H.R. 1731), the organization would have struggled to meet the high standards for obtaining declaratory and injunctive judgments.  Had it not been struck from the 2014 farm bill during final discussions, the "Egg Bill" would have mandated phasing out use of battery cages over the next 15 years.  Despite UEP's recent policy reversal, the horse chicken has left the barn.

Nor should it come as a surprise that the USDA Agriculture Marketing Service’s American Egg Board has kept quiet for now.  In 2008, the HSUS successfully enjoined AEB from improperly using federal check-off funds in a media campaign to oppose Proposition 2.  Californians for Humane Farms v. Schafer, No. C 08-03843 MHP, 2008 WL 4449583 (Sept. 29, 2008 N. D. Calif.).  That leaves the U.S. Poultry and Egg Association, which doesn’t appear to participate in litigation efforts.

Where were the egg producers?  

Several factors suggest that taking the lead on this challenge would be a public relations debacle for egg producers:  1) the increased media attention on industrial animal farming practices; 2) the expanding community of retailers, restaurants, and manufacturers announcing intentions to source eggs from non-battery cage producers (Heinz being the most recent); 3) the aforementioned “Egg Bill” campaign; and 4) the fact that California joins Massachusetts, Oregon, and Washington in raising standards for egg-laying hens. (The European Union’s 1999 ban on battery cages took effect in 2012.)

Although I can’t predict what will happen next with A.B. 1437, the dismissal of Missouri v. Harris likely made an impression on at least one Supreme Court justice.

Heads up:  Association des Eleveurs de Canards et d’oies du Quebec v. Harris

This week, the U.S. Supreme Court deferred rendering a decision on a petition for certiorari over another California farmed animal production practices law, the "foie gras ban."

In 2005, California’s legislature banned the production and sale of foie gras.  More precisely, the act bans “force feed[ing] a bird for the purpose of enlarging the bird's liver beyond normal size, or hir[ing] another person to do so,” Calif. Health & Safety code § 25981, and selling products resulting from these methods, § 25982.  In 2012 the ban became effective and was immediately challenged by a Canadian trade group, (the Association des Éleveurs de Canards et d'Oies du Québec), a New York-based foie gras producer (Hudson Valley Foie Gras, LLC), and a chain of Californian restaurants. Notably, no American trade organization representing the U.S. poultry industry joined.

Plaintiffs challenged the statute as (1) void for vagueness; (2) a due process violation for “imposition of penalty without requiring mens rea for conduct not involving public health or safety”; and 3) a violation of the dormant Commerce Clause.  The district court denied Plaintiffs’ Motion for Preliminary Injunction, finding an insufficient showing of irreparable harm and likelihood of success on the merits, and the ninth circuit affirmed. 729 F.3d 937 (9th Cir. 2013).

Plaintiffs appealed to the highest court, which considered the case in its first conference this term. Last week, before the ruling in Missouri v. Harris, the Supreme Court granted petitions for 11 new cases – and Canards was not one of them.  It would have been reasonable to assume that the Court was planning to deny cert.  Yesterday, however, when the Court issued orders (including denials of petition), Canards was missing from the list.  Stay tuned.

The question presented:

Whether the Commerce Clause allows California to impose a complete ban on the sale of wholesome, USDA-approved poultry products from other States and countries - in this case, foie gras - based solely on the agricultural methods used by out-of-state farmers who raise their animals entirely beyond California's borders.

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