Each also derive aesthetic benefit from seeing these animals treated humanely. Each claim that their aesthetic enjoyment of the animals is impaired, and each claim they experience personal distress, anguish, and sadness when they witness animals in inhumane or harmful conditions. See First Am. Compl. at PP 19, 30, 43.
With respect to Count I-III of the First Amended Complaint, Circelli, Eagan, and Jurnove each alleges that they personally visited an animal exhibition facility and that each personally observed animals, including primates, kept in inhumane conditions and that each, in fact, suffered extreme aesthetic injury and psychological harm from the experience. Id. PP 21, 32, 49. Each allege that they observed the primates in solitary and barren or dirty cages. Id. PP 21, 32, 48. Circelli, Eagan, and Jurnove each allege that they presently experience anguish and suffering when they recall the experience. Id. P 27, 32, 58. Furthermore, Circelli alleges that she wishes to return to the facility she visited but is fearful that returning will increase the level of anxiety she already experiences from her previous visit. Id. P 26. Eagan also wishes to return, but cannot bear to do so. Id. P 33. Jurnove will continue to visit, but cannot do so without continuing to suffer aesthetic and emotional injury. Id. P 57.
With respect to Count V of the First Amended Complaint, Jurnove additionally alleges physical and mental distress when he realizes that he is powerless to help the animals he personally witnesses suffering because of the improper implementation and enforcement of the AWA by the defendants, such as their failure to reinspect exhibitors in violation and failure to document violations. Id. PP 58-60. Audrey Rahn, a 13 year resident of Cedar Rapids, Iowa, also claims to have visited an animal exhibitor facility, which she intends to revisit. Id. PP 62-63. During her numerous visits, Rahn's aesthetic enjoyment of the animals was impaired and she experienced physical and mental distress when she witnessed the animals in inhumane conditions and realized that she was powerless to help the animals she witnessed suffering without proper inspection and enforcement of the AWA by the defendants. Id. PP 71-72.
The Court concludes that these individual plaintiffs have indeed alleged injury in fact. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992) ("The desire to . . . observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purpose of standing."); Humane Society of the United States v. Hodel, 268 U.S. App. D.C. 165, 840 F.2d 45, 52 (D.C. Cir. 1988) ("The existence of hunting on wildlife refuges forces Society members to witness animal corpses and environmental degradation, in addition to depleting the supply of animals and birds that refuge visitors seek to view. These are classic aesthetic interest, which have always enjoyed protection under standing analysis."). These allegations of injury constitute far more than a "special interest in the topic" of animal welfare, which was found to be insufficient to confer standing in Lujan, 112 S. Ct. at 2130. They establish that the plaintiffs were personally and directly affected apart from any special interest they share. See Fund for Animals, Inc. v. Espy, 814 F. Supp. 142, 149 (D.D.C. 1993) (Oberdorfer, J.) (injuries found to be are distinct from those suffered by the public at large and represented more than a generalized concern for the animals' welfare). See also Center for Auto Safety v. National Highway Traffic Safety Admin., 253 U.S. App. D.C. 336, 793 F.2d 1322, 1337 (D.C. Cir. 1986) ("The courts may appropriately function as the guardians of majority interests, without weakening the separation of powers, when Congress has decided to grant them that role."); Sierra Club v. Morton, 405 U.S. 727, 734-35, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972) (the fact that particular interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process).
Each plaintiff alleges that they personally experienced injury from witnessing animals for exhibition kept under inhumane conditions. Each continue to experience aesthetic injuries because of what they witnessed at the facilities they visited. First Am. Compl P 23, 32, 53, 77-79. Also, each allege that they continue to experience injury because they are forced either to forego future visits or to return to the facilities to visit the animals and be subjected to increased injury due to viewing the animals in inhumane conditions. This injury is concrete and particularized. See Lujan, 504 U.S. 555 n.1, 119 L. Ed. 2d 351, 112 S. Ct. 2130 ("By particularized, we mean that the injury must affect the plaintiff in a personal and individual way."). Furthermore, it is imminent as it is on-going and presently occurring.
2. The Injury To The Individual Plaintiffs Is Traceable To The Defendants' Actions Or Omissions.
In order to have standing, the plaintiffs must also allege that the injury or threat they suffer is fairly traceable to the agency action or omission of which they complain. Duke Power Co. v. Carolina Envt'l Study Group, 438 U.S. 59, 72, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978). The injuries alleged by the individual plaintiffs here are fairly traceable to the defendants' actions and omissions.
