Levine v. Conner

• Decision Date: 28 February 2008
• Docket Number: No. C 05-04764 MHP.,C 05-04764 MHP.
• Citation: 540 F.Supp.2d 1113
• Court: U.S. District Court — Northern District of California
• Parties: LEVINE, et al., Plaintiffs, v. Chuck CONNER, Acting Secretary, United States Department of Agriculture, Defendant.

Page 1113

540 F.Supp.2d 1113

LEVINE, et al., Plaintiffs, v. Chuck CONNER, Acting Secretary, United States Department of Agriculture, Defendant.

No. C 05-04764 MHP.

United States District Court, N.D. California.

February 28, 2008.

Corey Allen Evans, Geneva Page, Evans & Page, San Francisco, CA, Carter Dillard, Jonathan Russell Lovvorn, Sarah Uhlemann, The Humane Society of the United States, Washington, DC, for Plaintiffs.

Eric Richardson Womack, U.S. Department of Justice, Washington, DC, for Defendant.

OPINION

MARILYN HALL PATEL, District Judge.

Plaintiffs are: 1) poultry eaters concerned about food-borne illnesses; and 2) organizations representing poultry slaughterhouse workers concerned about working conditions. On November 21, 2005 plaintiffs filed the instant case against the United States Department of Agriculture ("USDA") challenging the USDA's interpretive rule excluding chickens, turkeys and other poultry species from the Humane Methods Slaughter Act ("HMSA") of 1958, 7 U.S.C. §§ 1901 et seq. Now before the court are the parties' cross-motions for summary judgment. The court has considered the parties' arguments fully, and for the reasons set forth below, the court rules as follows.

BACKGROUND

In 1958, Congress enacted the HMSA with the goal of "prevent[ing] needless suffering" of animals killed for food and because humanitarian killing "results in safer and better working conditions for persons engaged in the slaughtering industry ... and produces other benefits for producers, processors, and consumers." 7 U.S.C. § 1901. The Act establishes that it is "the policy of the United States that the slaughtering of livestock and the handling of livestock in connection with slaughter shall be carried out only by humane methods." Id. The Act found that with respect to "cattle, calves, horses, mules, sheep, swine, and other livestock" a method that renders them "insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut" is humane. Id. § 1902(a). The HMSA then directed the Secretary of the USDA (the "Secretary") to intermittently designate humane methods of slaughter, with reference to other existing methods and then-current scientific knowledge, for each species of livestock. Id. § 1904(b). In 1959, pursuant to Congress' directive, the Secretary prescribed humane methods of slaughter for cattle, calves, horses, mules, sheep, swine, and goats. Designation of Methods, 24 Fed. Reg. 1549-53 (Mar. 3, 1959).

In 1978, Congress amended the Federal Meat Inspection Act ("FMIA") of 1907, which covered "cattle, sheep, swine, goats, horses, mules, and other equines." 21 U.S.C. §§ 601 et seq. The 1978 amendment added a provision to the FMIA requiring the USDA to ensure that animals covered by the FMIA are also slaughtered in accordance with the HMSA of 1958. Pub.L. No. 95-445, 92 Stat. 1069 (Oct. 10, 1978). It concurrently repealed the HMSA's enforcement provisions and provided for criminal and civil penalties under the FMIA for slaughter conducted inhumanely. See id.; 21 U.S.C. § 676.

On September 28, 2005 the USDA's Food Safety and Inspection Service issued a notice entitled "Treatment of Live Poultry Before Slaughter." 70 Fed.Reg. 56,624 (Sept. 28, 2005) (hereinafter "Notice"). The Notice was in response to "considerable congressional and public interest in the humane treatment of animals, including poultry." Id. at 56,624. The notice reiterated that "there is no specific federal humane handling and slaughter statute for poultry" and stated that adherence to the agency's Poultry Products Inspection Act ("PPIA") promotes humane slaughter. Id.

Later in 2005, Congress amended the FMIA to replace all references to "cattle, sheep, swine, goats, horses, mules, and other equines" with "amenable species." Pub.L. No. 109-97, 119 Stat. 2120 (Nov. 10, 2005). The amendment defines "amenable species" to include cattle, sheep, swine, goats, horses, mules, and other equines, 21 U.S.C. § 601(w)(1), as well as "any additional species of livestock that the Secretary considers appropriate," id. § 601(w)(2).

LEGAL STANDARD.

Summary judgment is proper when the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.

Once the moving party meets its initial burden; the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.; Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.1994). The court may not make credibility determinations, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

DISCUSSION

The Administrative Procedures Act ("APA") governs judicial review of administrative decisions. 5 U.S.C. § 706. Under the APA, a court must set aside any agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. 706(2)(A). The Supreme Court has laid out a two-part test to determine whether an agency has acted "not in accordance with law." See Chevron, U.S.A., Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The court must first look to the statute's language to determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of matter; for the Court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. The reading of the statute must be the "only plausible interpretation." Regions Hosp. v. Shalala, 522 U.S. 448, 460, 118 S.Ct. 909, 139 L.Ed.2d 895 (1998). "If, however, the court determines Congress has not directly addressed the precise question at issue ... the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778. If the construction is permissible, the court must defer to the agency, but the court need not defer to agency regulations "if [the agency] construe[s] a statute in a way that is contrary to congressional intent or that frustrates congressional policy." Akhtar v. Burzynski, 384 F.3d 1193, 1198 (9th Cir.2004).

Plaintiffs argue that under Chevron step one, the USDA's interpretation excluding poultry from livestock violates the plain language of the HMSA since livestock, by definition, includes poultry. They then argue that the USDA's unexplained interpretive rule fails Chevron step two and this action must therefore be remanded to the USDA for a more cogent rationale. Defendant argues that the statute is unambiguous in its intent to exclude poultry. Alternatively, it argues that the USDA's interpretation of livestock is permissible. The court discusses each Chevron prong in turn.

I. Unambiguous Congressional Intent

Under step one of the Chevron analysis, the court employs "traditional tools of statutory construction" to determine whether the meaning of a statute is unambiguous. Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778.

A. Plain Language

In determining whether a statute's language is unambiguous, words are to be given their "ordinary and natural meaning" and courts are to "follow the common practice of consulting dictionary definitions to clarify the [word's] ordinary meaning and look to how the terms were defined at the time the statute of was adopted." United States v. TRW Rifle, 447 F.3d 686, 689 (9th Cir.2006) (internal citations omitted). The court must first look to the language of the statute itself which, in this case, in prescribing the methods of "slaughter and handling" includes only "cattle, calves, horses, mules, sheep, swine, and other livestock." 7 U.S.C. § 1902(a). The terms "other livestock" or "livestock" are not defined in the Act.

Plaintiffs contend that when the HMSA was enacted, livestock was defined by one definitive source as "domestic animals used or raised on a farm — especially those kept for profit," Webster's Int'l Dictionary of the English Language 1446 (2d ed.1957). There do not seem to be any dictionary definitions from the 1950's that explicitly include poultry as livestock.¹ Defendant's proffered definitions define livestock as a category of animals including "horses, cattle, sheep and other useful animals kept or raised on a firm or ranch." The American College Dictionary 713 (1957); see also Def.'s Motion for Summary Judgment at 11.² The precise metes and bounds of the category, however, are not given. The category of animals could thus be limited to a narrow group of quadrupeds like cattle and other bovine creatures or alternatively, it could be all-encompassing, as the plaintiffs contend. Indeed, the scope of domestic animals used or raised on a farm...