Commentary

"On or about February 10, 2016, in the above named judicial district, the crime of FARM ANIMAL CRUELTY, in violation of HEALTH AND SAFETY CODE SECTION 25990, a misdemeanor, was committed by Robert Allen Hohberg, Hohberg's Poultry Ranches and Hohberg Properties, L.P., who unlawfully confined a covered animal, on a farm, for all or the majority of any day, in a manner that prevents such animal from lying down, standing up, and fully extending her limbs and turning around freely, to wit, egg laying hens, cage #B54."

This criminal count and 55 others are now being faced by a California egg farmer. It is being brought in the Superior Court of California in the county of San Bernadino. Specifically there are 39 counts of violating California's Prevention of Farm Animal Cruelty Act and 16 additional criminal counts of violating the state's cruelty code.

You may remember California passed Proposition 2 in 2008. California's legislature subsequently passed a law that each egg laying hen be able to fully spread her wings without touching another hen. The law applies to states shipping shelled eggs to California. The Humane Society of the United States (HSUS) claims in a press release that on "...February 10, 2016, [an] on-site investigation jointly conducted by the San Bernadino County District Attorney's Office, The Humane Society of the United States, Inland Valley Humane Society, and the Ontario Police Department, revealed birds locked in cramped, overcrowded cages in which they could not fully spread their wings. Decaying corpses were also found on the site, including in cages with live birds laying eggs for human consumption." HSUS declared in its press release "What we saw at this factory farm was a gross violation of Prop 2 now more than eight years after voters approved it."

Serious charges
This farmer is facing serious criminal charges.

In October, 2014, a Federal District Court judge dismissed a lawsuit filed by Missouri and five other states which asked a federal court to strike down California's statute barring the sale of eggs in the state or in any other state where the eggs are produced by hens in cramped conditions. The judge indicated the complaint was insufficient legally and dismissed the Attorneys General complaint. The judge in the case indicated the complaint was so poorly drafted that she would not allow the case to be refiled or amended and dismissed it "with prejudice" (Cannot amend or refile complaint). The states of Missouri, Nebraska, Alabama, Oklahoma, Kentucky and Iowa appealed the 2014 case to the U.S. Circuit Court of Appeals for the 9th Circuit.

Because the Attorneys General presented a weak case as to harm, the Attorney General of Utah was requested by Protect the Harvest (founded by Forest Lucas to protect farmers) to file an amicus brief with appropriate affidavits showing the harm the California statute would have on the poorest of citizens in the State of Utah. On November 17, 2016, the 9th Circuit affirmed the District Court's opinion dismissing the six states' case that sought to block the enforcement of California's laws and regulations regarding conditions for egg laying hens. The Court of Appeals gave the Attorneys General a victory when it said the U.S. District case should have been dismissed "without prejudice" rather than "with prejudice". (The lawsuit can be refiled.)

The six states live to have another day in court.

On February 16, newly elected Missouri Attorney General, Josh Hawley, requested the U.S. Supreme Court to hear the egg case. Again, Hawley is joined by the five original states. Hawley's press release says "They [California's statutes] directly affect and directly harm farmers especially poultry farmers in our state. And, the thing is, these laws are unconstitutional. The (U.S.) Constitution doesn't allow California to regulate Missouri and we're going to the Supreme Court to stop it."

Attorney General Hawley makes it clear that California must not be able to regulate animal husbandry practices in Missouri or in any state.

Meanwhile, notwithstanding the Attorneys General effort, the California egg producer may be looking, if convicted, at several years in jail and a substantial fine.

The opinions of the author are not necessarily those of Farm Futures or Penton Agriculture.

Gary Baise, a principal at OFW Law, specializes in Clean Water Act (CWA), Clean Air Act (CAA), National Environmental Policy Act (NEPA), Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and Solid Waste Disposal Act (SWDA) litigation as well as agricultural corporate governance issues. He serves as general counsel for U.S. Grains Council, Agricultural Retailers Association (ARA), National Association of Wheat Growers (NAWG), and National Sorghum Producers (NSP). Gary was the first Chief of Staff to the first U.S. Environmental Protection Agency (EPA) Administrator. He owns a family farm in Jacksonville, Ill.