|||U.S. Court of Appeals, District of Columbia Circuit
|||No. 97-5009 Consolidated with Nos. 97-5031, 97-5074
|||332 U.S.App.D.C. 104, 154 F.3d 426, 1998.CDC.30015 <http://www.versuslaw.com>
|||September 01, 1998
|||ANIMAL LEGAL DEFENSE FUND, INC., ET AL., APPELLEES
DANIEL R. GLICKMAN, SECRETARY OF AGRICULTURE, ET AL., AND NATIONAL ASSOCIATION FOR BIOMEDICAL RESEARCH, APPELLANTS
|||Appeals from the United States District Court for the District of Columbia
|||Stephen W. Preston, Deputy Assistant Attorney General, United States Department
of Justice, argued the cause for appellants Daniel R. Glickman, et al.,
with whom Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, United
States Attorney, Eric H. Holder, Jr., United States Attorney at the time
the briefs were filed, Michael Jay Singer and John S. Koppel, Attorneys,
were on the briefs. Harris Weinstein argued the cause for appellant National
Association for Biomedical Research, with whom Michael G. Michaelson and
Gail H. Javitt were on the briefs. Katherine A. Meyer argued the cause for
appellees, with whom Valerie J. Stanley was on the briefs. Andrew L. Frey
was on the briefs for amicus curiae Pharmaceutical Research and Manufacturers
of America. Leslie G. Landau, Susan Hoffman and Tiffany R. Hedgpeth were
on the briefs for amicus curiae The Jane Goodall Institute for Wildlife
Research, Education and Conservation.
|||Before: Edwards, Chief Judge, Wald, Silberman, Williams, Ginsburg, Sentelle,
Henderson, Randolph, Rogers, Tatel and Garland, Circuit Judges.
|||The opinion of the court was delivered by: Circuit Judge Wald.
|||Argued in banc May 13, 1998
|||Dissenting Opinion filed by Circuit Judge Sentelle, with whom Silberman,
Ginsburg and Henderson, Circuit Judges, join.
|||Wald, Circuit Judge: The 1985 amendments to the Animal Welfare Act ("AWA")
direct the Secretary of Agriculture to "promulgate standards to govern
the humane handling, care, treatment, and transportation of animals by dealers,
research facilities, and exhibitors." Pub. L. No. 99-198, § 1752, 99
Stat. 1354, 1645 (1985) (codified at 7 U.S.C. § 2143(a) (1994)). They further
provide that such standards "shall include minimum requirements"
for, inter alia, "a physical environment adequate to promote the psychological
well-being of primates." Id. Pursuant to this authority, the United
States Department of Agriculture ("USDA") issued regulations for
primate dealers, exhibitors, and research facilities that included a small
number of mandatory requirements and also required the regulated parties
to "develop, document, and follow an appropriate plan for environment
enhancement adequate to promote the psychological well-being of nonhuman
primates. The plan must be in accordance with the 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 (1997).
Although these plans must be made available to the USDA, the regulated parties
are not obligated to make them available to members of the public. See id.
|||The individual plaintiffs, Roseann Circelli, Mary Eagan, and Marc Jurnove,*fn1
challenge these regulations on the ground that they violate the USDA's statutory
mandate under the AWA and permit dealers, exhibitors, and research facilities
to keep primates under inhumane conditions. The individual plaintiffs allege
that they suffered aesthetic injury during their regular visits to animal
exhibitions when they observed primates living under such conditions.*fn2
A divided panel of this court held that all of the plaintiffs lacked constitutional
standing to pursue their claims. See Animal Legal Defense Fund, Inc. v.
Glickman, 130 F.3d 464, 466 (D.C. Cir. 1997).
|||This court subsequently vacated that judgment and granted rehearing in
|||We hold that Mr. Jurnove, one of the individual plaintiffs, has standing
to sue. Accordingly, we need not pass on the standing of the other individual
plaintiffs. See Mountain States Legal Found. v. Glickman, 92 F.3d 1228,
1232 (D.C. Cir. 1996) ("For each claim, if constitutional and prudential
standing can be shown for at least one plaintiff, we need not consider the
standing of the other plaintiffs to raise that claim."). We leave consideration
of the merits of the individual plaintiffs' case to a future panel of this
court to be selected by the usual means.
|||A. Marc Jurnove's Affidavit
|||Mr. Jurnove's affidavit is an uncontested statement of the injuries that
he has suffered to his aesthetic interest in observing animals living under
humane conditions. See Animal Legal Defense Fund, Inc. v. Glickman, 943
F. Supp. 44, 49 (D.D.C. 1996) (granting summary judgment to plaintiffs on
all legal claims except one that plaintiffs have not appealed; defendants
did not allege any genuine disputes of material fact, but instead moved
only to dismiss for lack of standing).
|||For his entire adult life, Mr. Jurnove has "been employed and/or
worked as a volunteer for various human and animal relief and rescue organizations."
Jurnove Affidavit ¶ 3. "By virtue of [his] training in wildlife rehabilitation
and [his] experience in investigating complaints about the treatment of
wildlife, [he is] very familiar with the needs of and proper treatment of
wildlife." Id. ¶ 6. "Because of [his] familiarity with and love
of exotic animals, as well as for recreational and educational purposes
and because [he] appreciate[s] these animals' beauty, [he] enjoy[s] seeing
them in various zoos and other parks near [his] home." Id. ¶ 7.
|||Between May 1995 and June 1996, when he filed his affidavit, Mr. Jurnove
visited the Long Island Game Farm Park and Zoo ("Game Farm") at
least nine times. Throughout this period, and since as far back as 1992,
the USDA has not questioned the adequacy of this facility's plan for the
psychological well-being of primates.
|||Mr. Jurnove's first visit to the Game Farm, in May 1995, lasted approximately
six hours. See id. While there, Mr. Jurnove saw many animals living under
inhumane conditions. For instance, the Game Farm housed one primate, a Japanese
Snow Macaque, in a cage "that was a distance from and not in view of
the other primate cages." Id. ¶ 14. "The only cage enrichment
device this animal had was an unused swing." Id. Similarly, Mr. Jurnove
"saw a large male chimpanzee named Barney in a holding area by himself.
He could not see or hear any other primate." Id. ¶ 8. Mr. Jurnove "kn[e]w
that chimpanzees are very social animals and it upset [him] very much to
see [Barney] in isolation from other primates." Id. The Game Farm also
placed adult bears next to squirrel monkeys, although Jurnove saw evidence
that the arrangement made the monkeys frightened and extremely agitated.
See id. ¶ 11.
|||The day after this visit, Mr. Jurnove began to contact government agencies,
including the USDA, in order to secure help for these animals. Based on
Mr. Jurnove's complaint, the USDA inspected the Game Farm on May 3, 1995.
According to Mr. Jurnove's uncontested affidavit, however, the agency's
resulting inspection report "states that [the USDA inspectors] found
the facility in compliance with all the standards." Id. ¶ 18. Mr. Jurnove
returned to the Game Farm on eight more occasions to observe these officially
|||On July 17, 18, and 19, 1995, he found "virtually the same conditions"
that allegedly caused him aesthetic injury during his first visit to the
Game Farm in May. Id. ¶ 20. For instance, Barney, the chimpanzee, and Samantha,
the Japanese Snow Macaque, were still alone in their cages. See id. This
time, Mr. Jurnove documented these conditions with photographs and sent
them to the USDA. See id. WW 19-20. Nevertheless, the responding USDA inspectors
found only a few violations at the Game Farm; they reported "nothing"
about many of the conditions that concerned Mr. Jurnove and that he had
told the agency about, such as "the fact that numerous primates were
being housed alone" and the lack of adequate stimulation in their cages.
Id. ¶ 21.
|||Mr. Jurnove devoted two trips in August and one in September to "videotaping
the conditions that the inspection missed," and on each trip he found
that the inhumane conditions persisted. Id. WW 22-28. At the end of September,
the USDA sent three inspectors to the Game Farm in response to Mr. Jurnove's
continued complaints and reportage; they found violations, however, only
with regard to the facility's fencing. See id. ¶ 29.
|||Mr. Jurnove returned to the Game Farm once more on October 1, 1995. Indeed,
he only stopped his frequent visits when he became ill and required major
surgery. See id. ¶ 30. After his health returned, Mr. Jurnove visited the
Game Farm in April 1996, hoping to see improvements in the conditions that
he had repeatedly brought to the USDA's attention. He was disappointed again;
"the animals [were] in literally the same conditions as [he] had seen
them over the summer of 1995." Id. ¶ 33. Mr. Jurnove's resulting complaints
prompted the USDA to inspect the Game Farm in late May 1996. For the fourth
time, the agency found the facility largely in compliance, with a few exceptions
not relevant to the plaintiffs' main challenge in this case. See id. ¶ 42.
In June 1996, Mr. Jurnove filed the affidavit that is the basis of his claim
here. He concluded this affidavit by stating his intent to "return
to the Farm in the next several weeks" and to "continue visiting
the Farm to see the animals there." Id. ¶ 43.
|||B. The Plaintiffs' Complaint
|||The plaintiffs' complaint elaborates a two-part legal theory based on
the factual allegations in the individual plaintiffs' affidavits. First,
the plaintiffs allege that the AWA requires the USDA to adopt specific,
minimum standards to protect primates' psychological well-being, and the
agency has failed to do so. See, e.g., First Amended Complaint ¶ 97 ("In
issuing final Part 3 regulations, USDA violated its statutory obligation
[under 7 U.S.C. § 2143(a)(2)(B)] to set standards 'for a physical environment
adequate to promote the psychological well-being of primates,' and instead
delegated this responsibility to regulated entities by requiring that regulated
entities devise 'plans' for this purpose."); id. ¶ 106 ("Instead
of issuing the standards on this topic, USDA's regulation [at 9 C.F.R. §
3.81] simply states that the 'plans' must be in accordance with currently
accepted professional standards."); id. ¶ 107 ("By providing that
animal exhibitors and other regulated entities shall develop their own 'plans'
for a physical environment adequate to promote the psychological well-being
of non-human primates, USDA has failed to satisfy the statutory requirement
that it set the 'minimum' standards.").
