Is Ventilation Shutdown Legal? Private Citizens Fighting Factory Farm Cruelty

And Will, the last time you were on the podcast, I think we briefly mentioned, 'cause we're always talking about cruelty laws, as a general rule when you come on, and you just find all these laws out there that nobody else knew existed, and we briefly discussed the fact that there were these laws out there in some states that allowed people with evidence of cruelty to obtain a search warrant. Like I don't, you know, it's it's unclear exactly what that means or what can be done with that, but it's pretty cool that these laws are out there, so now you're back to actually talk about one, and hopefully more of those laws and to discuss some of the potential they hold and, some of the risks they might, create.

And I guess. I hate to give away the ending, but I should warn people that we will be discussing one unfortunate setback, in using these laws. But I'm hoping that we can consider that an opening salvo in using these laws as an available tool that has not yet been used expansively for animals.

And I'm super excited about them in spite of the unfortunate result in the first case. And we'll be talking about a second possible case as well, so that I've set the scene enough. Will, I'm sorry to do this to you, but before we get into detail on these laws, can you just remind people of the basic parameters of cruelty laws, why unlike so many other people, you refuse to give up on them as a way to address harm to farm animals, and why you think they still have some potential?

And, you know, just for people who don't practice criminal law at all, just what they are and what they do.

[00:01:54] Will Lowrey: Absolutely. Well first of all, thanks for having me back, Mariann. I'm always happy to be here. So, as it relates to cruelty laws, all 50 states have cruelty laws on the books. So these are state level laws that are intended to provide some protections from animals. They are generally worded differently.

You know, they prohibit things like torture, maiming, abuse, speeding, ill treating. And so we have these laws on the books and they exist in all 50 states. And I think to your point, in a lot of cases people have given up on these laws as it relates to farmed animals, as it relates to factory farms, and I don't believe that that is prudent. I think that these laws hold some value. So at the highest level, the structure of the laws is you have a prohibition on certain acts or omissions that you can commit to an animal. So you can't deprive an animal of food. You can't beat or abuse an animal. the problem as it relates to farmed animals comes in a couple of different flavors. One is that many states, I think over 30 states have what's called some type of agricultural exemption. And what that means is that if you do x conduct to a dog, it might be cruelty. If you do it to a farmed animal in the course of an agricultural operation, it might not. And so to your question of why haven't I given up on these laws, I think first and foremost, things are so dire for farmed animals. I don't think we have the luxury to sit back and say, that doesn't work, we shouldn't try that. And I think the second reason is if you stop and you look at these laws, they actually do apply. The wording of these laws in many, many cases, applies even if there's an exemption.

Sometimes it applies, but if you look at the wording of the laws, there are many, many scenarios where they apply. And so the short version is they're on the books already. Why not try to use them, especially if the wording means that they should apply.

[00:03:42] David Rosengard: That's all correct. I think also it's useful if we take a step back and look at what these laws mean as a whole. The reason that modern cruelty law exists is because it recognizes animals as creatures that societies decided need to be shielded from certain levels of suffering in human hands.

And if Will's point. Um, that general concept applies to farmed animals and non-farm animals throughout the United States. And I think it's pretty significant to say that we recognize that animals have, you know, a criminal right to not be subject to cruelty. We can have a debate about whether cruelty is defined broadly enough, we can have a debate about whether it's difficult or easy to investigate these cases.

And I think the answer that many of us would give is that it's too hard to investigate them. It's harder than it should be to investigate them, and the cruelty laws are often not as broad as they should be. But if we've decided that there are some things that it simply is not acceptable to do to animals.

We should carry that through. And while there are certain practices that are lawful to do, you know, as Will said, in farming contexts, there's no state in the country where you can do anything you want to a farmed animal.

[00:05:08] Mariann Sullivan: So, in addition to cruelty laws as a general matter, there are, as I mentioned when I was introducing you, Will, there's all sorts of laws out there on the books that you have managed to find, and we're gonna be talking about one of them today. And, of course, as criminal laws, these laws are generally enforced by prosecutors, not by regular citizens, but there are exceptions to that. And one of which is this ability in some states, and I don't think this law exists in all states, but it's certainly not just one. The ability to obtain search warrants for when just a regular person has evidence of cruelty, you can get a search warrant. Is that right?

[00:05:46] Will Lowrey: Yeah, there are several states where that type of law exists. I know today one of the cases we'll talk about is in Minnesota, but this is, I would say maybe unusual law, but not entirely unique. I know there are similar versions. If you look at California, if you look at Idaho, and so the law in Minnesota and what these other versions do is it allows a private citizen to go before a judge or a magistrate and present a case for probable cause, right? In the criminal context, it's probable cause that a crime has been committed. And so it allows the citizen to go before the judiciary and try to make that case. And that's what the law in Minnesota is. It's Minnesota statute 3 43 0.22, subsection one. That's kind of the basis of the Minnesota case we're gonna talk about.

[00:06:33] Mariann Sullivan: Yeah. And as long as we started talking about the specific law, and you mentioned that there's no exemption for farmed animals... or did you mention that? Anyway, there's no exemption for farmed animals in Minnesota law. Is that right? So we don't have to worry about that.

[00:06:47] Will Lowrey: Yeah. There are many states where that exists. Minnesota, there is no exemption. Correct.

[00:06:51] Mariann Sullivan: And it just, I mean, when you first hear of this law, it sounds confusing 'cause like, what does it mean for a private citizen to have a search warrant? Like, do you have to go in and do a search and, and a rest? Like how does it, how does it work in, as a practical matter, once, assuming you get this warrant.

