Animal Welfare Act

Animal LawSummer 2013

1969

Cuyahoga river – NE Ohio (to Lake Erie)

1969

cuyahoga river

today

today

February 4, 1966

1966: Laboratory Animal Welfare Act

1. Discourage pet theft

2. Humane standards for 6 research animals (but not research standards)

[USDA Sec’y APHIS

1970: Animal Welfare Act

Expanded the scope of :animals protectedstandards to regulate

animal: 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

excluded farm animals; horses not used in research

APHIS reg : no birds, rats, or mice

1976 amendments

prohibit animal fighting(birds: state law-dependent)

regulate commercial transportation other uses: hunting, breeding, security

1985: Improved Standards for Laboratory Animals Act

standards for animals’ care in research, including:dogs (exercise)non-human primates (well-being)*In research: • pain management• consideration of alternatives

7 U.S.C. sec. 2143

amendments

1990: Food, Agric., Conservation & Trade Act injunctive relief and pet protection

2000: air travel protections

Definition of animal

ALDF v. Madigan, 781 F. Supp. 797 (D.D.C. 1992)arbitrary and capricious definition

ALDF v. Espy, 23 F. 3d 496 (1994)no standing to sue*

*ALDF v. Glickman, 154 F. 3d 426 (1998) (en banc)

Definition of animal

Alternatives Research & Dev. Found. v. Glickman, 101 F. Supp. 2d 7 (2000)

victory!not so fast....FY 2001, 2002 Appropriations bills

2002 amendments

1. bird fighting criminal prohibitions expanded2. codified APHIS def. of animal

2007 amendment

animal fighting: interstate commercial use of: 1. fighting instruments2. “any instrumentality of . . . commercial speech for purposes of advertising an animal, or an instrument [as defined], for use in an animal fighting venture, promoting or . . . furthering an animal fighting venture” 7 U.S.C. 2156

Increased fines from $2500 to $10,000 per violation, per animal, per day

amendments

2013 (112th Cong) – add to def. of “exhibitor”

an owner of a common, domesticated household pet who derives less than a substantial portion of income from a nonprimary source ([as per Sec’y]) for exhibiting an animal that exclusively resides at the residence of the pet owner

in 7 U.S.C. 2132(h)

current bills (113th Congress)

Animal Fighting Spectator Prohibition Act of 2013 (H.R. 366, S. 666)

Puppy Uniform Protection and Safety Act (H.R. 847, S. 395)

Pet Safety & Protection Act of 2013 (H.R. 2224)

TODAY: coverage

• Animal fighting (criminal laws)• Breeders • Research• Entertainment

• Animal Welfare Act sets federal baseline

TODAY: not an “animal”

• lab rats and mice• cold-blooded vertebrates (fish, frogs)• invertebrates (fruit flies, worms)• animals used for food

U. S. Department of Agriculture (USDA)

Animal & Plant Health Inspection Services (ASPHIS)

FY Appropriations

2010 $21,979,000

2009 $21,522,000

2008 $20,643,000

2007 $17,473,000

2006 $17,303,000

2005 $16,485,000

2004 $16,303,000

2003 $16,301,000

2002 $15,167,000

Annual Appropriations for Enforcement of the AWA

Current AWA issues

• Research (Chimpanzees)• Puppy Mills• Exotic Pets• Welfare of Animals in Sports, Entertainment• Litigation

ANIMALS IN RESEARCH, ENDING CHIMPANZEE RESEARCH

• No rats, mice, birds• IACUCs/Records/Validation of necessity• Records may be available under FOIA (PCRM) • Note: some agencies have higher standards • Includes cosmetics, consumer products,

veterinary schools...• Contract Research Organizations

chimpanzees

• National Institute of Health study

http://www.regulations.gov/

PUPPY MILLS

Total Number of Pets Ownedin the U.S. (millions)

Bird 16.2Cat 86.4Dog 78.2Equine 7.9Freshwater Fish 151.1 Saltwater Fish 8.61Reptile 13.0Small Animal 16.0TOTAL 377.41 (377,410,000)

* APPA 2011-2012 National Pet Owners Survey

Regulation of dog breeders

• exempt from AWA (sell directly to consumers)• internet• flea markets

• Underfunded inspection/puppy mills• State laws

Oregon Humane Breeding StandardsPenn. Puppy Mill lawArkansas, Alabama, New Jersey, Ohio (2013)

EXOTIC PETS

exotic pets

• exotic animals: millions in U.S. (monkeys, chimps, big cats, bears)

• Game Farms, Preserves• subject only to state animal cruelty laws (maybe)• Tony the Tiger• documentaries:– The Tiger Next Door– The Elephant in the Living Room– Project Nim

