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    Highly Pathogenic Avian Influenza: Your Sanctuary And The Law

    How do law and economics intertwine when it comes to HPAI control measures? How can they impact your sanctuary? What recourse might you (or might you not) have? It’s complicated! Read on to learn all about it. Photo by Sasun Bughdaryan on Unsplash

    Resource Goals

    • Gaining a general understanding of how federal law (both statutory and administrative) in the United States operates around detections and responses to diseases like highly pathogenic avian influenza (which will be referred to as “HPAI”);
    • Gaining a general understanding of the role of state law, and how it intertwines with federal law when it comes to responses to detections of HPAI;
    • Learning about lawsuits for injunctive relief and lawsuits for damages, and the logistical, and legal barriers, and unintended consequences that may accompany them;
    • And gaining a better understanding of why careful biosecurity and recordkeeping procedures are the primary and best measures that you can take when it comes to protecting your avian residents from both the HPAI virus, and associated control measures.

    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 will address HPAI control measures, which include the discussion of the mass killing of birds. However, 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.

    Detections of highly pathogenic avian influenza in domesticated birds continue to rise in more and more states across the U.S. For current numbers, please refer to the Animal and Plant Health Inspection Service (hereinafter “APHIS”) of the United States Department of Agriculture’s 2022 Detections of Highly Pathogenic Avian Influenza page, which makes announcements as the first finding in a new state is confirmed. Also please see this page, which documents findings by day, as well as the total number of birds affected thus far, breaking numbers down by commercial and “backyard” flocks. Let’s be very clear about what “being affected” means for birds in this context: It means that all the “affected” birds have been “depopulated,” a euphemism for being killed, in order to prevent the spread of the virus. The last major HPAI outbreak looked like this on a map:

    A map of the United States as of 8/31/2015 which shows detections of HPAI in all birds.
    All HPAI Detections in All Birds, by Type as of 8/31/2015. Source: USDA/APHIS | Highly Pathogenic Avian Influenza Response Plan: The Red Book 

    While certain animal industrial agriculture publications attribute the current rate of detections of HPAI to much higher levels of surveillance, it seems clear that the current outbreak is well on its way to surpassing that of 2014-2015. As of this writing, the current outbreak of HPAI according to a map published by the Center for Disease Control, which includes only “backyard and commercial birds,” looks like this:

    A map of the United States showing counties in which bird flu outbreaks have been detected in the current outbreak.
    Source: Centers for Disease Control And Prevention: H5N1 Bird Flu Detections across the United States (Backyard and Commercial)

    That grim fact brings us to what is particularly scary for sanctuaries and caregivers about HPAI: it is a “double-pronged” threat. First, there is the clear and present risk of 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. This second risk is also a potentially deadly risk, because it comes with the possibility of surveillance and testing of your avian residents, and if one tests positive for HPAI, the almost certain “depopulation” i.e. killing of all of your avian residents.

    It has become painfully clear since this outbreak began that the HPAI virus does not discriminate. Zoos, backyard flocks, rehab facilities, commercial facilities, and sanctuaries alike can all be impacted by HPAI if they do not take protective measures with respect to their residents. It’s not a matter of how much you love your birds, or how good your care is generally – being a sanctuary makes no difference to the virus. In the wake of this very scary reality, many sanctuaries have questions as to what actions they can take to protect their avian residents. Let’s be very clear here: There is a great deal that you can do and control in the face of this risk, and that is your biosecurity and recordkeeping. We cannot emphasize this enough.

    How You Can Help Protect Your Residents
    All risks to your avian residents of HPAI infection are directly related to the measures that YOU actively take to protect them from direct or indirect contact with:

    1. Infected wild birds and other wildlife;
    2. People who have been exposed to infected wild bird feces;
    3. And contaminated fomites which include tools, vehicles, bedding, and food.

    The best way to protect your flock from ALL aspects of the HPAI threat is always going to be taking proactive and strong defensive biosecurity measures, and administrative measures to document them!

    We have resources to support you in this! You can educate yourself on HPAI, create implement and enforce a biosecurity plan and checklist at your sanctuary, and do careful daily recordkeeping using templates like these. The most important thing you can do right now is to take these measures, and it is absolutely critical to take them seriously.

    When it comes to the “second prong” of the HPAI threat, the question of surveillance and control measures in areas where HPAI has been detected, unfortunately, we have fewer answers. 

    We have gotten repeated questions with regards to this “second prong,” some of which may be potentially upsetting, so please be forewarned. These questions include:

    • What happens if HPAI is in my region? Is my sanctuary subject to surveillance?
    • What happens if HPAI is detected in my avian residents? Will all my avian residents be killed?
    • Do I get a say in how my birds are killed, if my avian residents must be “depopulated?”

    Again, we can’t give simple answers to many of these. Our goal in this resource is to offer the answers that we do have, and to help you get a better understanding of the complexities around these questions, and why they’re so hard to answer. We know that it is deeply frustrating that even once you have taken all biosecurity and administrative measures possible to protect your residents, you may still have to deal with the question of being potentially subjected to control measures. The good news we can give you is that, while even the best biosecurity and recordkeeping may not prevent you from having to deal with HPAI surveillance, taking these measures may help you and your residents significantly when it comes to further control measures if you do find yourself faced with them.

    Sanctuary and caregiver friends, you may be asking, “WHY are there no clear answers to these questions?” There are a number of reasons, but first and foremost, it is because HPAI control measures are administered jointly: both federally by the United States Department of Agriculture (hereinafter “USDA”), and by the state in which the detection occurs. This quickly becomes complicated because reporting requirements and responses may differ state-by-state to some extent. For this, we can thank federalism, to be further explained below.

    This is why, much of the time, the best answer we can offer you is a qualified “lawyer answer”: the notorious response: “It depends.” We wish we could offer straightforward, concrete guidance here. But there are many reasons why we cannot, and it’s important for you to understand why.

    When it comes to disease responses in farmed animals, things get really tricky, really quickly. But to make it understandable, let’s start by considering federal law around HPAI, so you can get a better understanding of what kind of response powers the federal government has with regards to outbreaks like HPAI.

    This Is Just A Primer!
    A comprehensive consideration of the law around animal agriculture in the United States is beyond the scope of this resource. Our aim is solely to give sanctuaries a general idea of the interplay of powers of when it comes to both federal and state government responses to diseases like HPAI, and how those may play out into “control measures” that can impact your sanctuary. Our hope is to offer guidance that can enable sanctuaries to understand the seriousness of both the HPAI threat to residents, as well as the control measures that may be faced.

    The Question of Federalism

    To get a sense of how federal and state laws relate to each other, let’s do a quick review of the United States Constitution. You might say, “Why? Yuck!” We have to talk about it because surprisingly, federalism comes up again and again when it comes to animal rescue and sanctuary concerns. So many issues tie into it, including questions about interstate transport, ear tagging, and what we’re talking about here, which is disease.

    We promise to keep it as short and painless as possible! So what is “federalism?” In the U.S., it’s about the dynamic when state and federal laws dance with each other, and how this dance is often a power play. Simply put, federalism is the question of how simultaneous control of the same territory works when there is a larger controlling power (the federal government) and a smaller local power (the state government). As you might imagine, there are many dynamics. Under the U.S. Constitution, many powers are reserved for states when it comes to legislation. These powers include creating school systems, overseeing state courts, creating public safety systems, managing business and trade within the state, managing local governments, and more. These powers are referred to as “reserved powers.” However, federal powers can sometimes trump state powers!

    The United States Congress’ power (or federal power) to regulate is generally controlled by what is commonly known as the “Commerce Clause”, which is complemented by the powers of the “Necessary and Proper Clause”. The “Commerce Clause” gives Congress the power to regulate “commerce” among the several states and the “Necessary and Proper Clause” provides that Congress shall have power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”. You may already see how these broad terms can lead to tangles between state and federal regulations at times!

    How does this relate to HPAI? When it comes to questions about industrial animal agriculture, there are many practices that involve the transport of animals across multiple states. Obviously, this includes transport regulations, things like ear tagging in some animals for traceability, as well as questions of disease. Interstate questions like these give the federal government power to regulate animal agriculture, and so there are many federal laws that deal with it. This is especially true when it comes to questions of disease. But there is also state-by-state legislation governing the same questions. So when we talk about control measures around HPAI, this interplay becomes important! So let’s start by briefly considering federal statutes and regulations:

    A Look At Federal Law

    Federal law is very complex. As mentioned above, there are a lot of statutes that impact farmed animals, from questions of transport, to regulations around how they are kept, and questions about the killing of animals. In general, what federal statutes tend to do is vest and delegate authority for these matters in administrative agencies that are “specialized” in these particular questions. The USDA is generally the main agency responsible, although believe it or not, sometimes agencies like the Department of Homeland Security can make appearances in this realm! The USDA then, based on the statutory authority given to it by Congress, will issue regulations under each statute, as well as provide additional guidance, and will also coordinate with the states. It also can delegate authority to the states themselves, sometimes by allowing them to generate their own regulatory programs that are “as good as or equal to” the standards that are set by the USDA. So even within the federal law dealing with these questions, there are layers to consider. And there are other external pressures and factors that come into play, like economics. So let’s briefly look at that so we understand the larger context of federal regulation.

    HPAI And Economics

    A photograph of a pile of dollar bills.
    “Follow the money.” Photo by Sharon McCutcheon on Unsplash

    It is a harsh reality that the dominant culture views farmed animals, including chickens and other “poultry” as either consumable objects, or objects who generate consumable objects (i.e. eggs). It is therefore unsurprising that how these beings are treated under the law relates back to their “value” as it pertains to human consumption. When it comes to all regulations with respect to the lives of farmed animals, this is a common theme. It is then also not a shock that this holds true when it comes to how the government views and treats the question of disease in farmed animals. Generally, what the government will consider first is the question of human safety and welfare. 

    Questions related to that include the following: “Is this disease zoonotic (i.e. transmissible to humans)”? “If humans can catch it, who is most susceptible? Is it workers who deal with the animals in question, or is it consumers?” (In general, there is more concern expended on the latter than the former, as most workers involved in working with farmed animals tend to be low-paid and highly marginalized individuals.) 