[00:07:08] David Rosengard: Okay, so I, I think part of answering that is getting a sense of where these laws come from. These private criminal complaint laws, they could be private citizens as you just outlined, trying to get a search warrant, it could be private citizens trying to get a criminal charge issued, they actually go back to the very earliest days of our nation. Because at that point it was normative for people to bring their own criminal complaints. You know, if the government was the victim of a crime, let's say if perhaps a group of people dumped a lot of tea that the crown had taxes on in a harbor, then the government might bring a case in the name of the crown, in the name of the government.

The government could bring cases where the victim was a private party, but that wasn't the normative practice. Generally, if someone did a crime to you, you would go out and get your own attorney and move that case through. And part of that would involve the notion that if members of a community are aware that crime is happening, they should be able to do something about that.

They should be able to ask the government to respond and that's largely shifted in terms of what we expect because the government has largely monopolized prosecution in modern America. But those laws never really went away, and that pendulum is starting to swing back. So what it means for this to happen is quite simply that again members of the community, private parties who are aware of a criminal act, who have probable cause to believe the crime is occurring, go before a grand jury or a judge, depending on the state, depending on the statute, they present their evidence and they basically ask that grand jury or that judge to validate whether there is a sufficient legal cause to move forward.

Is this enough evidence to get a search warrant, if there is issue the warrant and direct law enforcement to go investigate? Is there enough evidence to issue a criminal charge? If there is, then you can hand this over to the local prosecutor and ask that they move the case forward. Now, ultimately, law enforcement and local prosecutors typically have the discretion to decide whether they want to move or not.

But one of the critical things this private complaint process does is it forces law enforcement and prosecutors. To be real with their constituents about why they aren't moving a case forward because sometimes what we find is that whether it's out of a, a lack of resources or a lack of knowledge around animal cruelty law, which is admittedly fairly specialized or out of a lack of enthusiasm, law enforcement, prosecutors won't move cases that would otherwise be possible. And this is a way of being able to say, look, if you don't want to do it, tell your constituents that, and they can take that into account when they're voting for sheriff, when they're voting for Maine prosecutor.

[00:10:16] Mariann Sullivan: So they don't, I mean, if it goes to a prosecutor, the prosecutor has, you're saying the prosecutor has discretion as to whether they actually wanna do anything about it. If you just go to get a warrant, a search warrant, I mean, that wouldn't yet be in the hands of the prosecutor.

Does law enforcement have, is it optional for them whether they carry out that search warrant or do they have to?

I mean once you get the warrant, which didn't happen in this c ase, so, so I don't wanna get too theoretical here, but assuming that happened. I mean, is that your goal in bringing one of these cases, to get a search warrant handed off to law enforcement and then law enforcement's gonna have to go in there and do whatever search is required?

Or is it still optional?

[00:10:55] David Rosengard: So it's very difficult in the United States to put law enforcement in the position of having to do anything. You know, the, the most credible way to get there is if you can say that law enforcement is not investigating or enforcing certain crimes because the victims are members of a protected class.

But outside of that, it's very difficult, for example, to get a rid of mandamus ordering law enforcement to do X, Y, or Z, but our experience, you know, at least my experience in the Animal Legal Defense Fund, I'll let Will give his as well, but, my experience is that the lower the barrier to law enforcement acting is the more likely they are to act.

And certainly if we have a scenario where a court has said, Look, there's probable cause here of a crime, it's difficult for law enforcement to explain why that's not something they're going to act on.

[00:11:46] Mariann Sullivan: Okay. So, I guess we'll see how that works out as we go along. But let's get to the facts of this case because you really did go out in there and try to get a search warrant in a very specific case. And it's something that I think probably everybody listening to this has heard about. Maybe not this particular instance of this, but it's about the horrors that are happening on poultry farms because of bird flu. And can you just tell us a little bit about Jenny O, which I last heard of, I think, during the election when governor Waltz was talking in very favorable terms about Jenny O, which is apparently a beloved company in Minnesota. So tell us about Jenny O. Who they are, the business they're in, and about their bird flu problem.

[00:12:26] Will Lowrey: Sure. Yeah. So Jenny O is one of the largest turkey producers in the United States. A lot of operations in the Minnesota, Wisconsin area. You know, it's probably a product people have seen at the grocery store. You know, they've seen the colors, seen the name. And I think most people know that avian influenza has been going around the country.

I mean, there have been millions of birds that have been killed in the name of Avian influenza. And it is a common practice in the agriculture industry that if there is a suspected infection in a flock, the whole flock is going to be killed. Okay? Depopulation is kind of the quote unquote pleasant term that's used for that. But what it essentially means is killing thousands and thousands of birds at a single time. This case stems from public records that we obtained. I'll give credit to the group Our Honor as well, who obtained many of these records that basically showed that there was a quote unquote depopulation of birds at a farm, a specific Jenny O farm in Minnesota, using a method that many people have probably heard about called ventilation shutdown plus, which basically means sealing off the barns, cutting off airflow to the barns. And then pumping heat into the barns. And so that's kind of where this case begins. And this happened in late 2023.

[00:13:44] Mariann Sullivan: And can you tell us a little bit about the involvement of state and federal authorities, in conducting these operations, including this one?

