Hounded, Cowed, & Badgered

Navy sonar roundup

Last week, the Supreme Court heard oral argument in the National Resources Defense Council's lawsuit against the Navy. (Hat tip: Change.org). I'm out of my depth when reading cases involving federal environmental statutes, so I've tried to gather links to some people who know what they're talking about. Here's how the NRDC frames the issues in its brief:

The district court found that Petitioners (“the Navy”) had likely violated the National Environmental Policy Act of 1969 (“NEPA”) by failing to prepare an environmental impact statement to consider the effects that certain long-planned naval training exercises using high-intensity sonar would have on marine mammals off the coast of Southern California. The Navy does not question that finding in this Court.... Instead, the Navy argues that the district court erred when it refused to strike from its injunction two mitigation measures because of their alleged effect on the Navy’s training and certification program....

The Navy argues that a letter it procured from another executive-branch agency, the White House Counsel on Environmental Quality (“CEQ”), disagreeing with the district court’s finding, compelled the court to strike the challenged measures. This novel argument, reduced to its essentials, is that an Article III court must set aside its findings of fact and modify an injunction because an administrative agency in which Congress has vested no adjudicatory authority, and which lacks any expertise in the issue in dispute, disagrees with the court’s findings.

The NRDC has a great blow-by-blow of the argument, complete with pictures and a (non)prediction as to the outcome: "I haven't got a clue. And I doubt that anyone else does, either." (An expert at the New York Times says NRDC faces long odds.) Hawaii Ocean Law has more press coverage and all the filings. On perusing the transcripts of the oral arguments, I was unhappy to see Justice Scalia raise the notion of standing, a doctrine that judges have used to keep public interest litigants out of court, even when Congress has given them a way to sue.

For more on the separation of powers issues in the case, check out SCOTUS Blog. The CEQ justified the lack of environmental review by invoking the national security interest in testing sonar for submarines. This is another appearance of the Bush Administration's argument that, in these post-9/11 times, security interests are so surpassingly important that all other interests must fall to the wayside, and a variation on the claim that it is for the executive, rather than the judiciary, to determine how to balance the interests. The acceptance of this argument in this case by the Supreme Court would have dire consequences for whales and for all animals protected by federal law.

State standing in the news, in the journals

The latest issue of Animal Law has a blockbuster panel on standing, featuring Pace law professor David Cassuto and animal law litigators Jonathan Lovvorn and Katherine Meyer. The discussion ranges over many facets of standing (which concerns limits on who can sue), but concentrates mostly on standing for animal advocates and the requirements imposed by judges interpreting Article III of the U.S. Constitution. Among the insights: (1) standing is a profoundly political issue, and conservative judges have used it to make it more difficult for public interest litigants to pursue their claims; (2) expansion of citizen suit provisions in federal laws appears unlikely; and (3) animal advocates often must rely on coalitions with other social movements to find plaintiffs with cognizable injuries, as with the poultry worker-animal welfare coalition over slaughter rules for poultry.

One aspect of standing discussed briefly in the Animal Law panel is standing in state court, specifically the role of humane societies and the public in enforcing criminal and civil sanctions against animal abusers. Several recent cases touch on dimensions of this issue.

In In re Application by Block (Minn. App. Ct. 2/6/07), an appellate court recently found a zoning authority's requirement that a breeder "debark" dogs is arbitrary. (Debarking is a baaad thing.) This argument was raised for the first time on appeal by a humane society federation that state law recognized as existing "to assist in the enforcement of the laws for the prevention of wrongs to animals." In finding the group had standing, the court noted both this statutory authority and that their participation would ensure that "issues of alleged animal cruelty will be thoroughly discussed." Although Block is not a constitutional standing case, its recognition that animal have interests worthy of being represented, and thus interests that could be harmed, could form the basis for an Article III standing theory focusing on animals themselves. As the Animal Law panelists note, given the difficulties facing even human plaintiffs, almost all AR-related standing arguments focus on injuries to animal advocates.

Also in February, a North Carolina court's decision will (hopefully) guarantee the Animal Legal Defense Fund's right to take care of over 100 severely neglected dogs. Animal Legal Defense Fund v. Woodley (N.C. Ct. App. 2/6/07). As the ALDF factsheet on Woodley notes, this action against was brought under a unique state law allowing private entities to sue animal abusers. Although the law has been limited over the years--professor David Favre calls it the best cruelty statute procedurally but the worst substantively in the same Animal Law issue--it allows an even greater level of accessibility to the courts than laws granting enforcement powers to humane societies. Because many humane societies are not capable of (or willing to) fight in court many instances of abuse, the expansion of the potential pool of plaintiffs could in theory greatly increase the effectiveness of such laws.

