The Animal Welfare Act (50-year anniversary) Conference at Harvard Law School, December 2-3, 2016
Welfare Standards under the AWA:
The AWA originally called the Animal Laboratory Act is a federal statute that directs the Secretary of the United States Department of Agriculture to “promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.” The six covered species of animals were animals used in research: dogs, cats, monkeys, guinea pigs, hamsters, and rabbits.
Mice, rats, fish are not covered by the AWA and they make up 99.9% of the animals in labs.
1970 amendment: The 1970 statute expanded the definition of “animal” to include not only the six species previously covered, but any “warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet.” (As discussed below, APHIS immediately construed “warm-blooded animal” to exclude birds, rats, and mice.” [34] ) The 1970 statute’s definition of “animal,” although it generally included warm-blooded animals, excluded “horses not used for research purposes and other farm animals . . . used or intended for use as food or fiber. . . .” [35] The new definition, by adding the phrase “exhibition purposes,” added not only warm-blooded animals (other than horses and farm animals) to those that the statute covered, but included such animals if they were used not only in research, but in exhibitions, which the statute defined to include “carnivals, circuses, and zoos,” but to exclude “retail pet stores, . . . State and country [sic] fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary.” The 1970 amendment also expanded the scope of the standards that the Secretary of Agriculture was required to promulgate, by mandating that they include “the appropriate use of anesthetic, analgesic or tranquilizing drugs, when such use would be proper. . . .” The statute provided, however, that it should not be construed to authorize regulations with regard to “actual research or experimentation by a research facility.” “[T]he research scientist,” the committee report made clear, “still holds the key to the laboratory door.” This meant that researchers were not required to balance the relative importance of an experiment against the amount of pain the experiment might cause, or otherwise to justify the infliction of suffering on animals.
(g) the term animal means any live or dead dog, cat, monkey (non human animal)….
The 1976 amendments formally named the act the “Animal Welfare Act,” expanded the act in various respects, including to cover dogs used for hunting, security, or breeding purposes, and to require intermediate handlers and carriers, in transporting animals covered by the act, to adhere to standards promulgated by the Secretary. The 1976 amendments also made it a misdemeanor “to knowingly sponsor or exhibit an animal in an animal fighting venture to which any animal was moved in interstate or foreign commerce”
The 1985 amendments to the Animal Welfare Act direct the Secretary of Agriculture to “promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.”
Only USDA can bring an action to enforce the AWA – (there is no citizen suit provision).
In the 1980’s during the Reagan administration there was no budget allotted for enforcement. We fear the same going forward with the Trump administration.
Kimberly Ockene, HSUS attorney, works on puppy mills regulations.
Commercial breeders must be licensed. Puppy mills produce sick puppies. The current regs allow for wire cages and stacking and there is no limit on the amount of breeding.
Recommendations include requiring that wire flooring be prohibited, cage size be doubled, and eliminating cage stacking, mandate unfettered access to exercise run at least twice size, restriction of frequency of breeding – petition asks for no more that two breeding cycles in an 18th month period.
AWA recognizes that marine animals (polar bears sea otters, cetaceans, need their own subsection. (Captive animals are excluded e.g. Lolita). Lolita is the poster orca for what is wrong with the AWA. (Marine Mammal Protection Act no longer protects captive animals.) §3.111. Swim-with-dolphin program.
In 2016 APHIS published rules that dealt with the areas that were not agreed on in previous ‘meetings’.
Ana Frostic, HSUS attorney, spoke about the commercial use of infant exotic animals. Breeding animals for commercial purposes. Main animals – large cats. They are taken from their mothers to be raised by caretakers. Regulated under 9C.F.R sec. 2.131. Petition asking for no direct contact (tigers…). Commercial use of exotic animals has a negative impact on wild species . It affects people’s perception of whether they are wild. More of these endangered animals living in captive facilities than in the wild. They are bred in captivity and also interspecies bred. All of this negatively affects the gene pool.
Captive animals can drive poaching by increasing demand.
Recent decision by Trip Advisors not to list these (commercial zoos) facilities. We need to look to corporations for pressure e.g. South West airlines severing ties with Sea World.
Puppy mills section at HSUS works with industries to try to strengthen standards.
NIH has minimum standards for lab animals (chimpanzees) but their standards exceed those under the USDA’s AWA.
We need to work with states to enact laws such as the laws passed in NY, SC that prohibit the display of cetaceans.
AWA Interaction with Other Laws:
Ani Satz: Myth of AWA Preemption
Many state actors believe it is useless to file suit for animal cruelty in state courts because any decision would be preempted by federal law. Myth of preemption has chilling effect on attorneys from bringing action for fear of agency discretion.
This is a myth because the AWA specifically allows states to rule. Sec 2141
*States have reserve power under 10th amendment to address health safety + welfare.
USDA is only government agency without a neutral mission. It exists to foster agriculture creating an inherent conflict of interest between agri-business and oversight of animal welfare as designated by the AWA through their Animal Care office under APHIS (Animal and Plant Inspection Service).
The interaction of the ESA (Endangered Species Act) and the AWA:
ESA has citizen suit provision by prohibiting a ‘take’, 16 USC 1532, e.g. hunting, harassing. (There is NO citizen suit provision under the AWA.)
For harm need actual injury or death; harassment can be intentional or negligent.
Exemption under the ESA for captive wildlife.
Lolita- even though her orca pod is listed as endangered under the ESA she s excluded because she is captive.