[00:13:53] Will Lowrey: Yeah, sure. There, there are definitely lots of ties with the government and animal agriculture. That would certainly be an understatement. But when it comes to the killing of animals as a result of avian influenza or some other disease outbreak, there are certain programs that basically reimburse the farmers for killing those animals.

And USDA is involved in that. State agriculture agencies are involved in that, in this case, the Minnesota Board of Animal Health. And it's basically to some extent a scheme, right? If you kill your animals because of a disease outbreak. You could fill out certain paperwork and then you are gonna get reimbursed for the cost of the depopulation, cost of the animals.

And so it's all very interwoven. And I think that gets to a a legal point, which I'm sure we'll discuss, but you have the federal government, the USDA, you have the Minnesota Board of Animal Health, and then you have the private company, Jenny O, and it's all interwoven to create basically the scheme for killing animals and reimbursing farmers.

[00:14:51] Mariann Sullivan: Right. And I mean, it's, no doubt obvious, but of course, that reimbursement comes out of our pockets, taxpayers pockets. We're paying for this process.

Another interesting thing about Minnesota law is not just that it has this procedural vehicle, but it has a very specific statute that you felt was relevant here. Correct?

[00:15:10] Will Lowrey: Yeah, there's part of the cruelty statute. I mean, I spoke to cruelty statutes earlier, but you might think of that as like, oh my gosh, the law says you can't be cruel to an animal. That's not what they say. They tend to encompass many, many different acts that you could possibly do to an animal. And in the Minnesota law, there's a specific statute that talks about if someone is keeping an animal in an enclosure, that they must provide a quote unquote change of air. Okay. That is the key part of this statute, is that a person keeping an animal in an enclosure must provide a change of air.

And so that's the part of the Minnesota cruelty statute that we were focused on in this case.

[00:15:51] Mariann Sullivan: You know, I, this is a little bit of an aside, but I'm not sure that you needed to, in order to pursue the question of whether this was in violation of that law, but i'm just curious to know- do you think there were alternatives for Jenny O? Once you have bird flu, are there other things that you can do that maybe are more expensive but not as, you know, not, I don't know whether this involves suffocating the animals, ventilation shut down, or just making them die of heat stroke, but whatever it is, it's particularly horrible.

Did they have any alternatives? Ways that they could deal with the fact that there was bird flu in their barns?

[00:16:26] David Rosengard: The answer, first of all, as to what ventilation shutdown plus does to the animals is, it's both. It's dying of heat and dying of suffocation. Not to be grotesque, but the animals are basically being slow cooked to death. As for whether Jenny O had other options, yeah, sure.

Animals who are sick can be treated. We have an entire field of veterinary medicine that is able to treat animals. Now, I'll admit it is expensive to do that at scale. It can be cumbersome if you have a whole lot of turkeys. But I would argue that that's part of the responsibility that you take on when you decide to be an animal owner. Will was just talking about the way that animal cruelty laws don't just say, don't be cruel to animals.

They break down what you can and can't do. One of the key breakdowns is between acts of commission and acts of omission. So cruel law generally says you can't proactively abuse, beat, stab, burn, et cetera, any animal. But then it also says for animals that you decided to be responsible for, animals you have custody of, animals you own, you have additional responsibility.

You can't withhold from them certain necessities, like food, like water, like wholesome air. And so Jenny O decided to be responsible for turkeys. I would argue that they could exercise that responsibility in other ways. And I think one of the things that's worth underscoring about this ventilation shutdown process, and my colleague Maggie Marshall did a great job of this in the filing, is that ventilation shutdown is pretty awful, just in theory.

Just the theory that it's cooking animals to death. But in addition to that, as that theory is put into practice, it rarely works as well as it should on paper, so the animals are being subject to even greater degrees of suffering because the VSD plus is not being done at the level that, theoretically, it should, and I put should in air quotes, should be.

[00:18:39] Mariann Sullivan: Well, the plus refers to turning the heat up, doesn't it?

[00:18:43] David Rosengard: Correct.

[00:18:43] Mariann Sullivan: They both shut off the air supply and turn the heat up. Yeah. I completely agree with you of course, that they should have gotten them veterinary care. Is there any evidence in your possession? And I understand the whole crux of this case is that you don't have all the evidence you wish you had.

Is there any evidence that any of the authorities thought about Minnesota cruelty laws when they decided to do this?

[00:19:04] Will Lowrey: We don't have anything specific to Minnesota. So the short answer to my knowledge, no. And again, I don't obviously have all the records, but I don't have anything to say that somebody said, gosh, this might be a risk of us violating Minnesota's cruelty law. I will mention, and again, credit to Our Honor, I think they had recovered some records from the USDA as it relates to the pork industry, where there was some discussion about, You know what? We should make sure that what we're doing here as it relates to ventilation shutdown doesn't violate state law. So, you know, I think a lot of people might just say, oh, the USDA approved it, you can do it. But there's at least a data point out there that people were aware and conscious that there may be a violation of state law, in a separate context, not here.

[00:19:50] Mariann Sullivan: When you decided to try to get a search warrant, it was, if I understand correctly, 18 months after this incident had occurred, what were you hoping to uncover? I mean, this, I mean this became a, a large part of the issue that was before the judge. What did you imagine that you would be able to uncover? Was it records like that that might reveal those talking points? Not that it's just a talking point. I mean, evidence of law breaking.

[00:20:14] Will Lowrey: Yeah, I think it, and David, feel free to chime in as well, but it's any evidence of the act that was committed. And so I think we ask for things like tarps, heaters, records, procedures, those types of things. I think just like any crime, and that's what we were alleging happened here, it's sort of the tools of the crime or the evidence of the crime.