    Finally, there is the related but overarching question of the almighty dollar. The following facts may be upsetting to some, but we have to share them because they play heavily into legal considerations around farmed animals: According to the North American Meat Institute, “the meat industry contributes approximately $894 billion in total to the U.S. economy, or just under 6 percent of total U.S. GDP and, through its production and distribution linkages, impacts firms in all 440 sectors of the U.S. economy, directly and indirectly providing 5.9 million jobs in the U.S.”

    So economics plays a significant role when it comes to questions of diseases that impact farmed animals. If you have been following coverage of HPAI in the news, you probably have already heard questions like: “How will HPAI impact the income of poultry “producers”/exporters (i.e. the animal agriculture industry) when it comes to controlling it?” “When it comes to HPAI control measures, who will bear the burden of these costs?” “How do we minimize the impact to trade that an HPAI outbreak presents?” Probably one of the more upsetting questions asked is, “How will HPAI influence consumer prices of eggs and chicken meat?”

    These will be questions we address further below. When it comes to the answers, HPAI has yet again exposed all of the biases that our culture holds when it comes to farmed animals. With all this said, let’s now look at the relevant laws that impact HPAI, keeping this strong cultural bias in mind:

    The Animal Health Protection Act

    When it comes to HPAI, the most relevant federal statute is the Animal Health Protection Act. The Congressional findings that preface this Act should make sense given what we discussed above regarding interstate commerce and the Commerce Clause. In short, Congress found that when it comes to “the prevention, detection, control, and eradication of diseases and pests of animals…regulation by the Secretary [of the USDA] and cooperation by the Secretary with foreign countries, States or other jurisdictions, or persons are necessary” to prevent and effectively regulate interstate and foreign commerce, and to protect the agriculture, environment, and the health and agriculture of people in the U.S.

    But what does “disease” mean in this context?  This statute will not give you the definition, but §8302(3) provides that “the term “disease” has the meaning given the term by the Secretary”. What this means is that the task of deciding how to define what diseases are regulable under this Act is a decision that is up to the discretion of the USDA. To that end, what has happened is that the USDA and APHIS have developed a list of “notifiable diseases and conditions” which can be found here. This list closely follows (but is not identical to) the World Organization for Animal Health’s (hereinafter “OIE”) list of notifiable terrestrial and aquatic animal diseases, which can be found here.   

    In the case that a veterinarian diagnoses or suspects a “notifiable disease or condition” that is on this list, they must report this to their USDA Veterinary Official and the relevant state Animal Health Official. At this point, USDA disease control and eradication measures kick in. What does that mean? Under the Animal Health Protection Act, among other powers, the USDA is authorized to “hold, seize, quarantine, destroy, dispose of, or take other action” with respect to any animal, article, or means of conveyance that is moving or has been moved in interstate commerce, that “may carry, may have carried, or may have been affected with or exposed to any pest or disease of livestock”. Again, this day-to-day power of the USDA is based on the Commerce Clause, referenced above.

    So why do we care about this as sanctuaries and caregivers, if we don’t happen to be moving animals interstate? Unfortunately, the Animal Health Protection Act doesn’t leave it at this! There is an additional federal regulation that kicks in when an “extraordinary emergency” occurs. The term “extraordinary emergency” isn’t defined by the statute, but the powers of the USDA in such situations are expanded significantly. And to be clear, the current HPAI outbreak is considered such an emergency.

    The statute says that in the case that USDA determines that an extraordinary emergency exists that threatens the livestock of the U.S., then under §8306(b) of the Animal Health Protection Act, the USDA can “hold, seize, treat, apply other remedial actions to, destroy (including preventive slaughter), or otherwise dispose of any animal, article, facility, or means of conveyance” if it is determined to be necessary to prevent the dissemination of the disease. Further, in such a situation the USDA can also intervene when it comes to the travel of animals intrastate (or within a state.) This could mean that even transport from your sanctuary to the local vet could potentially fall under these powers. 

    And there’s more. This statute also provides for the power to do warrantless inspections under §8307(b), which provides that the USDA can stop and inspect, without a warrant, any person or means of conveyance carrying any animal in interstate commerce that might be regulated, OR any animal in intrastate commerce that might be quarantined under the statute!

    Simply put, what all this means is that when the USDA determines that there is an extraordinary emergency (which, again, it has already done in the context of HPAI) it is vested with broad powers, including the power to kill any animals if it determines that it is necessary to do so to prevent the spread of disease. It is also something that they can check for 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 you need another reminder that the focus here is on the human and economic impacts of any given animal disease, check out this page from the USDA, which discusses the emergency management of “foreign animal diseases,” and says, among other things, that ”the strength and success of the U.S. agricultural economy is due in large part to the bonds forged by Government, veterinarians, and producers in preventing, controlling, and eradicating foreign animal diseases (FADs)”. If you want to learn more about the animal health emergency management framework generally in the U.S., you can check out more general guidance here.

    Federal Regulations and Administrative Law

    As mentioned above in our discussion regarding defining disease, when it comes to implementing statutes, administrative agencies are given both the charge and the discretion to issue their own regulations. These regulations are meant to “fill in the gaps” that Congress left when the statute was issued, from the lens of an agency that has expertise on the matter in question. This is where the Code of Federal Regulations (hereinafter “CFR”) comes in. The CFR is basically the main way that all administrative agencies (like the USDA) issue their guidance. So for example, when it comes to animal diseases, the CFR sets out that USDA vests power in the Veterinary Services branch of APHIS. These powers include but are not limited to the powers to “protect and safeguard the Nation’s livestock and poultry through programs and activities to prevent the introduction and spread of pests and disease of livestock and poultry”.

    That’s a big job. APHIS and Veterinary Services take it seriously. They deal with all kinds of diseases in “livestock”, including HPAI, and are responsible for coordination and cooperation with all fifty states when it comes to response measures. If you would like to view the entirety of the USDA’s response plan to HPAI, or its “Red Book” on the subject, you can find that here. Again, this regulatory mechanism has been created because questions around disease in “livestock” and specifically HPAI have raised concerns around two factors that impact human interests: the questions of zoonosis (or possible disease transmission to humans), and the much ensuing and possibly much bigger question for regulating authorities, which is the question of economic impacts of animal diseases on the economy. 

    On that note, we have to address something here that is potentially upsetting for caregivers or rescuers, but which is yet another question within the purview of USDA powers and discretion and is related to our discussion of animals and economics thus far. This is the question of “compensation” when it comes to birds and eggs that must be destroyed during a disease response. The Animal Health Protection Act authorizes USDA to provide indemnity payments to producers for birds and eggs that must be destroyed when control measures are taken. APHIS also provides compensation for depopulation and disposal activities and virus elimination activities. To learn more about this, please check out this document from the USDA on the HPAI Indemnity and Compensation Process. The relevant CFR provisions can be found here. You might ask why we mention this – after all – as sanctuary caregivers and rescuers, we do not assign a monetary value to the lives of our residents. No amount of “monetary compensation” is worth their lives. We mention it to underscore the general approach of our government to these birds as “commodities,” and also because it will come up again in a discussion below on a sanctuary’s recourse (or lack thereof) in the case of a control measure being exercised that results in depopulation.

    On a related note, when it comes to administrative law, there is yet another legal question that we’re going to mention here and consider in greater depth below. There is a concept in law called “the standard of review,” which can get very tricky when it comes to a court assessing the legality of an action taken by an administrative agency. What it means in our context is the level of scrutiny that a court will take in assessing any given action taken by the USDA as regards to HPAI. Stick another pin in this for now, as we will get to it soon. But first, we need to consider how the federal government can coordinate and cooperate with states in emergency disease response situations.

    The Question of Federal and State Coordination

    It’s important to remember that both federal and state responses to HPAI are very coordinated, although any given state may have its own additional measures and requirements that it can impose on top of what the federal government requires. For example, while low pathogenic avian influenza is not “notifiable” on the federal level, the USDA still coordinates with states when it comes to control measures around it as well as around highly pathogenic strains (and those strains likely to mutate).

    If you want to take a close look at the federal level at how this specific example has played out, this guidance document from the USDA may be instructive, as well as this one. While these guidance documents do not hold the “force of law” that either statutes or regulations do, they are very useful when it comes to understanding the general framework that has been used in coordination with states when it comes to HPAI response. It is again important to know that while the USDA is a major player when it comes to control measures around animal diseases, it is not the only one, and there may be instances where state laws impose more stringent responses. However, the interplay that is outlined between the states and the federal government governs a lot of important questions.

    So let’s do a quick discussion of questions about the role of state laws, then consider how both can impact the lives of your avian residents:

    The Role of State Law in HPAI Control Measures

    Here is why it is virtually impossible for us to address any individual question from a sanctuary in terms of what an HPAI detection in their proximity may mean to them, specifically. There are a lot of variations between state laws and policies, even sometimes when it comes to what diseases are  “reportable”.

    Let’s first consider again what “reportable” even means. We talked about “notifiable diseases” above, in the context of the list that the USDA developed around this question and with regards to the OIE list. So all of those diseases are notifiable – but states can go further than that, and require reporting on even more diseases. Usually what this means is that upon detection of a reportable disease, a treating veterinarian or a facility that keeps farmed animals is obligated to report to their local governing authorities, generally their state department of agriculture. You may be thinking, well, that should be straightforward right? Isn’t there such a thing as a list? How hard can lists be? OIE has a list! The federal government has a list!

    There are indeed lists. Many lists! But, state-to-state, disease reporting requirements differ. They differ both in terms of what kinds of diseases are required to be reported, and what timeframe is required in terms of reporting. Since we’re talking about avian influenza, let’s look at the way requirements vary around it so we can explain why this is such a mess in terms of issuing blanket recommendations.

    Illinois, for example, requires reporting of all findings of avian influenza, whether they are low pathogenic, or whether they are highly pathogenic, “immediately” (whatever that means since it’s not really defined anywhere). Kentucky does not specifically list avian influenza on its list of reportable diseases in animals, instead deferring to the USDA’s notifiable list and additionally citing the OIE list. New York requires reporting of highly pathogenic strains of avian influenza and certain strains of low pathogenic avian influenza that have a propensity to mutation immediately. Some states get specific about what “immediately” means, some do not, and some use different timeframes.

