Why I Sued the USDA

Delcianna J. Winders, Academic Fellow, Animal Law & Policy Program, Harvard Law School

This piece originally appeared in The Hill.

 

As a longtime animal law practitioner, I’ve represented various parties in lawsuits against the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS). But I’d never sued the agency—or anyone else—myself. Until this past Monday.

Like many, I was stunned when the USDA deleted thousands of Animal Welfare Act-related records from its website. The same day that the blackout occurred, law reviews opened up their submission season and I was gearing up to submit two pieces scrutinizing the USDA’s implementation of the Animal Welfare Act through close analysis of the now-deleted records. If the agency’s goal had been to stymie my work, it couldn’t have timed things better.

Of course, the records weren’t wiped from the website because of me. But why were they? According to the USDA, they were deleted “[b]ased on [its] commitment to being transparent, remaining responsive to our stakeholders’ informational needs, and maintaining the privacy rights of individuals.” The first two proffered bases are beyond Orwellian. The third is specious at best. Thousands of the records that the agency deleted have nothing to do with individuals with privacy rights but, corporations and universities that have no such rights. Moreover, the USDA already redacted information before posting records.

usda-acis

There has been much speculation about what might lie behind the agency’s decision to shield its practices from scrutiny. We won’t know the real impetus until the agency produces records about that decision. But the bottom line is that the blackout is unlawful regardless of the motivation. It violates the Freedom of Information Act’s (FOIA) mandate that agencies post records online, including frequently requested records. Before the USDA began posting Animal Welfare Act inspection reports online years ago, it acknowledged that they “were the most frequently requested APHIS records under FOIA.”

As the Supreme Court has recognized repeatedly, the core purpose of the Freedom of Information Act is “to open agency action to the light of public scrutiny” and to facilitate “the citizens’ right to be informed about what their government is up to.” Central to this purpose is ensuring that “information that sheds light on an agency’s performance of its statutory duties” is publicly available.

Public scrutiny of the USDA’s performance of its duties under the Animal Welfare Act is especially important given its utter failure to fulfill the purposes of the Act. As the USDA’s own Office of Inspector General has repeatedly and consistently found, the agency has implemented the law ineffectively, leaving countless animals to suffer. The most recent Inspector General audit found that the USDA “did not make the best use of its limited resources” in enforcing the Animal Welfare Act; failed to follow its own criteria in closing dozens of cases involving grave violations like animal deaths; grossly reduced penalties, rendering them a mere cost of doing business; and failed to adequately monitor animal experiments, reducing assurances that animals receive “basic humane care and treatment.” Time and time again the Office of the Inspector General has made similarly damning findings. Indeed, the most recent audit notes that three prior audits had found that “enforcement of AWA was ineffective” and that the miniscule penalties being assessed “did not deter violators.” My research confirm that these problems persist.

The USDA’s egregious and longstanding disregard of its statutory duties screams out for more—not less—oversight.

This is especially true given the deep public interest in animal welfare, made clear yet again by the overwhelming outcry in the days following the blackout. When the Animal Welfare Act was passed in the mid-1960s, Congress had received more mail about animal welfare than civil rights and the Vietnam War combined.  As the U.S. Court of Appeals for the District of Columbia has recognized, “Congress acted with the public’s interests in mind” in passing and amending the Animal Welfare Act. Animal welfare is also deeply bipartisan, as a letter to President Trump from nearly 100 hundred House members on both sides of the aisle demanding that the records be restored online makes clear.

When Sen. Robert Dole (R-Kan.) led the charge in passing important amendments to the Animal Welfare Act in 1985, he emphasized the “need to ensure the public that adequate safeguards are in place to prevent unnecessary abuses to animals, and that everything possible is being done to decrease the pain of animals during experimentation and testing.” The new administration should be working hard to fulfill this still unmet need—not to aggravate the situation. That’s why I’ve sued the USDA.

Will Ringling’s closure clear the way for federal circus legislation?

Delcianna J. Winders, Academic Fellow, Animal Law & Policy Program, Harvard Law School

The piece originally appeared in The Hill

With Ringling Bros.—the most active and spendthrift opponent of legislation to protect circus animals—shuttering, it may finally be possible for bipartisan public safety and animal welfare efforts to succeed.