|||Second, the plaintiffs contend that the conditions that caused Mr. Jurnove
aesthetic injury complied with current USDA regulations, but that lawful
regulations would have prohibited those conditions and protected Mr. Jurnove
from the injuries that he describes in his affidavit. See id. ¶ 53 ("Marc
Jurnove has been and continues to be injured by USDA's failure to issue
and implement standards for a physical environment adequate to promote the
psychological wellbeing of primates because this harms the nonhuman primates
he sees at the Long Island Game Farm and Zoo which in turn caused and causes
him extreme aesthetic harm and emotional and physical distress.");
id. ("[B]ecause USDA regulations permit the nonhuman primates in zoos,
such as the Long Island Game Farm and Zoological Park to be housed in isolation,
Marc Jurnove was exposed to and will be exposed in the future to behaviors
exhibited by these animals which indicate the psychological debilitation
caused by social deprivation. Observing these behaviors caused and will
cause Marc Jurnove personal distress and aesthetic and emotional injury.");
id. ¶ 58 ("Marc Jurnove experienced and continues to experience physical
and mental distress when he realizes that he, by himself, is powerless to
help the animals he witnesses suffering when such suffering derives from
or is traceable to the improper implementation and enforcement of the Animal
Welfare Act by USDA.").*fn3
|||C. Procedural History
|||The United States District Court, Judge Charles R. Richey, held that the
individual plaintiffs had standing to sue, finding in their favor on a motion
for summary judgment. See 943 F. Supp. at 54-57.*fn4
On the merits, the district court held that 9 C.F.R. § 3.81 violates the
Administrative Procedure Act ("APA") because it fails to set standards,
including minimum requirements, as mandated by the AWA; that the USDA's
failure to promulgate standards for a physical environment adequate to promote
the psychological well-being of primates constitutes agency action unlawfully
withheld and unreasonably delayed in violation of the APA; and that the
USDA's failure to issue a regulation promoting the social grouping of nonhuman
primates is arbitrary, capricious, and an abuse of discretion in violation
of the APA. See id. at 59-61.
|||A split panel of this court held that none of the plaintiffs had standing
to sue and accordingly did not reach the merits of their complaint. See
130 F.3d at 466. This court granted rehearing in banc, limited to the question
of Marc Jurnove's standing.
|||"The question of standing involves both constitutional limitations
on federal-court jurisdiction and prudential limitations on its exercise."
Bennett v. Spear, 117 S. Ct. 1154, 1161 (1997) (citation and quotation marks
omitted). To meet the "case or controversy" requirement of Article
III, a plaintiff must demonstrate: (1) that she has suffered "injury
in fact;" (2) that the injury is "fairly traceable" to the
defendant's actions; and (3) that a favorable judicial ruling will "likely"
redress the plaintiff's injury. Id.; see also Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). In addition, the Supreme Court has recognized
prudential requirements for standing, including "that a plaintiff's
grievance must arguably fall within the zone of interests protected or regulated
by the statutory provision or constitutional guarantee invoked in the suit."
Bennett, 117 S. Ct. at 1161.
|||We find that Mr. Jurnove's allegations fall well within these requirements.
|||A. Injury in Fact
|||Mr. Jurnove's allegations solidly establish injury in fact. As his affidavit
indicates, Mr. Jurnove "enjoy[s] seeing [animals] in various zoos and
other parks near [his] home" "[b]ecause of [his] familiarity with
and love of exotic animals, as well as for recreational and educational
purposes and because [he] appreciate[s] these animals' beauty." Jurnove
Affidavit ¶ 7. He decided to tour the primate cages at the Game Farm "in
furtherance of [his] appreciation for exotic animals and [his] desire to
observe and enjoy them." Id. During this tour and the ones that followed,
Mr. Jurnove suffered direct, concrete, and particularized injury to this
aesthetic interest in observing animals living under humane conditions.
At this particular zoo, which he has regularly visited and plans to keep
visiting, he saw particular animals enduring inhumane treatment. He developed
an interest, moreover, in seeing these particular animals living under humane
treatment. As he explained, "[w]hat I observed [at the Game Farm] was
an assault on my senses and greatly impaired my ability to observe and enjoy
these captive animals." Id. ¶ 17 (emphasis added). "I want to
observe, study, and enjoy these animals in humane conditions." Id.
|||Simply put, Mr. Jurnove has alleged far more than an abstract, and uncognizable,
interest in seeing the law enforced. See Allen v. Wright, 468 U.S. 737,
754 (1984) ("This Court has repeatedly held that an asserted right
to have the Government act in accordance with law is not sufficient, standing
alone, to confer jurisdiction on a federal court."); Schlesinger v.
Reservists Committee to Stop the War, 418 U.S. 208, 223 n.13 (1974) (rejecting
standing of plaintiffs who alleged nothing but "the abstract injury
in nonobservance of the Constitution"); Humane Society v. Hodel, 840
F.2d 45, 51-52 (D.C. Cir. 1988). To the contrary, Mr. Jurnove has made clear
that he has an aesthetic interest in seeing exotic animals living in a nurturing
habitat, and that he has attempted to exercise this interest by repeatedly
visiting a particular animal exhibition to observe particular animals there.
This interest was allegedly injured, however, when Mr. Jurnove witnessed
the actual living conditions of the primates described and named in his
affidavit. It is, of course, quite possible that many other people might
visit the same zoo, observe the same animals there, and suffer similar injuries
upon seeing these animals living under inhumane conditions. But the fact
that many may share an aesthetic interest does not make it less cognizable,
less "distinct and palpable." Allen, 468 U.S. at 751 (citation
and quotation marks omitted); Clinton v. City of New York, 118 S. Ct. 2091,
2101-02 (1998) ("[It is a] self-evident proposition that more than
one party may have standing to challenge a particular action or inaction.
Once it is determined that a particular plaintiff is harmed by the defendant,
and that the harm will likely be redressed by a favorable decision, that
plaintiff has standing-regardless of whether there are others who would
also have standing to sue."); FEC v. Akins, 118 S. Ct. 1777, 1786 (1998)
("Often the fact that an interest is abstract and the fact that it
is widely shared go hand in hand. But their association is not invariable,
and where a harm is concrete, though widely shared, the Court has found
'injury in fact.' "); United States v. SCRAP, 412 U.S. 669, 688 (1973)
("To deny standing to persons who are in fact injured simply because
many others are also injured, would mean that the most injurious and widespread
Government actions could be questioned by nobody."); Sierra Club v.
Morton, 405 U.S. 727, 734 (1972) ("Aesthetic and environmental well-being,
like economic well-being, are important ingredients of the quality of life
in our society, and the fact that particular environmental interests are
shared by the many rather than the few does not make them less deserving
of legal protection through the judicial process.").
|||The Supreme Court has repeatedly made clear that injury to an aesthetic
interest in the observation of animals is sufficient to satisfy the demands
of Article III standing. Defenders of Wildlife states explicitly that "the
desire to use or observe an animal species, even for purely esthetic purposes,
is undeniably a cognizable interest for purpose of standing." 504 U.S.
at 562-63 (emphasis added). Similarly, in Japan Whaling Association v. American
Cetacean Society, 478 U.S. 221 (1986), the Court found that the plaintiffs
had "undoubtedly ... alleged a sufficient 'injury in fact' in that
the whale watching and studying of their members will be adversely affected
by continued whale harvesting," id. at 231 n.4 (citing Sierra Club
v. Morton, 405 U.S. 727 (1972); United States v. SCRAP, 412 U.S. 669 (1973));
see also Animal Legal Defense Fund, Inc. v. Espy ("ALDF I"), 23
F.3d 496, 505 (D.C. Cir. 1994) (Williams, J., Concurring in part and dissenting
in part) ("Japan Whaling Association and Defenders of Wildlife clearly
recognize people's affirmative aesthetic interest in viewing animals enjoying
their natural habitat.").
|||The key requirement, one that Mr. Jurnove clearly satisfies, is that the
plaintiff have suffered his injury in a personal and individual way-for
instance, by seeing with his own eyes the particular animals whose condition
caused him aesthetic injury. As the Supreme Court noted in Defenders of
Wildlife, "[i]t is clear that the person who observes or works with
a particular animal threatened by a federal decision is facing perceptible
harm." 504 U.S. at 566 (emphasis added); see also id. at 582 &
584 n.2 (Stevens, J., Concurring in the judgment) ("In my opinion a
person who has visited the critical habitat of an endangered species, has
a professional interest in preserving the species and its habitat, and intends
to revisit them in the future has standing to challenge agency action that
threatens their destruction.... [R]espondents would not be injured by the
challenged projects if they had not visited the sites or studied the threatened
species and habitat.") (emphasis added); Animal Legal Defense Fund,
Inc. v. Espy ("ALDF II"), 29 F.3d 720, 726 (D.C. Cir. 1994) (Mikva,
C.J., Concurring) ("Had the [plaintiffs] challenging the Secretary's
regulations alleged an interest in protecting the well-being of specific
laboratory animals (an interest predating this litigation), I think [the
plaintiffs] would have had standing to challenge those regulations for providing
insufficient protection to the animals.") (emphasis added); Didrickson
v. United States Dep't of the Interior, 982 F.2d 1332, 1340-41 (9th Cir.
1992) (finding standing where plaintiffs "declared that they have observed,
enjoyed and studied sea otters in specific areas in Alaska.... The [plaintiffs]
are concerned with action harming sea otters in Alaska, where [they] live
and in particular areas that they frequent, unlike the declarants in Defenders
of Wildlife.") (emphasis added); cf. Defenders of Wildlife, 504 U.S.
at 567 ("It goes beyond the limit, however, and into pure speculation
and fantasy, to say that anyone who observes or works with an endangered
species, anywhere in the world, is appreciably harmed by a single project
affecting some portion of that species with which he has no more specific
|||This court's precedent, moreover, specifically recognizes that people
have a cognizable interest in "view[ing] animals free from ... 'inhumane
treatment.' " Humane Society v. Babbitt, 46 F.3d 93, 99 n.7 (D.C. Cir.
1995) (quoting Animal Welfare Institute v. Kreps, 561 F.2d 1002, 1007 (D.C.
Cir. 1977)); see also ALDF I, 23 F.3d at 505 (Williams, J., concurring in
part and Dissenting in part) ("Our own cases have indicated a recognition
of people's interest in seeing animals free from inhumane treatment.").