    For anyone trying to navigate this, it gets messy and confusing fast because what Sanctuary A in Alaska might need to consider with regard to reporting requirements is potentially going to be very different potentially from what Sanctuary W in Wyoming is going to need to deal with. For the record, this holds true for all disease reporting, so it’s important for sanctuaries to keep this in mind as a general principle in addition to making themselves familiar with their own local laws!

    To make things more complicated, there is a larger question of state enforcement resources. There are some things with little leeway for navigation. For example, in general, the USDA has been involved in virtually every detection and “depopulation” control measure that has taken place in the current HPAI outbreak. What this tends to involve is that when one bird on a site has tested positive for HPAI, all birds on that site are “depopulated,” or bluntly put, killed. We’ll get to this awful subject in a moment. But we do want to point out that there can be grey space depending on your state and its policies and organizational culture when it comes to surveillance-related control measures that are implemented in areas surrounding an HPAI detection. 

    In virtually all cases of an HPAI detection, “buffer,” “control,” and “surveillance” zones (the terms and the radius may differ by state and the specific context of detection and the kinds of control measures used) are instituted around sites with confirmed cases. In such zones, surveillance may be conducted by local and federal authorities to see whether other local flocks exist in the vicinity who potentially may have been exposed. To get a little more specific, the following table from the USDA Red Book illustrates some guidelines around perimeters, but these are not definitive and will be dependent on the state and particular context of a detection.

    An image of a chart defining various zones around HPAI detections:

Infected Zones: Permimeter should be at least 3km (1.86 miles) beyond perimeters of presumptive or confirmed Infected Premises. Will depend on disease agent and epidemiological circumstances. This zone may be redefined as the outbreak continues.

Buffer Zone: Perimeter should be at least 7km (4.35 miles) beyond the perimeter of the Infected Zone. Width is generally not less than the minimum radius of the associated Infected Zone, but may be much larger. This zone may be redefined as the outbreak continues. 

Control Area: Perimeter should be at least 10 km (6.21 miles) beyond the perimeter of the closest Infected Premises. 

Surveillance Zone: Width should be at least 10 km (6.21) miles but may be much larger.
    Source: USDA/APHIS | Highly Pathogenic Avian Influenza Response Plan: The Red Book

    So let’s think about, for example, caregivers at a sanctuary within a “surveillance zone” who have a written biosecurity plan that was approved by their veterinarian, with written record-keeping that documents (but is not limited to) the following:

    • Compliance with that biosecurity plan;
    • Careful monitoring of the health of their residents;
    • Monitoring of vehicles and people moving on site;
    • Closure to, or careful quarantine of intakes as well as traceability of those intakes;

    This could potentially make a significant difference in terms of how they may be treated if they are within an area being surveyed. 

    In contrast, if another caregiver within a surveillance zone has allowed birds to “free-range” (which as a side note, we do not recommend due to predator risks generally) and has taken no biosecurity measures whatsoever – their flock may be scrutinized far more closely, and be significantly more at risk of both having contracted the virus, and the ensuing control measure of depopulation.

    What can also make a difference is an organization’s existing relationship (or lack thereof) with local authorities. For example, if a sanctuary has a positive record of communication with their state’s department of agriculture, or agricultural extension services, they may be able to “get ahead of the curve” when it comes to high-risk times and disease. Good communication can help them to institute measures as preferred and advised by their local governments, and thus ensure that they are observing every precaution, even before detections of diseases occur locally, and this may afford them some deference when it comes to control measures. 

    Again, this may be highly dependent on state laws regarding farmed animal diseases as well as the local organizational culture of the state. In states with an economy that is very dependent on animal agriculture, the local laws and organizational cultures may be vastly different from those that are less animal agriculture-dependent.

    Fundamentally, while there is no functional way that we can issue universal guidance with respect to the control measures and/or leeway with respect to them that your specific sanctuary may experience with regards to HPAI, you do have control over the measures you take in terms of biosecurity and recordkeeping, and taking such measures can only help to protect your residents.

    We can also assist sanctuaries in acquainting themselves with at least some of the state guidance that exists with regard to HPAI and reportable diseases generally. We can provide you with a link, state by state, to their lists of reportable diseases as well as any guidance that they may (or may not have) have issued with respect to HPAI. These lists are included as glossaries at the bottom of this resource.

    For further insight, we strongly recommend as always that sanctuaries consult with their veterinarians, local authorities, and local counsel in order to figure out the best parameters possible for a response. 

    The Really Bad Part: What Does an HPAI Response Look Like?

    The last major outbreak of HPAI in the U.S. occurred in 2014 and ran through 2015, and there have been minor outbreaks in Indiana in 2016, and in the Southeastern U.S. in 2017 since then. During that time, APHIS developed a lot of plans and guidance. Much of that can be found here. However, as the current outbreak progresses, things may change and this guidance may evolve. Administrative agencies of the federal government in the U.S. tend to have legislative, executive, and judicial powers within their realms, and as mentioned above, these powers can be fairly broad, especially in emergency situations. So again, it’s important to keep track of what the USDA and APHIS are saying with regards to HPAI. It’s also so important for you to keep track of what your state is saying, as again, states have individualized approaches, organizational cultures, and policies derived therefrom which will impact how your sanctuary is dealt with in the case of surveillance in your area. That said, let’s get into the really rough stuff. It’s time to take a stretch, get a cup of tea, and take a deep breath. Let’s start with a graphic from the USDA Red Book outlining the ideal response to the detection of HPAI:

    A chart showing the USDA response process to a detection of highly pathogenic avian influenza. 
1. Detection and Quarantine
2. Appraisal and Compensation
3. Depopulation
4. Disposal
5. Virus Elimination
6. Testing
7. Restocking
8. Maintain Biosecurity
    Source: USDA/APHIS | Highly Pathogenic Avian Influenza Response Plan: The Red Book 

    HPAI Detection and Depopulation

    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.”.

    It’s important for sanctuary caregivers and rescuers to know what “killed” means in this context, because there is a vast difference in the way that sanctuaries view the question of euthanasia, versus how it is seen in the wider world and specifically, in the context of industrial animal agriculture. While within the sanctuary community, we think about these questions very carefully, and many sanctuaries draft careful and considerate policies around the question of end-of-life care of beloved residents, things are very different in animal agriculture, especially from a government lens when it comes to the killing of animals due to disease risk.

    For what it’s worth, APHIS does acknowledge the distinction between mass depopulation and euthanasia, noting that, while “euthanasia involves transitioning an animal to death as painlessly and stress-free as possible. Mass depopulation is a method by which large numbers of animals must be destroyed quickly and efficiently with as much consideration given to the welfare of animals as practicable, given extenuating Specific HPAI Response Critical Activities and Tools…”.

    It is further worth noting that the American Veterinary Medical Association (hereinafter “AVMA”) also distinguishes between euthanasia and depopulation. As a matter of fact, the AVMA has developed a totally distinct set of guidelines when it comes to depopulation that is separate and distinct from their euthanasia recommendations and their “humane slaughter” recommendations. The USDA, in fact, also refers to this in the Red Book, with both organizations stating that while as much consideration should be given to the welfare of animals as possible, there are extenuating circumstances that face those who must, by law, conduct depopulation as rapidly as possible, and further that “the emotional and psychological impact on animal owners, caretakers, their families, and other personnel should be considered”. Again, it is unfortunate that consideration of human interests bears a heavier weight than the lives of the animals in question.

    With all that said, here’s the worst part: The Red Book provides that “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 has been some mention by officials who work on the question of HPAI epidemiology and control measures that in certain contexts, the means of killing might be subject to some measure of discretion by the “owner” or caregiver of the birds in question. For example, this question arose in a discussion around HPAI biosecurity and control measures in a webinar held by the Raptor Center, a rehabilitation facility, in conjunction with the University of Minnesota. In this context, the question of the possibility of discretion when it comes to depopulation measures came up, and it was suggested that zoos and rehabilitation facilities might have some leeway, although such organizations are scarcely mentioned in USDA guidance except with regard to “zoological collections” very briefly in the context of potential vaccination, to be discussed below. 

    It is possible that if such leeway does exist, sanctuaries might also be afforded it, although the general lack of legal recognition of farmed animal sanctuaries makes this less likely. The answer to this question is going to again be “it depends.” This is in part because terms like “zoo,” “rehabber,” and “sanctuary” also don’t have any kind of overarching legal definitions, let alone even shared philosophical definitions. 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.

    Sadly, we aren’t done with the scary stuff yet. We still need to talk about what can happen in areas that surround the detection of HPAI. As noted above, USDA has statutory authority to conduct surveillance in areas surrounding a detection, and individual states may also have additional laws in place that enable additional control and surveillance measures.

    HPAI Investigation Around Infected Premises

    Not only is depopulation the fate of all birds on infected premises, but it is also a potential risk for birds in surrounding areas. The Red Book provides that when “criteria for a presumptive positive have been met,” APHIS personnel are authorized in conjunction with State and Tribal officials to initiate depopulation of birds on infected premises. However, they may also be authorized to depopulate “poultry or poultry meeting the suspect case definition, depending on epidemiological information and outbreak characteristics”. This can involve the implementation of a boundary around the infected premises, conducting surveillance therein, and potentially “preemptive depopulation of poultry on other premises in the Infected Zone (typically 3 km around the [infected premises]”.

    We know. That’s beyond horrifying information. But what does that look like functionally? The Red Book provides an example of what an “infected,” “buffer,” and “surveillance zone” might look like surrounding infected premises, i.e. those with a known detection.

    A diagram showing an example of how Infected Zones, Buffer Zones, Surveillance Zones, and Control areas are set up around an Infected Premises.
    Source: USDA/APHIS | Highly Pathogenic Avian Influenza Response Plan: The Red Book

    So what happens in these areas (collectively known as a “control area?”) According to the Red Book, in the initial 72 hours post-HPAI outbreak declaration, “surveillance-related activities” should include potential sampling in all commercial premises and doing outreach to all “backyard premises, with an investigation of those that are deemed to be high risk. The goal is to quickly detect premises with HPAI on site, determining the size and extent of the outbreak, and supplying information on response activities and animal and product movement within the control area.