Congress has charged the agency with "promulgating standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." 7 U.S.C. § 2143(a)(1). These include "minimum requirements . . . for a physical environment adequate to promote the psychological well-being of primates." Id. § 2143(a)(2)(B). Furthermore, the agency is responsible for enforcing the AWA and its implementing regulations. 7 U.S.C. § 2146. Under such a scheme, Congress, and the Court, assumes that regulated entities act as the agency directs them to act, upon threat of, among other things, losing their license to exhibit animals. Thus, the plaintiffs' alleged injuries in observing animals and primates on public display in inhumane conditions are fairly traceable to the agency's failure to comply with its statutory duties to promulgate appropriate regulations and to enforce the AWA.
Specifically, the injuries to Circelli, Eagan, and Jurnove are fairly traceable to the failure of the agency to promulgate standards for a physical environment adequate to promote the psychological well-being of primates because these plaintiffs claim they suffered injury to their aesthetic interest in viewing nonhuman primates in conditions that did not promote the psychological well-being or social grouping of these animals. Jurnove's and Rahn's injuries are fairly traceable to the defendant's alleged failure to inspect exhibitor facilities and to enforce compliance with the AWA. In this regard, the Court notes that the harm alleged by the plaintiffs here is much more direct than that found sufficient for standing in SCRAP, when the Supreme Court found that the plaintiff's members use of natural resources was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on those commodities. 412 U.S. at 688.
3. The Injury To The Individual Plaintiffs Will Be Redressed By The Relief Sought.
The plaintiffs must show that an injury they have alleged will likely be redressed by the relief requested. See Larson v. Valente, 456 U.S. 228, 242, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982). A ruling that the defendants have not complied with the Congressional mandate of the AWA, which calls for them to establish and enforce standards for the humane treatment of animals, would meet this test. See Allen v. Wright, 468 U.S. 737, 759 & n.24, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (if relief requested is cessation of allegedly illegal conduct, the redressability analysis is identical to the fairly traceable analysis). The AWA was intended to ensure the humane treatment of animals. Unless the entire statutory scheme is meaningless, the defendants, charged with effectuating the AWA, can accomplish the goals of the Act by acting pursuant to its mandate.
4. The Injury To The Individual Plaintiffs Is Within The Zone Of Interests To Be Protected By The AWA.
The "zone of interests" test requires "some indicia--however slight--that the litigant before the court was intended to be protected, benefited or regulated by the statute under which suit is brought." Autolog Corp. v. Regan, 235 U.S. App. D.C. 178, 731 F.2d 25, 29 (D.C. Cir. 1984) (quoting Copper & Brass Fabricators v. Department of the Treasury, 220 U.S. App. D.C. 133, 679 F.2d 951, 952 (D.C. Cir. 1982)). Moreover, this Court interprets a statute's zone of interests broadly in recognition that the test originally was intended to expand the number of litigants able to assert their rights in court. 731 F.2d at 29-30.
The Congressional statement of policy for the AWA provides that "the Congress finds . . . that regulation of animals and activities as provided in this chapter is necessary . . . (1) to insure that animals intended . . . for exhibition purposes. . . are provided humane care and treatment." 7 U.S.C. § 2131 (emphasis added). The plaintiffs' aesthetic interest in observing animals on public exhibition in humane conditions clearly falls within the zone of interests of the statute.
The question of standing under the APA depends upon whether the party has alleged such a "personal stake in the outcome of the controversy" that "the dispute sought to be adjudicated will be presented in an adversarial context and in a form historically viewed as capable of judicial resolution." Sierra Club, 405 U.S. at 732. The plaintiffs here have amply demonstrated that they have a personal stake in the outcome of this litigation and are zealous adversaries in this cause.
THE COURT SHALL GRANT THE DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S EXHIBITS.
In examining the validity of regulations promulgated by an agency, the reviewing court ordinarily considers only those materials before the agency when it made its decision.
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 84 L. Ed. 2d 643, 105 S. Ct. 1598 (1985). Exceptions to this general rule have been recognized:
(1) when agency action is not adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) in cases where agencies are sued for a failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases where relief is at issue, especially at the preliminary injunction stage.
