Animal Legal Def. Fund v. U.S. Dep't of Agric., 14–12260.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation789 F.3d 1206
Docket NumberNo. 14–12260.,14–12260.
PartiesANIMAL LEGAL DEFENSE FUND, Orca Network, People for the Ethical Treatment of Animals, Inc., Howard Garrett, Shelby Proie, Patricia Sykes, Karen Munro, Plaintiffs–Appellants, Shelby Proie, Patricia Sykes, Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE, Secretary, U.S. Department of Agriculture, Elizabeth Goldentyer, in her official capacity as Eastern Regional Director of the United States of Agriculture Animal and Plant Health Inspection Service, Marine Exhibition Corporation, d/b/a/ Miami Seaquarium, Defendants–Appellees.
Decision Date15 June 2015

Katherine Anne Meyer, Meyer Glitzenstein & Crystal, Jared Goodman, Esq., Delcianna Winders, Esq., Foundation To Support Animal Protection, Washington, DC, Paul Joseph Schwiep, Coffey Burlington, PL, Miami, FL, Matthew Daniel Strugar, Peta Foundation, Courtney Elena Vaudreuil, Mckenna Long & Aldridge, LLP, Los Angeles, CA, for PlaintiffAppellant.

Amit Agarwal, Anthony Erickson–Pogorzelski, Wifredo A. Ferrer, Kathleen Mary Salyer, U.S. Attorney's Office, Jose Angel Casal, Laura Maria Gonzalez Marques, Holland & Knight, LLP, Miami, FL, Charles Michael O'Connor, San Francisco, CA, William P. Horn, James H. Lister, Birch Horton Bittner & Cherot, PC, Washington, DC, Thomas A. Cohen, Law Offices of Thomas A. Cohen, Mill Valley, CA, for DefendantAppellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HULL, BLACK and MELLOY,* Circuit Judges.


BLACK, Circuit Judge:

The Animal Legal Defense Fund, Orca Network, People for the Ethical Treatment of Animals, Inc., Howard Garrett, and Karen Munro (collectively, ALDF)1 appeal the district court's grant of summary judgment in favor of the United States Department of Agriculture; Tom Vilsack, in his official capacity as Secretary of the United States Department of Agriculture; and Elizabeth Goldentyer, in her official capacity as Eastern Regional Director of the United States Department of Agriculture Animal and Plant Health Inspection Service (collectively, USDA). ALDF argues the district court erred in ruling USDA's decision to renew Marine Exhibition Corporation d/b/a Miami Seaquarium's (Seaquarium) license did not violate the Animal Welfare Act (AWA), 7 U.S.C. §§ 2131 –59. According to ALDF, USDA may not renew a license when USDA knows an exhibitor is noncompliant with any animal welfare standards on the anniversary of the day USDA originally issued the license.2

Congress has prescribed what an exhibitor must do to obtain issuance of a license in the first instance, but Congress has not spoken precisely to the question of license renewal under the AWA. USDA in turn has adopted comprehensive renewal regulations. USDA's renewal scheme requires Seaquarium to submit a form summarily certifying its regulatory compliance, a fee, and an annual report setting forth the number of exhibited animals. No annual inspection occurs. Given the thousands of exhibitors across the country and its limited resources, USDA conducts license renewal through a purely administrative procedure.

USDA has adopted a different mechanism to achieve substantive compliance with animal welfare standards. The USDA regulations provide for random, unannounced inspections to verify substantive compliance with the AWA. When violations are discovered, either through inspections or third-party complaints, the USDA can charge Seaquarium and seek to suspend or revoke its license after requisite due process. USDA must provide notice to Seaquarium by filing a complaint before an administrative law judge (ALJ) who conducts a hearing in accordance with detailed rules of administrative practice. The ALJ's decision is then subject to judicial review exclusively in the United States Court of Appeals.

USDA's licensing regulations constitute a reasonable policy choice balancing the conflicting congressional aims of due process and animal welfare, and the AWA licensing scheme is entitled to deference by this court. We therefore affirm. As explained below, assuming Seaquarium violated a substantive AWA standard, the remedy in this case lies not in the administrative license renewal scheme, but in USDA's power to initiate an enforcement proceeding. USDA has the discretionary enforcement authority to revoke a license due to noncompliance. Only Congress, not this Court, possesses the power to limit the agency's discretion and demand annual, substantive compliance with animal welfare standards.

A. Lolita

Lolita is a 20–feet long, 7000 pound Orcinus orca4 held in captivity at Seaquarium. In 1970, Ted Griffin, the first person to swim with an orca in a public exhibition, captured Lolita in Whidbey Island's Penn Cove, off the coast of Washington State. Lolita was approximately three to six years old and a member of the Southern Resident L Pod. Seaquarium purchased Lolita, and she has lived there since September 24, 1970. Lolita performs each day in an event called the “Killer Whale and Dolphin Show.”

Lolita lives in a tank which is surrounded by stadium seating. The stadium covering leaves Lolita exposed to ultraviolet radiation as she floats along the water's surface. As sunscreen, Seaquarium applies a black-colored zinc oxide on Lolita's skin. The effect of this sunscreen on Lolita's physiology is unknown. ALDF alleges Seaquarium's failure to provide Lolita with adequate sun cover violates 9 C.F.R. § 3.103(b)'s requirement to afford adequate protection from the weather or direct sunlight to marine animals kept outdoors.

Lolita's tank is oblong-shaped with a 5 feet 2 inches wide, crescent-shaped concrete platform that extends from the bottom of the tank through the surface of the water. Lolita's trainers stand on this platform during her performances. Her tank measures 80 feet by 60 feet. The concrete platform leaves an unobstructed circular pool of 80 feet by 35 feet. ALDF alleges Lolita's tank is smaller than the 48 feet minimum horizontal standard permitted by agency regulation. See id. § 3.104(b) (providing cetaceans in captivity must be given a pool of water with a minimum horizontal dimension of at least “two times the average adult length” of the species).

Orcas are primarily social in the wild and travel in large groups. Lolita has not interacted with another orca since Hugo, who was also captured off the coast of Washington State, died in March 1980. Lolita instead shares her tank with Pacific white-sided dolphins. ALDF alleges these dolphins are not “biologically related” to her, as prescribed by 9 C.F.R. § 3.109.

B. Renewal of Seaquarium's License

Seaquarium received an AWA license from USDA. Each April since the issuance of the license, USDA has renewed Seaquarium's license before its one-year expiration date. On February 16, 2012, before the expiration of Seaquarium's license in April 2012, ALDF sent a letter to USDA alleging Seaquarium exhibited Lolita in violation of 9 C.F.R. §§ 3.103(b), 3.104(b), and 3.109. ALDF stated Lolita's living conditions were inhumane and the renewal of Seaquarium's license would be unlawful. In a March 28, 2012 letter, Goldentyer responded to ALDF's letter, stating USDA intended to renew Seaquarium's exhibitor license because it found Seaquarium was in “compliance with the regulations and standards, and none of the other criteria for license denial under Section 2.11 or 2.12 are applicable.” USDA renewed Seaquarium's license on April 21, 2012.

C. License Renewal Regulations

The AWA prohibits exhibitors5 from exhibiting any animals unless they “have obtained a license from the Secretary and such license shall not have been suspended or revoked.” 7 U.S.C. § 2134. [N]o such license shall be issued” until the exhibitor “shall have demonstrated that his facilities comply with the standards promulgated by the Secretary.” Id. § 2133. In addition to this statutory command, the AWA vests USDA with the authority to “promulgate such rules, regulations, and orders as he may deem necessary in order effectuate the purposes” of the statute. 7 U.S.C. § 2151. Pursuant to this section, USDA has adopted comprehensive renewal regulations that combine purely administrative requirements, random inspections, and discretionary enforcement proceedings.

On or before the expiration date of his or her one-year license, an exhibitor must submit a completed application form to the appropriate USDA regional office fulfilling three, purely administrative criteria.See 9 C.F.R. § 2.1(d). First, the exhibitor certifies by signing the application form that, to the best of her knowledge or belief, she is compliant and will continue to comply with all AWA animal wildlife standards. Id. § 2.2(b). Second, the exhibitor pays an annual fee calculated according to USDA's fee schedule that varies according to the number of animals owned, held, or exhibited. Id. § 2.6. Third, the exhibitor submits an annual report detailing the number of animals owned, held, or exhibited. Id. § 2.7(d). So long as an exhibitor meets these three criteria, even if her facility fails to comply with animal wildlife standards on the license expiration date, USDA must grant her a renewal. See id. § 2.2(b) (stating [USDA] will issue a license” after applicant fulfills administrative requirements). Otherwise, the license automatically terminates due to expiration. Id. § 2.5(b).

Unlike the purely administrative procedure for renewing a license, USDA's mechanism for suspending or terminating licenses due to animal welfare violations depends on random inspections and enforcement proceedings. Each applicant for renewal is obligated to make her “animals, premises, facilities, vehicles, equipment, other premises, and records available for inspection ... to ascertain the applicant's compliance with the standards and regulations.” Id. § 2.3(a). USDA's administrative renewal scheme facilitates these inspections by requiring a licensee to “promptly notify [USDA] by certified mail of any change in the name, address,...

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