In Animal Welfare Institute v. Kreps, 561 F.2d 1002 (D.C. Cir. 1977), the
plaintiff organizations alleged, inter alia, an interest in "enjoy[ing]
Cape fur seals alive in their natural habitat under conditions in which
the animals are not subject to ... inhumane treatment," id. at 1007
(citation and quotation marks omitted). This court held that these plaintiffs'
aesthetic interests satisfied the requirements of standing. See id. at 1007-10.*fn5
Similarly, Humane Society v. Hodel found standing based on a complaint "that
the existence of hunting on wildlife refuges forces Society members to witness
animal corpses and environmental degradation, in addition to depleting the
supply of animals and birds that refuge visitors seek to view," 840
F.2d at 52. As this Court noted, "[t]hese are classic aesthetic interests,
which have always enjoyed protection under standing analysis." Id.*fn6
|||The Ninth Circuit has similarly recognized an aesthetic interest in observing
animals living under humane conditions. In Fund for Animals, Inc. v. Lujan,
962 F.2d 1391 (9th Cir. 1992), the plaintiffs alleged aesthetic injuries
stemming from the mistreatment of bison, who were subject to a population
management plan that operated by shooting animals who strayed outside the
boundaries of Yellowstone. In finding standing, the court observed "that
the Fund's members had standing to sue because of the psychological injury
they suffered from viewing the killing of the bison in Montana. Mr. Pacelle
testified that several Fund members had been emotionally harmed when they
saw bison 'who were just standing outside the boundary of the park shot
and crumbled [sic] to their feet.' " Id. at 1396 (quoting testimony
and citing Humane Society v. Hodel, 840 F.2d 45 (D.C. Cir. 1988)).*fn7
|||Analogously, the Supreme Court and this circuit have frequently recognized
the injury in fact of plaintiffs who suffered aesthetic injury stemming
from the condition and quality, or despoliation, of an environmental area
that they used. In Mountain States Legal Foundation, for instance, the plaintiffs
asserted injury flowing from government action that would allegedly make
the Kootenai National Forest more vulnerable to forest fire. This court
found an "aesthetic and environmental interest[ ] in having such areas
free of devastating forest fire ... clearly sufficient for Article III standing."
92 F.3d at 1234. Similarly, in Montgomery Environmental Coalition v. Costle,
646 F.2d 568 (D.C. Cir. 1980), the plaintiffs challenged the Environmental
Protection Agency's ("EPA's") regulation of "two sewage treatment
plants that discharge pollutants into the Potomac River and its tributaries,"
id. at 573. They "profess[ed] an interest in the preservation and enhancement
of the natural environment situated along the Potomac estuary," id.
at 576, and alleged that the EPA had issued "permits too lax to protect
the water quality of the Potomac," id. at 573. This court found standing.
See id. at 578. Committee for Auto Responsibility v. Solomon, 603 F.2d 992
(D.C. Cir. 1979) (per curiam), involved "a challenge to the leasing
by the General Services Administration (GSA) of the Great Plaza area of
the Federal Triangle in Washington, D.C., for use as a parking facility
for employees of federal agencies," id. at 996. Plaintiffs, "two
organizations whose purposes include improvement of the quality of the environment,
together with three individuals who live and attend school in the District
of Columbia," id. at 997, successfully established injury in fact based
on allegations that they were "affected by noise, air pollution and
congestion from vehicles utilizing the Great Plaza parking lot," id.
at 998. In Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), the
plaintiffs challenged federal action that allegedly "threaten[ed] the
aesthetic beauty and wildlife habitat potential" of the South Pass-Green
Mountain area of Wyoming, id. at 886 (citation and quotation marks omitted).
The Supreme Court stated that it had "no doubt" that this threat
could constitute aesthetic injury under Article III, noting that "[t]he
only issue" was whether the individual plaintiffs in the case had established
that their interests "were actually affected." Id.; see also id.
at 901 n.2 (Blackmun, J., Dissenting) (arguing that plaintiffs had established
their standing and observing that "[a Bureau of Land Management] Mineral
Report issued June 17, 1982, concluded that mining and associated activities
'could have an adverse impact on crucial moose habitat, deer habitat, some
elk habitat, and a variety of small game and bird species. Improvements
at campgrounds, as well as land in the immediate vicinity, could either
be damaged or destroyed.' ") (citation omitted).
|||Indeed, Humane Society v. Hodel, which recognized an aesthetic interest
in seeing animals living under humane conditions, explicitly acknowledged
the usefulness of analogizing such an aesthetic interest to a plaintiff's
interest in the condition of an environmental area that he uses. That case
drew on our opinion in National Wildlife Federation v. Hodel, 839 F.2d 694
(D.C. Cir. 1988), which held that a wildlife organization had standing to
challenge regulations that allegedly threatened to degrade the environment,
see id. at 703-16. The Humane Society court noted that the two cases involved
"strikingly analogous" injuries, explaining: "There the National
Wildlife Federation's standing rested in part on the aesthetic injuries
to those members who complained of viewing degraded landscapes, and here
the Humane Society's standing similarly rests on the aesthetic injuries
to members who complain of viewing the despoliation of animals." 840
F.2d at 52 (citations omitted).
|||In the environmental context, too, however, plaintiffs must establish
that they have actually used or plan to use the allegedly degraded environmental
area in question. It is this failure to show such direct use that has resulted
in the denial of standing in several high-profile environmental cases. For
instance, the injury alleged in Sierra Club v. Morton would have been "incurred
entirely by reason of the change in the uses to which Mineral King [Valley]
will be put, and the attendant change in the aesthetics and ecology of the
area." 405 U.S. at 734. Specifically, the Sierra Club alleged that
the challenged development of the Valley " 'would destroy or otherwise
adversely affect the scenery, natural and historic objects and wildlife
of the park and would impair the enjoyment of the park for future generations.'
" Id. (emphasis added).*fn8
The Supreme Court "[did] not question that this type of harm may amount
to an 'injury in fact' sufficient to lay the basis for standing under §
10 of the APA." Id. However, having found "a cognizable interest,"
the Court held that the Sierra Club had not established that its members
were "among the injured." Id. at 734-35. As the Court explained,
"[t]he impact of the proposed changes in the environment of Mineral
King will not fall indiscriminately upon every citizen. The alleged injury
will be felt directly only by those who use Mineral King and Sequoia National
Park, and for whom the aesthetic and recreational values of the area will
be lessened by the highway and ski resort." Id. at 735 (emphasis added).
"The Sierra Club failed to allege that it or its members would be affected
in any of their activities or pastimes by the Disney development. Nowhere
in the pleadings or affidavits did the Club state that its members use Mineral
King for any purpose, much less that they use it in any way that would be
significantly affected by the proposed actions of the respondents."
|||Similarly, the plaintiffs in Lujan v. National Wildlife Federation lacked
standing because their affidavits "state[d] only that one of [the Federation's]
members use[d] unspecified portions of an immense tract of territory, on
some portions of which mining activity has occurred or probably will occur
by virtue of the governmental action," rather than making clear that
a plaintiff used the smaller area of land that was allegedly threatened.
497 U.S. at 889. In contrast, a plaintiff in Mountain States Legal Foundation,
who established injury in fact based on aesthetic injury, stated "that
he use[d] the forest [in question] for, inter alia, hiking, hunting, camping,
fishing, observing wildlife, finding solitude, and picking berries."
92 F.3d at 1234 (citations omitted). The plaintiffs in Committee for Auto
Responsibility, who also successfully established their injury in fact,
"claim[ed] that they or their members live in or near the District
of Columbia and regularly travel to educational, cultural and recreational
facilities within the immediate vicinity of the Great Plaza [parking lot]."
603 F.2d at 998; see also Montgomery Environmental Coalition, 646 F.2d at
578 ("[The Coalition's] members include residents of Maryland, Virginia,
and the District of Columbia, by whose shores the Potomac River flows. We
may take judicial notice of the fact that that river can be seen and smelt
from those shores, and even that, as an important source of drinking water,
it can be tasted.... Petitioners' members are users of the Potomac River,
and their standing to challenge the Blue Plains and Seneca permits is clear.").
|||Other circuits have also recognized injury in fact based on injury to
a plaintiff's interest in the quality and condition of an environmental
area that he used. In Public Interest Research Group v. Powell Duffryn Terminals,
Inc., 913 F.2d 64 (3d Cir. 1990), the Research Group's members "resided
in the vicinity of or owned property on or near the Kill Van Kull, or recreated
on or near the Kill Van Kull," id. at 71. They successfully "claimed
injury to their aesthetic and recreational interests because the Kill Van
Kull [was] polluted." Id. One member alleged that he "was particularly
offended by the brown color and bad odor of the water. He stated that he
would birdwatch more frequently and enjoy his recreation on the Kill Van
Kull more if the water were cleaner." Id. In Sierra Club v. Simkins
Industries, Inc., 847 F.2d 1109 (4th Cir. 1988), the "Sierra Club submitted
the affidavit of member John Railey attesting to his interest, as one regularly
using and enjoying the Patapsco River and surrounding land, in preserving
the environmental integrity of the river," id. at 1112. Mr. Railey
established Article III injury based on an affidavit alleging that:
|||" 'My interest, use or enjoyment of the Patapsco River and surrounding
area includes preserving the health, safety and welfare of the river basin,
preserving marine life and water integrity within the river, and eliminating
odorous and unsightly illegal pollution. I regularly hike along the river.
My activities and interests with respect to the Patapsco River have been
adversely affected physically, aesthetically and emotionally by Simkin's
[sic] Industries' failure to comply with its NPDES permit and resulting
illegal pollution.' "
|||Id. at 1112 n.3 & 1113 (citation omitted). Friends of the Earth v.
Consolidated Rail Corp., 768 F.2d 57 (2d Cir. 1985), recognized injury in
fact based on the pollution of "Conrail's A.E. Perlman Yard in Selkirk,
New York (Selkirk Yard), a diesel locomotive repair and refueling facility,
which discharges treated wastes from its operations through point sources
into the Hudson River and South Albany Creek," id. at 59, where the
individual plaintiffs used the Hudson River and lived near its shores, see
id. at 61; see also Save Our Community v. U.S. Environmental Protection
Agency, 971 F.2d 1155, 1157, 1161 (5th Cir. 1992) (per curiam) (finding
injury in fact where plaintiff alleged aesthetic injury stemming from "the
draining of several ponds on the site of a proposed expansion of a 73-acre
landfill"); United States v. Metropolitan St. Louis Sewer District,
883 F.2d 54, 56 (8th Cir. 1989) ("Missouri Coalition and two of its
named members allege that many of the 25,000 members visit, cross, and frequently
observe the bodies of water identified in the United States' complaint and
that from time to time these members use these waters for recreational purposes.
They also allege that these interests are adversely affected by the pollution
of these waters. These allegations are sufficient to give the Coalition
and its members constitutional standing...."); Chesapeake Bay Found.
v. American Recovery Co., 769 F.2d 207, 209 (4th Cir. 1985) (per curiam)
("[P]laintiffs here ... allege that their members resided in the vicinity
of the affected waters and that those members 'recreate in, on or near,
or otherwise use and enjoy' those waters.").
|||These myriad cases recognizing individual plaintiffs' injury in fact based
on affronts to their aesthetic interests in observing animals living in
humane habitats, or in using pristine environmental areas that have not
been despoiled, articulate a second principle of standing. It has never
been the law, and is not so today, that injury in fact requires the elimination
(or threatened elimination) of either the animal species or environmental
feature in question. In Sierra Club v. Morton, the Sierra Club did not allege
that the Mineral King Valley would disappear in the wake of the challenged
development, or that the desecration of the Valley would leave the Club's
members with no other, pristine parks that they could conveniently use.