On the criminal side, generally only prosecutors have standing to charge individuals suspected of violating anticruelty laws. Prosecutors, however, frequently deem animal cases insufficiently important to bring charges. (For an excellent analysis of prosecutorial discretion and cruelty cases, as well as legislation allowing private individuals to initiate proceedings, see Jennifer H. Rackstraw, Reaching for Justice: An Analysis of Self-Help Prosecution for Animal Crimes, 9 Animal L. 243 (2003) (pdf).) One recent instance of a prosecutor's failure to charge involved a runaway calf that was killed by police with a Taser. After initially approving charges against the officers, a trial judge reversed course earlier this month. Although the early indications were that the court might dismiss the case on immunity grounds, the latest account in the Spokesman-Review indicates the court found the charges unconstitutional, as applied. This result is a real shame, as it limits the enforcement of the applicable anticruelty laws to an entity that works intimately with potential defendants.

Cts in January: PETA workers littered; horse slaughter ban valid

Two PETA workers were prosecuted in North Carolina for cruelty, obtaining property by false pretenses, and littering. They admittedly killed dogs and cats and disposed of the bodies as part of the organization's animal control project. Animal users and their mouthpieces, like the misleadingly named Center for Consumer Freedom (which offered the most complete coverage at PETA Kills Animals) thumbed through thesauruses for different ways to say "hypocrites!" The cruelty case had no legs--the workers injected the animals with sodium pentobarbital, which is frequently used by vets--and the workers eventually were only found guilty of littering for disposing of the bodies in a dumpster. The fact that this was a selective, political prosecution should not deter PETA members (present company included) from questioning why the organization is in the euthanizing business in the first place.

Animal rescue Farm Sanctuary lacks standing to sue a pork producer for its use of confining crates, a California appellate court held. The unpublished opinion is titled Farm Sanctuary, Inc. v. Corcpork, Inc. (pdf, html cache). The decision hinges on a relatively straightforward reading of a law that limits the pool of consumer fraud plaintiffs to anyone "who has suffered injury in fact and has lost money or property as a result of such unfair competition." As we've noted before, after the passage of Proposition 64, which imposed this requirement, animal advocates have been recruiting those hyped "conscious" animal product consumers as plaintiffs. More evidence that, for the purposes of standing, vegans make bad plaintiffs.

An Indiana appellate court upheld the state's hunter harassment law. Shuger v. Indiana (pdf, html cache). The law, Indiana Code 14-22-37, prohibits a variety of nonviolent but possibly annoying activities intended "to prevent or hinder the legal taking" of a game animal.  The defendants, who noisily drove by some hunters, argued the law hindered their First Amendment rights. The court found that the law was tailored (sometimes "narrowly," sometimes "sufficiently") to the State's interests in hunter and protester safety and game population management. The court relied heavily on Hill v. Colorado, a U.S. Supreme Court case which okayed a Colorado law aimed at anti-abortion activists.

Texas's (unenforced) ban on selling horsemeat for human consumption is valid,the Fifth Circuit U.S. Court of Appeals held. Empacadora de Carnes de Fresnillo v. Curry (pdf, html cache) (hat tip: An Animal-Friendly Life). The court found that the law was not implicitly repealed, preempted by the Federal Meat Inspection Act, or in conflict with dormant commerce clause cases. If this law is enforced, it would leave Illinois's Cavel International as the only slaughterhouse that kills horses for food in the U.S. If the Illinois legislature can distract its attention from such nonissues as Internet hunting, maybe the states can end this practice. The U.S. Congress has been singularly inept at doing so; put "horse slaughter" in the search box to the right and follow the trail of failure....

The owner and employees of an Ohio hog farm were charged with cruelty, and pled not guilty. This is news because prosecutors rarely charge people for abuse of animals used for food and courts and legislators have excepted agricultural practices from the scope of cruelty laws. (Ohio law, for instance, requires a confined animal be given shelter, but excludes animals "impounded or confined prior to slaughter." Ohio R.C. 959.13.) According to an article in the Columbus Dispatch (link above), the farm owner and employees are charged with cruelty for both negligent and intentional conduct. The Humane Farming Association drew attention to the abuses at the Wiles Farm, including a pig killed by hanging. The defendants face only misdemeanor charges, because Ohio's felony law applies only to people who repeatedly commit the worst acts of cruelty ("torture, torment," etc.) against companion animals.

A Washington court okayed charges for cops in Taser killing of a calf. As a quote from local hero Adam Karp notes, this is a rare prosecution because it involves a police officer killing an animal and because it was initiated by a citizen complaint and opposed by prosecutors. The prosecutor's office is challenging the citizen complaint law as invading executive prerogative.