Introduced by Reps. Raul Grijalva (D-Ariz.) and Ryan Costello (R-Pa.),  the Traveling Exotic Animal & Public Safety Protection Act, H.R. 6342, would ban traveling wild animal acts given their risks to humans and animals alike. While political debates rage, this simple, important measure—one that countries across the world have already taken—should be a no-brainer.

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The recent incident in which long-time Ringling Bros. exhibitor Vicenta Pages was attacked by a tiger in front of dozens of children is just the most recent reminder of the dangers inherent in these acts. Captive big cats kill about one person every year in America, and injure many more. While Ringling—whose tigers have been involved in numerous maulings—is closing down, other circuses will continue to endanger the public as long as they’re allowed to. Tigers have repeatedly escaped from UniverSoul Circus and at least two people have lost parts of their fingers to big cats with this circus. A Shrine circus attendee came face to face with a tiger in the restroom. At another Shrine circus, a tiger killed a circus handler in front of 200 children. Numerous folks have been rushed to the hospital after encounters with tigers at Shrine circus shows. Yet government records show that exhibitors with UniverSoul, Shrine, and other circuses still fail to adequately contain dangerous animals.

It’s time we acknowledge that carting apex predators around the country in flimsy cages and putting them into direct contact with humans is a bad idea.

But it’s not just the carnivores who endanger us. Elephants can easily snuff out a human life with a single trunk swipe or foot stomp and kill about as many Americans as big cats do. An elephant at a Shrine circus elephant kicked a handler, throwing him about 20 feet and killing him. At least 15 children and one adult were injured when an elephant giving rides at a Shrine circus became startled. One circus exhibitor recently paid a paltry penalty after allowing elephants to repeatedly endanger the public, including an incident in which the elephants escaped from a Shrine circus and ran amok for nearly an hour.

Elephants can also carry tuberculosis, which highly transmissible to humans—even without direct contact, since it’s airborne. Seven people were recently diagnosed with the disease after being around infected elephants at a zoo, and eight individuals contracted TB from a former circus elephant. Yet elephants with the disease are still routinely exposed to the public. Indeed, virtually every American circus with elephants has a history of tuberculosis. UniverSoul is currently touring with tuberculosis-exposed elephants. In 2014, New York City officials required UniverSoul to keep elephants out of its acts after the circus failed to provide current TB tests. Dallas officials recently prohibited elephants with UniverSoul from performing because they had “tested reactive for tuberculosis,” and Michigan’s assistant state veterinarian cautioned that these elephants should not be on the road because of their TB status. Yet UniverSoul continues to bring these same animals to other states with laxer laws. Shrine and other circuses also routinely feature elephants who carry tuberculosis.

The risks posed by these inherently dangerous animals are only heightened by the abuse and deprivation they endure. Elephants in the wild roam up to 30 miles a day; in circuses, they spend many consecutive hours and even days tightly chained, slowly going out of their minds. Big cats who have home ranges of up to 400 miles are routinely caged in tiny transport containers 24 hours a day.

Deprived of everything that is natural and important to them, these animals only perform tricks because they’re terrified not to. Numerous undercover investigations and eyewitness reports confirm that circus animals are trained through severe beatings—often while they’re caged or chained. Such abuse can provoke aggression, feeding an endless cycle.

While countries around the world have banned these cruel and dangerous acts, America lags woefully behind. In a time of immense divisiveness, surely we can at least agree that no animal deserves to suffer endless abuse and confinement—and that it’s foolhardy to continue to endanger human health and safety for a few fleeting moments of outmoded entertainment.

Animal Advocacy Job!

David Cassuto

From the email:

 My name is Kate and I am the editorial operations and outreach coordinator for One Green Planet (onegreenplanet.org). We are the fastest growing (and largest!) independent publishing platform focused on sustainable food, animal welfare issues, environmental protection, and cruelty-free/green living. 

We are currently hiring for a number of positions in our Animal Monster channel, which covers a variety of animal rights and welfare topics. Given your involvement in animal rights, I wanted to send the link to our current openings for you to pass along to any students/alums that might be interested:  Continue reading

Animal Law Job!

