Abstract
The AFA is asking Federal Judge W.
Matt Byrne on May 2, 1977, to order a preliminary injunction to stop the USDA and other related state agencies from killing any bird until it has been shown that the bird has Velogenic Viscerotropic Newcastle Disease (VVND).
The AF A argument is based upon the following grounds:
A report of HUMAN INVOLVEMENT IN RECENT CALIFORNIA EXOTIC NEWCASTLE DISEASE EPISODE by Allan R. Magie, Ph.D., M.P.H., Raymond 0. West, M.D. and Roland Phillips, M.D., Ph. D. of the School of Health, Loma Linda University .notes that in at least one instance during the 1971-1972 outbreak, live VVND virus was isolated from the eye of the USDA task force member assigned the responsibility of placing "sentinel birds" (chickens highly susceptible to the disease) on the premises of poultry farms. The report continues:
"One wonders how many hens may have been destroyed unnecessarily since there is the possibility that the sentinel birds were already infected before arriving on the premises of an otherwise VVNDfree ranch."
The conclusions of HUMAN INVOLVEMENT IN RECENT CALIFORNIA EXOTIC NEWCASTLE DISEASE EPISODE are listed on page 11 of the report. Of primary importance is the conclusion: "Humans may be the primary method of virus transmission (from flock to flock) during an epidemic such as that experienced in southern California."
Due to the circumstances surrounding the tests of Bronze Wing birds, it seems probable that the positive result may have been due to human contamination, and not due to infected birds.
Section 153l(c) of the Endangered Species Act of 1973 [15 USCS 1531- 1543) states:
"It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act."
The policy of the Joint Task Force to exterminate collections of healthy rare birds, healthy birds that are on the endangered species list, and healthy birds that are irreplaceable due to current market conditions or because the birds are the result of a captive breeding program, is contrary to the declared policy of the Congress of the United States of America. Said acts by the USDA and related State agencies of the United States are illegal.
Section 1536 of the Endangered Species Act of 1973 states:
"The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act [16 USCS 1531- 1543] . All other Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act [ 16 USCS 15 31- 1543] by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act [16 USCS 1533] and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical."
The USDA and related State agencies have disregarded the Endangered Species Act of 1973, and by killing birds suspected (but not proven) to have VVND, the defendants to this action have violated the law.
Dr. Richard E. Baer, D.V M., a 27 year veteran of the USDA, in his article, Veterinary Services Newcastle Disease Eradication Program, A Personal Observation, notes that:
"With the elimination of Hog Cholera and with Brucellosis and Tuberculosis eradication activities greatly reduced, Veterinary Services found itself with very little to do and with lots of personnel.
About this time a large outbreak of Exotic Newcastle Disease (VVND or Velogenic Newcastle) occurred in California. The poultry industry asked for an eradication program.
The timing was almost perfect. Veterinary Services needed work and the poultry industry got its eradication program.