See 405 U.S. at 734. Yet the Supreme Court held that plaintiffs could establish
injury in fact based on a decline in the quality and condition of one environmental
area that they did use. See id.
|||To be sure, a number of cases that have recognized standing based on an
aesthetic interest in the observation of animals have involved government
action that allegedly threatened to diminish the overall supply of an animal
species. See Defenders of Wildlife, 504 U.S. at 562; Japan Whaling Ass'n,
478 U.S. at 231 n.4. But there is no case that we know of establishing that
the elimination of a species or even the deaths of particular animals is
an indispensable element of the plaintiffs' aesthetic injury, and we see
no reason to import such a requirement into our standing doctrine so late
in the day. Indeed, the standing cases that do stress the threat of diminished
animal populations were those brought under conservation statutes whose
mission is to preserve the number of animals in existence. See Defenders
of Wildlife, 504 U.S. at 558 ("[The Endangered Species Act] seeks to
protect species of animals against threats to their continuing existence
caused by man."); Japan Whaling Ass'n, 478 U.S. at 225 ("Because
of the [International Whaling Commission's] inability to enforce its own
quota and in an effort to promote enforcement of quotas set by other international
fishery conservation programs, Congress passed the Pelly Amendment to the
Fisherman's Protective Act of 1967. Principally intended to preserve and
protect North American Atlantic salmon from depletion by Danish fisherman
in violation of the ban imposed by the International Convention for the
Northwest Atlantic Fisheries, the Amendment protected whales as well.").
It is not surprising, then, that the plaintiffs who brought suit to allege
violations of these statutes would emphasize that the challenged agency
action threatened to diminish the supply of an animal species, in contravention
of the express purpose of those conservation statutes. In contrast, the
Animal Welfare Act, with which we deal here, is explicitly concerned with
the quality of animal life, rather than the number of animals in existence.
It seeks "to promote the psychological well-being of primates."
Pub. L. No. 99-198, § 1752, 99 Stat. 1354, 1645 (1985) (codified at 7 U.S.C.
§ 2143(a) (1994)) (emphasis added). Quite naturally, suits alleging violations
of this statute will focus on the conditions under which animals live. Cf.
ALDF II, 29 F.3d at 722 ("The primary purpose of the [Federal Laboratory
Animal Welfare] Act is to ensure the humane care and treatment of various
animals used in research or for exhibition or kept as pets. 7 U.S.C. § 2131.
To this end, the Act requires, inter alia, that the Secretary of Agriculture
'promulgate standards to govern the humane handling, care, treatment, and
transportation of animals by dealers, research facilities, and exhibitors.'
Id. § 2143(a)(1)."). Along these lines, this court has already noted
in Animal Welfare Institute, which recognized injury in fact based on an
aesthetic interest in seeing animals living under humane conditions, that
"[w]here an act is expressly motivated by considerations of humaneness
toward animals, who are uniquely incapable of defending their own interests
in court, it strikes us as eminently logical to allow groups specifically
concerned with animal welfare to invoke the aid of the courts in enforcing
the statute." 561 F.2d at 1007. Moreover, and perhaps more importantly,
it does not make sense, as a matter of logic, to suppose that people suffer
aesthetic injury from government action that threatens to wipe out an animal
species altogether, and not from government action that leaves some animals
in a persistent state of suffering. To the contrary, the latter seems capable
of causing more serious aesthetic injury than the former.
|||Mr. Jurnove has adequately alleged injury to an aesthetic interest in
observing animals living under humane conditions. His affidavit describes
both the animal exhibition that he regularly visits, and the specific animals
there whose condition caused Mr. Jurnove injury. It requires no expansion
of existing standing doctrine to find that he has established a cognizable
injury in fact.
|||Plaintiffs allege that the AWA, 7 U.S.C. § 2143, requires the USDA to
adopt explicit minimum standards to govern the humane treatment of primates,
and that the agency did not do so. See First Amended Complaint WW 97, 106,
107. They further contend that the conditions that caused Mr. Jurnove injury
complied with current USDA regulations, but that lawful regulations would
have prohibited those conditions and protected Mr. Jurnove from the injuries
that his affidavit describes. See id. WW 53, 58. We find that these allegations
satisfy the causation prong of Article III standing.
|||As Mr. Jurnove's affidavit elaborates, he allegedly suffered aesthetic
injury upon observing conditions that the present USDA regulations permit.
Mr. Jurnove, for instance, "saw a large male chimpanzee named Barney
in a holding area by himself. He could not see or hear any other primate."
Jurnove Affidavit ¶ 8. Mr. Jurnove also "viewed a monkey cage [containing
one Japanese Snow Macaque] that was a distance from and not in view of the
other primate cages." Id. ¶ 14. As the plaintiffs observe, see First
Amended Complaint WW 84, 95, 114-17, the housing of these two primates appears
to be compatible with current regulations, which state only that "[t]he
environment enhancement plan must include specific provisions to address
the social needs of nonhuman primates of species known to exist in social
groups in nature. Such specific provisions must be in accordance 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) (emphasis added). Thus, an exhibition may apparently
comply with the procedural requirement that this standard creates-by establishing
a plan that "address[es]" the social needs of primates-and still
leave a primate caged singly. Similarly, 9 C.F.R. § 3.81(a)(3) provides
that "[i]ndividually housed nonhuman primates must be able to see and
hear nonhuman primates of their own or compatible species unless the attending
veterinarian determines that it would endanger their health, safety, or
well-being." Here again, the regulation is structured so that an exhibitor
that secured the approval of the veterinarian in its employ could comply
with the regulation without actually housing nonhuman primates within the
sight or sound of other primates. Contrary to the dissent, see Dissent at
13-14, plaintiffs do not suggest that the regulation is flawed simply because
it leaves room for bribery in securing a veterinarian's consent to an exception;
rather, they contend that the regulation gives exhibitors too much leeway
to shop around for a compliant veterinarian and that placing such broad
and unguarded discretion in the hands of the veterinarian in an exhibitor's
own employ is an insufficient safeguard to protect primate well-being. Whatever
the ultimate merits of the plaintiffs' case, they most definitely assert
that the AWA requires minimum standards to prohibit or more rigidly restrict
the occasions on which such allegedly inhumane treatment can occur.
|||Mr. Jurnove's affidavit also states that "[t]he pen next to the adult
bears housed the squirrel monkeys.... I observed the monkeys repeatedly
walking over to the door and sniffing and acting very upset when the bears
came near." Jurnove Affidavit ¶ 11. Plaintiffs allege that the current
regulations permit the housing of incompatible species next to each other.
See First Amended Complaint WW 46-47. Specifically, these regulations state
that "[n]onhuman primates may not be housed with other species of primates
or animals unless they are compatible." 9 C.F.R. § 3.81(a)(3) (emphasis
added). This provision does not expressly regulate animals housed next to
each other, but in separate cages. But even if section 3.81(a)(3) does apply
to the situation that Mr. Jurnove observed, it includes the caveat that
"[c]ompatibility of nonhuman primates must be determined in accordance
with generally accepted professional practices and actual observations,
as directed by the attending veterinarian," thus again permitting wide
discretion on the part of the local veterinarian.
|||Similarly, Mr. Jurnove's affidavit observes that "[t]he only cage
enrichment device [a Japanese Snow Macaque] had was an unused swing."
Jurnove Affidavit ¶ 14. The plaintiffs allege that such a situation is perfectly
legal under the present regulations, see First Amended Complaint ¶ 84, which
provide only that "[t]he physical environment in the primary enclosures
must be enriched by providing means of expressing noninjurious species-typical
activities." 9 C.F.R. § 3.81(b). The regulations do not include any
specific requirements governing the particular kind or number of enrichment
devices. According to the plaintiffs, providing only a single swing, and
one that the primate appears to shun, offends the AWA's mandate for minimum
standards, although it is perfectly compatible with 9 C.F.R. § 3.81(b).*fn9
|||The USDA's own actions in this case further support the plaintiffs' allegation
that the agency's current regulations allow the conditions that allegedly
caused Mr. Jurnove injury. As Mr. Jurnove's affidavit makes clear, the Game
Farm has repeatedly submitted to inspection by the USDA. The allegedly inhumane
conditions at the Game Farm have persisted precisely because the USDA inspectors
have concluded on the basis of these visits that in every important aspect
the conditions at the Game Farm comply with the USDA regulations. If the
USDA had found the Game Farm out of compliance with current regulations,
or if the governing regulations had themselves been more stringent, the
Game Farm's owners would have been forced (in order to remain in accord
with the law) to either alter their practices or go out of business and
transfer their animals to exhibitors willing to operate legally; either
scenario would protect Mr. Jurnove's aesthetic interest in observing animals
living under humane conditions. Instead, however, the USDA has not questioned
the legality of the Game Farm's plan since 1992. Since May 1995, when Mr.
Jurnove began visiting the Game Farm and complaining to the agency, the
USDA inspectors have examined, and largely approved, the actual conditions
at the facility at least four times. The USDA's first inspection report
"states that [the USDA inspectors] found the facility in compliance
with all the standards." Jurnove Affidavit ¶ 18. Although subsequent
inspection reports identify a few conditions that Mr. Jurnove agrees violate
the USDA regulations, the USDA continued-in at least three more inspection
reports-to conclude that the Game Farm was in compliance with existing USDA
regulations in all other respects, including presumably the existence of
a plan that met the regulations' standards.*fn10
|||Supreme Court precedent establishes that the causation requirement for
constitutional standing is met when a plaintiff demonstrates that the challenged
agency action authorizes the conduct that allegedly caused the plaintiff's
injuries, if that conduct would allegedly be illegal otherwise. For instance,
Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976),
stated in describing earlier cases that:
|||The complaint in [Association of ] Data Processing [Service Organizations,
Inc. v. Camp, 397 U.S. 150 (1970),] alleged injury that was directly traceable
to the action of the defendant federal official, for it complained of injurious
competition that would have been illegal without that action. Accord, Arnold
Tours, Inc. v. Camp, 400 U.S. 45 (1970); Investment Co. Institute v. Camp,
401 U.S. 617, 620-621 (1971). Similarly, the complaint in Data Processing's
companion case of Barlow v. Collins, 397 U.S. 159 (1970), was sufficient
because it alleged extortionate demands by plaintiffs' landlord made possible
only by the challenged action of the defendant federal official. See id.,
|||Id. at 45 n.25. Japan Whaling Association, in turn, recognized the standing
of plaintiffs who claimed aesthetic injury (there, injury to their interest
in whale watching) based on the government's failure to adequately regulate
a third party (there, the United States's failure to certify that the Japanese
whaling industry was exceeding its quota under international law). See 478
U.S. at 231 n.4.
|||This circuit's case law confirms the proposition that a plaintiff satisfies
the causation prong of constitutional standing by establishing that the
challenged agency rule permitted the activity that allegedly injured her,
when that activity would allegedly have been illegal otherwise. Louisiana
Energy and Power Authority ("LEPA") v. FERC, 141 F.3d 364 (D.C.
