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ANIMAL LEGAL DEFENSE FUND v. GLICKMAN

October 29, 1996

ANIMAL LEGAL DEFENSE FUND, INC.; ROSEANN CIRCELLI; MARY EAGAN; MARC JURNOVE; and AUDREY RAHN, Plaintiffs,
v.
DANIEL GLICKMAN, Secretary of Agriculture; DR. LONNIE KING, Administrator, Animal and Plant Health Inspection Service; and THE UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants.



The opinion of the court was delivered by: RICHEY

 TABLE OF CONTENTS

 INTRODUCTION

 BACKGROUND

 DISCUSSION

 I. THE COURT SHALL DENY THE DEFENDANTS' MOTION TO DISMISS FOR LACK OF STANDING BECAUSE THE PLAINTIFFS HAVE CONSTITUTIONAL AND STATUTORY STANDING TO CHALLENGE THE AGENCY'S ACTIONS AND OMISSIONS

 
A. The ALDF Lacks Standing To Sue On Behalf Of Its Members
 
B The ALDF Has Constitutional And Statutory Standing To Sue In Its Own Capacity With Respect To Count IV
 
C. Roseann Circelli, Mary Eagan, And Marc Jurnove Have Constitutional And Statutory Standing To Sue With Respect To Count I-III; Marc Jurnove And Audrey Rahn Have Constitutional And Statutory Standing To Sue With Respect To Count V
 
1. The Individual Plaintiffs Have Alleged Injury In Fact
 
3. The Injury To The Individual Plaintiffs Will Be Redressed By The Relief Sought
 
4. The Injury To The Individual Plaintiffs Is Within The Zone Of Interests To Be Protected By The AWA

 II. THE COURT SHALL GRANT THE DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S EXHIBITS

 
A. The Plaintiffs' Extra-Record Exhibits Will Not Be Admitted Under The "Predictions" Exception In Support Of Their Challenges To The Agency's Regulations
 
B. The Plaintiffs' Extra-Record Exhibits Shall Not Be Admitted In Support Of Their Agency Action Unreasonably Delayed Claim Or Their Non-enforcement Claim

 III. 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

 
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
 
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
 
C. The Court Shall Enter Judgment In Favor Of The Plaintiffs On Count III; The Agency's Failure To Issue A Regulation Promoting The Social Grouping Of Nonhuman Primates Is Arbitrary, Capricious, And An Abuse Of Discretion In Violation Of The APA
 
D. The Court Shall Enter Judgment In Favor Of The Plaintiffs On Count IV; The Agency's Regulation Requiring "Plans" To Be Kept On-Site Violated The Notice And Comment Provisions Of The APA

 IV. THE COURT SHALL GRANT THE DEFENDANTS' MOTION TO DISMISS WITH RESPECT TO COUNT V BECAUSE IT IS A NON-JUSTICIABLE CLAIM

 CONCLUSION

 INTRODUCTION

 This action was brought pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., by the Animal Legal Defense Fund ("ALDF") and four individuals, to challenge (1) regulations promulgated by the agency *fn1" under the Animal Welfare Act ("AWA"), 7 U.S.C. § 2131 et seq. ; and (2) the agency's abdication of its statutory duties to enforce the AWA.

 This Court previously held that the challenged regulations violated both the AWA and the APA. See Animal Legal Defense Fund, Inc. v. Secretary of Agriculture, 813 F. Supp. 882 (D.D.C. 1993). However, the Court's decision was subsequently vacated when the Court of Appeals for the District of Columbia Circuit ruled that the plaintiffs had not demonstrated that they had standing to pursue their claims. See Animal Legal Defense Fund, Inc. v. Espy, 308 U.S. App. D.C. 74, 29 F.3d 720 (D.C. Cir. 1994).

 In the present case, the plaintiffs have moved for summary judgment on Counts I-IV of their Amended Complaint. The plaintiffs assert that: (1) the agency's regulation governing the psychological enrichment of primates violates the plain language of the AWA and thus, pursuant to the APA, must be set aside as contrary to law; (2) the agency's failure to set standards for the psychological enrichment of primates constitutes agency action unlawfully withheld and unreasonably delayed in violation of the APA; (3) the agency's failure to issue a regulation promoting the social grouping of primates violates the APA because it is arbitrary and capricious; and (4) the agency's regulation that shields plans from the public violates the Notice and Comment provisions of the APA. The defendants have cross-moved for summary judgment on Counts I-IV.

 In Count V of their Amended Complaint, the plaintiffs contend that the agency's practices and policies amount to a complete abdication of its statutory responsibility to enforce the AWA. The plaintiffs rely on this Circuit's en banc decision in Adams v. Richardson, 156 U.S. App. D.C. 267, 480 F.2d 1159 (D.C. Cir. 1973). With respect to Count V, the plaintiffs assert the need for discovery. The defendants move for dismissal of Count V on the basis that it is a "non-justiciable" claim, that is, that it impermissibly seeks judicial review of matters committed to agency discretion by law under the APA. Furthermore, the defendants have moved for dismissal of Counts I-V on the ground that the plaintiffs lack standing. Finally, the defendants have moved to strike various exhibits filed by the plaintiffs in support of their summary judgment motion on the ground that those exhibits are not a part of the administrative record.

 Based on the pleadings, the entire record herein, and the law applicable thereto, and for the reasons expressed below, the Court shall deny the defendants' Motion to Dismiss for lack of standing. The Court shall grant the defendants' Motion to Strike. The Court shall grant summary judgment in favor of the plaintiffs on Counts I-IV of the Complaint and shall grant the defendants' Motion to Dismiss Count V of the Complaint. Finally, the Court shall remand to the agency for rulemaking proceedings consistent with the following Memorandum Opinion and Order.

