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    Highly Pathogenic Avian Influenza And The Law: FAQ For Animal Sanctuaries And Rescues

    An image of a black chicken with a tipped scale and a question mark between them. Captions read: HPAI And The Law For Your Animal Sanctuary
    HPAI has introduced not only uncertainty with regards to the safety of avian sanctuary residents from the virus, but from legal measures that are being taken to control this disease. Read a quick introduction to those legal issues here.

    Reminder: We Aren’t Your Lawyer!
    The Open Sanctuary Project is not a law firm and this resource is not a substitute for the services of an attorney. Accordingly, you should not construe any of the information presented as legal advice that is suitable to meet your particular situation or needs. Please review our disclaimer if you haven’t yet.

    Content Warning
    This resource addresses HPAI control measures, which include the discussion of the mass killing of birds. In recognition of the highly stressful nature of the current outbreak situation for rescuers and sanctuaries, we will not include graphic images of birds suffering from the virus or of control measures.

    Navigation
    While we have included links to relevant sections to our main resource on HPAI and the law, we are currently dealing with intermittent issues with linking to subsections of other resources, so you may need to navigate that resource through the table of contents, or by scrolling. We are hoping this issue will be resolved shortly.

    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 biosecurity 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 domesticated 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 USDA. 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 farmed animals have significant economic impacts for industrial animal agriculture, 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 farmed animal populations. 

    Disease also can complicate farmed animal and animal product 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. Zoos, 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 quarantine 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.

    An image showing an area marked as an "infected premises, showing a surrounding area as an "infected zone," with a further area marked as both an "infected zone and buffer zone," as well as a "surveillance zone."

    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.

    SOURCES:

    Advanced Topics In Resident Health: Avian Influenza | The Open Sanctuary Project

    Avian Influenza FAQ | The Open Sanctuary Project

    HPAI Biosecurity Plan And Checklist | The Open Sanctuary Project

    The Open Sanctuary Project’s HPAI Recordkeeping Template | The Open Sanctuary Project

    Avian Influenza Infographic | The Open Sanctuary Project

    Highly Pathogenic Avian Influenza: Your Sanctuary And The Law | The Open Sanctuary Project

    The U.S. Government Publishing Office |The Animal Health Protection Act: United States Code, 2020 Edition, Title 7, Chapter 109 (Non-Compassionate Source)

    Highly Pathogenic Avian Influenza Response Plan: The Red Book | United States Department of Agriculture (Non-Compassionate Source)

    World Organization for Animal Health | Animal Diseases (Non-Compassionate Source)

    World Organization for Animal Health | Avian Influenza (Non-Compassionate Source)

    World Organization for Animal Health | Terrestrial Animal Health Code: Killing of Animals for Disease Control Purposes (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 euthanasia of animals (Non-Compassionate Source)

    American Veterinary Medical Association | AVMA Guidelines for the humane slaughter of animals (Non-Compassionate Source)

    USDA/APHIS | Additional Criteria Must Be Met Before Emergency Use of Vaccine for Highly Pathogenic Avian Influenza Can Be Approved (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)

    Non-Compassionate Source?
    If a source includes the (Non-Compassionate Source) tag, it means that we do not endorse that particular source’s views about animals, even if some of their insights are valuable from a care perspective. See a more detailed explanation here.

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