    What this looks like, again, will vary state by state. However, to give you an idea, we can share with you an example of a letter received by an avian caregiver from their local authorities, when detection of HPAI was made in their county.

    A letter from the Wisconsin Department of Agriculture, Trade and Consumer Protection to "Poultry Farms in Racine County" informing them that the Department may be conducting poultry heath testing in the area as a result of tests showing a strain of avian influenza on a nearby farm.
    This letter, received by a bird caregiver, is more than enough to make anyone lose their cool!

    Of course, any caregiver receiving such a letter might feel quite concerned, to say the least. However, here at least we can offer you a glimmer of hope and guidance. As of this writing, it seems that, depending on the state, if a particular site within a “control area” has instituted a robust biosecurity and recordkeeping practice and has no positive test results in residents, that can greatly help guide authorities with regards to their surveillance and decisionmaking – specifically when it comes to depopulation. In such a scenario, it seems the weight of that kind of meticulous biosecurity and recordkeeping combined with no resident positive results would weigh strongly against a decision to depopulate. 

    All of the prior information is a lot to take in. So to help put it in an easier-to-navigate way, we’ve developed two hypothetical scenarios for you to consider. The first is “the worst-case scenario,” and the second is the “best-case scenario” for sanctuaries finding themselves within control areas:

    These Really Are Hypothetical!
    All hypothetical scenarios offered in this resource are STRICTLY hypothetical: they are not based on any “real-life situation” but instead are crafted based on our current understanding of the ever-evolving HPAI threat and control measures. They are meant for educational purposes only.

    HPAI Surveillance and Control: The Hypothetical Worst Case Scenario

    So what’s one hypothetical scenario where we could see how these powers play out from a sanctuary lens? Consider the fictional state of Winnemac, which has had multiple detections of HPAI in both “commercial” and “backyard flocks”. Lucky Duck Sanctuary is located in the same county as one of the outbreaks. Lucky Duck has twenty domesticated duck residents, and while they are aware of avian influenza, they haven’t taken any measures to address it. Their thinking is that HPAI is not as serious for ducks as it is for chickens, with many ducks remaining totally asymptomatic, and so they would rather that their residents have full freedom. Their resident ducks still go outside in spite of state-wide warnings to keep birds indoors. They also have a pond on-site, which is shared by wild waterfowl. Lucky Duck is actively posting photos of their residents on social media enjoying the pond alongside some of these wild waterfowl.

    There is a very sad and frustrated backyard chicken keeper in the same county whose flock was depopulated due to a detection of HPAI. They take note of Lucky Duck’s proximity to their control area, and the social media posts, and start asking questions. “Why is Lucky Duck somehow exempt from the admonitions to keep birds indoors? After all, HPAI does not discriminate right?” Their questions lead to officials paying a visit to Lucky Duck Sanctuary, and inquiring about their biosecurity plans, protocols, and recordkeeping. Lucky Duck Sanctuary can provide none of these. Therefore officials decide to test the residents. When one resident tests positive for HPAI, the matter suddenly is pulled out of Lucky Duck’s hands, and officials make the decision to depopulate the entire resident population.

    What can be learned from this hypothetical? We can’t say it enough: Take the threat of the virus seriously. Implement biosecurity measures to protect your residents from contact with wild birds, the droppings of wild birds, or any indirect contact via fomites or contaminated humans, water, vehicles, and so on. Also, consider your social media posts carefully. If Lucky Duck had taken those measures, the outcome here might have been very different. Now let’s look on the brighter side, and consider another way that this could have gone through another hypothetical.

    HPAI Surveillance and Control: The Hypothetical Best Case Scenario

    We want to make it clear again that this situation with HPAI is not hopelessly and endlessly bleak. There are many things that are within your control, and measures that you can take to protect your avian residents. So let’s envision yet another hypothetical scenario that can help illustrate practices that can help you and your avian residents get through this mess:

    We’re revisiting Winnemac. In the county over from Lucky Duck Sanctuary, there is a small bird sanctuary with a variety of species, called Bird World Sanctuary. Bird World has some chickens, some quails, some ducks, and two pigs. When Bird World heard about HPAI in migratory birds in their area, they decided that they were going to do some advance planning. They talked to their local officials about it and got some guidance. They already had their pig residents separated from their bird residents, out of safety concerns around safe cohabitation. Their quail residents already reside indoors. Their duck and chicken residents co-mingled at times, but given the current worries around HPAI, Bird World decides they will make a separate indoor living space for their ducks

    Their separate duck and chicken enclosures are completely covered by tarps in order to prevent the introduction of wild bird feces. They also have fully screened off all these runs using fine mesh window screening, so no birds can enter. They also ensured that the enclosures are fully rodent-proof, to exclude any little creatures who might introduce the virus. They keep their chicken cleaning tools and duck cleaning tools totally separate and disinfect and store all of them indoors after use. They also change clothes entirely and use disposable booties before entering any enclosure. Finally, they called their vet and asked them to come over and assess their biosecurity measures, and sign off on their written plan and checklist. Their vet comes, and further recommends that they make sure that all food and bedding is secured indoors away from any possible contact from wildlife, that they create a checkpoint for delivery vehicles, and that they suspend all visitation to the site pending the end of the HPAI threat. Finally, together they create recordkeeping templates so that Bird World can take daily notes on resident health, cleaning, and biosecurity measure monitoring. Bird World stringently follows all these recommendations and keeps meticulous records.

    When HPAI is detected in Bird World’s county, they receive a letter alerting them of surveillance plans at their sanctuary. They meet the responsible officials (some of whom they already knew from past communications) at their checkpoint, greeting them with PPE to put on over their clothes because they don’t know where those officials have been. They have disposable booties for the officials as well which are changed between animal enclosures. They provide officials with all of the records they have kept since the start of the threat. The officials are impressed by these measures, and while they do test some residents, they do not find a positive result for HPAI. Therefore, they urge Bird World to keep up their current measures and hang tight until the HPAI threat has passed. There are no further control, or depopulation measures taken.

    So what can we learn from this? Be like Bird World! The careful biosecurity and recordkeeping measures that they took were the very best protection for their avian residents. Not only did these measures protect them from the virus itself, but they were also extremely helpful when it came to responding to surveillance. While there is no guarantee, this work really paid off in this case.

    What Else Can We Do? Could We File A Lawsuit?

    Understandably, all of this information is depressing and frustrating. Sanctuaries and rescuers may be thinking, what else can we do? Can sanctuaries sue the USDA? Or industrial farms? Or anyone? This is an understandable response. What is happening to birds all across the globe is fundamentally unfair, particularly when it comes to the second prong of HPAI: control measures. Also, because the U.S. does happen to be a remarkably litigious country, it makes sense on some level that our thought processes might jump to this kind of action.

    That being said, lawsuits are costly both in terms of monetary resources and emotional energy, and are always associated with significant uncertainty, both when it comes to their ultimate outcomes and possible unintended consequences. It is often questionable whether legal actions actually deliver “justice.” It’s also important to remember that lawsuits have an entirely separate overlay of considerations associated with them due to the distinctions between statutory and common law. Common law, or the law that is defined by having been developed by judges over time, and derived from either likening or distinguishing from previous rulings, is quite distinct from statutory law, or written laws passed by legislatures. Common law is ever-evolving and can differ quite substantially from state to state.

    As of this writing, we are unaware of any litigation undertaken to prevent HPAI control measures but will keep our eyes on any developments in this area. The lack of litigation to date likely has to do with both significant logistical and legal barriers, particularly in the context of the current HPAI emergency. It is important to think about these barriers because, in the case of all lawsuits, costs and benefits should be carefully weighed, especially when resources and energy are scarce. Let’s start by considering the logistical barriers:

    Logistical Barriers to Lawsuits Over HPAI Control Measures

    In the context of a lawsuit to enjoin a depopulation order, there are significant logistical barriers to taking such an action. The first, and probably most critical one, is time. As discussed above, the USDA has developed a comprehensive response to HPAI detections within its Red Book. When it comes to HPAI detection, things start to happen very quickly. The following diagram gives you an idea of what will happen within the 72-hour period that follows a positive HPAI detection in a flock of domesticated birds:

    A chart showing the critical activities in the first 72 hours of a U.S. HPAI response. 

Flock depopulation activities begin within the first 24 hours.
    Source: USDA/APHIS | Highly Pathogenic Avian Influenza Response Plan: The Red Book

    Note that under this plan, depopulation measures begin within 24 hours of a presumptive positive detection. This gives you a really short timeframe to first, get a lawyer, and second, file a lawsuit. Both of these tasks are tricker than they might appear at first glance.

    When it comes to getting a lawyer, finding someone in your state who is qualified to file such a lawsuit and having available resources to pay them to do so is a huge challenge in and of itself, especially within the timeframe delineated above! If you can find someone who is qualified and come to an agreement on how they will be paid, then you have another problem: Who are you suing, and are you suing them in state or federal court? Those answers depend on so many factors, and it is very easy to come up with the wrong answer, which can lead to a quick dismissal of any filing made.

    If you are able to engage a qualified attorney, come to a mutually satisfactory fee arrangement, file a lawsuit before depopulation measures start taking place, and successfully get a hearing for an emergency injunction issued with regard to control measures, there are still many obstacles to be faced, and these relate to legal questions.

    Legal Barriers to Lawsuits Over HPAI Control Measures

    Just A Small Sampling Of Challenges
    We cannot provide a detailed overview of every potential legal obstacle that might be faced in bringing suit in the face of a depopulation order, or other any other potential litigation a sanctuary could try to bring, because laws can vary by state, and even choice of law provisions can vary by state. Our aim here is only to provide you with some understanding of the legal obstacles any legal actions taken by sanctuaries may encounter.

