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

Thursday, November 7, 2013

Farm Bill Fight Keys on Protecting Interstate Commerce

National Hog Farmer, Nov. 6, 2013. In its latest attempt to coerce Congress, the lobbying arm of The Humane Society has taken out $100,000 in online ads to force the removal of a key animal rights amendment from the 2013 farm bill, according to The Hill (

The ads, which began running Friday, target members of the newly formed House-Senate farm bill conference committee, which began work last Wednesday. At issue is an amendment sponsored by Rep. Steve King (R-IA) that attempts to stop states such as California from banning goods made in other states based on the means of production.

The California law is aimed at eggs laid by hens kept in battery cages, and helped spur an agreement between the Humane Society and the United Egg Producers to phase out battery cages. A smaller group of egg producers and lobbyists for other growers, including pig farmers, are behind the King amendment.

The Humane Society Legislative Fund is targeting Sens. Max Baucus (D-MT), Tom Harkin (D-IA, and Amy Klobuchar (D-MN.) and Reps. Collin Peterson (D-MN), Tim Walz (D-MN), Mike McIntyre (D-NC), Steve Southerland (R-FL), Martha Roby (R-AL), Rodney Davis (R-IL), Austin Scott (R-GA), and Glenn Thompson (R-PA).

In 2012, the Humane Society Legislative Fund spent heavily in a failed effort to defeat King, whom the group views as its chief foe in Congress.

Sunday, November 3, 2013

Legislation Briefs November 3, 2013

SAOVA Friends,

The final pet seller rule goes into effect on November 18, 2013. This rule would extend APHIS authority to include large segments of the retail pet trade as regulated under the Animal Welfare Act (AWA), including pet species as dogs, cats, guinea pigs, rabbits, and hamsters, among others. The overarching intent of the revision is to regulate sight unseen retail pet sales, which, without proof, APHIS claims have dramatically increased as a result of growing Internet usage.   APHIS also claims the rule closes a so-called “Internet loophole” and restores the original intent of Congress for administration of the AWA.

We have always believed the issue of how Congress intended the AWA to be enforced was decided by the Circuit Court in Doris Day Animal League (DDAL) v. Ann M. Veneman (Secretary, USDA). We agree with the Court’s decision and do not think that several decades ago, Congress ever meant USDA to enforce the AWA inside people’s homes.  However, now that the current APHIS administration has elected to make a determination granting themselves additional authority of such magnitude, we believe Congress is obligated to review this issue, and should do so as quickly as possible.  

Download full article at

Thanks for reading.  Cross posting is encouraged.

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

USDA Animal Care will host a series of Retail Pet Store Rule webinars in November and December. Webinars will be held Thursdays from 2 p.m. to 3 p.m. EST for a four-week period.  The schedule of topics for the webinars is as follows:
November 7 – Am I regulated under USDA’s Retail Pet Store Rule
November 14 – How will USDA implement the Retail Pet Store Rule  
November 21 – What is USDA’s inspection process in a home
December 5 – How will USDA enforce the Retail Pet Store Rule

Docket ID: FDA-2006-P-0338. September 22, 2013 FDA posted Denial of petition to revise requirements
Compassion Over Killing and Animal Legal Defense Fund and Penn Law Animal Law Project Petition, University of PA Law School, filed a citizens petition September 21, 2010 requesting new labeling of shell eggs sold in the U.S.  Petitioners claim that current labeling fails to reveal to consumers certain material facts that substantially influence their purchasing decisions.  Petitioners further requested that FDA require shell eggs to bear one of three labels: Free Range Eggs, Cage Free Eggs, Eggs From Caged Hens and provided descriptions of production conditions that would be associated with each term.

The agency states in its decision summary, “After careful review of your citizen petition and for the reasons described below, FDA is denying your citizen petition in accordance with 21 Code of Federal Regulations (CFR) 10.30(e)(3) because you do not provide a sufficient basis for the agency to revise the current labeling requirements for shell eggs. Specifically, you have not provided evidence sufficient to show that eggs from caged hens are “nutritionally inferior” to eggs from free-range and cage-free hens. Therefore, nutritional properties cannot provide a basis to consider the method of production for eggs to be a material fact.  Moreover, nutritional information regarding particular eggs is conveyed to consumers directly by placing the particular nutrient information on the label, not by identifying the method of production, which does not provide consumers with information as to nutritive content. Second, you have not provided sufficient evidence to show that eggs from caged hens have a greater risk of Salmonella contamination than eggs from the other two production methods you define; consequently, the risk of Salmonella cannot provide a basis to consider the method of production for eggs to be a material fact.  Finally, even assuming the method of egg production may be of interest to some consumers, consumer interest alone is not a material fact. Therefore, FDA is not compelled under the Federal Food, Drug, and Cosmetic Act (“the Act”) or it’s implementing regulations to require such labeling under the law. Finally, even if the agency could require such labeling, it would choose to use its limited resources on rulemakings of higher priority, such as those that are of greatest public health significance or are statutorily-mandated.

Docket No. APHIS-2012-0107. In August 2013, HSUS, World Wildlife Fund, Animal Legal Defense Fund (ALDF), Big Cat Rescue, and others petitioned APHIS to amend sections of the AWA. Petitioners requested regulation changes in part 2.131 to explicitly prohibit licensed exhibitors from allowing persons, with some exceptions, from coming into direct physical contact with any big cats, bears, and nonhuman primates of any age. The petition states that the current handling regulations in 9 CFR part 2 allow licensees the opportunity to engage in animal exhibition practices via interactive public contact sessions and photographic opportunities, and that these activities not only place these animals at risk of harm but threaten public safety.  Petitioners also suggested revisions to 9 CFR part 3 to ensure that the sections containing specific standards for the handling of nonhuman primates are consistent with the regulatory changes they propose in § 2.131.  Nonhuman primates include lemurs which are a popular exhibit at many petting zoos.