Esch v. Yeutter, 278 U.S. App. D.C. 98, 876 F.2d 976, 991 (D.C. Cir. 1989) (quoting Stark & Wald, Setting No Records: The Failed Attempts to Limit the Record in Review of Administrative Action, 36 Admin. L. Rev. 333, 345 (1984)). The plaintiffs here have, in support of their Motion for Partial Summary Judgment, submitted exhibits external to the administrative record, including videotapes, pictures, inspections reports, enforcement audits, and affidavits. The plaintiffs claim that supplementation of the record here with materials outside the administrative record is appropriate: (1) to show the truth or falsity of the agency's predictions made in support of the regulations at issue; and (2) to show that the agency has failed to enforce the AWA and has unreasonably delayed execution of the AWA's mandate to promulgate minimum requirements concerning the housing of animals. The Court agrees with the defendants that neither of these arguments support the admission of the plaintiffs' extra-record materials at this stage in the case.
A. The Plaintiffs' Extra-Record Exhibits Will Not Be Admitted Under The "Predictions" Exception In Support Of Their Challenges To The Agency's Regulations.
In Amoco Oil Co. v. EPA, 163 U.S. App. D.C. 162, 501 F.2d 722 (D.C. Cir. 1974), the Court of Appeals permitted the consideration of evidence arising after the promulgation of a challenged rule as relevant to the truth or falsity of agency predictions made in support of the rule. 501 F.2d at 729 n.10. This "prediction" exception to the general rule that only the record before the agency is considered has been recognized by other courts; however, it should be construed narrowly. See Lorion, 470 U.S. at 744. Cases that have recognized this exception have emphasized that the extra-record evidence must have some alternative indicia of reliability before it will be considered. Amoco, 501 F.2d at 729 n.10 (court must "tread cautiously" when considering post-promulgation events because such information "reaches a reviewing court untested by any procedures . . . designed to assure its accuracy and completeness"); National Assn. of Demolition Contractors, Inc. v. Costle, 184 U.S. App. D.C. 173, 565 F.2d 748, 752 (D.C. Cir. 1977) (introduction of an extra-record study when the parties agreed that the study's conclusions were undisputed); American Iron & Steel Inst. v. EPA, 526 F.2d 1027, 1055 n.61 (3d Cir. 1975) (post-regulation announcements considered when they were reliable and uncontested); Wisconsin Elec. Power Co. v. Costle, 715 F.2d 323, 327 (7th Cir. 1983) (supplementation of record not permitted when data "may be accurate in some sense, [but] may also be incomplete"); Tanners' Council v. Train, 540 F.2d 1188, 1194 (4th Cir. 1976). Moreover, the "prediction" exception has not been uniformly recognized. See WEPCO, 715 F.2d at 327 (rejecting extra-record materials because to accept them would be to take the Court beyond its limited role of APA review and render regulations vulnerable to post hoc attacks and lack of finality); American Iron, 526 F.2d at 1077 (Adams, J., concurring) ("To entertain such information may encourage the use of the courts as mere extensions of a continuous administrative process [which would not] enhance the efficiency of the courts or the confidence of citizens in the fairness of the administrative process.").
Based on the foregoing, the Court does not find it appropriate to consider the extra-record materials under the "predictions" exception. The affidavits and videotapes demonstrating the alleged conditions on the premises of four exhibitors is contested and may present an incomplete picture. The inspection reports and audits similarly are incomplete because they provide information about only four exhibitors out of several thousand facilities under the agency's control. Accordingly, the Court shall not permit the extra-record evidence pursuant to the "predictions" exception.
B. The Plaintiffs' Extra-Record Exhibits Shall Not Be Admitted In Support of Their Agency Action Unreasonably Delayed Claim Or Their Non-enforcement Claim.
With respect to their claim that agency action has been unreasonably delayed, the plaintiffs' claim is based on their contention that the regulations at issue fail to comply with statutory mandate. First Am. Compl. PP 110-11. The Court sees no reason to look beyond the administrative record to decide this issue. Thus, the Court shall not permit extra-record evidence on this claim.
With respect to the plaintiffs' claim that the defendants have failed to enforce the AWA, neither party has moved for summary judgment on the merits of this claim. The question presented to the Court here is whether the plaintiff's claim is justiciable. Should this claim survive the instant motion to dismiss, the agency has requested the opportunity to compile an administrative record on this issue, which would evidence enforcement efforts undertaken by the agency nationwide. See Defs' Reply in Support of Motion to Strike at 8. In the event that administrative record is deemed inadequate, the defendants have suggested that the record be supplemented upon a showing that it is inadequate to permit judicial review. See id. (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)). The Court agrees that because the merits of this Count are not before the Court at this juncture, it shall grant the defendants' Motion to Strike and has considered only the administrative record for the purposes of this Memorandum Opinion and Order.