10th Circuit upholds Utah intiative amendment

A Utah amendment which would impose a 2/3 majority requirement on the passage of wildlife-related initiatives has been upheld on appeal. The opinions in the case, Initiative and Referendum Institute v. Walker, split over two issues: whether the plaintiff animal advocacy groups have standing and whether the amendment violates plaintiffs' First Amendment rights. As the opinion explains, the amendment was passed after animal and wildlife advocates began organizing measures to protect cougars and bears.

The majority opinion holds that the plaintiffs have standing to sue but that the First Amendent was not violated. We continue to be perplexed by First Amendment jurisprudence, but will do our best to summarize the arguments on the merits. The court first rejected the claim that the amendment was political speech and thus subject to strict scrutinty, finding that such scrutiny has only been applied to restrictions on speech associated with the political process, not the political process itself. It further did not adopt the reasoning of Wirzburger v. Galvin, a recent First Circuit case where the plaintiffs successfully argued that the court should use intermediate scrutiny because the subject matter-specific limits on legislation implicate both speech and non-speech elements. The court argues that refusal to apply intermediate scrutiny is a vindication of "We the People," that, given the policy-like reasoning required in weighing a government's "substantial interest" in a piece of legislation, judicial scrutiny is inappropriate.

As the dissent in Initiative Referendum Institute points out, and as we have argued regarding measures in Arizona and Missouri, subject-specific supermajority requirements have their own "We the People" problem. Specifically, the passage of the Utah amendment (by less  of the voters than the supermajority which it imposes) means that future generations of advocates able to secure a majority in support of a wildlife measure may be stymied by the "dead hands of the past." Although it is heartening to believe that Utah hunters see the tide shifting against them, their success in passing this bill (by invoking "East Coast Special Interests") shows that belief might just be paranoia.

Also (5/23/06): The Salt Lake Tribune has a fine editorial which says it all: Stacked deck: Wildlife amendment is legal, but misguided.

Suit on failed beagle research lives!

The Ninth Circuit has allowed a suit by animal advocates against a researcher alleging fraud against the U.S. government to go forward. The case is United States v. Catholic Healthcare West, No. 03-16937 (9th Cir. Apr. 19, 2006)(pdf). Defendant Dr. Michael Berens injected cancerous cells in fetal puppies over ten years, in the hopes of the animals developing cancer, in the hopes that such cells could be transplanted into the puppy's brain, in the hopes that such research could extrapolate to brain cancer in humans. Only three dogs developed cancer, but Berens claimed higher rates of success in a grant application to the NIH.

The opinion resolves a somewhat technical question as to how much work a plaintiff needs to do to proceed under the federal qui tam statute, which encourages people to uncover fraud against the government by giving people a "bounty." See Getnick & Getnick's Qui Tam Basics. The opinion lays out the extensive research and investigation done by In Defense of Animals and regional director Dr. Patricia Haight, which forms the basis for the complaint:

In addition to filing a FOIA request, Haight requested documents, including animal care records and minutes from IACUC [university oversight committee] meetings, from Arizona State University; she toured the two facilities where dogs associated with Berens’ research were housed; she contacted and interviewed at least nine people who had knowledge about the Berens’ project; she also corresponded with a scientist overseas who was listed as a consultant to Berens’ research. Moreover, she combed the documents that she received through her FOIA inquiry and from ASU in an attempt to learn about Berens’ research. Ultimately, she uncovered what Relators allege to be serious misrepresentations about the project that resulted in an award of over $700,000 in federal funds. Relators did not behave opportunistically. To the contrary, Haight performed precisely the sort of investigative work that the qui tam provisions of the FCA encourage in order to promote detection of fraud against the government.

(At 4399.) Although we are new to both the law of animal research and whistleblower statutes, and thus feel uniquely unqualified to comment on the court's analysis, the opinion has got us thinking about using qui tam as a legal strategy against animal users. One big advantage of such an approach would be obtaining standing to sue, something particularly difficult to do when animals are being used behind closed doors. The Supreme Court has held that citizens have a sufficient stake in qui tam actions to meet Article III of the Constitution, because they act as assignees of the United States. Vt. Agency of Natural Res. v. United States ex. rel. Stevens, 529 US 765 (2000). There is also the possibility, though remote given the political climate, that the government will intervene, shouldering the cost of the litigation. There are also limitations inherent in the qui tam approach, specifically that it only applies to fraud against the government, not any statutory violation. Still, the approach could provide a fertile way of limiting abusive animal researchers.

[There are some observations on qui tam actions and animal law, similar to the ones above, in the 2002 Legislative Review (pdf) in the Animal Law journal. (pg. 354.)]

