Saying the move is costing him money, the owner of three Tucson restaurants has filed suit to overturn rules designed to give egg-laying hens more room to move and stretch their wings.

Grant Krueger is arguing through his attorneys that the state Department of Agriculture did not have the authority to declare that laying hens have to be kept in cages that have at least one square foot — 144 square inches — of usable floor space. Prior to its implementation, cages could be less than half that size.

But that’s just the beginning. Under the same rule, by 2025 all major producers will have to go cage-free.

And that requirement also exists for out-of-state producers that want to sell their eggs in Arizona.

Krueger said what’s wrong with that, aside from the legal questions, is it is driving up his costs.

The state Department of Agriculture puts average annual per capita consumption at slightly more than 270 eggs a year. Figuring the new rules would add somewhere between a penny and 3.25 cents per egg, that comes out to somewhere between $2.71 and $8.79 a year.

But Krueger is operating three restaurants under the banner of Union Hospitality Group: Union Public House, Reforma Modern Mexican Mezcal + Tequila, and Proof Artisanal Pizza and Pasta. And he said he purchased 578 cases of eggs in a recent 12-month period, or 104,040 eggs.

Using that higher estimate, that increases his costs by $3,380.

And John Thorpe of the Goldwater Institute, one of the attorneys on the case, said this isn’t a choice that Krueger would have made.

“When purchasing eggs or egg products, Union Hospitality Group does not specifically seek out eggs produced in a cage-free manner,” the lawsuit says.

But what gives Krueger and his attorneys a legal basis to ask a judge to void the rules is the way the Department of Agriculture adopted it.

The background is political.

In 2021, a group known as World Animal Protection was promoting an initiative to require cage-free systems by May 2023. Its proposal also would have made violations a crime.

That alarmed the owners of Hickman’s Family Farms, the state’s largest egg producer. So they agreed to back legislation that would impose the same mandate — but not until 2025.

All that came over the objections of the Arizona Farm Bureau Federation, which managed to kill the bill.

But the Department of Agriculture picked up the issue, reaching the conclusion that, absent state action, voters would approve the harsher initiative. More to the point, the agency concluded it already had the authority to approve its own rules, which is what it did.

Thorpe, in the new lawsuit, disagreed. He said the agency could act only with specific legislative authority, something it did not have.

And the way they did it, he said, made matters worse.

“The placing of the lawmaking power in the hands of AzDA led to a collusive process in which egg producers and industry groups worked closely with the agency to develop the rule they wanted,” Thorpe said, all to undermine the initiative.

“As a result, consumers, restauranteurs, and restaurants — three groups expected to be impacted by increased egg prices resulting from (the) rule — did not have adequate protection of their interests in the rulemaking process,” the lawsuit states. “Through this suit, Union Hospitality Group and Mr. Krueger seek to ensure that policies that impact the lives and finances of Arizonans are enacted by the elected Arizona Legislature to ensure the consideration and protection of all Arizonans’ interests.

In adopting the rules, the Department of Agriculture said it is “intended to represent the best management practices in the shell egg industry that ensure the production of high-quality, cruelty-free eggs.”

That issue of animal cruelty is not addressed anywhere in the lawsuit. But Joe Seyton of the Goldwater Institute said it is legally irrelevant. He said if there is to be a policy about whether cages are cruel, that is a decision to be made by lawmakers, not a state agency.

But there is no clear consensus on the issue.

In lobbying in 2021 to kill the bill, Chelsea McGuire of the Farm Bureau had one point of view.

“We’re locking producers into this premium product and doing so unnecessarily,” McGuire said. And she said it’s all being done “without a public health or safety justification or a scientific justification.”

And she sniffed at the contention of some animal rights groups that it’s cruel to keep the laying hens in tiny pens.

“Stress indicators on hens, things like that, are really no different between conventional confinement cages and cage-free production systems,” she said.

But that isn’t how Sen. John Kavanagh, R-Fountain Hills, saw it.

“Confining chickens to less than one square foot, I think, is really cruel,” said Kavanagh, at the time a state representative.

“Granted, they don’t have very high levels of sentient awareness,” he continued. “But they feel pain and they’re prevented from engaging in natural and instinctive behavior, even to the point of spreading their wings or being able to sit down when they lay their eggs.”

There were other issues raised during the 2021 debate.

Lawmakers asked Glenn Hickman, president of the company that bears the family name, if eggs from cage-free chickens are of higher quality than their more-confined cousins. He said there’s no simple answer.

“You feed the chickens the same,” Hickman said. He said it’s like brown versus white eggs, with no real difference.

“But there are some studies that suggest that chickens who have less stress tend to have more natural defenses, immunities, if you will, and are therefore healthier,” he continued. “And that would translate potentially into maybe a different composition of egg.”

Maybe.

“You’re making some scientific leaps,” Hickman agreed.

There was no immediate response to the lawsuit from the Department of Agriculture.

No date has been set for a hearing.