THE COURT SHALL GRANT THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND SHALL DENY THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO COUNTS I-IV.
Under the APA, the "reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." 5 U.S.C. § 706(2)(A). The reviewing court shall "compel [agency] action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).
A. The Court Shall Enter Judgment In Favor Of The Plaintiffs On Count I; 9 C.F.R. § 3.81 Violates The APA Because It Fails To Set Standards, Including Minimum Requirements, As Mandated By The AWA.
The AWA provides that the agency "shall promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." 7 U.S.C. § 2143(a)(1) (emphasis added). Moreover, those standards "shall include minimum requirements. . . for a physical environment adequate to promote the psychological well-being of primates." Id. § 2143(a)(2)(B) (emphasis added).
"The court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). The plain meaning of the term "standard" is "that which is set up and established by authority as a rule for the measure of quantity, weight, extent, value, or quality; esp., the original specimen weight or measure sanctioned by government. . . . a definite level, degree, material, character, quality, or the like, viewed as that which is proper and adequate for a given purpose." Webster's New Int'l Dictionary, 2d ed. (unabridged) (1944). "Minimum" is described as "the least quantity or amount assignable, admissible, possible, etc., in a given case." Id. A "requirement" is a "requisite or essential condition." Id.
The implementing regulation, 9 C.F.R. § 3.81, entitled "environment enhancement to promote psychological well-being," requires that "exhibitors . . . develop, document, and follow an appropriate plan for environment enhancement adequate to promote the psychological well-being of nonhuman primates . . . in accordance with the currently accepted professional standards as cited in appropriate professional journals or reference guides, and as directed by the attending veterinarian." 9 C.F.R. § 3.81. The "plan" must "address" such topics as social grouping and environmental enrichment. Id.
The regulation violates the plain language of the AWA because it fails to set standards, including minimum requirements for a physical environment adequate to promote the psychological well-being of primates. Rather, the regulation completely delegates the establishment of such standards to the regulated entities. The complete absence of minimum requirements in the regulation leaves the AWA susceptible to the interpretation of individual regulated entities. At best, the regulation refers these entities to the direction of their attending veterinarians -- who are not under the control of the agency. The regulation further makes reference to "committees" established by the AWA; however, as set forth above, those committees are established by the AWA only for research facilities, and not for dealers and exhibitors.
When an agency attempts to give meaning to a statute that is plain on its face, it must give effect to the intent of Congress. Fertilizer Institute v. EPA, 290 U.S. App. D.C. 184, 935 F.2d 1303, 1309 (D.C. Cir. 1991). Congress has spoken clearly of the agency's duty, and the agency has failed to fulfill its duty. Accordingly, the Court shall set aside 9 C.F.R. § 3.81 as violative of the APA in that the regulation is contrary to law.
B. The Court Shall Enter Judgment In Favor Of The Plaintiffs On Count II; The Agency's Failure To Promulgate Standards For A Physical Environment Adequate To Promote The Psychological Well-Being Of Primates Constitutes Agency Action Unlawfully Withheld And Unreasonably Delayed In Violation Of The APA.
The APA directs agencies to conclude matters presented to them in a reasonable time and directs reviewing courts to compel agency action unlawfully withheld or unreasonably delayed. 5 U.S.C. § 706(1). A court must review several factors in determining whether there has been unreasonable delay.
First, the court should ascertain the length of time that has elapsed since the agency came under a duty to act, and should evaluate any prospect of early completion.
Next, the reasonableness of the delay must be judged in the context of the statute' which authorizes the agency's action. This entails an examination of any legislative mandate in the statute and the degree of discretion given the agency by Congress. The Court must also estimate the extent to which delay may be undermining the statutory scheme, either by frustrating the statutory goal or by creating a situation in which the agency is losing its ability to effectively regulate at all.
Third, and perhaps most critically, the court must examine the consequences of the agency's delay. The deference traditionally accorded an agency to develop its own schedule is sharply reduced when injury likely will result from avoidable delay . . . Lack of alternative means of eliminating or reducing the hazard necessarily adds to unreasonableness of a delay.