TX court upholds horse slaughter; TX town bans it

A federal court today refused to grant an injunction against the implementation of a USDA plan to allow horse slaughterhouses to pay for inspectors, following Congress's defunding of inspections last year. Although the account in the the Dallas Morning News (subscribe or opt-out) is spare on this point, the court dismissed two of the counts (shock!) for lack of standing. (Given that folks in the U.S. don't favor horse meat, what would a good plaintiff look like in this case?) This decision is no doubt bad for horses but is the right one from a statutory interpretation viewpoint. As we've argued here, Congress could have been far more precise if it wanted to ban horse slaughter, but was not. As the court put it, the defunding was only a "half-step" towards ending horse slaughter. The court's decision draws attention to the blustery but ineffective approach generally taken by Congress towards animals.

In better news, one of the three horse slaughterhouses in the U.S. has been declared a nuisance.

Update (3/14, 3/16): An AP article has more details on the standing issue and an interesting tie-in with the nuisance one. The court found no "environmental, aesthetic, informational or economic interests" facially at stake for the plaintiffs. Unlike the HSUS poultry litigation discussed here, horse meat consumers would not be ideal plaintiffs, as such consumers would be benefited by the inspections. Interestingly, the one theory of injury which was successful was environmental injury to individuals who own property near slaughterhouses. Although this is perhaps as much an economic injury (house prices) as an environmental one, the characterization of an injury as environmental is consistent with the original line of cases from which aesthetic/emotional standing for animals arose, conservation cases like Sierra Club v. Morton.

Workers' groups join suit on poultry slaughter practices

A press release by East Bay Animal Advocates announces that a suit brought by EBAA and the Humane Society of the U.S. is being joined by two organizations representing the interests of slaughterhouse workers. HSUS outlines the somewhat confusing series of legislative actions leading up to a recent notice by the Department of Agriculture stating that federal law does not require humane slaughter of poultry. (An attempted summary: A 1978 amendment to the Federal Meat Inspection Act allowed USDA to refuse to inspect plants that violated the Humane Slaughter Act with regard to certain animals but did not mention poultry or contain general language regarding "livestock"; the HSA nonetheless requires humane slaughter of "other livestock.") The workers have joined the suit because the current practice of stunning an animal after it has been shackled means more workplace injuries for humans handling the animals.

The original complaint in the case sheds some light on this convergence of interests. On the one hand, prior to the passage of the Humane Slaughter Act, the House heard testimony from both humane societies and poultry industry workers. Para. 27. On the other, the complaint suggests that abuse by workers, including vicious violence against the animals outside the context slaughter, is common. Paras. 78-80.

Giving the courts a human reason to support humane slaughter is probably a good tactical decision,  somewhat similar to the complaint's foregrounding of the health problems to people of consuming inhumanely slaughtered poultry.^* And goodness knows workers in slaughterhouses are exploited by an industry that takes advantage of immigrant workers, busts unions, and doesn't recompense workers when they're hurt. (See this Human Rights Watch report.) While we cannot get too excited about making slaughter "humane," if something (be it vegetarianism, regulation, or direct action) makes it more tough for the poultry industry to do its business, eh, why not?

^* The groups likely also chose plaintiffs who consume poultry to make it easier for the courts to find standing to sue, as the Constitution (per the courts) requires a plaintiff to have suffered some injury and feeling bad for animals does not count.  Thus the old saying "Vegans make bad plaintiffs" ;)

A little bit of standing in WA

In an unpublished opinion, an intermediate appellate court in Washington State recently found an animal advocate had standing to challenge the policies of local animal control.  The plaintiff alleged that animal control failed to scan animals for microchips (which would identify an animal with its human companion), under-dosed animals being euthanized and failed to abide by hold periods.  The trial court had rejected the suit on standing grounds.  The appeals court found that the plaintiffs have taxpayer standing to challenge illegal acts, but denied standing on a variety of other theories.

Notably, the plaintiff alleged standing based on the theory of aesthetic standing used by courts to determine whether a dispute falls within Article III of the U.S. Constitution.  The court cites Sierra Club v. Morton and later cases which held that a plaintiff is injured if she observes an animal being harmed, and concludes:

While these cases demonstrate a trend toward broadening categories of injury to support standing, Ms. Wolverton [the plaintiff] failed to demonstrate that she fits within the categories.

The holding is consistent with cases which limit aesthetic standing to people who work with animals and people who can regularly view animals in a public space, such as a park or a zoo.  We'd be curious to know if the result would be any different if a complaint alleged that the plaintiff had visited dogs or cats in a city-run pound.

The plaintiff also interestingly argued (unsuccessfully) that the state's pet trust statute supports finding standing and that the state's anti-cruelty laws create an implied cause of action for animals.

Background:  a great primer on standing for animals.