    Understanding Injunctive Relief

    Injunctive relief is generally considered to be what is known as “equitable relief,” or the kind of remedy that is only available when there is no adequate remedy at law. It is considered to be a form of extraordinary relief from a court. An injunction directing a party to cease a particular behavior is called a negative injunction, and an injunction directing a party to do a certain action is called an affirmative injunction. Let’s consider these in turn with hypothetical examples of each:

    Negative Injunctions

    As mentioned above, if you are filing a lawsuit to enjoin control measures, due to time constraints around control measures, you will likely need to seek what is known as an “emergency injunction”. This would be a request for a negative injunction because you are asking for the USDA to refrain from conducting certain activities. If you are successful, you will basically get a temporary order from a court, set for a limited period of time, until the rights of the parties can be fully explored and determined by a court in a more final manner. So how does a court decide on this kind of matter? What kind of standards does it use? 

    In determining whether to grant injunctive relief, a court has wide discretionary power, and must balance the irreparability of harm and the inadequacy of damages if an injunction were not granted, against the damages that could result if the injunction were granted. What does this even mean? Let’s first consider a hypothetical example of a suit for a negative injunction:

    Let’s revisit Lucky Duck Sanctuary in Winnemac, our hypothetical duck sanctuary described above in the “worst-case scenario.” Let’s imagine that they decided to try to sue to enjoin the depopulation of their avian residents. Let’s assume that they found a lawyer and an appropriate venue for their lawsuit, and were able to file it before depopulation measures commenced. Let’s also assume that their filing convinced a judge to hold a hearing to consider a temporary injunction (Note that there are a lot of big assumptions being made here). The question before the judge at the hearing to determine whether a temporary injunction is appropriate becomes twofold:

    First, the judge needs to consider how irreparable the harm to Lucky Duck Sanctuary is with regard to the depopulation. In addressing that question, it is inevitable that the property status of animals will arise. As much as Lucky Duck Sanctuary may value and love their residents, they are still generally considered to be property in the eyes of the law. The other part of this first question has to do with the inadequacy of damages available to Lucky Duck Sanctuary. As mentioned above, USDA has developed a program to compensate “owners” of poultry for the losses sustained as a function of HPAI control measures. It’s extremely likely that given the property status of animals, and the availability of this compensation, a court would consider that the harm of depopulation is not irreparable, and that the existence of a compensation program is sufficient to address Lucky Duck’s damages.

    The second question the judge needs to consider is the harm that could occur if they did issue an injunction against the depopulation of Lucky Duck’s residents. As mentioned above at some length, the treatment of farmed animals in this country is largely dominated by an economic lens. Further, the “economic harm” of HPAI has been widely documented by USDA as well as by advocates for industrial animal agriculture. And as mentioned above, there are possible direct risks to humans from the disease, as it is potentially zoonotic. So it seems that in striking this balance, there would be a pretty heavy weight in favor of the court allowing the depopulation, and denying the injunction.

    Let’s just pretend for a minute that Lucky Duck’s suit for a temporary injunction succeeded (which is sadly, highly unlikely). At that point, they would be on track to go to trial to secure a permanent injunction. The legal burdens (and the financial burdens) become significantly higher here. The “balancing test” that the court had to engage in to give the emergency injunction morphs into something even more complex and difficult. While again, the tests that a court applies to decide whether a permanent injunction should be granted will vary by state, there is typically a four-part test:

    • First, has the plaintiff suffered an irreparable injury?
    • Are remedies available at law (including monetary damages) inadequate to compensate for that injury?
    • When you weigh the hardships on the plaintiff versus the hardships on the defendant when it comes to the issuance of the injunction, where does that balance lie?
    • Will the permanent injunction harm the public interest?

    Having gone through the analysis with regards to the question of a temporary injunction for Lucky Duck above, it’s pretty clear that this is a much, much more difficult set of barriers for them to overcome, especially given the fact that both the federal government and the states recognize HPAI to be an emergency, and a risk both to human health and to the U.S. economy as a whole. In particular when it comes to the final question – the question of the public interest – it is really hard to imagine a court that would rule in favor of Lucky Duck Sanctuary and issue a permanent injunction against USDA control measures. Given these legal realities, it seems pretty fair to say that when it comes to protecting their avian residents, Lucky Duck would have been much better served by taking a precautionary approach by implementing careful biosecurity and recordkeeping measures, versus waiting until control measures were being taken in their area and filing a lawsuit after the fact.

    Affirmative Injunctions

    Let us briefly consider the question of an affirmative injunction in the context of HPAI, as there has been some discussion within the sanctuary and rescue community around actions to compel the USDA to take certain measures. Such ideas include things like filing suit to require the USDA to preemptively exempt sanctuaries from surveillance and control measures, or to require the USDA to allow sanctuaries access to HPAI vaccinations. In the context of HPAI, the question of getting an affirmative injunction is even trickier than that of getting a negative injunction. 

    To explain why, we’re going to briefly stick our toes back into the Constitution (only briefly!) because some of the legal issues have to do with the question of the “separation of powers”. As we know, there are three branches of government in the United States: an executive branch, a legislative branch, and a judicial branch. (There is a lot of thought and discussion around the administrative state having evolved into a “fourth branch,” but we’ll leave that out of this)! Each distinct branch has unique and exclusive powers. When it comes to the judicial branch, their power is to determine actual controversies between parties, pronounce a judgment with regard to that controversy, and carry the judgment into effect for the persons who brought the controversy before it. They cannot legislate, or make up a law where it doesn’t exist.

    As mentioned above, there are no federal legal definitions of the term “sanctuary”, or even of the term “zoo”! The reason why this matters is twofold: First, asking a court for a “blanket exemption for all sanctuaries” would involve requiring the court to craft its own definition of sanctuary, and then to impose that upon the USDA. This would be tantamount to a court legislating, which is a Constitutional no-no! Second, a court is limited to deciding a dispute based on the existence of an actual case or controversy, involving an actually injured plaintiff. The lack of a legal definition of the notion of “sanctuary” means that there really aren’t functional mechanisms within the law for recognizing either the kind of work that sanctuaries do, why it serves a public interest, and why the lives of individual sanctuary residents matter when it comes to that public interest.

    This ties into another legal concept, the question of “legal standing”. In essence, the doctrine of standing requires a plaintiff to be able to illustrate an actual “injury in fact”. Let’s talk a bit more about standing to get a better understanding of why it presents a significant obstacle to any sanctuary seeking affirmative injunctive relief:

    The Question of Standing

    The legal doctrine of standing is often referred to as “that old chestnut,” by animal and environmental lawyers alike. Simply put, legal standing is the question of any given party’s capacity to bring suit in a court. This doctrine has often been used as a barrier to prevent lawsuits when it comes to marginalized humans, questions about the environment, and the protection of nonhuman animals.

    Again, legal standing is a major problem in terms of giving legal advice because statutes related to “who is entitled to standing” can vary widely by state and by statute. But we can give you a general overview of some of the considerations here:

    • The easiest way to “get standing” is if you have been given it by statute. This happens in some environmental statutes, however there are no federal animal protective statutes that grant it to caregivers, and sparse few states that have statutes that might arguably give sanctuary caregivers standing to sue on behalf of their residents.
    •  You can also convince a court that you have standing if you are directly subject to an adverse effect by the statute or action in question. However, here there will also be a balancing act engaged in by the court in question that is somewhat akin to the questions that accompany consideration of granting equitable relief, like injunctions, which are discussed above. In this case, the party needs to claim that their standing is based on potential direct harm from the conditions from which they seek relief.
    • Finally, you might be able to convince a court that you have standing to bring a lawsuit if you can convince them that even though you are not “directly harmed” by the conditions that you are complaining about, that harm has some reasonable relation to your situation, and that the continued existence of the harm might affect others who may not be able to petition a court for relief.

    Those last two sound pretty great, right? Especially that last one. In theory, a sanctuary should be able to squeak into court and say they have standing based on the fact that they have been “harmed” by HPAI and its related control measures, and that those control measures will impact others, right? 

    The answer is, “maybe”. A sanctuary could potentially argue that, while they have not been subjected to control measures such as depopulation, they have had to take measures to address the two-pronged threat of HPAI: first by taking measures to mitigate the direct health threat from the virus to their residents, costs associated with infrastructure-related biosecurity measures, and second by taking their time, resources and energy to engage in veterinary consultations around HPAI, shutting down tours, doing staff training around biosecurity measures, and so on. A sanctuary could also argue that the fact that their residents will never enter the human “food stream” and that they are valued individuals affords them a different and separate kind of consideration from that given to “commercial poultry.”

    All of those arguments may be legitimate to sanctuaries and caregivers. The question is, will a court of law, which is probably unfamiliar with the notion of sanctuary, recognize them in the same way that we, as a community of caregivers, rescuers, and advocates do? That question is very much up in the air. You might get a sympathetic judge. You might not. It all depends. So what does this mean?  We’ll look at a possible scenario, once we get through just one more legal concept:

    The Standard of Review When it Comes to Agency Action

    There’s something known as “the standard of review” in law. We mentioned this above in our discussion of administrative law. It usually comes up when you are talking about an appeal, where a lower court has made a decision, and one party appeals because they are not happy with that decision. The reviewing court will then choose a lens through which to review the lower’s court decision, and that lens is called “the standard of review”. However, it also comes into play when we talk about decisions made by government agencies, like the USDA. 

    In general, when a court is asked to look at an administrative action, like say, the imposition of HPAI control measures, they will assess whether what they are looking at is a question of fact, a question of law, or a matter of procedure or discretion. A deep discussion of how a court determines this requires legal analysis that is beyond our scope here. To sum it up quickly, probably the best-known articulation of how a court will review an administrative agency’s action was set forth in a case known as Chevron U.S.A. v. Natural Resources Defense Council, which was decided by the United States Supreme Court in 1984. In that case, the Natural Resources Defense Council sued the Environmental Protection Agency (hereinafter “EPA”) to challenge a Clean Air Act regulation.

    In that case, in a 6-0 vote, the Supreme Court upheld the EPA’s regulation and established a precedent around the extent to which a federal court, in reviewing a federal agency action, should defer to an agency’s interpretation of a statute. Basically, Chevron established a two-part test. Part one of the Chevron test asks:

    • Did Congress express its intent in the statute in question?
    • Is the intent ambiguous?