Cir. 1998), for instance, involved LEPA's challenge to a FERC decision that
allowed one of LEPA's competitors to sell electric energy at unregulated
rates, thus allegedly freeing this competitor "to use predatory pricing
to lure away LEPA's customers," id. at 366. In holding that LEPA had
standing to sue, this court first noted that " 'petitioners sufficiently
establish their constitutional standing by showing that the challenged action
authorizes allegedly illegal transactions.' " Id. at 367 (quoting Associated
Gas Distributors v. FERC, 899 F.2d 1250, 1259 (D.C. Cir. 1990)). It went
on to elaborate that "[a] party need not prove that the agency action
it attacks is unlawful ... in order to have standing to level that attack.
As we said in Claybrook v. Slater, 111 F.3d 904, 907 (D.C. Cir. 1997), '[w]hether
a plaintiff has a legally protected interest (and thus standing) does not
depend on whether he can demonstrate that he will succeed on the merits.'
" Id. at 368. Similarly, Telephone and Data Systems, Inc. v. FCC, 19
F.3d 42 (D.C. Cir. 1994), recently explained that "one narrow proposition
at least is clear: injurious private conduct is fairly traceable to the
administrative action contested in the suit if that action authorized the
conduct or established its legality," id. at 47. International Ladies'
Garment Workers' Union v. Donovan, 722 F.2d 795 (D.C. Cir. 1983), also held
that the appellants had established their standing to sue because "the
relief sought by appellants would make the injurious conduct of third parties
complained of in this case illegal; only by taking extraordinary measures-i.e.,
violating the law or starting new businesses overseas-could third parties
prevent redress of the appellants' injuries," id. at 811; see also
National Wildlife Federation v. Hodel, 839 F.2d at 705 ("[M]ere indirectness
of causation is no barrier to standing, and thus, an injury worked on one
party by another through a third party intermediary may suffice.... It is
well settled that a plaintiff has standing to challenge conduct that indirectly
results in injury.... We are concerned here not with the length of the chain
of causation, but on [sic] the plausibility of each of the links that comprise
the chain.") (citations and quotation marks omitted).
|||A question was raised at oral argument about whether Mr. Jurnove has nonetheless
failed to satisfy the causation prong of constitutional standing, on the
ground that the governing law simply permits the conditions that allegedly
injured him, rather than requiring animal exhibitors to follow the allegedly
inhumane practices. The background condition governing animal exhibitors,
this argument proceeds, is that anything the exhibitors do is legal unless
statutes and regulations make specific conduct illegal. Because neither
the AWA nor the USDA's implementing regulations have changed this status
quo-i.e., in no way have they affected the conditions that allegedly injured
Mr. Jurnove-there is no causal link between any government action and Mr.
|||This argument, however, is founded on a false premise. The proper comparison
for determining causation is not between what the agency did and the status
quo before the agency acted. Rather, the proper comparison is between what
the agency did and what the plaintiffs allege the agency should have done
under the statute. The plaintiffs' legal theory of this case, which we accept
for purposes of determining Mr. Jurnove's standing, is grounded on their
view that animal exhibitors are in fact governed by a mandatory legal regime.
Specifically, the plaintiffs allege that the AWA requires the USDA to establish
specific, mandatory requirements that establish humane living conditions
for animals. See 7 U.S.C. § 2143(a) (1994) (directing the Secretary of Agriculture
to "promulgate standards to govern the humane handling, care, treatment,
and transportation of animals by dealers, research facilities, and exhibitors"
and providing that these standards "shall include minimum requirements"
for "a physical environment adequate to promote the psychological well-being
of primates") (emphasis added). According to this view, the AWA itself
prohibits the conditions that allegedly injured Mr. Jurnove, and the USDA
regulations misinterpret the statute by permitting these conditions. See
First Amended Complaint WW 53, 57, 97, 106, 107. Both the Supreme Court
and this circuit have repeatedly found causation where a challenged government
action permitted the third party conduct that allegedly caused a plaintiff
injury, when that conduct would have otherwise been illegal. Neither court
has ever stated that the challenged law must compel the third party to act
in the allegedly injurious way. In Investment Co. Institute v. Camp, 401
U.S. 617 (1971), for instance, investment companies had standing to challenge
a regulation from the Comptroller of the Currency that "authorize[d],"
but did not require, "banks to establish and operate collective investment
funds," id. at 618-19 (emphasis added). In Arnold Tours, Inc. v. Camp,
400 U.S. 45 (1970) (per curiam), independent travel agents had standing
to contest "a ruling by the Comptroller that, incidental to their banking
services, national banks may provide travel services for their customers,"
id. at 45 (emphasis added). Barlow v. Collins, 397 U.S. 159 (1970), involved
plaintiffs who were allegedly "suffering irreparable injury under the
[challenged] regulation because it provide[d] their landlord 'with the opportunity
to demand that [they] and all those similarly situated assign the [upland
cotton program] benefits in advance as a condition to obtaining a lease
to work the land,' " id. at 163 (emphasis added). In Association of
Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970),
data processing service organizations had standing to challenge a regulation
providing that "national banks ... may make data processing services
available to other banks and to bank customers," id. at 151 (emphasis
|||In this circuit, Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493 (D.C.
Cir. 1996), explicitly rejected the distinction between permissive and mandatory
government regulation. There, the plaintiff challenged the legality of Food
and Drug Administration ("FDA") regulations governing the approval
of new generic drugs. This court found that Bristol-Myers Squibb ("BMS")
had standing to sue, on the ground that "[i]f BMS is correct [about
its claim that the FDA's regulations violate the governing statute], then
it is no answer to say that the FDA is merely permitting a competitive product
to enter the market and leaving the purchasing decision to the consumer.
See Telephone and Data Systems, Inc. v. FCC, 19 F.3d 42, 47 (D.C. Cir. 1994)
('injurious private conduct is fairly traceable to the administrative action
contested in the suit if that action authorized the conduct or established
its legality')." Id. at 1499 (emphasis added). The Dissent seeks to
distinguish Bristol-Myers Squibb Co. from the present case on the ground
that, in the earlier case, the FDA had authorized the distribution of a
drug under a legal regime in which no new drug could be marketed without
such government approval. See Dissent at 15. In other words, BristolMyers
Squibb Co. involved a situation in which private action that was once regulated
loosely, or not at all, by the federal government, was now prohibited unless
specifically permitted. The plaintiff in Bristol-Meyers Squibb Co. claimed
that the FDA's exercise of its authorization authority in that instance
violated its statutory mandate. See 91 F.3d at 1494-95. The dissent has
provided no sound grounds for distinguishing the present case. Under the
plaintiffs' legal theory in this case, which we accept for purposes of determining
their standing to sue, the AWA itself prohibits the allegedly inhumane conditions
that injured Mr. Jurnove; the regulatory backdrop for the plaintiffs' claim
is that all private exhibitions that involve inhumane treatment of animals
are already illegal by statute. Thus here, the plaintiffs are also contending
that the USDA's decision to permit the conditions that allegedly injured
Mr. Jurnove violated the agency's statutory mandate.
|||Motor & Equipment Manufacturers Association ("MEMA") v.
Nichols, 142 F.3d 449 (D.C. Cir. 1998), involved a challenge to EPA regulations
governing on-board emissions diagnostic devices ("OBDs"). These
regulations provided that any car manufacturer who complied with California's
stricter OBD requirements would be " 'deemed-to-comply' " with
the federal government's OBD requirements. Id. at 452. The manufacture of
cars meeting California's OBD standards was likely to injure the petitioners
(who manufacture, rebuild, and sell spare parts) financially, but the EPA
argued that its regulation had not caused this injury because the "deemed-tocomply"
policy did not compel auto manufacturers to comply with California's OBD
regulations, but simply permitted them to do so. See id. at 457. This court
rejected that argument, pointing out the incentives that car manufacturers
have to take the "deemed-to-comply" route, which allows them to
"make one kind of each car they sell instead of two kinds, one of which
would be for sale in states that follow California's OBD regulations, and
the other for sale in states that follow federal OBD regulations."
Id. We found causation, in other words, although the government regulation
allowed, rather than required, the allegedly injurious third-party conduct,
and we also recognized the incentives that third parties often have to minimize
their expenditure of money and effort. Some animal exhibitors have similar
incentives, of course, to comply with the bare requirements of the governing
USDA regulations without exceeding them in any potentially expensive or
|||Along the same lines, the plaintiffs in Telephone and Data Systems, Inc.
had standing to challenge the FCC's grant of "a conditional permit"
that allowed a competitor "to construct and operate cellular communications
services in the Atlantic City market," but did not require him to do
so. 19 F.3d at 44. Similarly, the plaintiffs in International Ladies' Garment
Workers' Union had standing to challenge a Labor Department regulation that
permitted the employment of people working in their homes in the knitted
outerwear industry, but did not require manufacturers to employ these workers.
See 722 F.2d at 799.
|||Mr. Jurnove's affidavit accordingly falls well within our established
causation requirement for constitutional standing. He alleges that the USDA
failed to adopt the specific, minimum standards that the AWA requires. He
further describes how the conditions that caused him injury complied with
current USDA regulations, and alleges that regulations complying with the
AWA would have prohibited those conditions and protected him from the injuries
that his affidavit recounts.
|||We also find that Mr. Jurnove has satisfied the redressibility element
of constitutional standing. Mr. Jurnove's affidavit alleges that he has
a current routine of regularly visiting the Game Farm and provides a finite
time period within which he will make his next visit, stating that he plans
to "return to the Farm in the next several weeks" and to "continue
visiting the Farm to see the animals there." Jurnove Affidavit ¶ 43.
