A federal judge in Rochester, NY, has ruled he can review the denial of a rulemaking petition that suggests USDA’s Food Safety and Inspection Service should prohibit behavior that has the potential to cause birds to die other than by slaughter.

The FSIS denied the petition in 2019, saying its humane handling authority does not extend beyond poultry slaughter establishments. The Animal Welfare Institute (AWI) and Farm Sanctuary, represented by Harvard Law School’s Animal Law & Policy Clinic, appealed the denial of the rulemaking petition in August of 2020.

The USDA asked the U.S. District Court for Western New York to dismiss the complaint, but District Judge Charles J. Siragusa opted to keep the case alive.

“Consistent with the Supreme Court’s reasoning, the Court finds in the present case that FSIS’ denial of plaintiffs’ rulemaking petitions was not an agency decision that has been precluded from judicial review as an action committed to agency discretion under the APA (Administrative Procedures Act),” Siragusa said. “Rather, FSIS’ denial is subject to the Court’s review to determine whether it must be set aside as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

In addition to denying USDA’s motion to dismiss the case, Siragusa ordered the department to “file and serve an answer to plaintiff’s complaint within 30 days of the date (Oct. 13) of this order.”

The AWI and Farm Sanctuary say they sued USDA to address “systematic mistreatment” of poultry at slaughter, which can compromise food safety and meat quality in violation of the Poultry Products Inspection Act (PPIA),

“This ruling moves us one step closer to improving poultry product quality and helping to protect the vast majority of land animals who are routinely abused on the slaughter line,” said Dena Jones, AWI’s farm animal program director. “Each year, 9 billion chickens and turkeys are killed for food in the United States, yet the USDA does virtually nothing to limit their pain and suffering at slaughter.”

AWI claims government enforcement records document that “tens of thousands of birds suffering excruciating deaths before they even reach the slaughter line.” Exposure to extreme weather, blunt force trauma, and asphyxiation are cited as pre-slaughter causes of death.

The plaintiffs also claim slaughter plant employees routinely engage in intentional acts of cruelty and can “forego humane handling practices with little, if any, consequences.”

“The plant-based market is booming in part because consumers cannot trust the USDA to do its job and keep adulterated products that are the result of animal mistreatment off grocery store shelves,” said Emily von Klemperer, general counsel for Farm Sanctuary.

Not everything in the judge’s ruling goes against USDA. Siragusa said  he does not agree with the animal activists when they say the Secretary of Agriculture  “shall promulgate such other rules and regulations as necessary to  carry out the provisions of the PPIA.” The judge says the secretary of agriculture has “a broad degree of discretion.”

Secretary of Agriculture Tom Vilsack has taken the place of former Secretary Sonny Perdue as the top defendant in the lawsuit.

President Bill Clinton named Judge Siragusa to the federal bench.   The jurist is best known for his prosecution as an Assistant U.S. Attorney of  Arthur Shawcross, the Genesee River serial killer who murdered 11 people starting in 1988. . Shawcross died in 2008 while serving a life sentence.

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