ANIMALS USED IN SPORTING

spectator & participation sports

• Dog racing & Horse racing • Animal fighting • Horse shows: dressage, jumping• Polo• Rodeos• Donkeyball & other novelties• Canned hunting• Misc., i.e.: – Alligator wrestling– Swimming with dolphins

Dog racing tracks

Alabama, Arizona, Arkansas, Florida, Iowa, Rhode Island, Texas, West Virginia, Wisconsin

Dog Racing & the AWA

• exhibitors under the AWA• But exempt under the regulations (9 CFR § 1.1)

• laws: ID, ME, NC, NV, VT, VA, WA, NH, PA• ballot initiatives (not available in all states)

2008 Mass• Grey2K, HSUS, ASPCA: $500,000• Mass. Animal Interest Coalition (racing org.) : $400,000

Horse Racing

• exhibitors under the AWA • But exempt under the regulations (9 CFR § 1.1)

• multi-billion dollar industry• estimated 800 deaths/year– UC Davis study: 1 in 6 injured in transport

Rodeos

• exempt from exhibitor under AWA & regs• 24 states exempt rodeos from cruelty

laws• many bans by county, city–outright or with limitations; requirements

"The rodeo folk send their animals to the packing house where...I have seen cattle so extensively bruised that the only areas where the skin was attached [to the body] was the head, neck, legs, and belly. I have seen animals with six to eight ribs broken from the spine and at times puncturing the lungs.”

--C.J. Haber, veterinarian & 30-year USDA slaughterhouse meat inspector

canned hunting (live)

• half states allow• ~1000 facilities in US• half in Texas• 1 in Vermont• chronic wasting disease

dangers

HR 2210: The Sportsmanship in Hunting Acthttp://video.humanesociety.org/video/1010446395001/

AWA requirements of “exhibitors”

Licensing & RecordkeepingGeneral housing, handling, care is by animal

Circuses (large)

• Exhibitors under AWA• Possible state animal cruelty actions– but no private cause of action

• Endangered Species Act– private cause of action (“taking”)– standing a problem (both)• see ASPCA v. FELD

Zoos: AWA regs

• whether for profit or not• minimal housing requirements• care & handling for “other warmblooded

animals” 9 C.F.R. §§ 3.125 – 3.140

• Unprotected: fish, amphibians, reptiles– http://www.bornfree.org.uk/campaigns/zoo-check/

Zoos

• ESA: exemption for zoo animals• MMPA: education or conservation purposes

receive permit to own• CITES: – no trading of listed species for primarily

commercial purposes– non-commercial: private, education, training,

biomedical and science, captive breeding

Zoos

• Self regulation (Assoc. of Zoos & Aquariums)

• PETA v. U.S. Dept. of the Interior • Hagan v. Feld Entertainment

Animals in TV, Movies, Internet, Publishing

• providers covered under, and exempted by, the AWA and ESA as are circuses

• wild-born chimps: endangered• captive-bred chimps: threatened– this allows for U.S. trade in captive-bred chimps while

forbidding importation of wild chimps• pets• research• entertainment

– see Wagman presentation at 2008 L&C conference (link on TWEN)

other AWA exempted animals

County Fairs• Animals as race contestants– i.e. pig races

• Animals as prizes– i.e. goldfish in bag

Animals in ParadesSports MascotsAnimals in Sanctuaries (i.e. VINS) – educational

exemption

Other: “rides”

Entertainment conveyances• horse & carriage rides (NYC)• pony rides (traveling)• horse trail riding• donkey trail riding

Animal Welfare Act standing

Article III standing

• derives from “case or controversy” phrase in Art. III

• Injury-in-fact• Causation• Redressibility

Jurisprudential Standing

• zone of injury• zone of interests

the administrative procedure act

judicial review of an agency action is appropriate to:

(1) compel agency action unlawfully withheld or

unreasonably delayed; and (2) hold unlawful and set aside agency action,

findings, and conclusions found to be– (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

analysis of agency actions

1. analyze the plain meaning of the statute does the agency’s construction comport with

Congress’s clearly expressed intent?

2. if the wording is ambiguous, ask: is the agency’s interpretation of the wording permissible?

agency gets deferencebut its conclusion must have a “reasonable basis in law” (tradition isn’t enough)

1985 amendments

• Required Sec’y to issue additional standards for animals’ care– dogs (exercise) & non-human primates (well-being)– pain management– consideration of alternatives

• Petition filed to remove the exclusion of rats, mice, & birds– USDA denied the petition (1990) – ALDF v. Madigan

• declaratory and injunctive relief

ALDF v. Glickman