As the plaintiffs' complaint argues, more stringent regulations, which prohibit
the inhumane conditions that have consistently caused Mr. Jurnove aesthetic
injury in the past, would necessarily alleviate Mr. Jurnove's aesthetic
injury during his planned, future trips to the Game Farm. See First Amended
Complaint WW 53, 58. Tougher regulations would either allow Mr. Jurnove
to visit a more humane Game Farm or, if the Game Farm's owners decide to
close rather than comply with higher legal standards, to possibly visit
the animals he has come to know in their new homes within exhibitions that
comply with the more exacting regulations.
|||The Supreme Court's recent decision in FEC v. Akins, moreover, rejects
the possible counterargument that the redressibility element of constitutional
standing requires a plaintiff to establish that the defendant agency will
actually enforce any new binding regulations against the regulated third
party. There, the plaintiffs, "a group of voters with views often opposed
to those of AIPAC [the American Israel Public Affairs Committee],"
sought to have AIPAC classified as a "political committee" within
the meaning of the Federal Election Campaign Act ("FECA"), which
"imposes extensive recordkeeping and disclosure requirements upon groups
that fall within the Act's definition of a 'political committee.' "
118 S. Ct. at 1781-82. The FEC argued that these plaintiffs had not established
either causation or redressibility, on the ground that, even if the Commission
had accepted the plaintiffs' interpretation of FECA, "it is possible
that ... [the FEC] would still have decided in the exercise of its discretion
not to require AIPAC to produce the information." Id. at 1786. The
Supreme Court soundly rejected this argument, noting:
|||that fact does not destroy Article III 'causation' [or redressibility,]
for we cannot know that the FEC would have exercised its prosecutorial discretion
in this way. Agencies often have discretion about whether or not to take
a particular action. Yet those adversely affected by a discretionary agency
decision generally have standing to complain that the agency based its decision
upon an improper legal ground. If a reviewing court agrees that the agency
misinterpreted the law, it will set aside the agency's action and remand
the case-even though the agency (like a new jury after a mistrial) might
later, in the exercise of its lawful discretion, reach the same result for
a different reason.
|||Id. (citations omitted).
|||Mr. Jurnove, accordingly, has met all three of the constitutional requirements
|||D. Prudential Standing/Zone of Interests
|||Mr. Jurnove also falls within the zone of interests protected under the
AWA's provisions on animal exhibitions. As the Supreme Court has recently
reaffirmed, the zone of interests test is generous and relatively undemanding.
"[T]here need be no indication of congressional purpose to benefit
the would-be plaintiff." National Credit Union Admin. v. First National
Bank & Trust Co., 118 S. Ct. 927, 934 (1998) (citation and quotation
marks omitted). Instead, the test, a gloss on APA § 10(a), 5 U.S.C. § 702
(1994), asks only "whether the interest sought to be protected by the
complainant is arguably within the zone of interests to be protected by
the statute," National Credit Union Admin., 118 S. Ct. at 935 (citation,
internal quotation marks, and alteration omitted); see also Akins, 118 S.
Ct. at 1783 ("[P]rudential standing is satisfied when the injury asserted
by a plaintiff arguably falls within the zone of interests to be protected
or regulated by the statute in question.") (citation, internal quotation
marks, and alterations omitted). Our circuit has further explained that
"[t]his analysis focuses, not on those who Congress intended to benefit,
but on those who in practice can be expected to police the interests that
the statute protects." Mova Pharmaceutical Corp. v. Shalala, 140 F.3d
1060, 1075 (D.C. Cir. 1998); see also ALDF I, 23 F.3d at 502 ("The
[zone of interests] test precludes review of administrative action if the
particular interest asserted is 'so marginally related to or inconsistent
with the purposes implicit in the statute that it cannot reasonably be assumed
that Congress intended to permit the suit.' ") (quoting Clarke v. Securities
Indus. Ass'n, 479 U.S. 388, 399 (1987)); Autolog Corp. v. Regan, 731 F.2d
25, 29-30 (D.C. Cir. 1984) ("[T]he zone of interests test requires
some indicia-however slight-that the litigant before the court was intended
to be protected, benefitted or regulated by the statute under which suit
is brought. Courts should give broad compass to a statute's zone of interests
in recognition that this test was originally intended to expand the number
of litigants able to assert their rights in court.") (citations and
internal quotation marks omitted).
|||In this case, logic, legislative history, and the structure of the AWA,
all indicate that Mr. Jurnove's injury satisfies the zone of interests test.
The very purpose of animal exhibitions is, necessarily, to entertain and
educate people; exhibitions make no sense unless one takes the interests
of their human visitors into account. The legislative history of both the
1985 amendments to the Animal Welfare Act and the 1970 act that first included
animal exhibitions within the AWA confirms that Congress acted with the
public's interests in mind.
|||In introducing the 1985 amendments, Senator Robert Dole explained "that
we 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."
131 Cong. Rec. 29,155 (1985) (statement of Sen. Dole) (emphasis added).
The Congressmen who went on the House floor to introduce the act that first
extended the AWA to cover animal exhibitions recognized that their bill
"ha[d] been a focal point of concern among animal lovers throughout
the Nation for some time" and spoke of the "great pleasure"
that animals bring to the people who see them. 116 Cong. Rec. 40,159 (1970)
(statement of Rep. Mizell); see also H.R. Rep. No. 91-1651, at 1 (1970)
("Beginning with the legislation passed in 1966 (Public Law 89-544),
the United States Government has implemented a statutory mandate that small
helpless creatures deserve the care and protection of a strong and enlightened
public.") (emphasis added). Indeed, Congress had placed animal exhibitions
within the scope of the AWA after hearings documenting how inhumane conditions
at these exhibitions affected the people who came and watched the animals
there. See Care of Animals Used for Research, Experimentation, Exhibition,
or Held for Sale as Pets: Hearings on H.R. 13957 Before the Subcomm. on
Livestock and Grains of the House Comm. on Agriculture, 91st Cong. 38 (1970)
(letter from John M. Mehrtens) [hereinafter Hearings]; id. at 39 (letter
from Chris Sullivan); id. at 67 (statement of Pearl Twyne); id. at 79 (statement
of Mary Frances Morrisette).
|||Throughout, the Congressmen responsible for including animal exhibitions
within the AWA encouraged the continued monitoring of humane societies and
their members. They spoke, for instance, of how America had long depended
on humane societies to bring the mistreatment of animals to light. See,
e.g., 116 Cong. Rec. 40,305 (1970) (statement of Rep. Whitehurst). The Congressmen
further acknowledged that humane societies were the moving force behind
the legislation to include animal exhibitions within the AWA. See, e.g.,
116 Cong. Rec. 40,156 (1970) (statement of Rep. Foley).
|||The structure of the AWA also makes clear that Mr. Jurnove falls within
the statute's zone of interests. While the AWA establishes oversight committees
with private citizen members for research facilities, see 7 U.S.C. § 2143(b)(1)
(1994), it created no counterpart for animal exhibitions. But, as the legislative
history shows, the AWA anticipated the continued monitoring of concerned
animal lovers to ensure that the purposes of the Act were honored. Mr. Jurnove,
a regular viewer of animal exhibitions regulated under the AWA, clearly
falls within the zone of interests the statute protects. His interests are
among those that Congress sought to benefit through the AWA, and he certainly
is one of the individuals "who in practice can be expected to police
the interests that the statute protects." Mova Pharmaceutical Corp.,
140 F.3d at 1075.
|||Mr. Jurnove has standing to sue. He satisfies the injury, causation, and
redressibility elements of constitutional standing, and also falls within
the zone of interests for the Animal Welfare Act. We accordingly have no
need to consider the standing of the other individual plaintiffs. We leave
a determination of the merits of the plaintiffs' claim to a future panel
of this court.
|||Circuit Judge Sentelle, with whom Judge Silberman, judge Ginsburg, and
judge Henderson join, Dissenting:
|||Marc Jurnove visited the Long Island Game Farm about a dozen times over
the course of a year and was upset by the conditions of the primates he
saw there. Some primates were kept in isolation; others were kept in cages
without sufficient "cage enrichment devices"; and still others
were kept in cages that were not properly maintained. At Jurnove's urging,
the United States Department of Agriculture inspected the Game Farm several
times, but failed to take steps to improve these conditions. Frustrated
by USDA's ineffectiveness, Jurnove filed a lawsuit seeking the invalidation
of federal regulations concerning the treatment of primates on the grounds
that those regulations failed to live up to the mandate of the Animal Welfare
Act. At issue is whether Jurnove had standing to bring this suit.
|||The majority concludes that Jurnove has a cognizable constitutional interest
in viewing particular primates kept under humane conditions, and finds Jurnove's
claimed injuries fairly traceable to USDA's failure to promulgate tougher
regulations and redressable by a judicial order forcing USDA to promulgate
such regulations. Because I believe the majority significantly weakens existing
requirements of constitutional standing, I Dissent.
|||Under Article III of the Constitution, the "judicial power"
of the United States is limited to the resolution of "Cases" or
"Controversies." U.S. Const. art. III, § 2. Like the other doctrines
of justiciability associated with Article III (for example, mootness, ripeness
and political question), the doctrine of standing "state[s] fundamental
limits on federal judicial power in our system of government." Allen
v. Wright, 468 U.S. 737, 750 (1984). Standing-"perhaps the most important
of these doctrines," id.-involves the question of "whether the
litigant is entitled to have the court decide the merits of the dispute
or of particular issues." Id. at 750-51 (quoting Warth v. Seldin, 422
U.S. 490, 498 (1975)).
|||At an "irreducible minimum," Article III standing requires those
invoking the jurisdiction of a federal court to demonstrate an (1) injury-in-fact;
(2) which is caused by, or is fairly traceable to the defendant's alleged
unlawful conduct; and (3) which is likely to be redressed by a favorable
decision of the court. Valley Forge Christian College v. Americans United
for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982); see
also Bennett v. Spear, 117 S. Ct. 1154, 1161 (1997); Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992). A would-be federal litigant must
"clearly and specifically set forth facts sufficient to satisfy these
Art. III standing requirements." Whitmore v. Arkansas, 495 U.S. 149,
|||By imposing these requirements, Article III limits the power of the federal
judiciary to "those disputes which confine federal courts to a role
consistent with a system of separated powers and which are traditionally
thought to be capable of resolution through the judicial process."
Valley Forge, 454 U.S. at 472 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968));
see also Allen, 468 U.S. at 750 (case-or-controversy doctrines are "founded
in concern about the proper-and properly limited-role of the courts in a
democratic society") (quoting Warth, 422 U.S. at 498). Article III
standing is "not merely a troublesome hurdle to be overcome if possible
so as to reach the 'merits' of a lawsuit which a party desires to have adjudicated."
Valley Forge, 454 U.S. at 476. To the contrary, it is an "essential
and unchanging part of the case-or-controversy requirement of Article III."