And, and some of that gets into the probable cause question, and the court talked about, Oh gosh, it's really old and we can certainly talk about that. But the short version is evidence of the crime. You know, was it videotaped? Are there procedures? Are there documents? Are there tarps, are there heaters? Or anything like that that might demonstrate that what we allege violated the cruelty law actually did happen on this property.

[00:20:56] David Rosengard: You know, like, when we're talking about evidence of a crime, I know that in, in all of our Law and Order brains, what we think of first and foremost is the body of the victim, but that's not what we were looking for in this case. You, we.

[00:21:09] Mariann Sullivan: Everybody knew they were dead like that. That

[00:21:11] David Rosengard: Everyone agreed the turkeys were dead and no one was alleging that there were still dead turkeys lying around Jenny O's farm.

Y'know as Will said, it was we are looking for evidence about how those turkeys died. And part of that would be not only as Will described manuals and procedures explaining how the farm approached this ventilation shutdown procedure. But any communications that the farm had about how that procedure worked. Did they discover that the turkeys were taking longer to die than in theory they should have?

Did they have to turn the heat up even further and so forth? You know, and certainly we've got some indication from our filings that that was happening. That's the kind of evidence that would've been really useful, and that's what we wanted in the warrant.

[00:21:59] Mariann Sullivan: All right, so let's get to this application. I'm not sure, I guess it's called an application for a search warrant. First of all, you know, as we mentioned, you find these statutes, Will, that nobody else knows exist, but has this statute been used before in Minnesota? Is there precedent?

[00:22:16] Will Lowrey: We, when we were searching the case law, could not find anything as it relates specific to the change of air part. I mean, you know, it's possible that it was used at a lower level, and there's filings, you know, at the trial court or whatever, but there are no appellate cases that talk about what exactly this means.

And so in large part, we're relying on the statutory language of the statute itself.

[00:22:36] Mariann Sullivan: And actually I wasn't talking about that unusual statute. I was talking about the other unusual statute, the procedural vehicle. Are there precedents for the search warrant application? But I'm really glad you said that 'cause I hadn't thought to ask that. So yeah, we don't know whether the ventilation, the, the statute protecting the animals, has been enforced.

But, has the procedural vehicle been used in other cases?

[00:22:57] Will Lowrey: Yeah. And thanks for clarifying. It has been used in at least a couple of cases in recent years. I know Animal Outlook, formerly Compassion Over Killing at the time, did an investigation at a pork slaughterhouse in Minnesota and attempted to use this procedure. That one actually went up to the appellate court, and ran into issues there. I believe PETA used it in 2017 or somewhere about there in the laboratory context. So, this was not the first. I would say it's not something where it's prolific and people use this all the time, but at least in the animal context, I'm aware of two other incidents in the last 10 years where other groups have tried to use this.

[00:23:35] David Rosengard: These kinds of laws, these private complaint laws do get used with some regularity in the human victim rights context. So while it's particularly unique to use it on behalf of animal victims, who can't themselves show up in court and file for a warrant, it's not a radical notion in the law as a whole.

[00:23:55] Mariann Sullivan: But this particular law refers just to animals, right?

[00:23:58] David Rosengard: No, this particular law allows anyone with evidence of a crime to come before a judge and request a warrant. It doesn't often get used for animals because usually the way this works is the person with the evidence of the crime is the victim, and it's the victim showing up to say, your Honor, this thing happened to me.

I'm pretty sure it's a crime. I'm having trouble getting anyone to investigate it. Here's the evidence about the harm I suffered, and here's why I think it's criminal. Can you give me a thumbs up or a thumbs down?

[00:24:28] Will Lowrey: This one, just to be clear, this Minnesota law is in the animal protection chapters

[00:24:33] David Rosengard: Right.

[00:24:34] Will Lowrey: Speaks to violations of that chapter. There are absolutely other private complaint procedures. Pennsylvania is a great one where there is a ton of case law about that outside of the animal context.

And so it's kind of a mixed bag depending on the state you're in. You

[00:24:49] Mariann Sullivan: On the state. Yeah.

[00:24:50] Will Lowrey: like this one California as well is kind of embedded in the animal code. But then there are others to David's point, which can be brought for a much broader array of criminal events.

[00:25:00] David Rosengard: Thank you. I was, I was conflating those states.

[00:25:02] Mariann Sullivan: Yeah, because I know there are different procedures in many different states and we really wanna look at this as an overall kind of proposition. Alright, so, so you did an applica, I assume you just had to kind of make up the application to and make it look like it was an official document 'cause there probably aren't a lot of samples out there. So you made this application, and the law says you can ask for a warrant, an investigation, and you limited yourself to this one aspect of the cruelty law. Is that just to keep its, I mean, you could probably also argue that, in a more general, unnecessarily causing the, the birds to suffer, but that opens up a whole, many, many cans of worms and this one was so straightforward.

So is that why you limited yourself to this one particular statute that said it's a crime to not to give them a change of air?

[00:25:47] Will Lowrey: Yeah, I mean to, to the comment you just made it, it's the most straightforward one. Change of air. Compare that to sealing up a barn. It's pretty straightforward, and you're absolutely right. You know, there's certainly other provisions of the cruelty statute that we could have argued. You know, we're not trying to clutter up the court.