David Cassuto

From the email:

The Department of Environmental Studies invites applications for the position of Clinical Assistant Professor. The appointment will begin September 1, 2017, pending administrative and budgetary approval. The successful applicant will help to administer a new M.A. in Animal Studies that will launch in the fall of 2018, teach graduate and undergraduate courses, advise students, conduct research, fully participate in and contribute to the development of the Department of Environmental Studies, and provide other service to the University. The Department of Environmental Studies currently offers a major and minor in Environmental Studies and an undergraduate minor in Animal Studies (one of the first in the country). It is in the process of developing other graduate programs. Continue reading

Animal Advocacy — Live from Hawaii

David Cassuto

I’ve spent the last 5 days in Hawaii at the IUCN World Conservation Congress, the quadrennial gathering of environmental leaders from all over the world. The Animal Legal Defense Fund (ALDF) recently applied for membership in IUCN and was denied.  I have been lobbying for support for ALDF’s appeal from that denial.  It’s a bizarre world where organizations like Safari Club International — which advocates trophy hunting as a form of conservation — is granted membership where ALDF, an organization that actively works to protect animals both in and out of the wild, is denied.

So far the support has been very gratifying; many IUCN member organizations have stepped forward to support the appeal.  However, we remain a few signatures short of Continue reading

Registration Now Open for Animal Welfare Act at 50 Conference at Harvard Law School

The Animal Law & Policy Program (ALPP) at Harvard Law School is pleased to announce that registration is now open for The Animal Welfare Act at Fifty.  The AWA was signed into law by President Lyndon Johnson in 1966. The most comprehensive federal animal protection law, the AWA regulates more than one million animals at more than 15,000 locations across the United States. To mark the fiftieth anniversary of the Act, this conference, to be held December 2-3, will convene scholars, government officials, representatives from non-governmental organizations, and others to assess the first fifty years of the AWA and consider recommendations for the future.

Space is limited, so please make sure to register early to ensure your spot. Registration includes plant-based meals.

REGISTER

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For a list of presenters and co-sponsors, please see the ALPP website conference page.

USDA facilitates animal suffering at Cricket Hollow Zoo

Delcianna J. Winders, Academic Fellow, Animal Law & Policy Program, Harvard Law School

This piece originally appeared in the Des Moines Register

The U.S. Department of Agriculture has again renewed the license that chronic animal welfare violator Cricket Hollow Zoo, in Manchester, needs to operate. The agency renewed this license despite recently documenting numerous violations and, indeed, documenting nearly 100 violations over the past three years. The agency renewed this license just months after a judge held that Cricket Hollow was likely to cause serious death or injury to animals. The agency renewed this license despite a pending enforcement action. The agency is complicit in Cricket Hollow’s abuse and neglect of dozens of animals.

CHZ primate
©Tracey Kuehl

To understand the conditions at Cricket Hollow that the Department of Agriculture allows to continue by its re-licensing, consider the following violations, documented by the agency on one day:

  • Various species were held with no ventilation and “a strong, foul odor of fecal waste and ammonia”;
  • No plan existed to address the distress of a baboon who paced incessantly and “repeatedly tossed his head back,” both “abnormal behaviors” indicative of distress;
  • Multiple animal enclosures “were severely muddy with large areas of standing water,” forcing numerous to stand in water and/or thick mud, some of whom had “mud/wet fur extending up the entire length of their legs”;
  • Numerous animals were confined with excessive flies and built-up waste.

Automatic license renewals also endanger humans. Without licenses, facilities couldn’t exhibit animals, and many of the violations put the public at risk. Cricket Hollow has repeatedly been cited for violations related to public endangerment, including holding dangerous animals like lions, bears and baboons in structurally unsound cages that could allow escape. One of Cricket Hollow’s owners was flown to a hospital after being attacked by a tiger and suffering lacerations to his head and torso.

Years ago, the Department of Agriculture’s Office of Inspector General flagged automatic license renewal as a serious problem causing increased animal suffering and undermining the Animal Welfare Act’s purposes. In response to the Inspector General’s plea that it reform its licensing practices, the agency claimed that it was legally required to automatically renew licenses.

Developments in the law leave no question that the Department of Agriculture is not required to automatically renew licenses, and that it can condition renewal on compliance. Numerous federal courts have held that the Animal Welfare Act can be read to require compliance with the law before renewal.

Still, the agency clings to an outmoded model of licensing. While many agencies have adopted efficient, informal procedures for licensing, the Department of Agriculture continues to give full, trial-type hearings for every licensing and other Animal Welfare Act decision. This slow, antiquated approach wastes resources and results in serious delays that prolong animal suffering.

In August the Animal Welfare Act will turn 50, and it’s past time for the agency to heed calls to stop facilitating violations of the law and animal suffering through automatic license renewal.