MEMORANDUM OPINION
TREVOR
N. MCFADDEN, U.S.D.J.
The
timberdoodle-a member of the woodcock family-is the
world's slowest flying bird, with a recorded speed of
just five miles per hour during its aerial courtship
displays. By contrast, the peregrine falcon can reach speeds
of up to 240 miles per hour when stooping for prey. But even
the timberdoodle seems falconesque compared with the U.S.
Department of Agriculture. It announced its intent to extend
the protections of the Animal Welfare Act (“AWA”
or the “Act”) to birds in 2004, but fourteen
years later it has yet to land on avian-specific standards.
It has also declined to apply the Act's existing general
regulations to birds.
Seeking
to compel action, the American Anti-Vivisection Society and
the Avian Welfare Coalition (the “Plaintiffs”)
sued the Department of Agriculture its Secretary, Dr. Sonny
Perdue (collectively, the “Department”).
Unfortunately for the Plaintiffs and their feathered friends,
their flightpath has been tried and denied before. See
People for the Ethical Treatment of Animals, Inc. v. United
States Dep't of Agric., 7 F.Supp.3d 1 (D.D.C. 2013)
(“PETA I”), aff'd, 797 F.3d
1087 (D.C. Cir. 2015) (“PETA II”).
Following the precedent established by the D.C. Circuit in
PETA II and the sound reasoning of PETA I,
the Court will grant the Department's Motion to Dismiss.
I.
The AWA
seeks to ensure that animals intended for use in research
facilities, for exhibition purposes, or as pets are provided
humane care and treatment. 7 U.S.C. § 2131(1). To this
end, the Act requires the Department of Agriculture to
“promulgate standards to govern the humane handling,
care, treatment, and transportation of animals by dealers,
research facilities, and exhibitors.” Id.
§ 2143(a). It also authorizes the Secretary to
“make such investigations or inspections as he deems
necessary” to determine whether the Department's
standards have been violated. Id. § 2146(a).
At
first, the term “animal” included only
“dogs, cats, monkeys (nonhuman primate mammals), guinea
pigs, hamsters, and rabbits.” 7 U.S.C. § 2132(h)
(1966). In 2002, Congress amended this definition to exclude
birds, rats, and mice “bred for use in research.”
7 U.S.C. § 2132(g). The Department interpreted this
change to mean that Congress intended to protect birds not
bred for research, so it amended its regulations by
“narrowing the scope of the exclusion” previously
applicable to avian species. See Regulations and
Standards for Birds, Rats, and Mice, 69 Fed. Reg. at 31,
537-38 (2004).
To
protect the animals covered by the Act, the Department has
issued a set of general welfare standards. See 9
C.F.R. §§ 3.125 - 3.142. It has also promulgated
regulations specific to dogs, cats, nonhuman primates, and
other mammals. See id. §§ 3.1 - 3.118.
Department personnel have suggested that they “do not
believe that the general standards . . . would be appropriate
or adequate to provide for the humane handling, care,
treatment, and transportation of birds.” 69 Fed. Reg.
at 31, 539. So in 2004, the agency announced an intent to
establish “standards for birds not specifically
excluded from coverage under the AWA.” Id.
But
nothing happened. Rather, the Department has repeatedly noted
its intent to create bird-specific regulations, setting and
missing several deadlines of these rules. See, e.g.
70 Fed. Reg. at 64, 104 (2005); 72 Fed. Reg. at 22, 266
(2007); 73 Fed. Reg. at 24, 640 (2008); 78 Fed. Reg. at 1526
(2013); Am. Compl. 17-21, ECF No. 15 (collecting citations).
Without federal regulatory oversight, the Plaintiffs claim,
birds at research facilities and zoos have been “denied
food, water, . . . and sanitation, ” attacked and
killed by feral dogs, and have died “from starvation or
parasites.” Id. at 22.
The
Plaintiffs are not the first to raise this concern. A few
years ago, PETA sued the Department over its failure to issue
avian regulations. See PETA I, 7 F.Supp.3d at 6. The
Department moved to dismiss, arguing that PETA lacked
standing and that the Act did not require regulatory action.
Id. at 7. Judge Boasberg concluded that PETA had
standing to sue, but it had failed to state an APA claim upon
which relief can be granted for three reasons. See
id. at 9-15. First, the court found that individual
Department decisions not to apply the general animal welfare
standards to birds were committed to agency discretion by
law. Id. at 11-15. Second, PETA had identified no
concrete statement by the Department of a general policy not
to regulate birds under the AWA. Id. And third, the
text of the AWA did not require the Department to adopt
bird-specific regulations. Id.
PETA's
arguments did not fly with the appellate court either.
PETA II, 797 F.3d at 1089. The D.C. Circuit agreed
that PETA had standing because the organization had
“adequately shown that the [Department's] inaction
injured its interests and, consequently, PETA has expended
resources to counteract those injuries.” Id.
at 1094. The circuit court also agreed with the district
court that PETA had failed to state a claim, but for slightly
different reasons. It found that “nothing in the AWA
requires the [Department] to apply the general animal welfare
standards to birds . . . before it has promulgated more
appropriate bird-specific regulations.” Id. at
1098. It also determined that the Department had not failed
to take any action that it was required by law to take.
Id. at 1099. Thus, the D.C. Circuit concluded that
“PETA failed to plausibly allege that the
[Department's] decade-long inaction constitutes agency
action unlawfully withheld” as required to establish an
APA § 706(1) claim. Id. at 1098.
Here,
the Plaintiffs are animal welfare organizations that provide
education and training on the humane treatment of animals,
support animal sanctuaries, and create reports on the
conditions of animals in regulated facilities. Id.
at 3-12. They contend that the Department's failure to
promulgate bird-specific regulations is unreasonable,
unlawful, and arbitrary and capricious in violation of the
Administrative Procedure Act (“APA”). Thus, they
seek court-ordered deadlines by which the Department must
propose and finalize such rules. Id. at 25.
As in
the PETA litigation, the Department has moved to dismiss the
Plaintiffs' claims. It argues that the Plaintiffs lack
standing to sue, that it is not required by law to promulgate
the regulations sought, and that it has not taken a final
action reviewable by the Court. See Defs.' Mem.
in Supp. of Mot. to Dismiss, ECF No. 16-1 (“Defs.'
Mem.”).
In
short, the Plaintiffs believe that they are like PETA in that
they have standing but unlike the organization in that their
claims should survive a motion to dismiss. The Department, on
the other hand, contends that this case is distinguishable
from PETA II on standing ...