You know, for us this was a pretty straightforward case. This happened. Here's the statute. Make it as simple as possible, especially in the context of a procedure, like we've mentioned, that is kind of unusual. The question becomes, as an attorney, how many unusual things do you want to insert in one case?

And I think the more you limit that, the easier you make it for the court. So that was some of the thinking here.

[00:26:24] Mariann Sullivan: Yeah, it makes sense. Alright, so you made your application, and I assume we've already covered most of what you put in there. It's pretty straightforward. And now tell us about Jenny O's motion and the court's very quick response.

[00:26:37] Will Lowrey: We filed the application and to the point you made earlier, it's kind of like, what do we do here? How do you even bring this case? And so we did it the best we could. We got it into the court system. Jenny O filed a motion to quash, which is interesting because usually the motion to quash is done for a search warrant that's been granted versus application for a search warrant that has not been granted. But the argument from their end in, in a very short filing was kind of twofold. You know, one was that, hey, the governments approved this, the state of Minnesota and the federal government have approved this. And then second that this evidence is stale. And in stale, you know, legal terms, that means it's too old to warrant the finding of probable cause. The court came back, issued, you know, I think a six or seven page order and spent a little bit of time on it, which to be frank, I think is a little bit of a win. The fact that a court considered and wrote out six or seven pages

[00:27:30] Mariann Sullivan: Right.

[00:27:31] Will Lowrey: is

[00:27:31] Mariann Sullivan: This is how, this is how we get wins in animal law.

[00:27:34] Will Lowrey: You

[00:27:35] Mariann Sullivan: The court, the court wrote six pages

[00:27:38] Will Lowrey: Yeah.

[00:27:38] Mariann Sullivan: for us to lose.

[00:27:39] Will Lowrey: You, you know, to be honest, to be, you know, serious. Like part of it is normalizing this. These cruelty laws exist. You have to start with little baby steps at a time. But Mariann, to your point, the court came back and basically said, they don't find probable cause.

The court indicated it thought the evidence was insufficient for probable cause for the two reasons that Jenny O raised. One, the government approved it, which I'd love to talk about because that's a liitle bit of a legal quagmire. And two, the evidence is too stale. We filed a request to file a motion for reconsideration.

We were limited to two pages. We did the best we could in two pages, and I could get into that, but the court denied that as well. And so kind of that's where things ended up.

[00:28:20] Mariann Sullivan: Yeah. And I think that the point that you raised was really the most shocking part of this case, and really is, I, I thought it was deeply shocking. I can still be shocked, and not whether the evidence you might be able to obtain was good evidence, but that you had not really alleged a violation of law because of this approval by government authorities.

That seems like the real crux of the case. Can you just talk a little bit about why the fact, I mean, it's you, you're characterizing it as a preemption argument. I'm not sure that's how the court categorized it. And the court really put this very, very tiny little addition at the end, but really was saying that this is not a violation of law because it was approved by the USDA.

Can you just talk to that a little? 'Cause come on. Really?

[00:29:06] David Rosengard: I think there's two related problems here. I think one is this sort of legal mythology that animal cruelty law doesn't protect farmed animals. And I think that mythology gets built from a lot of places. I think it gets built from members of the farm industry, in whose interest it is to have people believing that farmed animals aren't covered by cruelty law.

I think that sometimes those of us in the animal law movement feed that mythology in our enthusiasm to explain to people how bad life is for animals on modern farms. I think that we sometimes shorthand that as these animals aren't protected from cruelty. And the more that mythology takes root, the more we get judges like this looking at the case and saying, I, I think part of what's underlying here is the notion that these are farmed animals, so how can it be a crime? That's compounded by this idea that the federal government approving of ventilation shutdown has any relevance to state law. The law doesn't say you can do it if the Feds say so.

[00:30:08] Mariann Sullivan: I think what you're saying is that this idea that it doesn't apply, the law doesn't apply to farm animals, was incorporated in the court's thinking that the court didn't really say that. Didn't take the position that the law didn't apply to farmed animals.

Just that the approval by, I think, the Jenny O'S paper said, complainant's attempt to intervene in an area of law explicitly regulated by responsible federal and state agencies, depopulation of poultry should be rejected. As if the fact that it's regulated means that Minnesota's criminal laws no longer apply.

[00:30:43] Will Lowrey: I think there, if I could just jump in. I, you know, it was a very cursory analysis of the conflict between state law and federal law. Right. And so if anybody from law school that's looked into preemption knows that it's not a cursory field of law, you go down lots of

[00:30:57] Mariann Sullivan: That's for.

[00:30:58] Will Lowrey: and you look at lots of different things. And I think that the court, for whatever reason, did not engage in that analysis to say like, yeah, okay, we have federal law, we have state law, but does it really supersede? You know, the supremacy clause doesn't just sweep over everything arbitrarily, and that was the argument that we tried to make in our request for a motion for reconsideration was that sure, we understand that there was federal approval given here and there was state approval, but if you really dive into the bowels of the law, that doesn't mean anything.

And so we pointed to the fact that the linchpin from the USDA, you know, where they allow ventilation shutdown, it's really a policy statement. It's an AFIS policy statement that ties into the reimbursement. And then you can look in the case law and you can look at, well, what is the preemptive power of a policy statement over a state law?

And that's where things start to break down and the court's argument starts to break down. We were never really given the opportunity to dive into that, but my hope is that this sends a message to the agriculture industry that, you know, if you really do get a court that picks apart the law and starts to dive into the nuances, it's not just, USDA approved this, this is allowable.