 BACKGROUND

 In 1985, Congress passed the Improved Standards for Laboratory Animals Act, which amended the Animal Welfare Act, 7 U.S.C. §§ 2131-59 ("AWA"), and provides for the humane treatment of animals. Specifically, the AWA now requires the Secretary to "promulgate standards to govern the humane handling, care, treatment and transportation of animals by dealers, research facilities, and exhibitors *fn2" " 7 U.S.C. § 2143(a)(1). The standards must include "minimum requirements for a physical environment adequate to promote the psychological well-being of primates ([monkeys])." 7 U.S.C. § 2143(a)(2)(B); see 7 U.S.C. § 2132(g).

 Subsequent to the passage of the 1985 amendments to the AWA, the agency waited 6 years to publish final regulations. As hereinafter explained, the agency seriously delayed undertaking its responsibilities pursuant to the AWA and, ultimately, failed to live up to its obligations.

 Specifically, in response to its mandate from Congress, the agency, on March 7, 1986, published a notice in the Federal Register stating its intent to promulgate standards and regulations for the care and treatment of animals. AR 1; 51 Fed. Reg. 7950. The Notice solicited information and comments on that proposed rulemaking. On March 15, 1989, the agency finally published a set of proposed rules. AR 568; 54 Fed. Reg. 10897. The agency solicited comments on the proposed rules for 120 days and received a total of 10,686 comments in time for consideration. AR 1368; 55 Fed. Reg. 33448. The number of comments received serves to illustrate the importance of this matter, if nothing else. Rather than respond to these comments, however, the agency instead published a second set of proposed rules on August 15, 1990. Id. The Secretary received comments until October 1, 1990, at a total of 11,932 comments. AR 1878; 56 Fed. Reg. 6426. Finally, the agency published its regulations on February 15, 1991, which became effective on March 18, 1991. Id.

 Instead of setting standards, as the AWA directs, the agency's regulation at 9 C.F.R. § 3.81 provides that "Dealers, exhibitors, and research facilities must 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." 7 C.F.R. § 3.81. The regulation does not provide for minimum requirements of social grouping, despite the agency's findings that social grouping promotes primate psychological well-being. Furthermore, the regulation provides that the "plan[s] must be made available to APHIS upon request." Id. Thus, the regulation effectively restricts public access to these "plans" by providing that the regulated entities maintain the plans on-site, where the plans would not be subject to Freedom of Information Act requests by members of the public. See 5 U.S.C. § 552.

 At the outset, the Court shall state the following. This case involves animals, a subject that should be of great importance to all humankind. It also involves the failures of our system of government, another subject of great concern. With respect to Counts I-IV of the Complaint, this case involves an abject failure in the rulemaking process, representative not only of the defendants here, but of many agencies serving under Article II of the Constitution. With respect to Count V, even though it is non-justiciable, it represents the failure of these defendants, like many others in the Executive Branch, to enforce the AWA and its implementing regulations. It also illustrates a failure on the part of Congress to effectively legislate in accordance with the enacting clause of a statute.

 Specifically, the AWA has written into a Congressional statement of policy:

 
The Congress finds that . . . the regulation of animals and activities . . . is necessary . . . in order--
 
(1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment;
 
(2) to assure the humane treatment of animals during transportation in commerce; and
 
(3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen.
 
The Congress further finds that it is essential to regulate . . . the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose of use.

 7 U.S.C. § 2131. Despite this clear statement of purpose, the AWA's enforcement provisions provide that the "Secretary shall make investigations or inspections as he deems necessary. . . ." 7 U.S.C. § 2146. Thus, while Congress set forth a clear mandate of humane treatment of animals, it then took away from that mandate by granting unbridled discretion to the agency which, as past experience indicates, will do little or nothing.

 The agency's conduct in this and other cases that have come before this member of the Court not only is egregious because of its delayed nature, but represents, in the eyes of at least more than 50,000 members of the plaintiff organization, one of the basic reasons why the American people have lost faith in much of their government. The inaction and eventual failure to act in accordance with law remind the Court of the sage and accurate statement of the late Judge J. Skelly Wright of the Court of Appeals for this Circuit when, in essence, he noted that the regulators in Washington are regulated by the regulated. See Moss v. Civil Aeronautics Bd., 139 U.S. App. D.C. 150, 430 F.2d 891, 893 (D.C. Cir. 1970) (Wright, J.) ("This appeal presents the recurring question which has plagued public regulation of industry: whether the regulatory agency is unduly oriented toward the interests of the industry it is designed to regulate, rather than the public interest it is designed to protect.").

 Furthermore, this case illustrates the need for Congressional reform. All too often, Congress enacts generalized legislation and, thus, passes to an executive agency the responsibility to interpret and fill in gaps that Congress itself could not or would not specifically legislate. Having observed this process for more than 48 years, this Court believes the problem is due in major part to the decline in what was once known as "party responsibility" and also illustrates that Congress, in large measure, is beholden to special interest groups who are unknown to the general public. These groups transfer their efforts from the Legislative Branch to the Executive Branch to effect their goals. Cases like this illustrate their success in achieving delay and inaction.

 Were either or both the Legislative and Executive Branches more successful in the lawful exercise of their responsibilities under Articles I and II of the Constitution, it would not be necessary for the Courts to intervene. A. de Tocqueville once observed: "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." 1 A. de Tocqueville, Democracy in America 98, 280 (P. Bradley Knoff ed. 1948). How sad that this is so. Thanks to Article III, however, the Courts remain to provide ...


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