    If the intent is clear and unambiguous, then agencies have a clear mandate that they must carry out. If we backtrack to our discussion of the Animal Health Protection Act, we can see from the Congressional findings that underlaid that legislation that Congress clearly found that when it comes to “the prevention, detection, control, and eradication of diseases and pests of animals…regulation by the Secretary [of the USDA] and cooperation by the Secretary with foreign countries, States or other jurisdictions, or persons are necessary” to prevent and effectively regulate interstate and foreign commerce, and to protect the agriculture, environment, and the health and agriculture of people in the U.S.

    Just from this, it would seem that the USDA was given a pretty clear mandate by Congress, which means that under the first part of the Chevron test, the inquiry must end, and the court must defer to the will of Congress. But also as noted above, there are some key questions of implementation that Congress left open when it came to the statute. For instance, Congress left the question of defining “animal disease” and an “animal health emergency” almost entirely up to the discretion of the USDA. So, in regards to these questions, a court might consider embarking on the second part of the Chevron test. So in situations like this, where Congress’s intent is unclear, or a statute lacks direct language on a particular point, the reviewing court must decide whether the USDA’s interpretations are based on a reasonable construction of the statute. In determining this, a court will ask the following questions:

    • Did Congress intend to leave the ambiguity in the statute?
    • If so, then the agency’s regulations are binding UNLESS:
      • Regulations are “arbitrary, capricious, or manifestly contrary to the statute.”
    • If the statutory ambiguity is not clearly intentional, then a federal court must defer to an agency’s interpretation provided that it is reasonable.  

    To boil it down succinctly, what the Chevron court established generally with this two-part test is that federal courts reviewing administrative agency regulations and actions will generally offer that agency a wide level of deference, overturning its regulations only when it seems clearly contrary to the stated purpose of a law, or seems totally arbitrary or capricious. That’s a pretty high bar to overcome when it comes to anyone asking a court to second guess an administrative agency. It seems particularly high when it comes to the fairly high level of authority that Congress explicitly delegated to the USDA when it comes to the Animal Health Protection Act. So, unfortunately, again, with regards to a sanctuary seeking equitable relief from control measures, engineering a legal response would be a significant legal obstacle. 

    Since all this legal talk may have put us to sleep by now, to make this a little bit easier, let’s go back to a hypothetical and give you a concrete story within which you can understand all this tricky rigamarole:

    A Hypothetical Lawsuit for Positive Injunctive Relief

    Let’s go back to Winnemac. There is yet another farmed bird sanctuary there, known as Birdlandia Sanctuary. They have three turkeys, twenty chickens, and seven ducks. After seeing the outcome at Lucky Duck Sanctuary, Birdlandia is on alert. Unlike Bird World Sanctuary (our hypothetical in the “best-case scenario” above), Birdlandia doesn’t have a relationship with their local officials. It just isn’t something they really ever thought about much. But they feel it necessary to speak out and take some action. Even though they haven’t heard anything with regard to possible surveillance in their area, they want preemptive exemption from control measures or access to a vaccine. So they find a willing and able lawyer and come to a fee arrangement with her to file a lawsuit prior to being subjected to any surveillance or control measures.

    Birdlandia’s lawyer decides to sue both the state department of agriculture and the USDA in federal court, asking both agencies to declare Birdlandia exempt from any HPAI control measures, particularly from the testing and depopulation of residents. In addition, Birdlandia’s attorney asks for the USDA to release the avian influenza vaccine to Birdlandia, so that they can vaccinate all of their residents and protect them from HPAI. On the surface, this seems like a really good idea, right? The answer is a qualified “maybe”. Because now even though Birdlandia got a lawyer, and put together the resources to pay them, now they have to face the legal hurdles associated with getting an affirmative injunction. 

    Those hurdles start coming up pretty quickly. Agency attorneys immediately file a motion to dismiss the suit based on lack of standing. Birdlandia goes to court and the first question the judge asks is, “What the heck is a farmed bird sanctuary? Can you point me to anything in state or federal law that is instructive?”  Not only is there nothing in federal law, as mentioned above, but Winnemac also doesn’t have any statutes that discuss sanctuary at all. So the judge is confused and unclear on why Birdlandia should be legally seen as distinct or separate from any other “backyard bird flock”. 

    Furthermore, the judge is also really confused when it comes to why Birdlandia is even bringing suit, given that they have not yet suffered any kind of tangible loss, or had any kind of contact yet with the state department of agriculture, or the USDA with respect to HPAI. So he questions whether there is even a controversy for him to address, and thus whether they have standing to bring the lawsuit in the first place. But out of curiosity, and a desire to make sure he fully hears Birdlandia, he decides to reserve his judgment on the question of standing, and listen to what they have to say. He asks the lawyers to give him briefs on the question of standing. He also asks for a briefing on the question of control measures and the vaccine question. 

    What he learns from the briefs is that there is existing state and local legislation on the question of “backyard chicken farming”. Winnemac law subjects backyard chicken farming to the same standards as those imposed upon “commercial poultry producers”. In other words, backyard chicken keepers must follow all the same rules, regulations, and guidance that any other “poultry operations” must follow. These include rules with regards to biosecurity in the case of an animal health emergency, as well as compliance with surveillance measures and agency mandates should any disease be found on site.

    When the judge turns to the question of USDA’s and Winnemac’s regulations on HPAI surveillance and control, he recognizes from the plain language of the Animal Health Protection Act that Congress explicitly delegated wide authority when it comes to managing animal diseases to the USDA, including the powers to conduct surveillance, and killing diseased animals if necessary, as well as to engage in interstate and interagency cooperation to do so. Therefore, he feels he must, under the Chevron test, defer to the plain language of the statute and the agencies’ decisions with respect to these issues.

    The judge also considers Birdlandia’s other request for relief; the request that the USDA be required to issue it avian influenza vaccine sufficient to vaccinate all Birdlandia residents. Here, he becomes more confused and has more questions for the USDA and the Winnemac department of agriculture. He wants to know more about the vaccine so he asks for further information and oral arguments on this question. So, on that note, let’s take a sidebar from “Law and Order: Winnemac Edition,” and make a quick side trip to consider the current legal status of avian influenza vaccines:

    The HPAI Vaccine: A Regulatory Background

    There are, in fact, vaccines for avian influenza. They are all strictly controlled by USDA at this point in time. Let’s quickly discuss a little bit of the regulatory context behind avian influenza vaccines. But first, a disclaimer! It wouldn’t be a resource on law without disclaimers, right?

    A Note on the Avian Influenza Vaccine
    When it comes to vaccines, their use is strictly controlled by the USDA. The question of avian influenza vaccine efficacy is an open one, and is a scientific question beyond the scope of this resource. Here, we will limit our discussion to how the USDA has typically made decisions around vaccine usage, the reasons behind those decisions, and why petitioning a court for access to avian influenza vaccines may be a deeply fraught question.

    First, let’s look at the USDA’s existing guidance on avian influenza vaccinations. Most agency discussions around vaccines generally note the  “technical, regulatory, legal, or financial obstacles” to distribution. One piece of USDA guidance on the vaccine can be found here, which was generated in the 2015 outbreak and which makes the question of the economic impacts of vaccination more explicit. First, this document points out questions about the efficacy of the vaccine (again, scientific questions around this are outside of the scope of this resource). But second, it becomes clear that economics is one of the major factors that constrain the widespread distribution of the HPAI vaccine. Specifically, it is noted that “some significant trading partners have indicated that, if we began vaccinating, they would ban all U.S. exports of poultry and eggs until they could complete a risk assessment. Risk assessments are a common method of evaluating these types of requests, and often require a significant amount of time.  The loss of these markets could potentially cost U.S. poultry producers billions in lost export sales that would need to be diverted to other export and domestic markets, with no clear timeline for reopening closed markets”.

    Why is vaccination an issue for trading partners? Let’s back up and revisit OIE guidance again, which is overarching international guidance that tends to inform most national responses when it comes to the issue of diseases in farmed animals. On the question of vaccination, economics is emphasized strongly. When it comes to OIE discussion of vaccination for HPAI, it is acknowledged as a possible control measure for the disease, but one that should not be employed by itself. Again, OIE’s recommended approach to the control of HPAI is “stamping out”, or the depopulation of all individuals who are sited in an infected area, alongside surveillance in surrounding “control areas”. OIE explicitly acknowledges that the overall goal of an HPAI vaccine in the case of an outbreak is merely to “control” the disease until it can be “eliminated” by other methods.

    Specifically, of concern from this lens, OIE in fact points out that HPAI vaccination can inhibit surveillance of circulating strains because it can hide symptoms of active infection in vaccinated avians who may have contracted the virus. Further, in their article “Insight into Alternative Approaches for Control of Avian Influenza in Poultry, with Emphasis on Highly Pathogenic H5N1,” the authors E.M. Abedlwhab and Hafez M. Hafez point out multiple additional difficulties when it comes to vaccinating for HPAI on top of the concern that it can hinder surveillance. Specifically, they point out that “vaccination may prevent the clinical disease but can’t prevent the infection of vaccinated birds, thus continuous “silent” circulation of the virus in vaccinated birds poses a potential risk of virus spread among poultry flocks and spillover to humans.”

    This, among other reasons to do with vaccine efficacy (elaborated upon at some length in the above article), is why the USDA currently controls vaccine distribution and employs it only in certain contexts, and after careful consideration. To return to the USDA Red Book, we can see the various considerations that would come into play when it comes to a decision on vaccine usage:

    “An outbreak situation in a poultry-dense area that is rapidly spreading and does not appear to be contained by active response efforts (including surveillance, strict biosecurity, quarantine, and rapid depopulation of affected flocks) would be a target for the suppressive/eradication vaccination strategy. In this strategy, all commercial poultry in a defined geographic area would be vaccinated. However, there may be justification for not vaccinating certain commercial subpopulations within and [sic] area, such as short-lived birds (broilers, ducks) or primary breeders that are under high biosecurity or compartmentalization. Each vaccination area will need to be evaluated for these circumstances and vaccination decisions made in consultation with States and producers. If suppression/eradication emergency vaccination is used as a strategy in a geographic area, there may be unique situations in surrounding areas where a protective vaccination strategy could be employed at the same time. This would only be for long-lived birds where infection could be economically significant nationwide – for example, a geographic area densely populated with layer flocks. There are technical and logistical constraints around this type of protective vaccination strategy. Protective vaccination of layer flocks would be applied only to replacement pullets, as the resource challenges and limited effectiveness of vaccinating production layers would preclude success. Zoological collections in a geographic area where emergency vaccine is used would also be considered for a protective vaccination strategy. This off-label use of vaccine would require approval by the State Veterinarian for each individual collection, with signed agreement by the facility attending veterinarian for appropriate monitoring and control of any vaccinated birds.”