You gotta go deeper. And I think we had a pretty solid argument here that unfortunately we didn't get to.

[00:32:09] Mariann Sullivan: And Okay. does the USD, I mean, is it even regulatory? I mean, do they have promulgated regulations that govern ventilation shutdown? I'm not saying that that would mean that it was preempted. I'm just curious. You mentioned that it was a policy statement.

[00:32:21] Will Lowrey: Yeah. To, to my knowledge, and this is a very, very complicated area of law, but to my knowledge, there is a connection between the USDA. There is a statute, I think the Animal Health Protection Act that allows the USDA to enter into cooperative agreements with a number of different entities for purposes of disease control.

One of those entities includes boards and sub boards of the A VMA. And so that's what it allows, it allows these agreements. And then separately, APHIS has created a policy that says, Hey, if you follow AVMA procedures, you know, we'll reimburse you. And so you have different levels of the law.

One allows this cooperative agreement. One is a policy statement. There's nothing, to my knowledge, there's no statute that Congress has passed that says you may overheat birds to 104 degrees for four hours and kill them.

[00:33:13] Mariann Sullivan: Yeah.

[00:33:14] Will Lowrey: You gotta go further than that, right? And a lot of preemption gets back to congressional intent.

So again, that's where it breaks down. But I've not been able to find any hard and fast statute or anything like that that allows ventilation shut down. It allows these cooperative agreements, indemnification, those types of things. But that's all I can find.

[00:33:33] Mariann Sullivan: And it should, I mean, if they exist, this was the moment to litigate that and for them to show that, you know, okay, we have this statute that allows us to do this. And I mean, the way you were describing it too, made it almost sound as if, state law's being preempted by the A VMA, a private organization.

Um, just because the USDA hands off its responsibilities to a private organization, is that now preempting state law? I mean, it's a real state's rights issue here that the state was very, very happy to just ignore.

[00:34:02] David Rosengard: And there has been some litigation around that. I'm forgetting the name of the case off the top of my head. It's out of New Jersey, where the state at one point rather explicitly delegated the determination of humane, literally what the word would mean, to an external private group. And courts said, you can't do that.

Like you at least need to internally as a government decide, as an administrative agency or in statute or otherwise, what this means. And there's a level of delegation to private parties which abrogates your governmental duties.

I think to your point about how if the industry wanted to litigate preemption here, this would've been an opportunity. There are good models for that. National Meat Association versus Harris is a pretty, pretty thoroughly explored analysis of a case where courts have held that there is preemption, but that's very different than what happened here, right?

[00:34:59] Mariann Sullivan: By a statute, that has a preemption clause.

[00:35:02] David Rosengard: Exactly. And that's the critical difference.

[00:35:03] Mariann Sullivan: here.

[00:35:05] David Rosengard: Precisely. and I think that there's a misreading on the part of the decision here to apply that degree of preemption to this much, much broader policy statement from the USDA and the AVMA.

[00:35:18] Mariann Sullivan: Can we just indulge in a counterfactual for a moment? Because if the court had not found that the law was essentially preempted, charges could have been brought, but then I'm just curious. We kind of started having this conversation in the beginning, but now I'd like to follow that thought through. Presumably then it would've gotten handed off to a DA, if whoever did this investigation and, and, carried out the search warrant, assuming that they did and they were required to, and they found evidence of a crime, it would've been handed over to a da. The da, I mean, obviously has prosecutorial discretion, though you mentioned, Will, that we'd at least like to get this out in the open, that they're exercising discretion in this way, which would be a big victory.

But, is there any kind of private right of action in Minnesota like there is in Pennsylvania? Or that even if the DA declined to prosecute in this type of case, you could have brought the case.

[00:36:11] Will Lowrey: I am not aware of anything specific in Minnesota, and I think you're absolutely right. I mean this could have gone to a search warrant investigation, found evidence of a crime, send it to the da, and the DA still could have declined. I'm not aware of anything in Minnesota where you could force the DA's hand.

I mean, obviously there's a writ of mandamus, but that generally doesn't apply to discretionary acts. And so, you know, I think I go back to the, we're in such a dire spot, it's kind of one step at a time, right? If we were to get the investigation and the search warrant, depending on what they have, depending on who the DA is, you know, that's where we wanted to get, right?

We'll kind of take it one step at a time. But yes, there's always the risk that the DA decides not to prosecute, and I'm not sure there's much we could have done in that case.

[00:36:55] Mariann Sullivan: I know that it's, it's worth trying these things anyway because you take one step and then you hope that you get to take the next step as well. I assume that they just really would not like it to go forward, because no matter what happens, and no matter which way the law goes, the more publicity there is, the less Jenny O would like it. I understand that you decided not to appeal this decision. Can you explain why and is there a question as to whether this is actually an appealable order?

[00:37:22] Will Lowrey: I don't think there's any question that we could have appealed. And David, feel free to chime in 'cause I know you guys made your own decisions here. But in the Compassion Over Killing case that I mentioned, that was brought on the same procedure and that actually was appealed to the Minnesota Court of Appeals.

And so, you know, from my perspective, I think the preemption issue is interesting. It's an interesting appellate issue. We still had the other argument about the evidence being possibly stale and, you know, for Animal Partisan, just transparently, we're always looking at potential output and value versus the resources input. It just didn't feel like the case to appeal. I think now, like we have this procedure, we know this procedure, we think there's a good argument regarding ventilation shutdown. There may be another one, but I don't think this was the right one for us.

