Conference on The Animal Welfare Act

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

"Rocksylvania"

I've heard that PA is rocky but nothing prepared me for the boulders that are the path on this state. The combination of rocks, rain, humidity and dry or scarce water make this state so challenging. I have 30 more miles until I reach the NJ border. One more challenge - snakes. I haven't seen any rattle snakes but other hikers have - among the rocks.  Today I climbed a rocky, steep trail from Lehigh Gap. I think it was the most challenging area so far on my hike. 

I could look down over the Gap and view the superfund site in Palmerton.  The redeeming feature was loads of blackberries at the top. 

Port Clinton:   mile 1217.2

July 28:   Last night I stayed at the Port Clinton Hotel, a relic from the early 1800's when it was a stagecoach stop between Philadelphia and Sunbury. Since crossing the half way point last week I have hiked the rocky path of Pennsylvania for over 100 miles. I learned how accidents can have along this well maintained and marked trail. Tuesday afternoon around 4:30 I was about a mile from the shelter when the sky turned dark and the winds increased. Shortly after the skies opened up and thunder and lightening hit the trail. My glasses fogged up so bad I had to remove them and I could not see the blazes. I thought I'd have to wrap up in my tent and wait. As I turned to go back to the last blaze a hiker showed up ("Dusty"). I told him I couldn't see and asked if I could follow him to the 501 shelter. Thank you Dusty. As he left me at the path by the shelter he said he was going back to look for "Swiss Miss" who also wore glasses.  The 501 shelter was cabin-style so we bunked in for the night hoping to dry out the next day. 

Pennsylvania

PA is rocky and hot!  Currently I'm at mile 1164 enjoying trail magic.  Passed through the half way point (1094.5). 

Enjoyed hiking through Duncannon. Met someone who asked if he could pray for me, did laundry, and had an amazing black bean burger at The Doyle Hotel. 

Up to this point water has been scarce so I've had to carry at least 2 liters. 

Also met an older man, "Wild Bill" at a road crossing who gave me water and a P&J sandwich. 

Half Way

Today I crossed the 1000 mile mark and am almost at the half way point.  Yesterday was a long 18-mile day across the infamous "roller coaster". I made it to the Bears Den Hostel owned by the ATC and managed by the PATC. 

Today was a shorter hike to the Blackburn Trail Center where the caretakers are busy preparing a pasta dinner!

Shenandoah

"The time has come to inquire seriously what will happen when our forests are gone, when the coal, the iron, the oil, and the gas are exhausted, when the soils have washed into the streams, polluting the rivers, denuding the fields and obstructing navigation." Theodore Roosevelt. 1908Shenandoah was established in 1935. I entered the park at Rockfish Gap near Waynesboro and registered for the required backcountry pass. The first night I rented at Calf Mountain Shelter. The next day I hiked 19.7 miles and tented at Loft Mtn Campground where showers and coffee were available. I met a couple from New York thru-hiking with the dog at the next tent site.  The next day I stopped at Hightop Hut where I saw a mother bear and cub just ahead of me on the trail. We saw each other and they bounded away. A ranger said there are more bears this year for to the abundant rain which caused berries to pop early creating a bear friendly food supply. 

One of the highlights of my trip through the park was meeting up with my niece at Big Meadows who dehydrated amazing food for resupply! The other plus was seeing my sister who drove the length of Skyline Drove to meet me at Rockfish Gap. 

I arrived at Skylands Lodge for lunch and avoided a downpour. I need up getting a ride to Luray and staying at the hostel and slack packing 10 miles south the next sag to make up the distance. 

Right now I'm at Elkwallow Wayside where I stopped for lunch. I left the shelter site at Pass Mountain early and now I'm waiting for a ranger talk on black bears. 

McAfee Knob, Tinker Ridge, Dragon's Tooth

McAfee KnobThis amazing site at mile 711.1 is the most photographed site along the A.T. The Knob has a 270 degree panorama of the Catawba Valley and North Mountain to the west, Tinker Cliffs to the north and the Roanoke Valley to the east.  Tinker Ridge/Hay Rock Overlook

This trail crosses Tinker Creek then ascends Tinker Ridge providing the most spectacular views of Carvins Cove respiratory and the Roanoke Valley. 

Dragon's Tooth

Considered by some to be the most challenging hike of the southern half of the A.T. This is a unique geologic feature that consists of Tuscarora quartzite spires which outcrop on the top of Cove Mountain. The tallest "tooth" projects 35 feet above the surrounding rock. The trail to Dragon's Tooth ascends steep, rugged outcrops of quartzite which form the spine of Cove Mountain and North Mountain. The spine is known as Dragon's Back. A difficult hike, Dragon's Tooth summit offers magnificent views of nearby and distant peaks. 

Grayson Highlands

I crossed the 500 mile mark this past week. Enjoyed the ponies in the highlands. The ponies were introduced by the USFS in 1960 to maintain the grasses in the area. The ponies are hardy and can withstand the harsh winter and have become beloved by tourists.  No tenting is allowed at GHSP but is permitted on the surrounding Mt. Rogers National Recreation Atra. 

Leaving Damascus

Last night I stayed at a hostel in Damascus called the Hikers Inn. The owners thru-hiked in 2009, came through town, saw the place was for sale, purchased it and moved from Charlotte. I was in the bunk house room with a father and his two daughters. I had to turn on the air conditioning g to s town out his snoring. This morning I stopped at Mojo's for a soy latte, bagel and peanut butter.  Getting ready to head out on the trail which bi-sects town. 

Yesterday I stocked up on snacks for the trail and found a couple of good vegan dinner options at an outfitter in town. 

I also decided to buy a quilt and give away my sleeping bag to save weight. 

Hike to End Elephant Poaching

About the CampaignI am an animal lover concerned about the plight of African elephants killed slaughtered for their ivory. I decided to highlight this issue and raise money by hiking the Appalachian Trail -- 2100 miles -- starting in April and finishing in October.

IMG_0445 All money raised (100%) will go directly to helping elephants.  I am using personal funds to pay for the hike.

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