The impacts of highly pathogenic avian influenza and the associated legal responses to them are complex, nuanced, and highly dependent on your state’s laws, organizational culture, as well as most importantly, the measures you as a sanctuary or rescue have taken to protect your avian residents from contact with the virus (which includes implementing robust The policies and protocols of an organization to limit the spread of illness and disease. and careful recordkeeping.) We recognize that the current outbreak has impacted sanctuaries significantly, and thus have developed a number of resources to help you address this threat to your avian residents. Links to each of those can be found below in Sources and will be linked in relevant portions of this FAQ. Our full resource on HPAI and the law can be found here, but we do recognize that it is a long and complex resource, especially for caregivers who already have their hands full with day to day care. As a result, for those in search of quick answers, we prepared this FAQ which can also help give you “quicker” answers and also refer you to relevant portions of our longer resource.
What Is HPAI?
Avian influenza refers to any disease or infection in birds caused by Type A influenza viruses. Virus strains are categorized as highly pathogenic avian influenza (HPAI) or low pathogenic avian influenza (LPAI.) In Adapted over time (as by selective breeding) from a wild or natural state to life in close association with and to the benefit of humans birds, low pathogenic AI viruses typically have low morbidity and mortality rates. HPAI however carries a high morbidity and mortality rate.
Highly pathogenic Eurasian H5 avian influenza was detected in wild birds in South and North Carolina in mid-January, 2022 after not being detected in a wild bird in the United States since 2016, and since then has been found in wild birds in all major migration flyways, and in domesticated flocks of birds in thirty-five states. For current case information, please refer to the USDA APHIS website. We are working to keep our full-length Avian Influenza resource updated to reflect affected states as reported by the The United States Department of Agriculture, a government department that oversees agriculture and farmed animals.. We encourage you to review our full resource on the subject, and if you have quick questions about HPAI generally, you can refer to our Avian Influenza FAQ.
Why Is The Government Interested In HPAI?
Farmed birds are legally recognized only on the basis of their “value” in terms of human consumption. According to the North American Meat Institute, “the meat industry contributes approximately $894 billion in total to the U.S. economy.” Diseases in A species or specific breed of animal that is raised by humans for the use of their bodies or what comes from their bodies. have significant economic impacts for industrial The human production and use of animals in order to produce animal products, typically for profit., interstate commerce, and potential implications with regards to human safety and welfare. Therefore, Congress implemented the Animal Health Protection Act, granting the USDA broad powers to eradicate disease in A species or specific breed of animal that is raised by humans for the use of their bodies or what comes from their bodies. populations.
Disease also can complicate farmed animal and Anything that originates from an animal’s body, including things like their eggs, feathers, flesh, honey, milk, and wool. imports and exports, creating further incentive to eradicate diseases that may impact international trade. The World Organization for Animal Health (Founded as OIE) has established a list of “notifiable” terrestrial and aquatic animal diseases, which can be found here.
What Powers Does The Government Have With Regards To My Avian Residents?
The most relevant federal statute is the Animal Health Protection Act, which vests the USDA with broad powers in the case of an extraordinary emergency, of which HPAI is considered.
This includes the power to kill any animals if it determines that this is necessary to do so to prevent the spread of a disease. The USDA may also check for diseases without a warrant when it comes to:
- Imports of animals into the U.S.;
- Movement of animals between states;
- And transport within a state if there is probable cause to believe that the animal in question is coming from an area that has been quarantined.
If HPAI has been detected in a flock, USDA and state agencies have additional powers to set up investigation around infected premises.
For more information about USDA HPAI protocols, please refer to the Highly Pathogenic Avian Influenza Response Plan: The Red Book (hereinafter referred to as “the Red Book.”) Additional USDA guidance can be found here.
For a fuller explanation of federal law with regard to detections of HPAI, our full resource on HPAI and the Law discusses that here. Please note that states may have additional regulations, reporting requirements and possible enforcement measures depending on their statutes and local organizational cultures. A list of reportable diseases by state is available here, and a list of state specific guidance on HPAI is available here.
What Are The Risks Of HPAI To My Residents?
What is particularly scary for sanctuaries and caregivers about HPAI is that it is a “double-pronged” threat. The first risk is your avian residents contracting HPAI through contact with wild birds, or through other indirect contact with the virus, which is a deadly risk. The second risk centers around what can happen if HPAI is detected in domesticated birds in your area, which may also be potentially deadly because of the possibility of surveillance and testing of your avian residents; and if one resident tests positive for HPAI, the government will almost certainly kill all of your avian residents.
The HPAI virus does not discriminate. Organizations where animals, either rescued, bought, borrowed, or bred, are kept, typically for the benefit of human visitor interest., backyard flocks, rehab facilities, commercial facilities, and sanctuaries alike can all be impacted by either “prong” of the HPAI threat if they do not take protective measures with respect to their residents. Careful management of your biosecurity and recordkeeping can help protect your residents.
What Is The Best Way To Protect My Residents?
Adhering to good biosecurity is always important.. In times of increased risk, sanctuaries should take additional measures to prevent residents from viral exposure. Our full resource on avian influenza discusses this in detail here. You can also implement our HPAI biosecurity protocols and checklist.
Careful record keeping of your adherence to your biosecurity plan is also critical. If HPAI is found in your area, detailed records of biosecurity practices can demonstrate your organization’s safety standards to authorities. We have HPAI biosecurity record keeping templates available here.
What Happens If HPAI Is Detected In My Region? Is My Sanctuary Subject To Surveillance?