[00:38:08] David Rosengard: Yeah, our analysis at the Animal Legal Defense Fund was similar just in terms of strategic impact. We are looking at private complaints in a variety of other jurisdictions, because we think this is an important tool and we look forward to, to working with Animal Partisan on that in the future.

Given that appealing this specific case didn't seem like it would get the payoff that would justify that outlay. I also think that Will's talked about the preemption issue. On the staleness issue, there wasn't really any new law raised here. The court is essentially reiterating classic Fourth Amendment search and seizure law that's been around in the relevant forms since the 1930s,

so this wouldn't really have been an opportunity to create any new law, it would've been an argument over what is common sensical vis-a-vis probable cause, and it just didn't feel like that would be generating useful case law.

[00:39:08] Mariann Sullivan: Yeah. And, that totally makes sense that it wouldn't really be changing the case law. But, I'm just curious because I assume the staleness issue would come up in any future case 'cause you're not gonna be bringing this application while the dead bodies are still on the floor, which is seemed to be like the standard the court was setting.

Do you feel confident that you would have a pretty good argument that there's evidence in those files and we have a right to get it?

[00:39:32] Will Lowrey: I think on, even on the staleness one, to David's point, I agree. I don't think it would've generated a lot of case law, but I don't think it's the end of the story. If you say the records are a couple months old or a year old or something like that. There are lots of exemptions to get around staleness.

Right? And we argued some of those, you know, there is court case law that talks about. Yeah. Even if evidence of a crime is old, if it has quote unquote enduring utility, I think there's a case called State V Jeanetta, which, um, you know, was about a crime that was reported that happened three years ago. It was, you know, basically sexual assault of a minor, and there was discussion that, You know what, this guy's probably still got photographs left for sort of ongoing sexual gratification. And that was part of our argument here, was that, you know, Jenny O's gonna use tarps and heaters and procedures again for ventilation shutdown. So, you know, I. I. think the short of that is that I don't think staleness is the end of the road.

To your point, yes, we're not gonna have real time the turkey's dead, but still warm on the floor of the factory farm, but I think in another case we might've been able to get around staleness. So I don't think that's a showstopper. I

[00:40:41] Mariann Sullivan: Especially since the argument here is, is not whether or not you killed the birds. I mean, nobody's, that's not an issue. The question is what did they know? What were they talking about? What did they know about the law? Like, did they have options? Did they consider options? That seems to be something that could definitely be found in the records.

Did you wanna add something, David?

[00:40:59] David Rosengard: Yeah, that's absolutely correct. And part of what's going on here is staleness arguments aren't unique to cases like this. They come up anytime that you're dealing with a scenario where you're looking for something other than blood, body, forensic evidence that's instantly right there.

So part of what I think is happening here, and this I think Will alluded to this earlier, it's a stacking of different, unusual things before the court. Here we've got a court looking at a filing that is unusual to them on a criminal statute that's unusual to them on a sought body of evidence that is unusual to them.

And I think that for the future, the more we make this less unusual. Or to put that in a more clear way, the more normalized enforcing animal cruelty is, the more normalized private complaints are the less, I think staleness is going to be an issue because it's not an issue typically when law enforcement is requesting a warrant and legally this process is no different.

[00:42:09] Mariann Sullivan: I think you're exactly right, like bringing these cases has value just to familiarize the courts and the judges with the idea that this is a thing. And this was clearly not what I like to refer to as a gimme the ball judge. This judge just wanted out, didn't wanna have to think about this, but at some point you get one of those judges who like wants to grapple with these issues.

And I think that you're in very good, very good place given the strength of these laws. And I mean, I wanna talk about that a little bit, before we do that, I really, I mean, I promised everybody we weren't gonna just talk about a case that lost, that isn't getting appealed 'cause you know, that's not really my thing. Um, because this is ongoing. You already have a case that you're lining up in California, and I understand that you cannot tell us too much about it because it's in early days. But, you did tell me Will, that you could give us a hint about what's going on and what the law is in California.

[00:43:02] Will Lowrey: Yeah, so this is a case that Animal Partisan is working on. Um. It's based on a very similar statute in California. So California penal code 5 99 A is a very similar statute. And it is specific to animals, but it basically allows a person to go before a magistrate, and in California that term means any judge of, of any court, basically, and do the same thing. Ask for a warrant, you're intending to make a case for probable cause and get a warrant. So we are working on a case related to that, it relates to animal agriculture in California, we'll probably file it in the next month or so. You know what's interesting about this one is that this law is on the books 5 9 9 A and it's been there for quite a while. It has come up multiple times actually in A LDF cases like where A LDF was trying to bring civil enforcement actions. And the court would point to this and go like, no, you can't bring this as a citizen. Look here you've got this other remedy in 5 99 a. To my knowledge, nobody else has actually brought that procedure, and so part of what I'm hoping to do is to learn that procedure. I will say anecdotally, I've reached out to courts in a couple of counties to say, Hey, how do we bring this? How do I make this easy for you? One of 'em actually told me, you can't do that, only a district attorney can do that. And I said, respectfully, that's not true. Here's two California court cases that say you can. And then I was told I can't give you legal advice, right? So that's the kind of roadblocks you hit when you're bringing cases under procedures that are not typically used. But the short version Mariann, is, yes, very similar statute in California relates to animals, and trying to use it there.

