By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Saying things are about to change, attorneys for the state want a judge to delay deciding whether a rule by the Department of Agriculture requiring eggs from cage-free hens is legal.

It is less than clear that anything decided by Maricopa County Superior Court Judge Scott Blaney about pausing the case will make a difference in the price Arizonans are paying right now for eggs — especially with the state’s largest egg producer having to euthanize more than 6 million hens due to bird flu, a move that will impair supply.

In fact, the lawyers point out to Blaney the rule that a Tucson restaurant owner went to court to declare illegal because of the costs actually isn’t in effect — and isn’t able to affect the price and availability of eggs.

The case before Blaney concerns whether the Department of Agriculture had the authority to enact a rule in 2022 to forbid major egg producers in the state from keeping their hens penned up all their lives in 62-square-inch cages.

In a 2023 lawsuit Grant Kruger contends the agency exceeded its authority. He said his status as a purchaser of eggs for his three Tucson restaurants — he figures the additional cost of cage-free eggs could cost him up to $3,380 a year — gives him status to sue.

Attorneys for the state disagree. And the judge has yet to rule.

Now the lawyers representing the Department of Agriculture have a backup plan: They want Blaney to delay his decision.

In new filings, they point out to Blaney the department is not enforcing the rule which, had it been in effect, would already would have required cage-free conditions for laying hens. That was done because of concerns that implementation would exacerbate already high egg prices.

On top of that, Gov. Katie Hobbs in March directed the Department of Agriculture to recraft the rule — this time putting off enforcement until 2032. That also would “clarify” other parts of the existing rule.

That new rule is expected to be voted on by the Department of Agriculture in August, and be implemented in October. What that means, the attorneys for the state are telling Blaney, is if he acts now on the legality of the current rule, any decision could be irrelevant by the time the new rule is enacted.

“Further, depending on the substance of any modified rule, it is conceivable that plaintiffs might sue again, taking the parties and court back to square one based on new text, new arguments and a new record,” the state’s lawyers are arguing.

“That is not an efficient use of scarce public resources,” they continued. “It would be far more efficient to wait for the rulemaking to finish and then assess how to proceed at that point.”

The lawyers for the state argue Kruger and his restaurants currently face no possible damage from the rule — and would not be harmed by a delay in the case while the new rule is being considered.

There was no immediate response from the Goldwater Institute, which filed the lawsuit on Kruger’s behalf, to the request.

At the heart of the case is that 2022 rule which, as adopted, initially spelled out that eggs sold in Arizona must be raised in cages no smaller than one square foot of floor space — 144 square inches — twice as much as what was then allowed. And, beginning in January of this year, the hens were supposed to be “housed in a cage-free manner.”

That rule was crafted to apply to not only egg producers in Arizona but also to any out-of-state firm that ships their eggs here.

In adopting the regulations, the state agency determined the rule would add somewhere between a penny and 3.25 cents per egg. Using an estimate of annual per capita consumption of slightly more than 270 eggs a year, that pencils out to somewhere between $2.71 and $8.79 per person.

Krueger, however, said he purchased 578 cases of eggs in a recent 12-month period, or 104,400 eggs. And, using the higher estimate, that would cost $3,380 a year.

Blaney last year ruled that cost gives Kruger, owner of Union Public House, Reforma Modern Mexican Mezcal + Tequila, and Proof Artisanal Pizza and Pasta, legal standing to sue. The question is whether, as Kruger contends, the rule goes beyond the authority of the Department of Agriculture.

But some facts have caught up with the legal wrangling. In November, the agency agreed not to begin enforcement until 2027, citing the Avian flu that has affected egg production.

Then in March, Hobbs directed the agency to recraft the rule, with the goal of pushing back their effective date until 2032.

That was not done in a vacuum. It came as Sen. Shawnna Bolick was advancing legislation to permanently strip the Department of Agriculture of its authority to enact any rules at all on housing for chickens.

“While we can’t solve the cause of bird flu, we can pass a law for Arizonans to see some relief on their grocery bills and hopefully eradicate the daily limits imposed on consumers at grocery stores due to higher demand,” the Phoenix Republican said in a prepared statement.

Bolick never addressed the fact enforcement already had been suspended — and no egg producer was being forced to do anything.

Then, when Bolick’s measure did finally get to Hobbs, she could say that there was no immediate need to change a law — one she believes is needed.

“It is important however that this department retain its ability to regulate space standards for egg-laying hens,” the governor wrote. “Removing this ability entirely could have serious implications in the future if action is needed to protect human health or animal welfare.”

Ultimately, however, the governor’s views may not matter. It will be Blaney who decides whether to side with Kruger and conclude Department of Agriculture never had been given the authority by the Legislature to enact the cage-free rule in the first place.