Defenders of Wildlife, 504 U.S. at 560.
|||A federal court deciding matters outside the scope of Article III, then,
exercises power that is "not judicial ... in the sense in which judicial
power is granted by the Constitution to the courts of the United States."
Valley Forge, 454 U.S. at 471 (quoting United States v. Ferreira, 13 How.
40, 48 (1852)). To permit a federal court to rule on the claims of a plaintiff
lacking Article III standing would "create the potential for abuse
of the judicial process, distort the role of the Judiciary in its relationship
to the Executive and the Legislature and open the Judiciary to an arguable
charge of providing 'government by injunction.' " Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 222 (1974). Thus, "[t]he powers
of the federal judiciary will be adequate for the great burdens placed upon
them only if they are employed prudently, with recognition of the strengths
as well as the hazards that go with our kind of representative government."
Id. (emphasis added) (quoting Flast, 392 U.S. at 131 (Harlan, J., Dissenting)).
|||It is therefore imperative to exercise prudence when deciding a case-like
the case before us today-that would lower existing Article III barriers
to standing. We should not lightly tinker with the constitutional source
of federal judicial power, see Whitmore, 495 U.S. at 161, even when we may
sympathize with the ideological goals of plaintiffs in a particular case.
Id. (rejecting a "relaxed application of standing principles";
concluding that "[i]t is not for this Court to employ untethered notions
of what might be good public policy to expand our jurisdiction in an appealing
|||With these principles in mind, I turn now to Marc Jurnove's claims of
Article III standing.
|||The first of the familiar triad of requirements for constitutional standing
is "injury in fact," which is an "invasion of a legally protected
interest which is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical." Defenders of Wildlife, 504 U.S. at
560 (citations and internal quotation marks omitted). The majority concludes
that Jurnove has articulated a "concrete and particularized" injury
to his "legally protected interest" in "observing animals
living under humane conditions." Majority at 22; see also First Amended
Complaint ¶ 43 (alleging that Jurnove has an "aesthetic, recreational,
personal and educational interest in observing, photographing, writing about,
learning about and interacting with wild and exotic animals kept in humane
|||Despite the majority's assertion to the contrary, see Majority at 21-22,
today's ruling is indeed a departure from existing aesthetic injury jurisprudence.
Granted, "the desire to use or observe an animal species, even for
purely esthetic purposes, is undeniably a cognizable interest for purpose
of standing." Defenders of Wildlife, 504 U.S. at 562-63. However, as
we have observed before, the Supreme Court cases addressing aesthetic injury
resulting from the observation of animals are limited to cases in which
governmental action threatened to reduce the number of animals available
for observation and study. See Humane Society v. Babbitt, 46 F.3d 93, 97
(D.C. Cir. 1995) (citing Sierra Club v. Morton, 405 U.S. 727, 734 (1972);
Defenders of Wildlife, 504 U.S. at 563; Japan Whaling Ass'n v. American
Cetacean Soc'y, 478 U.S. 221, 231 n.4 (1986)).
|||Nor has this circuit previously crossed this diminution-ofthe-species
line and found the existence of a constitutional interest in the conditions
under which one views animals. The majority misleadingly suggests that we
did so in Animal Welfare Institute v. Kreps, 561 F.2d 1002, 1007 (D.C. Cir.
1977). In fact, that decision does not make it at all clear what the nature
of the injury is which the court found sufficient. On this cited page, under
the heading "Traditional Analysis ... Injury in Fact," the court
quoted more than a full column of the plaintiffs' complaint cataloging various
allegations of injury. Without specifying what part of the plaintiffs' allegations
of injury made out standing, the opinion goes on to note that "[t]he
District Court agreed that appellants' interests were cognizable,"
but had held that appellants lacked standing because the injury was not
personal to them, as opposed to being shared with "any other concerned
citizen." Id. at 1008. Our opinion then goes on to discuss the sufficiency
of the allegations that specific members of the plaintiff group intended
to conduct the observations underlying their factual allegations. Insofar
as the majority claims that our decision adopted the view that the conditions
of observation constitute a cognizable interest such that interference therewith
constitutes injury-in-fact for Article III standing purposes, the opinion
simply will not bear that weight.
|||In that case, environmental groups had filed a lawsuit that challenged
a decision by the Secretary of Commerce to waive a statutory moratorium
on the taking or importation of marine mammals or marine mammal products.
The result of the government's decision was to permit baby fur sealskins
to be imported into the United States from South Africa. Id. at 1004. The
plaintiffs alleged in their lawsuit that the government's action would "contribute
to the death and injury of marine mammals and injury to the ecosystem of
the South Atlantic Ocean." Id. at 1007. The plaintiffs articulated
their aesthetic injury as follows:
|||Through sanctioning the seal harvesting method of the South African Government,
the [Secretary's] decision impairs the ability of members of the Plaintiff
organizations to see, photograph, and enjoy Cape fur seals alive in their
natural habitat under conditions in which the animals are not subject to
excessive harvesting, inhumane treatment and slaughter of pups that are
very young and still nursing.
|||Id. (emphasis added). Citing Sierra Club, the Animal Welfare Institute
court determined that the plaintiffs had stated a cognizable injury-in-fact.
Id. at 1007-08.
|||The majority avers that the Animal Welfare Institute court recognized
a cognizable interest in viewing seals free from inhumane treatment. Majority
at 12-13. However, as the opinion makes clear, "inhumane treatment,"
as it appears in the above quotation and in the Marine Mammal Protection
Act, is a term of art referring to the manner in which seals are killed:
plaintiffs argued on the merits that "humane" killing of seals,
within the meaning of that statute, involved killing with a single blow
(and they argued, unsuccessfully, that South African harvesting practices
did not live up to this degree of "humaneness"). See id. at 1012-13;
16 U.S.C. § 1362(4) (1975). Animal Welfare Institute, then, involved allegations
that governmental action will "contribute to the death" of seals.
Id. at 1007. Accordingly, this case falls squarely within the line of Supreme
Court precedents recognizing claims of aesthetic injury to governmental
action diminishing the opportunity to observe, not affecting the quality
of the observation.
|||The majority also cites Humane Society v. Hodel, 840 F.2d 45 (D.C. Cir.
1988), seemingly for the proposition that viewing animals free from inhumane
treatment is a constitutionally cognizable injury. Majority at 13. But this
case too comes within the Supreme Court's diminution-of-the-species parameters,
specifically recognizing as cognizable the "deplet[ion] [of] the supply
of animals and birds that refuge visitors seek to view." 840 F.2d at
|||Although the Supreme Court and this circuit have not recognized a cognizable
injury-in-fact to an aesthetic interest based on the circumstances of observation,
that does not mean that interference with such an interest could not amount
to a constitutional injury-in-fact. Rather, as I set forth above, I believe
it is necessary to proceed with caution when venturing into constitutionally
uncharted waters. See Section I., supra.
|||Having removed the diminution-of-the-species touchstone of existing case
law, the majority opens an expanse of standing bounded only by what a given
plaintiff finds to be aesthetically pleasing. Aesthetic injury is, by its
nature, a matter of individual taste. For example, although Jurnove might
find it aesthetically pleasing to view primates kept in groups, another
person might prefer to watch them kept alone. Still another person might
prefer to see primates in brightly colored cages, or in cages in which recordings
of Mozart piano concertos are played around the clock, or not in cages at
all. Under the majority's theory, it appears that Article III encompasses
the injury of a person who states that he has an aesthetic interest in seeing
primates kept under such conditions, and that he believes primates that
are not kept under these conditions are treated inhumanely.
|||Jurnove's injury, recognized by the majority as constitutionally cognizable,
is in seeing particular animals treated humanely. "Humane" is
defined as "marked by compassion, sympathy, or consideration for other
human beings or animals." Webster's New Collegiate Dictionary 556 (1973).
Humaneness, like beauty, is in the eye of the beholder: one's individual
judgment about what is or is not humane depends entirely on one's personal
notions of compassion and sympathy. I find it difficult to imagine a more
subjective concept than this.
|||Furthermore, as the majority acknowledges, the reasoning of its opinion
is not limited to humaneness. The majority recognizes an aesthetic injury
in viewing animals in any manner that does not comport with a plaintiff's
individual taste. According to the majority's theory, a sadist with an interest
in seeing animals kept under inhumane conditions is constitutionally injured
when he views animals kept under humane conditions. In so doing, the majority
labors mightily, but unpersuasively, to limit the reasoning of its holding
to the recognition of an aesthetic injury that results from the inhumane
treatment of animals. For example, the majority disputes that the hypothetical
sadist with an interest in seeing animals kept under inhumane conditions
would be constitutionally injured by viewing animals kept under humane conditions.
The majority explains the constitutional infirmity of the sadist's claims
by stating that only "legally protected" injuries fall within
the Article III injury-in-fact test. See Majority at 14 n.7 (citing Defenders
of Wildlife, 504 U.S. at 560). According to the majority, the sadist's injuries
are not "legally protected" "because the [Animal Welfare
Act] ... recognizes no interest in sadism." Id. But by relying on the
nature of the injury recognized by a governing statute as "legally
protected," the majority improperly conflates the prudential zone-of-interests
analysis with the Article III injury-in-fact analysis. The majority's attempt
to blend these conceptually distinct tests is logically incoherent, and
in no way cures the ill-defined and essentially subjective nature of the
asserted injury before us today.
|||In recognizing Jurnove's purely subjective injury, the majority radically
departs from our precedent. For example, we refused to recognize "purely
subjective" claims of injury that could not be measured by "readily
discernible standards" in Metcalf v. National Petroleum Council, 553
F.2d 176, 187 (D.C. Cir. 1977) (citing Laird v. Tatum, 408 U.S. 1, 13-14
(1972)). One such "purely subjective" claim of injury in that
case was raised by United States Senator Lee Metcalf. Metcalf claimed that
the National Petroleum Council was unlawfully operating as a federal advisory
committee because its membership was not "fairly balanced" as
required by the Federal Advisory Committee Act. Metcalf, at the time the
chairman of a Senate subcommittee on Minerals, Materials and Fuels, alleged
that the Council was providing him with biased information, thus "imped[ing]
[him] in his efforts to develop the best possible legislative product."
Id. at 185-86.
|||In rejecting Metcalf's proposed injury in fact, we specifically targeted
the "purely subjective nature of his asserted injury":
|||[Metcalf's] injury derives from his belief that he cannot produce the
"best possible legislative product" because of the Council's allegedly
tainted advice. There are no objective standards to determine when a legislative
product is the "best" that it can be; such a determination necessarily
rests on each legislator's individual view of the countless variety of factors
which go into the formulation of legislation. Were we to accept the pure
subjectivity put forth by appellant Metcalf in his capacity as an individual
legislator, the federal courts would become a forum for the vindication
of value preferences with respect to the quality of legislation enacted
by our national legislature. Such a role for the courts is clearly inconsistent
with the "cases or controversies" limitation of Article III.
|||Id. at 188.
|||Just as a legislator's view of what legislation is "best" depends
solely on the value preferences of the legislator, so does Jurnove's notion
of what is "humane" depend solely on his own value preferences.