I think we've got a good case. You know, again, it may not win, but at least we'll take that step forward, learn the procedure, and hopefully use it

[00:44:50] Mariann Sullivan: I love it. I can't wait.

This is not like Minnesota in which there were a few cases on the books where people had tried to do this. Is that what you're saying? Like, like there's no reported cases talking about using the statute?

[00:45:02] Will Lowrey: I have not been able to find them, and I've talked to all of the groups that I would've thought would've used this and have been told that they don't know anything about it or how it works. And so in, in my head, you have a tool that's on the books that has not been used. And part of it's probably because the courts don't even know how to use it.

Like I just said, the court told me you can't do this. And so in Minnesota, to your point, Mariann, yes, there was at least a couple cases. There's some filings I could look at to model. In California, we've had to figure out like, what do we do? How do we get this into the court? Like how do we squeeze this into the court?

And that's what we're gonna try.

[00:45:37] David Rosengard: And having done some looking into that law. I can say that yes, you absolutely can do that, that's exactly what the law is for. I do think that you're right that I don't think there are any recorded cases on this. I don't think that means it's never been used. I just think it means it's never been brought up onto a

[00:45:53] Mariann Sullivan: Right, of

[00:45:54] David Rosengard: appealed reported case. And part of it is, again, zooming out. I said, if we go back to the beginning of the nation, we get all these private criminal actions. Fast forward a good a hundred some years. You know, late 18 hundreds, mid 18 hundreds, mostly the government's taken over prosecution, but not for elder abuse, child abuse and animal cruelty.

Those were still largely being handled by private entities. And so you would get states like California that would pass these laws that would say, look, essentially, the government's not going to devote the time to checking up on children or old folks or animals. That if you have a humane society or a charity for children or a charity for the elderly that wants to do that work, that's willing to bring a case, more power to them.

And there's a long history of those laws being used to that effect in the United States. I think the, the high watermark currently is Ohio, where they still use that law for humane societies to do their own misdemeanor cruelty prosecutions. But I'd be very surprised if it hadn't been used in California in those early days, because that's what it's for.

[00:47:06] Mariann Sullivan: Yeah, and I mean, this is just off the top of my head, but it seems ridiculous to say that this is just for law enforcement. Law enforcement doesn't need a special law. If they have evidence of a crime, they can get a warrant. They don't need them to pass a special law authorizing that. It seems like an incredibly valuable tool. I'm very excited to hear what happens next and next, and next, because I'm, I, there's one of these in New York. I'm expecting you to be here one day. I would love to see that.

Well, I should ask you before I move on to talking a little bit more philosophically like, is there anything I should have asked you about either of these cases that I haven't?

I mean, there's a million things I'd like to ask you about the California case, but I know I'm not allowed to.

[00:47:44] Will Lowrey: No, I mean, I think we've covered it. You know, just, I would just echo some of what David said about the utility of these laws and they exist. We've got cruelty laws on the books. They, in many cases, apply to farmed animals, and so it's just a matter of connecting the dots with the law to bring the complaint that applies to the animals.

So there's nothing else I can think of. I think you, you covered it well, Mariann.

[00:48:03] Mariann Sullivan: And I did just wanna talk a little bit about stepping out of the legalities and consider how, how sordid of this is and how far we've fallen in the treatment of these animals. I mean, we have these laws on the books. At some point, legislatures passed these laws 'cause they thought they were important and they thought it was important that animals be protected.

And where are we? The industry, the government, all of these people seem to think it's fine now to ignore them because it's okay to be cruel to farmed animals. Because that's who we are as a people now. And I think it's shocking and I think it's really important. And I appreciate your expositions on the history of these laws, David, because I think it's really important to look at the fact that at some point, responsible people thought it was important to do this.

[00:48:45] David Rosengard: To offer a, a glimmer of hope. One of the things that makes me optimistic about this work and it's important to be optimistic in out a law because there are great powers arrayed against us is the consistent results when people ask members of the public how they think animals, even animals in exploitive industries like farming should be treated, consistently people say those animals should be treated humanely. They say, I am willing to pay more money for products from humanely treated animals, and they consistently, drastically underestimate the horrors that those animals suffer.

So I think part of what's going on here is, the public doesn't really know what is being done in their names, in our names. And part of the point of prosecution is society holding people accountable for doing these horrors, these harms that are big enough and bad enough for us to have decided there are crimes.

But it's also about society looking with open eyes at the situation and saying, is this something I'm willing to sign off on? I would like to think that once the public realizes, truly realizes what's happening in their names, they'll think twice about it.

[00:50:05] Mariann Sullivan: Yeah, I, I couldn't agree more. I am always saying that the only two groups of people who know what's going on in factory farms is the industry and us. And everybody else, all right, there's a little willfulness in not seeing what's going on on the part of the public. But the more that it is put out there, the more people will say, all right, I can't ignore this anymore.

So I think these laws are an incredibly valuable tool. Even when they're not successful, though I hope that they are successful and these cases can go to court and they can get litigated just like cases are supposed to be. So thanks so much for doing it. Thanks for sharing it with us today.

[00:50:41] Will Lowrey: Thanks for having us.

[00:50:42] David Rosengard: Yeah. Thank you.

[00:50:44] Mariann Sullivan: Thank you everyone for joining us today on The Animal Law Podcast. Please remember to subscribe wherever you can, whether on YouTube or on on your podcaster and like wherever you can. And if you so choose and you're able to, we would so appreciate a donation, just go to our hand house.org/donate.