the treatment of birds, rats, and mice. In light of the existence of general regulations that would govern the treatment of birds, rats, and mice if they were included in the definition of "animal", see 9 C.F.R. § 3.125 et seq., the decision to promulgate more specific regulations is subject to more agency discretion than the decision as to whether they are covered by the Act at all. Therefore, the agency appropriately considered issues of resource and personnel availability in this context. However, the agency's explanation of its refusal to enact these regulations is troubling. First, while the Preliminary Analysis considers in great detail the expenses that would be entailed in expanding coverage of the Act, only a few sentences are devoted to consideration of the impact of the proposed changes on the welfare of animals, which is, after all, the purpose of the agency's statutory mandate:
The potential impact of these regulations on research facilities are not all negative. The Act intends to improve the welfare of the regulated species. The systematic review of research protocols involving rats, mice, and birds would insure that research procedures minimize pain, avoid duplication of research experiments, and consider alternatives to animal usage.
Preliminary Analysis at 13; Admin. Rec. at 1132.
The agency makes no attempt to factor these benefits into its analysis of the desirability of regulation in this area; rather it focuses only on issues of resources and staffing.
The plaintiffs have offered compelling evidence that including birds, rats, and mice in the definition of animal would further the goals of the Act. See e.g., Pl.'s Mot. for Summary Judgment, Aff. of Dr. Patricia A. Knowles, Aff. of Joyce Tischler, Att. B. The agency admits as much, but declines to consider the benefit to animals as worthy of serious consideration as it decides how best to carry out its mandate. The Court finds this glaring omission in analysis arbitrary and capricious.
As stated by plaintiff William S. Strauss, "birds, rats and mice share with other animals the same basic needs for food, water, shelter, and veterinary care when injured. Birds, rats and mice share with other animals the ability to experience pain and suffering because they have complex nervous systems. There are humane and proper ways of caring for and treating these animals . . ." Pl.'s Mot. for Summary Judgment, Aff. of William S. Strauss, para. 6. The Federal Laboratory Animal Welfare Act was designed to insure, inter alia, "that animals intended for use in research facilities . . . are provided humane care and treatment." 7 U.S.C. § 2131(1). The defendants' failure to pursue the humane care and treatment of birds, rats and mice, both by excluding them from the definition of "animal" and by refusing to issue regulations governing their care, flies in the face of that mandate and indicates that the agency has "'been blind to the source of its delegated power'". Lyng at 5 (citation omitted). This inertia on the part of the agency allows the mistreatment of birds, rats, and mice to continue unchecked by the agency charged with the protection of laboratory animals. The Court cannot believe that this is what Congress had in mind.
Accordingly, the Court finds that the agency did not consider the proper factors in refusing to institute rulemaking proceedings. Specifically, regarding the exclusion of birds, rats, and mice from the definition of animal, the agency focused on issues of availability of resources and personnel when it should have focused on whether birds, rats and mice are used for purposes which allow them to fall within the protection of the Act.
Regarding the agency's refusal to promulgate regulations for the treatment of birds, rats, and mice, the agency focused exclusively on issues of availability of resources without considering whether the desired regulations would further the purposes of the Act and benefit the animals the agency is charged with protecting. In view of these fundamental errors, the Court finds that this is one of those exceptional circumstances in which the agency's refusal to grant a rulemaking petition must be overturned. See Lyng, 258 App. D.C. 397, 812 F.2d 1 at 3-8.
While the plaintiffs seek an order directing the agency to institute rulemaking proceedings, this remedy is appropriate only in rare circumstances. The preferred remedy is to require the agency to reconsider its denial of the petition, in light of the interpretation of the law set forth by the Court. Lyng at 7, citing WWHT, Inc. v. F.C.C., 656 F.2d at 819. The Court shall take that approach here.
For all of the reasons previously stated, the plaintiffs' Motion for Summary Judgment shall be granted, and the defendants' Motion for Summary Judgment shall be denied. The Court further holds that the agency's interpretation of the definitional statute of the Federal Laboratory Animal Welfare Act, 7 U.S.C. § 2132(g) to exclude birds, rats of the genus rattus, and mice of the genus mus from the definition of "animal" is arbitrary and capricious and violates the Act. The Court further holds that the agency's denial of the plaintiffs' rulemaking petition was arbitrary and capricious, evincing blindness to the source of the agency's statutory authority. Therefore, the Court shall remand this case to the agency, and order the USDA to reconsider its denial of the plaintiffs' rulemaking petition in accordance with the law as articulated in this Opinion.
The Court will issue an Order on this date in accordance with the foregoing Opinion.
January 8, 1992
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 781 F. Supp. 797.
ORDER - January 8, 1992, Filed
In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 8 day of January, 1992,
ORDERED that the plaintiffs' Motion for Summary Judgment shall be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the defendants' Motion for Summary Judgment shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the defendants' construction of the definitional statute of the Federal Laboratory Animal Welfare Act, 7 U.S.C. § 2132(g), to exclude birds, rats of the genus rattus and mice of the genus mus is arbitrary and capricious and in violation of the law, pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(a)(2); and it is
FURTHER ORDERED that the defendants' denial of the plaintiffs' rulemaking petition was arbitrary and capricious and in violation of the law; and it is
FURTHER ORDERED that this case shall be, and hereby is, REMANDED to United States Department of Agriculture for reconsideration of the denial of plaintiffs' rulemaking petition, in light of the Court's Opinion issued on this date.
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE