Animal Legal Defense Fund v. Veneman, No. 04-15788.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtWilliam A. Fletcher
Citation469 F.3d 826
PartiesANIMAL LEGAL DEFENSE FUND; Animal Welfare Institute; Valerie Buchanan; Jane Garrison; Nancy Megna, Plaintiffs-Appellants, National Association for Biomedical Research, Intervenor-Appellee, v. Ann M. VENEMAN; Bobby R. Acord; Chester A. Gipson, Defendants-Appellees.
Docket NumberNo. 04-15788.
Decision Date22 November 2006
469 F.3d 826
ANIMAL LEGAL DEFENSE FUND; Animal Welfare Institute; Valerie Buchanan; Jane Garrison; Nancy Megna, Plaintiffs-Appellants,
National Association for Biomedical Research, Intervenor-Appellee,
v.
Ann M. VENEMAN; Bobby R. Acord; Chester A. Gipson, Defendants-Appellees.
No. 04-15788.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 9, 2005.
Filed November 22, 2006.

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COPYRIGHT MATERIAL OMITTED

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Katherine A. Meyer, Howard M. Crystal, Meyer, Glitzenstein & Crystal, Washington, D.C.; Bruce A. Wagman, Morgenstein & Jubelirer, San Francisco, CA, for the plaintiffs-appellants.

Robert A. Long, Covington & Burling, Washington, D.C., for the intervenor-appellee.

John S. Koppel, Michael Jay Singer, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-03-03400-PJH.

Before KOZINSKI and W. FLETCHER, Circuit Judges, and H. RUSSEL HOLLAND,* District Judge.

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WILLIAM A. FLETCHER, Circuit Judge.


Plaintiffs, who include the Animal Legal Defense Fund ("ALDF"), the Animal Welfare Institute ("AWI"), and three individuals, challenge the United States Department of Agriculture's ("USDA") decision not to adopt a Draft Policy that would have provided guidance to zoos, research facilities, and other regulated entities in how to ensure the psychological well-being of nonhuman primates in order to comply with the federal Animal Welfare Act ("AWA"). Plaintiffs challenge the decision not to adopt the Draft Policy under the Administrative Procedure Act ("APA") as arbitrary and capricious. The district court did not reach the merits of plaintiffs' suit because it determined that the USDA's decision did not constitute reviewable final agency action. We disagree. We hold that at least one of the plaintiffs has standing under Article III of the Constitution, and we conclude that the district court has authority under the APA to review the USDA's decision not to adopt the Draft Policy.

I. Background
A. Statutory and Regulatory Backdrop

Congress enacted the AWA in 1966 "to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment . . . ." 7 U.S.C. § 2131(1). As originally enacted, the AWA left research facilities largely unregulated. See, e.g., 7 U.S.C. § 2143(a) (repealed 1985). In 1985, Congress amended the AWA by enacting the Improved Standards for Laboratory Animals Act, Pub.L. No. 99-198, 99 Stat. 1645. This amendment to the AWA instructed the USDA to "promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." 7 U.S.C. § 2143(a)(1). These standards must "include minimal requirements . . . for a physical environment adequate to promote the psychological well-being of primates." Id. § 2143(a)(2)(B). The Secretary proposed a regulation containing these standards in 1989. See Animal Welfare—Standards, 54 Fed.Reg. 10897, 10917 (proposed Mar. 15, 1989).

The 1989 proposed regulation would have imposed a number of detailed "minimum requirements" on regulated entities. These included, for example, a requirement that "nonhuman primates must be housed in primary enclosures with compatible members of the same species or with compatible members of other nonhuman primate species" unless doing so would endanger the animal. 54 Fed.Reg. at 10944. As finally adopted in 1991, however, the regulation, which requires regulated entities to create an "Environmental Enhancement Plan" to benefit nonhuman primates, left the requirements for these "primary enclosures" more vaguely defined. See generally 56 Fed.Reg. 6426 (1991), codified at 9 C.F.R. § 3.81. The social grouping provision of the regulation, for example, contains no specific instruction regarding the pairing or grouping of animals. It leaves regulated entities considerable discretion to house nonhuman primates as they see fit, provided that housing conditions accord with "currently accepted professional standards, as cited in appropriate professional journals or reference guides, and as directed by the attending veterinarian." 9 C.F.R. § 3.81(a).

In 1991, the ALDF challenged § 3.81 in the federal district court for the District of Columbia, arguing that the regulation violated the AWA by failing to impose minimum standards for nonhuman primate conditions of confinement. In a decision later upheld by the D.C. Circuit, the district

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court concluded that at least one of the plaintiffs had standing to challenge the regulation based on an aesthetic injury he suffered from witnessing the conditions of several nonhuman primates' confinement. This plaintiff had "`been employed and/or worked as a volunteer for various human and animal relief and rescue organizations'" "[f]or his entire adult life." Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 429 (D.C.Cir.1998) (en banc) ("Glickman I"). This plaintiff had visited a "game farm" covered by the statute at least nine times, and had seen primates "living under inhumane conditions" at the farm. Id. For example, he saw a large male chimpanzee held in an isolated area. He stated in an affidavit that he knew that chimpanzees "`are very social animals and it upset [him] very much to see'" this chimpanzee "`in isolation from other primates.'" Id. (alteration in original).

The district court struck down § 3.81 as arbitrary and capricious and contrary to law. Animal Legal Def. Fund v. Sec. of Agric., 813 F.Supp. 882, 892 (D.D.C.1993). Reversing this decision in 2000, the D.C. Circuit concluded that "[n]othing in the [AWA's] statutory mandate required greater specificity" than the allegedly vague requirements the regulation imposed. See Animal Legal Def. Fund, Inc. v. Glickman, 204 F.3d 229, 235 (D.C.Cir. 2000) ("Glickman II").

B. The Draft Policy

While the challenge to § 3.81 was pending before the D.C. Circuit in what would become Glickman II, the USDA took a survey of USDA inspectors responsible for § 3.81's enforcement. Based on this survey, it published a "Final Report on Environment Enhancement to Promote the Psychological Well-Being of Nonhuman Primates" ("Final Report") on July 15, 1999.1 The Final Report noted that "[a]lmost half the responding employees felt that the criteria in the regulations were not adequate for [regulated] facilities to understand how to meet them and for inspectors to judge if a facility was in compliance." Inspectors complained that § 3.81 provided "few solid criteria" to judge compliance, and a "common refrain" among those surveyed was that "too many enhancement programs consisted of only one or two types of enrichment . . . in an otherwise barren, stimulus-poor environment." Stressing the "urgency of these problems[,]" the Final Report insisted that "[a] strategy had to be developed to fulfill the original intent and language of the Animal Welfare Act . . . ."

On the same day the Final Report was issued, the USDA published—apparently as a response to the report—a "Draft Policy on Environment Enhancement for Nonhuman Primates" in the Federal Register and opened a period for public comment. 64 Fed.Reg. 38145 (July 15, 1999) ("Draft Policy"). In the Draft Policy's preface, the USDA explained why it had not included more detailed requirements in § 3.81 for the treatment of nonhuman primates. See id. at 38146 (declaring that the USDA "intentionally made the regulations regarding promotion of psychological well-being flexible" because "the conditions appropriate for one species do not necessarily apply to another").

However, the preface continued, "after five years of experience enforcing § 3.81," regulated entities "did not necessarily understand how to develop an environment enhancement plan that would adequately promote the psychological well-being of nonhuman primates." 64 Fed.Reg. at 38146. Hence, while the USDA "continue[d] to believe that [§ 3.81's] flexibility

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. . . is in the best interests of the animals[,]" it also "believe[d] that additional information on how to meet the standards in § 3.81 is necessary." Id. This additional information would remedy the "considerable disagreement" and "confusion" among the public and regulated entities as to what § 3.81 required, and it would give agency inspectors a workable set of enforcement criteria to apply. Id. In other words, the Draft Policy would "clarify[ ] what actions[the USDA] consider[s] necessary in order to comply with" § 3.81. Id.

The Draft Policy listed a number of specific features that a regulated entity could usefully include in an environmental enhancement plan. 64 Fed.Reg. at 38146. In particular, the Draft Policy provided for a safe harbor within which regulated entities could be sure that they were in compliance with the regulation and the AWA. It stated that if regulated entities "develop and follow environmental enhancement plans that are in accordance with the draft policy[,]" they would necessarily "meet the requirements of § 3.81 . . . ." Id. Regulated entities could adopt plans outside the safe harbor, however, so long as the plans complied with the regulation and the AWA. Id.

C. Procedural History

The Draft Policy remained just that—a draft—for several years. In July 2003, plaintiffs, frustrated that the USDA had failed to take any final action, sued the Secretary and other USDA officials (collectively, the "USDA") in federal district court for the Northern District of California. They contended that the USDA had failed to promulgate standards to "promote the psychological well-being of primates" in violation of the AWA, 7 U.S.C. § 2143(a), and that its failure constituted agency action "unlawfully withheld or unreasonably delayed" in violation of the APA. 5 U.S.C. § 706(1). Plaintiffs sought a declaratory...

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6 practice notes
  • W. Watersheds Project v. Bernhardt, Case No. 1:16-cv-00083-BLW
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • February 11, 2021
    ...of administrative function, no more and no less, than an order directing some change in status"); Animal Legal Def. Fund v. Veneman , 469 F.3d 826, 830-31 (9th Cir. 2006), opinion vacated on reh'g en banc , 490 F.3d 725 (9th Cir. 2007)6 (agency decision to not adopt draft policy regarding t......
  • Organized Vill. of Kake v. U.S. Dep't of Agric., No. 11–35517.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 29, 2015
    ...Pub.L. No. 79–404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. § 701 et seq. ). See, e.g., Animal Legal Def. Fund v. Veneman, 469 F.3d 826, 830–31 (9th Cir.2006) (withdrawal under President George W. Bush of agricultural policy announced under President Clinton), vacated en banc, 4......
  • W. Watersheds Project v. Bernhardt, Case No. 1:16-cv-00083-BLW
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • February 11, 2021
    ...of administrative function, no more and no less, than an order directing some change in status"); Animal Legal Def. Fund v. Veneman, 469 F.3d 826, 830-31 (9th Cir. 2006), opinion vacated onPage 29 reh'g en banc, 490 F.3d 725 (9th Cir. 2007)6 (agency decision to not adopt draft policy regard......
  • Ctr. for Biological Diversity v. Export-Import Bank of the U.S., No. 16-15946
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 28, 2018
    ...focus primarily on redressability, causation and redressability "are two sides of the same coin," Animal Legal Def. Fund v. Veneman , 469 F.3d 826, 835 (9th Cir. 2006), vacated on other grounds , 490 F.3d 725 (9th Cir. 2007) (en banc), and are often addressed in conjunction, see Nat. Res. D......
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6 cases
  • W. Watersheds Project v. Bernhardt, Case No. 1:16-cv-00083-BLW
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • February 11, 2021
    ...of administrative function, no more and no less, than an order directing some change in status"); Animal Legal Def. Fund v. Veneman , 469 F.3d 826, 830-31 (9th Cir. 2006), opinion vacated on reh'g en banc , 490 F.3d 725 (9th Cir. 2007)6 (agency decision to not adopt draft policy regarding t......
  • Organized Vill. of Kake v. U.S. Dep't of Agric., No. 11–35517.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 29, 2015
    ...Pub.L. No. 79–404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. § 701 et seq. ). See, e.g., Animal Legal Def. Fund v. Veneman, 469 F.3d 826, 830–31 (9th Cir.2006) (withdrawal under President George W. Bush of agricultural policy announced under President Clinton), vacated en banc, 4......
  • W. Watersheds Project v. Bernhardt, Case No. 1:16-cv-00083-BLW
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • February 11, 2021
    ...of administrative function, no more and no less, than an order directing some change in status"); Animal Legal Def. Fund v. Veneman, 469 F.3d 826, 830-31 (9th Cir. 2006), opinion vacated onPage 29 reh'g en banc, 490 F.3d 725 (9th Cir. 2007)6 (agency decision to not adopt draft policy regard......
  • Ctr. for Biological Diversity v. Export-Import Bank of the U.S., No. 16-15946
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 28, 2018
    ...focus primarily on redressability, causation and redressability "are two sides of the same coin," Animal Legal Def. Fund v. Veneman , 469 F.3d 826, 835 (9th Cir. 2006), vacated on other grounds , 490 F.3d 725 (9th Cir. 2007) (en banc), and are often addressed in conjunction, see Nat. Res. D......
  • Request a trial to view additional results

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