    Note that this is one of the few mentions of birds in USDA guidance outside of a commercial context – i.e. the mention of “zoological collections”. It is also worth noting that, even if sanctuaries were to fall under such a category, this comes with a bunch of other problems because if vaccination is in fact employed as part of an HPAI control measure, it comes with a whole host of other, additional requirements. In their guidance document, “Policy and Approach to HPAI Vaccination,” USDA delineates the following (paraphrased) requirements among others:

    • A Memorandum of Understanding (MOU) with states using vaccines, and “poultry producers;”
    • All records of vaccine use must be maintained, limited to the defined vaccination zone, and monitored;
    • Vaccinated birds must still be monitored through testing, and all records must be provided to USDA, and a flock eradication plan must be created;
    • Any vaccination program would be halted if there is indication of HPAI mutation or if any indication arises showing that the vaccine is ineffective at controlling disease;
    • And methods must be used to distinguish vaccinated birds from birds that are both vaccinated and infected. If a vaccinated flock is detected to have contracted HPAI, they will be killed.

    If you are a more visual person, it may help to have a look at this diagram from the USDA Red Book, which illustrates a “decision tree” when it comes to agency decisions on whether to employ vaccination use or not:

    A decision tree diagram depicting the decision process used in determining whether or not vaccines should be deployed in HPAI control measures. It shows that depopulation is still a likely option even in the case of vaccine use.
    Source: USDA/APHIS | Highly Pathogenic Avian Influenza Response Plan: The Red Book

    This diagram from the Red Book reiterates again that “stamping out” is the preferred strategy used for controlling and eradicating HPAI. In summary, using vaccination (which can only be done in conjunction with a USDA/APHIS program) in conjunction with “stamping out” does not halt depopulation. The ultimate goal in using the vaccine is to protect susceptible poultry “for the duration of their usefulness”. Therefore, it is more likely to be used in the context of “layers, valuable genetic stock, or endangered birds”. 

    So again, to be clear, even if vaccination is used, there will be significant ongoing surveillance, differentiating vaccinated birds from vaccinated birds who have become infected (via the “DIVA” method) and ongoing depopulation of any birds who are found to be infected, as well as the probable depopulation of vaccinated individuals who are not of any further economic use. Finally, USDA Red Book guidance provides that “AI vaccination should cease as soon as possible to allow the region or State to return quickly to a favorable trade status” and that “it is likely that no new vaccinations will be given more than 42 days (2 times the 21 day OIE-incubation period) after the last known new case of HPAI is detected. The best epidemiological evidence available will be taken into consideration in making this decision.”

    So, now that the judge has been fully briefed on all this information around the use of the HPAI vaccination, let’s return to Winnemac, and take a look at what he decides in this case:

    A Holding in the Hypothetical: Birdlandia vs. USDA and the Winnemac Department of Agriculture

    The judge decides that ultimately, Birdlandia lacks standing to bring a suit against the USDA and the Winnemac department of agriculture because there is no actual controversy between the parties, as Birdlandia has not been subjected to any control measures or surveillance to date. Because the question of legal standing is a “gateway” issue when a court is deciding how to deal with a lawsuit, this finding by itself is sufficient for the judge to dismiss the suit. This is his “holding”, or determination when it comes to the matter of law when it comes to this case, and it is precedential, which means that it can have sway or legal influence on other courts deciding similar cases. 

    However, because the case was interesting to him, he does address the other questions raised by the parties in his holding. This kind of discussion from a court or a judge is known as “dicta”. Dicta is basically comments, suggestions, or observations made by an arbiter that do not bear on the resolution of the case, and that also do not bear legal weight in terms of establishing precedents. Dicta serve as a kind of thought train that may or may not be informative when it comes to other legal controversies that may be related.

    In his dicta, the judge says that since there is existing state and local legislation that governs “backyard chicken farming,” and there is no legal definition of “sanctuary” that could guide him, if he were in fact to reach this case on the merits versus dismissing it based on Birdlandia’s lack of standing, he would rely on the existing legislation that governs agriculture from the USDA, and from Winnemac. Therefore, that means he would look toward the specific provisions of the federal Animal Health Protection Act, and consider agency and state actions from that lens.

    He further states that under that Act, Congress has given explicit guidance to the USDA when it comes to governing questions to do with animal diseases. He also recognizes the authority and expertise of both the USDA and the state department of agriculture on such matters and decides that their decision-making is neither arbitrary nor capricious. With respect to control measures like depopulation, he finds that those are explicitly addressed by Congress in its delegation of authority to the USDA. With respect to vaccination, while Congress did not explicitly speak to the use of HPAI vaccine in preventing, given the heavy economic and human interests at play when it comes to HPAI control, he does not find the way that the USDA handles vaccination decisions as “arbitrary or capricious,” and he, therefore, defers to the agency under the Chevron test. Therefore, he determines that even if Birdlandia had standing to bring the suit, he would have deferred to USDA agency actions and ruled in favor of the agency. Birdlandia is out of luck.

    Not only that, but the whole ordeal has opened some eyes when it comes to governing authorities in the state. While Birdlandia was never on their radar before as it was not located within a control area, now authorities have questions about it and other sanctuaries generally, especially given the vastly different experiences that they had at Lucky Duck and Bird World! They decide to start specifically looking into sanctuaries in the state because of this. While again, this is hypothetical, this goes to show that even the best of intentions can sometimes lead to some untoward results and unintended negative consequences.

    What are the short lessons we can take from all this discussion of injunctive relief? 

    • Do not put yourself into a position where you need to seek legal relief reactively! Be proactive about biosecurity and recordkeeping! Focus on these above all things! They will protect your avian residents from the virus, and in the event that you do find yourself dealing with HPAI surveillance, it might help a lot in protecting your residents from control measures.
    • Going to court to ask for a negative injunction to prevent control measures like depopulation in the event that you have an HPAI positive response on site is fraught with logistical and legal obstacles, and unlikely to meet with success.
    • Going to court to ask for a preemptive affirmative injunction to be “exempted” from USDA surveillance and control measures, or to get access to the vaccine is also unlikely to meet with success. There are issues of standing, as well as obstacles when it comes to the judicial review of administrative agency actions which make it likely such lawsuits would be rapidly dismissed.
    What About A Lawsuit in Tort, or for Relief of Damages?

    Well, that was bleak. But the sanctuary community is a creative and hopeful bunch, full of strong advocates with many ideas as to how to get justice for our animal friends. To that end, we have to address another train of thought that is circulating among many advocates. In numerous contexts, we have seen and been asked about “ideas for lawsuits” including, “what if we sue the USDA or industrial animal agriculture to make them compensate us for the control measures that sanctuaries have to take, in addition to the stress and anxiety that they are causing us?” Trust us, we feel you.

    So let’s talk about torts! No, these aren’t tasty pastries. Let’s just look at a simple Oxford definition: In essence, a suit in tort is a lawsuit to address a “wrongful act or an infringement of a right (other than under contract) that leads to civil legal liability”. In such a case, we would be talking about monetary relief, not equitable relief, which is discussed above in the context of our talk about injunctions. So that sounds pretty good, right? After all, caregivers and rescuers have dealt with some serious issues around HPAI. Can caregivers hold someone liable for some aspect of this?

    Sadly, we fear that there is a similarly bleak outlook on this kind of lawsuit. The same logistical constraints will face any sanctuary that wishes to pursue this kind of legal avenue to seek compensation for the expenses that they incurred in implementing control measures or other related expenses – namely finding a capable lawyer willing and capable of instigating and following up on such a lawsuit and finding resources in order to subsidize the costs of the litigation. In short, unless you have a really capable lawyer friend and a lot of financial resources, it’s going to be a real uphill battle that is likely to be ended pretty quickly and not in your favor, and again, with potential unintended consequences.

    Additionally, in this context, there will be another kind of legal obstacle, beyond those described above. This is the question of legal causation, the relationship of cause and effect between one event or action, and a purported result. Establishing causation in a lawsuit means that you have shown that a particular act or process has produced the specific effect of which you are complaining. We’re going to delve into this a little deeper below:

    The Question of Causation

    When it comes to causation, it is really important to make clear that legal causation is a vastly different concept from either philosophical or scientific causation. In theory, legal causation is governed by certain “principals,” but in function, it really isn’t. If we rewind and consider some of the questions of economics and its impacts on the law (discussed above), and we think about what forces have dominated in the generation and evolution of our legal system in the U.S., it is unsurprising that again, the question of the almighty dollar comes into play, even when it comes to abstract legal concepts like causation.

    Let’s think about what causation theoretically means first in the context of the law. Usually, it comes up in the questions of tort (more commonly known as “personal injury law”) or in questions of criminal law. Probably the most famous association that anyone has when it comes to the question of legal causation is the “but for” test. Under the “but for” test, you can determine liability, guilt, blame, or however you’d like to frame it, in this way:

    “But for” a particular action, a particular consequence would not have occurred.

    Therefore, the perpetrator of that particular action should be legally liable for the consequences, right? Yet again, it’s not that simple, so let’s consider yet another hypothetical example to see how complicated it can quickly become:

    A Hypothetical Tale of Causation

    Let’s pretend that, instead of suing the USDA and the Winnemac Department of Agriculture, Birdlandia decided that they would sue a nearby commercial turkey farm that had an HPAI outbreak, and whose turkeys were subsequently depopulated. In this case, Birdlandia is suing the farm in Winnemac state court, and they’re looking for the recovery of the expenses that they incurred in setting up biosecurity measures at their farm and for the loss of donations they face due to curtailed sanctuary programming and tours. They also embark on a heated social media campaign, calling the turkey farm out for failed biosecurity measures, and accusing the turkey farm of being a “poster child” for the abuses of industrial animal agriculture.

