Friday, November 15, 2013

ADCNYS takes lead to challenge APHIS pet rule

SAOVA friends,
We have an important message from our friends at the Associated Dog Clubs of New York State (ADCNYS) regarding their current effort to file an injunction against APHIS in order to block implementation of the Retail Pet Store Rule. Thanks for reading. Cross posting is encouraged.

Susan Wolf
Sportsmen's & Animal Owners' Voting Alliance
Working to Identify and Elect Supportive Legislators

Dear Friends,
I am asking you to join in supporting a legal challenge to the unreasonable USDA/APHIS rule that takes effect November 18, 2013. Associated Dog Clubs of New York State is an AKC Federation of Dog Clubs with 56 member clubs in New York State. ADCNYS is a legislative advocacy group, but is now embarking on litigation on behalf of pet breeders whose activities depend on the ability to maintain sound breeding programs and practices.

We are happy to let you know that we have surpassed our initial target of $10,000 to pay a retainer for filing the motion for injunction, and are continuing to build the war chest we will need to support further litigation after the motion has been heard. If you or your group have contributed - Thank You! If you have not donated yet, here is some information that may help in your decision. And please note that we refer just to "dogs" for brevity; our concerns include all pet species regulated by USDA.

• Filing for the injunction is the first step, not the whole process. An injunction is a court order that requires a party to do (or refrain from doing) specific acts. In this case we seek to block implementation of the rule on November 18. The basis for seeking an injunction is that USDA did not follow all the procedures and meet the standards for rulemaking, and the rule will adversely impact thousands of pet breeders who are doing nothing wrong in caring for and selling pets. The case will be heard by a judge, not a jury.

• An injunction may be granted if the plaintiffs can make a case that they will be irreparably harmed by implementation of the new regulation. Irreparable harm is generally that which cannot be remedied by money damages - you can surely think of many examples of irreparable harm from a regulation that prevents you from buying puppies you want and selling to others who want what you breed. The rule will restrict shipping, impact common breeding arrangements among fanciers, and require significant changes in caring for our dogs - IF we can provide the physical environment the regulations require. If not, our breeding programs will be profoundly altered by limitations needed to remain unlicensed.

• When the motion for a temporary injunction is filed, USDA would have the burden of proving that irreparable harm would not occur if the rule is implemented. Based on their responses to various questions in the conference calls and last week's webinar, it seems very unlikely they would be able to do that. In this stage of the litigation, our full case relating the flaws in USDA's adoption of the rule will be presented to the court. USDA would also have to convince the court that its procedures met all the requirements set forth by law, and we believe we can show that they did not. The litigation stage of the case will be lengthy and exacting, and will take resources that can't be estimated at this point - but we know it will be long and costly, and donations will be needed far beyond the "seed money" that lets us file for the injunction.

• Even if a temporary injunction is not granted, we can still proceed with the litigation to prove that USDA did not follow the process and meet the standards required to adopt this rule. If the court does not agree there would be irreparable harm with enforcement of the rule, it may agree that the procedure was flawed and the rule must be rescinded, and that is our ultimate goal. It is likely that USDA would begin again to adopt the same rule or a similar rule, but it would have to follow procedures and we would have more opportunity to educate the officials involved so they can develop a rule that does not affect thousands of hobby breeders.

As you can see, this will be an exacting process that requires extensive preparation. To be sure we are presenting a thorough and persuasive case to the court, we have decided to delay our filing for the injunction by several days, perhaps up to two weeks. This does not jeopardize our right to challenge the rule, and it allows us additional time to expand the list of plaintiff organizations. It's important to have a widespread and diverse group of plaintiffs to show the seriousness of the rule's impact.

That's the nutshell version of the legal process we are launching. Here are some facts responding to other questions we have been asked:

What's your track record with cases like this? ADCNYS has had successes fighting bad state and local legislation in New York. It has not pursued court actions like this one, because there has not been a case with these implications. There have been only a handful of lawsuits in the entire nation to block implementation of a bad law once the governing body has enacted it. It is far better to block it from implementation than to strike it from the books later. For many breeders, this rule would require changes that can never truly be undone.

What if we don't get the injunction? If the community of pet breeders is willing to have its full case made to the court, as shown by the groundswell of donations and plaintiff support, failing to get a temporary injunction is a setback but not the end of the case. If we file for the injunction, we have a chance of getting it. If we don't file, we have a 100% chance of letting USDA go forward with the rule. We would rather fight now while we have a chance to stop it, than do nothing before it goes into effect. There are still ways to challenge it later if the injunction isn't granted, but the longer APHIS has to implement it, the more damage will be done. Delaying a challenge will cost many breeders a great deal of money, and opportunities they can never recover in their breeding programs. 

Who are the plaintiffs and what do they do during this process? Clubs that have signed on as plaintiffs are simply saying, formally, that they believe this rule will cause serious and lasting harm to their members' ability to engage in lawful activities such as dog and cat breeding, and shows. Plaintiffs may provide examples of these effects for our litigation team to present, but it is highly unlikely that any plaintiff members would have to appear in court.

Why do we need a lot of plaintiffs? Having multiple plaintiffs across the country shows this rule affects many people who participate in activities involving purebred animals. It is not a small, elite group of breeders - it is, in fact, all BUT a relative handful of fanciers who breed dogs, cats, rabbits, hamsters, and other small pet species (except birds and reptiles). We post donors' locations (not names of individuals) for the same reason - implementation of this rule will be a nationwide calamity. If we aren't able to permanently block the rule in court, we will ask Congress to intervene through its oversight and funding functions, and we will be able to show we have serious supporters in every state.

Can plaintiffs be targeted for retaliation? Can they be sued for participating? USDA would have no reason to select members of a plaintiff club for scrutiny. Citizens have a right to challenge government actions, and as long as the challenge is in the form of filing a lawsuit, the government does not retaliate. 

ADCNYS and the plaintiff clubs are ready to go the distance to change this excessive and punitive regulation of pet breeders who are "doing it right." Every dollar you can help raise for the lawsuit is a step toward that goal. Donation details and plaintiff forms are on our web site. Regardless of what happens with the injunction itself, please consider further donations so that we may continue the suit.

Wanda Allen President, ADCNYS

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