Potentially, yes. Much depends on the proximity of the detection, and the local law and organizational culture of the state. Sanctuary operators in some states have reported receiving letters when HPAI detections have been made in their area, mandating that they cease all transportation of birds, and keep them indoors.
The below illustration, from the USDA Red Book, depicts a hypothetical example of what kind of zones might be set up in response to a detection of HPAI. In such an area,all birds within the infected premises would be depopulated. Buffer zones and control areas would be set up typically with a 10 kilometer radius around the infected premises, and then a further surveillance zone would be set up beyond that. Generally, bird keepers within these areas would have a transportation The policy or space in which an individual is separately housed away from others as a preventative measure to protect other residents from potentially contagious health conditions, such as in the case of new residents or residents who may have been exposed to certain diseases. imposed upon them, forbidding them from transporting birds from their premises. They may also be subject to inspection and testing, regardless of whether they are a “commercial poultry producer,” a “backyard flock,” or a sanctuary.
For more information, you can check out this section of our full resource on HPAI and the law.
What Happens If HPAI Is Detected In My Avian Residents? Will All My Avian Residents Be Killed?
Sadly, yes. All birds on site where HPAI is detected are killed. According to the USDA Red Book on HPAI response, “the United States’ primary control and eradication strategy for HPAI in domestic poultry, as defined by international standards and the OIE, is “stamping-out.” “Stamping-out” is defined in the OIE Terrestrial Animal Health Code (2016) as the killing of animals which are affected and those suspected of being affected in the herd and, where appropriate, those in other herds which have been exposed to infection by direct animal to animal contact, or by indirect contact with the casual pathogen; animals should be killed in accordance with OIE Chapter 7.6.”
As stated above, HPAI does not discriminate between “commercial producers” and sanctuaries or rescues. Unfortunately HPAI has been detected in some sanctuary and rescue contexts, and in those cases, all avian residents were depopulated, regardless of their sanctuary status, and regardless of whether birds were “indoor” versus “outdoor” birds.
Do I Get A Say In How My Birds Are Killed, If My Avian Residents Must Be “Depopulated?”
The Red Book states, “in almost all cases, water-based foam or carbon dioxide are the depopulation methods available to rapidly stamp-out the HPAI virus in poultry. Each premise is evaluated individually, considering epidemiological information, housing and environmental conditions, currently available resources and personnel, and other relevant factors. However, to meet the goal of depopulation within 24 hours and halt virus production, other alternative methods may also be considered by State and APHIS officials.”
There may be some leeway provided in some cases, but the answer to this question is ultimately, “probably not, but it depends.” Again, these kinds of answers are likely highly contingent on the policies and organizational culture of the state in which the detection occurs, as well as the relationship that the sanctuary may or may not have with local officials.
Can I Do Anything To Prevent “Depopulation?” How About A Lawsuit?
For many reasons, a legal challenge will not likely work as hoped. For hypotheticals that can illustrate how this may play out, consider checking out the “worst case scenario” and the “best case scenario” in our full resource on HPAI and the law, as well as our comprehensive treatment of the various possible remedies that may be available through litigation, which discusses legal and logistical obstacles related to injunctive relief.
A time may come when sanctuaries, rescuers, and caregivers may be able to change the parameters of the legal system to better address the needs of animal sanctuary residents, but for the moment, our best bet is to address the threat directly before us as diligently as we can by protecting our residents with biosecurity protocols.
What About A Vaccine? Can We Get Access To That?
The short answer is no, and it does not look like a likely possibility for the near future either. HPAI is a rapidly mutating virus, making development challenging. In theory, vaccination may be used as a part of a control response in conjunction with the “stamping out” (i.e. depopulation) method of control for HPAI. However in practice, both international laws regarding animal disease and U.S. laws strongly disfavor vaccine use in the context of HPAI, and favor depopulation.
When Will HPAI Be “Over?”
Unfortunately, we don’t know. The current outbreak of HPAI is different from the previous outbreak that took place from 2014-2015, and therefore that outbreak cannot now be used as a predictive model. Heat and dryness seem to have an impact on destroying the virus in the environment, but our current HPAI outbreak has had a much further spread than the 2014-2015 outbreak, impacting all four major migratory bird flyways in the United States.
Additionally, the current virus strains seem to have impacted a much wider range of species than the 2014-2015 strains, killing wild mammals as well as wild birds. The worst case scenario is that HPAI may in fact become endemic, and become an ongoing constant risk. It is simply too soon to know.
Some sanctuaries have already taken measures for the possibility that HPAI may become endemic, and have started constructing large fully covered and screened runs for their avian residents, as well as implemented new full time biosecurity measures to anticipate and address risks.
While we hope HPAI does not become endemic, it is not outside of the realm of possibility, and therefore, it is worth considering implementing some long term planning around this possible reality.
World Organization for Animal Health | Animal Diseases (Non-Compassionate Source)
World Organization for Animal Health | Avian Influenza (Non-Compassionate Source)
American Veterinary Medical Association | AVMA Guidelines for the Depopulation of Animals: 2019 Edition (Non-Compassionate Source)
American Veterinary Medical Association | AVMA guidelines for the The act of ending someone’s life to spare them from suffering or a significantly reduced quality of life that cannot be managed. of animals (Non-Compassionate Source)
American Veterinary Medical Association | AVMA Guidelines for the humane slaughter of animals (Non-Compassionate Source)
Insight into Alternative Approaches for Control of Avian Influenza in Poultry, with Emphasis on Highly Pathogenic H5N1 | National Library of Medicine: E.M. Abdelwhab and Hafez M. Hafez (Non-Compassionate Source)
USDA/APHIS | Policy and Approach to HPAI Vaccination (Non-Compassionate Source)