    Birdlandia and the turkey farm go to court, and quickly the turkey farm’s attorneys start pushing back immediately. They start asking things like, “Why is Birdlandia suing this farm? HPAI is an international problem! There are three other commercial poultry farms in the area! Why aren’t any of those farms being sued? Anyway, HPAI is a foreign animal disease and it didn’t originate either in the United States or in domesticated animals for that matter! So how does Birdlandia justify targeting this single business? It’s clear that the turkey farm is not the “but for” cause of Birdlandia having to take control measures!” 

    Furthermore, at this point, the turkey farm operators might get really steamed. Not only did they just go through depopulation, they’re also getting slammed by Birdlandia’s social media supporters all over the internet, and they’re fed up with it. So in addition to vigorously defending against Birdlandia’s suit, they decide they’re going to file a counterclaim against Birdlandia for defamation, claiming that Birdlandia’s social media campaigns have damaged their reputation as a business, and thus caused them financial harm. The turkey farm has a lot more resources than Birdlandia, and so they’re prepared to pay a lawyer for as long as it takes to fight back.

    Suddenly, not only is Birdlandia’s action against the turkey farm in question, but they now find themselves needing to expend even more of their limited resources on defending themselves against these defamation claims! They didn’t plan on this! They only banked the funds needed to bring the lawsuit with respect to HPAI-associated biosecurity costs. With the prospect of a prolonged trial on both their lawsuit and the turkey farm’s counterclaim and with limited resources, Birdlandia may ultimately find themselves forced to settle their lawsuit, or potentially have to go through a costly and elaborate trial, with a significant amount of risk to themselves.

    As you can see when it comes to litigation, issues of causation can become very complicated very quickly, even in what seem like “simple” situations. So let’s think about that a little more critically. The Stanford Encyclopedia of Philosophy has published a very informative treatise with regards to legal causation, found here. It delineates and discusses basic critical questions about causation in the law, simplified as follows: 

    • Does the concept of legal causation under “the law” differ from other concepts of causation? For example, the notion of causation in science? Or the notion of causation in philosophy?
    • How does “the law” decide whether an action or event has caused another action or event?

    The answer to the first question and the second question is related. With regards to how the concept of causation in the law differs from concepts of causation that originate in other fields of study, like science or philosophy, it can differ significantly. That is because fundamentally the law is grounded in societal structures which were created by, and are dominated by, simply put, “the powers that be”. Those powers can come into play in many ways when it comes to determining legal causation. How do we define “the powers that be”? In some cases, like the above hypothetical, it’s pretty simple. It’s whoever can afford the best lawyers and the longest legal battle, which usually secures a legal victory.

    In the case of HPAI, it can also have to do with how “dominant societal views” define the status of marginalized beings such as animals, and how that plays out for decision-makers like judges. It can also, as mentioned above, have to do with how questions of monied and powerful interests like industrial animal agriculture, or other human interests have impacted existing legislative structures, and also impact individual decision-makers. We’ve seen all this play out before in the context of social justice movements. It should be no surprise that, given this context, all decisions when it comes to the lives of animals can be dependent on the whims and personalities of individual jurors, judges, and other arbiters.

    With all this said, there is no clear definition of “causation” when it comes to the law, as much as legal scholars claim or wish that there were. In the context of HPAI, the animal agriculture industry, and the government, this means that you are going to have many problems in bringing any kind of sustainable or successful legal actions accountable for the damages incurred as a function of the HPAI virus and its associated control measures. Establishing causation will be a major issue, among many others. All those problems will be probably viewed from the lens of our dominant cultural and economic views that relegate animal lives to commodities.

    It is fundamentally a Sisyphean undertaking when it comes to establishing a causal argument linking sanctuary “damages” to either industry or government-mandated biosecurity actions, or inactions. Because the following is a fact: HPAI did not originate from birds held captive in industrial animal agriculture. It is a virus that occurs naturally, and for which shore dwelling and aquatic wild birds are the natural hosts. Therefore, putting aside the law for a moment, it’s really difficult to say from an epidemiological perspective that any party (other than nature, but we can’t sue nature) is a sole “but for” cause of any damages that might be incurred by anyone, either animal agriculture-wise or sanctuary-wise, when it comes to HPAI. 

    Has industrial animal agriculture worsened the situation when it comes to HPAI? There is no question that industrial agricultural settings have functioned as “incubators” for HPAI, and potentially contributed to new strains of the disease mutating. Can we say that any given sanctuary context has been harmed as a function of HPAI, strictly due to practices of industrial animal agriculture? It’s easy to say yes from the standpoint of compassionate caregivers. But will a court of law follow the trail and ignore the fact that this virus occurs naturally? Back to the much dreaded, but inevitable answer:

    It depends.

    To further complicate matters, when it comes to the law, in the U.S., HPAI is deemed to be a “Foreign Animal Disease”, which (aside from its xenophobic implications) also means that under federal law, HPAI is considered to have originated outside of this country. As we all too sadly know at this point, when we start to go down the road of blaming other countries for pandemics, there can be a lot of unintended negative consequences, such as for example, the proliferation of anti-Asian hate crimes in the wake of the Covid pandemic. 

    Could labeling HPAI a “foreign animal disease” be a strategic move on the part of our government? Possibly. Would it make a difference if a sanctuary tried to bring a lawsuit against either the government or industrial animal agriculture for damages when it comes to control measures? Of course it would. The fact that the U.S. government has labeled this disease as having originated outside of this country is an almost de facto absolution of any party within the U.S. being a “cause-in-fact” of any given impact to any given party.

    What does this mean in the context of an animal sanctuary or rescue group bringing an action in tort against animal agriculture businesses for damages related to HPAI control measures? It means that there will be a very significant barrier to success related to the difficulty of establishing that “but for” any particular business named in a lawsuit, the sanctuary would not have suffered these damages. The likelihood of success when it comes to such a lawsuit is quite small, and it would require a significant amount of resources as well as, again, the possibility of unintended and unfortunate consequences.


    So you made it through all this. We wish we had better news for you to wrap all this up, but we have to reiterate that fundamentally, our legal system views farmed birds as commodities, or objects that generate commodities. Their lives are considered only with respect to their commercial value, and the ways in which illnesses like HPAI can impact the economy, international trade, and other human interests. Therefore, from a sanctuary or rescue mindset, it’s a bleak outlook when it comes to using the legal system to protect the lives of our avian residents when a bird disease pandemic is threatening these other human-centered constructs. In fact, sometimes trying to utilize legal systems to do this, when they are fundamentally adapted to do the contrary, can often result in unintended consequences and unexpected results that can in fact harm sanctuaries, rescuers, and their residents.

    While we exist in a state of emergency due to HPAI, again really, the very best thing we can do as loving caregivers of avian residents is to exert all our energies and resources on developing and consistently implementing (with consistent recordkeeping) the best biosecurity protocols we can. We can promote and support the same kind of measures among other fellow sanctuary and rescue community members and offer mutual aid and support in doing this. It is our best bet for protecting them from the virus, and potentially from control measures. 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.


    These Might Change
    While we do our best to provide accurate links to the most up-to-date information, given the rapidly evolving nature of the HPAI outbreak, it may be possible that our links may become out of date. We strongly recommend that you communicate with your veterinarians and keep yourselves updated with respect to new HPAI developments in your area.

    Glossary of Reportable Disease Lists by State

    Glossary of HPAI Guidance By State


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

    HPAI Biosecurity Plan and Checklist | The Open Sanctuary Project

    The Open Sanctuary Project’s HPAI Record-Keeping Template | The Open Sanctuary Project 

    Agricultural Cooperative Extension Services: What Can They Do For Animal Sanctuaries? | The Open Sanctuary Project

    Crafting Compassionate Euthanasia Policies For Your Animal Sanctuary | The Open Sanctuary Project

    The Open Sanctuary Project’s Euthanasia Model Policy Template | The Open Sanctuary Project

    The Raptor Center | The Raptor Center Highly Pathogenic Avian Influenza Update: March 28th-April 18th

    Safe Cohabitation for Chickens | The Open Sanctuary Project

    Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837

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

    National Archives | Code of Federal Regulations Title 9: Animals and Animal Products (Non-Compassionate Source)

    USDA/APHIS | 2022 Detections of Highly Pathogenic Influenza (Non-Compassionate Source)

    USDA/APHIS | 2022 Confirmations of Highly Pathogenic Avian Influenza in Commercial and Backyard Flocks (Non-Compassionate Source)

    USDA/APHIS | Highly Pathogenic Avian Influenza Response Plan: The Red Book  (Non-Compassionate Source)

    Centers For Disease Control | H5N1 Bird Flu Detections across the United States (Backyard and Commercial) (Non-Compassionate Source)

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

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

    USDA/APHIS | Notifiable Diseases and Conditions (Non-Compassionate Source)

    USDA/APHIS |Animal Health Emergency Management (Non-Compassionate Source)

    USDA/APHIS | Animal Health Emergency Management Topics (Non-Compassionate Source)

    USDA/APHIS | The HPAI Indemnity and Compensation Process (Non-Compassionate Source) 

    USDA/APHIS | Avian Influenza Guidance Documents (Non-Compassionate Source)

    USDA/APHIS | Development and Approval of Initial State Response and Containment Plans for H5/H7 Low Pathogenicity Avian Influenza (LPAI) (Non-Compassionate Source)

    USDA/APHIS | Response, Communications, and Investigation of H5/H7 Avian Influenza in Domestic Poultry (Non-Compassionate Source)

    USDA/APHIS | Final Report for the 2014–2015 Outbreak of Highly Pathogenic Avian Influenza (HPAI) in the United States (Non-Compassionate Source)

    USDA/APHIS | Final Report for the 2016 Outbreak of Highly Pathogenic Avian Influenza (HPAI)/ Low Pathogenicity Avian Influenza (LPAI) in Indiana (Non-Compassionate Source)

    USDA/APHIS | Final Report for the 2017 Outbreak of Highly Pathogenic Avian Influenza (HPAI)/ Low Pathogenicity Avian Influenza (LPAI) in the Southeastern United States (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)

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