APHIS issued an Advance Notice of Proposed Rulemaking (ANPRM) requesting comments on conditions where public contact could be allowed; whether exhibitors and dealers should be required to keep additional records and identify their animals with microchips or retinal scans, etc.  The comment period has been extended to November 18, 2013.  Comment at Federal Register:
The majority of comments at this time are form letters from the HSUS website supporting a rule.

Judge’s Ruling Favors USDA Providing Horse Slaughter Inspections by Dan Flynn, November 1, 2013
USDA is not required to conduct an Environmental impact Statement or Environmental Assessment in order to grant equine inspection services to businesses planning to pack horsemeat for export, U.S. District Court Judge Christina Armijo ruled Friday. The judge denied the request by animal groups for a permanent injunction and dismissed the case challenging USDA’s authority.  The decision is a massive loss for the Humane Society of the U.S., which largely funded the lawsuit and enlisted 15 other groups and individuals to join it as plaintiffs.

And it was a defining victory for the Department of Justice attorneys who re-affirmed USDA powers contained in the Federal Meat Inspection Act that go back more than 100 years.   It means horse slaughter for human consumption could resume shortly under USDA inspection for the first time since 2006. “Valley Meat Company, LLC and Rains Natural Meats are both very pleased with the decision of Judge Armijo, said Albuquerque  attorney A. Blair Dunn.  “This is a very well-reasoned and thorough opinion.  Valley and Rains are very grateful for the hard work and thought that Judge Armijo put into this decision.  Both companies will now focus on final preparations to open and begin work.”  Full story at link:

For Immediate Release. November 1, 2013 (Washington, DC). In an effort to exempt vital sportsmen trust funds from budget sequestration, the bipartisan Senate leadership of the Congressional Sportsmen's Caucus (CSC) sent a letter to Sylvia Burwell, Director of the Office of Management and Budget (OMB), requesting that the $50 million sequestered from the Wildlife Restoration, Sport Fish Restoration and Boating Safety Trust Funds in 2013 be returned to the states.

In bipartisan fashion, CSC Senate Co-Chairs, Kay Hagan and John Thune, and Senate Vice-Chairs, Mark Pryor and James Risch, signed on to the letter, requesting the OMB release the sequestered sportsmen trust funds that are derived from excise taxes levied on guns and ammunition; fishing tackle and equipment; motorboat fuel; and bows and arrows. The trust funds are the foundation of the unique American System of Conservation Funding, a "user pays-public benefits" program. This user-pays funding strategy has produced numerous public benefits including: abundant fish and wildlife populations, access to public lands and clean waters, improved fish and wildlife habitat, improved soil and water conservation, shooting ranges, and boating access facilities.

Jeff Crane, President of the Congressional Sportsmen's Foundation (CSF) praised the Senate CSC leadership for their continued bipartisan support. "We salute the bipartisan leadership of the Congressional Sportsmen's Caucus for once again standing up in support of hunters and anglers. These dedicated trust funds form the financial backbone of the most successful conservation story in history, and to release them back to the state wildlife agencies where they belong is simply the right thing to do."

"North Carolina and states across the country depend on this funding to restore and manage fisheries and wildlife habitats, open and maintain recreational access, and provide hunting and boating safety education. Moreover, applying sequestration to the trust funds represents a breach in trust between sportsmen and women and industries that pay an excise tax to specifically fund projects that enhance outdoor recreation activities and opportunities," Senator Hagan stated.

By withholding $50 million from Wildlife Restoration, Sport Fish Restoration, and Boating Safety programs, the Budget Control Act of 2011 will adversely affect states' ability to manage their fish and wildlife resources; open and maintain recreational access; and deliver hunter and boating safety education.

In the letter, CSC leadership noted that in implementing sequestration, OMB is required to follow rules outlined in the Balanced Budget and Emergency Deficit Control Act of 1985. The act provides that budgetary resources sequestered in trust fund accounts in a fiscal year "shall be available in subsequent years to the extent otherwise provided in law."

In March, CSF, along with 44 organizations representing millions of hunters, anglers and other conservationists, sent a letter to House and Senate leadership requesting assistance in exempting the Wildlife and Sport Fish Restoration and Boating Safety Trust Funds from the Budget Sequestration Act of 2011.
CONTACT: Cole Henry

Letter From The Editor: A Trial Court Surprise

Friday’s ruling by U.S. District Court Judge Christina Armijo surprised me.

I was expecting New Mexico’s top federal judge to issue a permanent injunction against USDA from providing equine inspection services. Then I thought Department of Justice attorneys assigned to represent USDA would appeal to the 10th Circuit Court of Appeals where Armijo’s ruling would be reversed.

My thinking was that New Mexico’s political  leadership, from both parties, are enough anti- horse slaughter that the body politic  would influence Armijo. It was part of a stereotype I’ve created in my own mind about New Mexican political groupthink.

But surprise me she did, especially by nailing the legal reasoning I thought we would see from a 10th Circuit panel of judges. After reading Armijo’s 33-page decision, I was struck by how clear everything looks now. With some tweaking along the way, Congress has for more than a century tasked USDA with inspecting meat and meat products, be it from beef, lamb, pork, horse or whatever else has hooves.

The legal challenge was based on apparently misguided readings of the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA). Both are about government decision-making where discretion exists, not where government action is mandated.

USDA has a job to do, albeit one that some find unpopular. More at Food Safety News