Cases:
PETA v. Miami Seaquarium
A Florida federal judge entered final judgment against peta. The suit asked the court to force the Seaquarium to surrender Lolita for relocation to a new home more conducive to her well-being, arguing her continued captivity now constituted a taking under the Endangered Species Act. The judge’s ruling in the case is based on a very narrow interpretation of the Endangered Species Act that fails to protect captive animals from all but imminent death.
Hill v Coggins (the Cherokee Bear Zoo case)
The court held that Plaintiffs failed to prove by a preponderance of the evidence that the pit enclosures fail to comply with 9 C.F.R. § 3.128. The USDA has concluded that the pit enclosures do not violate the provisions of § 3.128 under the AWA when it has conducted quarterly inspections. The USDA has never cited the CBZ for any violation of the AWA. The Court concluded that the bears were not “taken” within the meaning of the ESA.
Cricket Hollow Zoo – Challenged the treatment of tigers and lemurs
The Zoo argues that the fact it is licensed under the AWA makes it exempt under the ESA.
Regulating Animals Used in Research:
Alka Chandra: 1985 amendment to the AWA passed in response to the outrage over the silver spring monkey case and the head injuries at the Univ. of PA. The amendments established the IACUC (Institutional Animal Care and Use Committee, technically an oversight committee to approve research) § 2.32. Research facilities are registered not licensed and registration cannot be revoked (unlike licenses).
Annual report – category E experiments – 8% were not given pain medicine because it would change the data outcome.
ARRIVE (Animal Research: Reporting of In Vivo Experiments)
Use when teaching scientists.
Ethical question People with diminished capacity are protected from the types of studies in which they can participate. They have a guardian. Can we have something like that for animals?
Administrative forfeiture:
Agency can take property
Criminal forfeiture
Civil asset forfeiture process: Seizure- notice – claim – judgment
§2156(f). What property can be seized, dogs themselves.
Heart act – restricts time dog can be held, gets money to government faster.
Fine goes to U.S. treasury.
Restitution is key.
9 C.F.T.
Dealer §2.129
Research facility §2.38
§2.143 importation of dogs
Center for Zoo animal welfare. www.czaw.org.
Biggest issue for captive animal is they don’t have agency – no choice
There is legal Action against USDA for automatic renewal of licenses
Helms amendment omitted rats birds and mice from the AWA
ALDF v Madigan 781 F. Support 797 (D.D.C. 1992)
Animal Legal Defense Fund (ALDF) and two individuals brought suit challenging USDA’s regulation excluding birds, rats, and mice from the definition of “animal” under the Animal Welfare Act. District Court, Charles R. Richey, J., held that: (1) Department’s promulgation of regulations that failed to include birds, rats and mice as “animals” protected by the Act was arbitrary and capricious, and (2) Department’s refusal to institute rule making proceedings was arbitrary and capricious.
AWA-Related Litigation and Other Efforts:
Jenni James, PETA, how the AWA evades judicial review. Standing is a way to keep unpopular plaintiffs out of court.
Legal (Article III) Standing: Nothing stopping state legislatures from putting an animal in a statute and then the animal would have standing.
For standing need: Injury, causation, redressability
Prudential standing:
APA fall under zone of interest
Way to get into court for AWA is thru APA
Representational standing
Havens v Coleman Havens standing
ALDF v Glickman was the fourth in a series of five lawsuits ALDF brought against the USDA aimed at getting the agency to do its job of providing humane standards for animals covered by the AWA. While the Court of Appeals later held that the “standards” set by the USDA were already adequate, they upheld the decision that Jurnove did have legal standing to sue to protect the interests of animals under the AWA. This decision established that animal activists have standing to sue under the Animal Welfare Act and has been cited frequently in subsequent litigation promoting humane treatment of animals.
Chevron v NRDC (Natural Resources Defense Council)
Landmark case in which the U.S. Supreme Court set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers. Chevron is the Court’s clearest articulation of the doctrine of “administrative deference,” to the point that the Court itself has used the phrase “Chevron deference” in more recent cases.
Heckler v Chaney 1985
Case heard before the Supreme Court. The case presented the question of the extent to which a decision of an administrative agency to exercise its discretion not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act. Under the APA courts can’t review something committed to agency.
Footnote 4: Courts can step in.
Ray v. Vilsack 2014 WL 3721357
Informational standing. If you as for FOIA and it is denied you can sue.
Plans to establish primate well being have to be sent to agency then FOIA kicks in.
PA allows for a citizen to sue e.g. pigeon shoot.
U.S. V Felts
Title 18 general provisions false statements, mail fraud, conspiracy
AWA Enforcement:
Civil monetary penalty. $10k per per animal. Criminal – Available. Injunctive.
Bernadette Juarez, Animal Care (AC), APHIS, USDA
AC: 3% of budget and 89% of enforcement cases of OFC
Cases where AC intervened
1. Gus White – willful act
2. James Joseph Hickey and Craig Lesser – access case
Inspections come within the 4th amendment requirement for a warrant
3. Lanzie Horton. Penalty for dog breeder
4. Feld entertainment
Wild animal orphanage financial disarray – placement of animals
5. Hawthorn Corporation leased elephants. 1st time USDA confiscated elephants (elephants had TB)
6. CC Baird – dog breeder. Removed 400 animals.
7. Santa Cruz Biotechnology. Revocation of their license largest penalty under AWA
