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Appellees, V. MURPHY-BROWN, LLC, D/B/A Smithfield Hog

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Appellees, V. MURPHY-BROWN, LLC, D/B/A Smithfield Hog USCA4 Appeal: 19-1019 Doc: 62-1 Filed: 05/06/2019 Pg: 1 of 45 Total Pages:(1 of 46) NO. 19-1019 JOYCE MCKIVER, et al., Plaintiffs – Appellees, v. MURPHY-BROWN, LLC, d/b/a Smithfield Hog Production Division, Defendant – Appellant. ______________ On Appeal from the United States District Court For the Eastern District Of North Carolina, No. 7:14-cv-00180 ______________ BRIEF OF THE HUMANE SOCIETY OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE _____________________ Anna Frostic Laura Fox THE HUMANE SOCIETY OF THE Peter Brandt UNITED STATES THE HUMANE SOCIETY OF THE 1255 23rd Street, NW UNITED STATES Washington, DC 20037 1255 23rd Street, NW (202) 676-2333 Washington, DC 20037 [email protected] (202) 676-2334 [email protected] Attorneys for Amicus Curiae May 6, 2019 USCA4 Appeal: 19-1019 Doc: 62-1 Filed: 05/06/2019 Pg: 2 of 45 Total Pages:(2 of 46) UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. No. __________ Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) 1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO 2. Does party/amicus have any parent corporations? YES NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES NO If yes, identify all such owners: 09/29/2016 SCC - 1 - USCA4 Appeal: 19-1019 Doc: 62-1 Filed: 05/06/2019 Pg: 3 of 45 Total Pages:(3 of 46) 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? YES NO If yes, identify any trustee and the members of any creditors’ committee: Signature: ____________________________________ Date: ___________________ Counsel for: __________________________________ CERTIFICATE OF SERVICE ************************** I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: _______________________________ ________________________ (signature) (date) - 2 - USCA4 Appeal: 19-1019 Doc: 62-1 Filed: 05/06/2019 Pg: 4 of 45 Total Pages:(4 of 46) TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................ i TABLE OF AUTHORITIES ................................................................................. ii I. INTRODUCTION .......................................................................................... 1 II. INTERESTS OF AMICUS CURIAE ............................................................ 3 III. INDUSTRY AND REGULATORY BACKGROUND ............................... 4 IV. ARGUMENT .................................................................................................. 9 A. Extreme Animal Confinement and Related Practices Cause Egregious Animal Suffering that is Intrinsically Linked to the Nuisances at Issue. ............... 9 1. Animals at Smithfield Finishing Facilities, like Kinlaw Farms, are Raised in Extreme Confinement. ..................................................................................... 9 2. Animals at Smithfield Sow Facilities are Kept in Crates and Piglets are Born and Weaned in Extreme Confinement. ..................................................... 11 3. Smithfield Pigs are Transported in Extreme Confinement. ........................ 16 4. Antibiotic Use Threatens Human Lives and Makes Extreme Confinement Possible, Thus Facilitating Animal Suffering. ................................................... 17 5. Additional Animal Suffering Associated with Factory Farming Practices Used by Smithfield. ............................................................................................ 18 6. Animal Cruelty Witnessed at Smithfield’s Facilities. ................................. 20 B. The Risk of Future Harm is Substantial, Not Just for Plaintiffs and the Pigs in Appellant’s Care, but for All Animals. ................................................................. 22 1. Smithfield’s Operations Threaten Public Safety with Major Biosecurity Risks. .................................................................................................................. 22 2. Smithfield’s Practices Increase Climate Change Risks and Environmental Harms that Impact All Animals. ........................................................................ 27 V. CONCLUSION ............................................................................................. 33 CERTIFICATION OF COMPLIANCE ............................................................. 35 CERTIFICATE OF SERVICE ............................................................................ 36 i USCA4 Appeal: 19-1019 Doc: 62-1 Filed: 05/06/2019 Pg: 5 of 45 Total Pages:(5 of 46) TABLE OF AUTHORITIES Cases Animal Legal Defense Fund v. Herbert, 263 F.Supp.3d 1193 (D.Utah 2017) .......... 8 Animal Legal Defense Fund v. Reynolds, 353 F.Supp.3d 812 (S.D.Iowa 2019), appeal docketed, No. 19-1364 (8th Cir. Feb. 22, 2019) .......................................... 8 People for Ethical Treatment of Animals, Inc., et al., v. Stein, et al., No. 1:16-CV- 00025 (M.D.N.C. 2017) .......................................................................................... 8 Rural Empowerment Association for Community Help, et al., v. U.S. Environmental Protection Agency, et al., No. 1:18CV02260 (D.D.C 2018) ......... 7 Statutes 42 U.S.C. § 11000 et seq. ........................................................................................... 7 7 U.S.C. § 1901 et seq ................................................................................................ 5 7 U.S.C. § 1902(a) ..................................................................................................... 6 Cal. Health & Safety Code §§ 25990-94 ................................................................. 14 Mich. Comp. Laws § 287.746 .................................................................................. 14 N.C. Gen. Stat. § 106-701, et seq............................................................................... 6 N.C. Gen. Stat. § 99A-2 ............................................................................................. 7 N.C. Gen. Stat. § 99A-2(d)(4) .................................................................................... 8 N.C. Gen. Stat. §143-215.9D ..................................................................................... 8 Other Authorities 2017 Sustainability Report: Housing of Pregnant Sows, SMITHFIELD .................... 12 2017 Sustainability Report: Sustainability Goals & Targets, SMITHFIELD ...... 14, 15 Am. Pub. Health Ass’n Policy 2003-7, “Precautionary Moratorium on New Concentrated Animal Feed Operations” ............................................................... 24 An HSUS Report: The Welfare of Animals in the Pig Industry, HSUS ................... 11 Andrew Fraser, Farm Animal Behaviour 181 (Baillière Tindall., 2d ed. 1980) ..... 18 Animal Operations - Swine Lagoons, NC DEQ (Oct. 9, 2018) ............................... 28 Ashley DeDecker, PhD., The Smithfield Experience: Comparing ESF and Trough Feeding for Group Housed Sows 28, SMITHFIELD (2016) .................................... 12 Bernice Wuethrich, Chasing the Fickle Swine Flu, 299 SCIENCE 1502 (2003) ...... 27 Betsy Freese, Pork Powerhouses® 2018: Ramping Up, SUCCESSFUL FARMING (Sept. 30, 2018) ..................................................................................................... 12 C. Rosenzweig, M.L. Parry, Potential Impact of Climate Change on World Food Supply, NATURE 367, 133 (1994) .........................................................................
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