And no objective standard could possibly measure degrees of a concept-humaneness-that
is based entirely on one's subjective emotions. Under existing law, a plaintiff
may establish a "concrete and particularized" injury when his
interest in observing or studying animals is directly affected by the reduction
in the number of animals to be viewed or studied. Today's decision goes
much further, recognizing an aesthetic injury based solely on a plaintiff's
subjective emotional response to something he sees. Under today's decision,
one's individual preference in viewing animals in a particular way is thought
to be constitutionally injured when government regulations do not require
the animals to be kept in a way that comports with one's taste. I would
follow Metcalf and hold that such a purely subjective injury is outside
the boundaries of Article III. The majority's contrary Conclusion amounts
to constitutional recognition of the "psychological consequence presumably
produced by observation of conduct with which one disagrees." Valley
Forge, 454 U.S. at 485. Valley Forge, among many other cases, makes it plain
that this is "not an injury sufficient to confer standing under Art.
III...." Id.; see also Humane Society v. Babbitt, 46 F.3d 93, 98 (D.C.
Cir. 1995) ("[G]eneral emotional 'harm,' no matter how deeply felt,
cannot suffice for injury-in-fact for standing purposes.") (citing
|||The majority accuses the panel opinion of "import[ing] ... a requirement
into our standing doctrine so late in the day" by requiring a diminution
in the opportunity to observe in order to establish cognizable injury to
aesthetic interests. Majority at 21. This statement fundamentally misunderstands
not only our precedent but the nature of standing. No one was "importing"
a new requirement. We simply have not been asked before to find standing
where the sole alleged injury is an interference with the aesthetic taste
of the plaintiff. To pass on that novel question at its first appearance
is not "late in the day." It is simply the first time it has been
necessary to decide whether we will conclude that constitutional standing
extends to an area in which it has not previously been asserted.
|||In short, Jurnove's asserted injuries are not "traditionally thought
to be capable of resolution through the judicial process." See Valley
Forge, 454 U.S. at 472 (quoting Flast, 392 U.S. at 97). Accordingly, I would
find that he has not met his burden of demonstrating a cognizable injury-in-fact.
This Conclusion alone would bar Jurnove from seeking relief in federal court.
Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 662 (D.C. Cir. 1996) (en
|||Even if I shared my colleagues' belief that an interference with a plaintiff's
aesthetic sensibilities absent a diminution in the opportunity to exercise
those sensibilities is sufficient to make out the injury-in-fact element
of constitutional standing, I still could not conclude that the plaintiffs
had established that Jurnove has constitutional standing on the present
complaint. Even if such an injury were cognizable, and even if the complaint
has set forth that cognizable injury, their attempt at standing stumbles
at the second stile: they have not established causation.
|||In analyzing the "causation" element of constitutional standing,
we ask whether it is "substantially probable" that the challenged
acts of the defendant-as opposed, for example, to the acts of an absent
third party-caused a plaintiff's particularized injury. Florida Audubon
Soc'y, 94 F.3d at 663 (citations omitted). Causation, therefore, is related
to but distinct from "redressability," which requires that the
relief sought by the plaintiffs is likely to alleviate the plaintiff's injury.
Id. at 663-64.
|||When a plaintiff asserts injuries attributed to "the government's
allegedly unlawful regulation (or lack of regulation) of someone else,"
Defenders of Wildlife, 504 U.S. at 562 (emphasis in original), the causation
and redressability elements of standing analysis "require more exacting
scrutiny." Freedom Republicans, Inc. v. Federal Election Comm'n, 13
F.3d 412, 416 (D.C. Cir.) (Wald, J.), cert. denied, 513 U.S. 821 (1994).
Under these circumstances, standing is not necessarily precluded, but the
"indirectness of injury 'may make it substantially more difficult to
meet the minimum requirements of Art. III: to establish that, in fact, the
asserted injury was the consequence of the defendants' actions, or that
prospective relief will remove the harm.' " Id. (quoting Simon v. Eastern
Ky. Welfare Rights Org., 426 U.S. 26, 44-45 (1976)). A plaintiff who claims
to have been injured by the government's regulation of a third party must
"adduce facts showing that the unfettered choices made by independent
actors have been or will be made in such manner as to produce causation
and permit redressability of injury." Id. at 417 (brackets omitted)
(quoting Defenders of Wildlife, 504 U.S. at 562).
|||The majority concludes that Jurnove has met his burden of establishing
that his claimed aesthetic injury is fairly traceable to government action.
Jurnove's argument, accepted by the majority, proceeds: (1) Jurnove was
aesthetically injured when he saw primates he believed to be mistreated
at the Game Farm; (2) the manner in which the Game Farm treated the primates
was permitted under existing regulations; (3) existing regulations are not
tough enough because they do not include "minimum standards" as
required by the Animal Welfare Act; (4) by failing to promulgate tough regulations
that comply with the AWA, USDA is responsible for the aesthetic injuries
Jurnove suffered by viewing primates at the Game Farm. Since Jurnove is
asserting injuries attributed to the government's regulation of a third
party, his claims of causation must be considered with "exacting scrutiny."
Freedom Republicans, 13 F.3d at 416.
|||The cornerstone of Jurnove's claims of causation is that existing regulations
permit the conditions that troubled him. Indeed, the majority stresses the
fact that USDA's repeated inspections of the Game Farm revealed no (or few)
|||See Majority at 25-26. However, the gravamen of the affidavit is not that
the events Jurnove witnessed were legal, but that USDA is shirking its obligation
to enforce the law, and is only halfheartedly inspecting the Game Farm in
order to mollify Jurnove. Jurnove explicitly states that he has "concluded
that the USDA was just 'going through the motions' to placate [him] because
of [his] many calls and submissions [complaining about the treatment of
Game Farm primates]." Jurnove Affidavit ¶ 41. Furthermore, Jurnove
states that he "knew that the USDA inspection report [finding the Game
Farm in compliance with existing regulations] was incorrect." Id. at
¶ 19; see also id. at ¶ 21 (alleging that the USDA inspection report of
July 21, 1995 included nothing about conditions that Jurnove says were "required
by USDA regulations"). In light of the thrust of the affidavit (that
USDA went through the motions and wrote up incorrect reports), Jurnove's
legal claims of causation (that the regulations permitted the conditions
he witnessed) seem disingenuous. See 10A Wright, Miller & Kane, Federal
Practice and Procedure § 2721, at 365 (1998) ("The formal issues framed
by the pleadings are not controlling on a motion for summary judgment....").
|||According to the majority, causation is established if a plaintiff demonstrates
that challenged governmental action "authorizes" the plaintiff's
injuries. But the majority uses the term "authorize" in a very
loose way. For example, 9 C.F.R. § 3.81(a)(3) provides that "[i]ndividually
housed nonhuman primates must be able to see and hear nonhuman primates
of their own or compatible species unless the attending veterinarian determines
that it would endanger their health, safety, or well-being." According
to the majority, this regulation authorized the Game Farm to house nonhuman
primates out of the sight or hearing of other primates. Majority at 23.
|||The majority's view of "authorization" here is beyond expansive.
The regulation says that individually housed primates must be able to see
and hear other primates unless the attending veterinarian determines otherwise.
Thus, one of two things must be true under existing law if a primate were
housed out of the sight or hearing of other primates. Either the attending
veterinarian determined that housing such a primate within the sight or
hearing of another primate "would endanger their health, safety, or
well-being," or the veterinarian did not, in which case the housing
of the primate would violate the regulation. According to the majority,
the regulation authorizes inhumane treatment of primates. How? An exhibitor
that "secured the approval of the veterinarian in its employ could
comply with the regulation without actually housing nonhuman primates within
the sight or sound of other primates." Id. (emphasis added). The obvious
innuendo of this sentence is that an exhibitor could bribe its staff veterinarian
to determine falsely that a given primate's "health, safety, or well-being"
would be endangered, thus permitting the primate to be housed away from
the sight or sound of other primates.*fn12
But if this were so, any inhumane treatment would be the result of the exhibitor's
failure to follow existing regulations, and would not be traceable to the
|||The majority also addresses the causation of Jurnove's alleged aesthetic
injury in seeing squirrel monkeys housed next to adult bears "repeatedly
walking over to the door and sniffing and acting very upset when the bears
came near." Jurnove Affidavit ¶ 11. The majority acknowledges that
under existing regulations, "[n]onhuman primates may not be housed
with other species of primates or animals unless they are compatible."
Majority at 24 (citing 9 C.F.R. § 3.81(a)(3)). It emphasizes, however, that
this provision is not applicable here because it does not "expressly
regulate" incompatible animals housed next to each other, but in separate
cages. Id. The majority's causation analysis comes down to this: when a
provision does not "expressly regulate" certain treatment, the
regulations "authorize" such treatment. See also Majority at 24-25
(asserting that a regulation that included no "specific requirements
governing the particular kind or number of enrichment devices" authorized
the Game Farm's decision to furnish a cage with only one swing). Surely
this analysis proves too much. There are an infinite variety of things not
"expressly regulated" by section 3.81, and according to the majority's
reasoning any injury caused by those things is fairly traceable to the government's
failure to "expressly regulate" them. I cannot subscribe to such
a wide-ranging theory of causation.
|||I find frightening at a constitutional level the majority's assumption
that the government causes everything that it does not prevent. The majority
rejects as "a false premise" the proposition that "[t]he
proper comparison for determining causation is ... between what the agency
did and the status quo before the agency acted." Majority at 29. I
submit that consistent with our constitutional tradition of limited government
that is precisely the correct premise for causation. The cases offered by
the majority, Investment Co. Institute v. Camp, 401 U.S. 617 (1971); Arnold
Tours, Inc. v. Camp, 400 U.S. 45 (1970); and Barlow v. Collins, 397 U.S.
159 (1970), are not to the contrary. In each of those decisions the alleged
injury arose from conduct on the part of a regulated entity whose conduct
was expressly authorized by some regulation enacted by the sued regulator.
Thus, there was an express authorization caused by the government defendants.
In the present case, Jurnove has pointed to no such express authorization
of any conduct that inflicts his alleged injuries.
|||Nor do decisions of our circuit sweep into causation the full expanse
of all conduct not forbidden by the alleged causer. Bristol-Myers Squibb
Co. v. Shalala, 91 F.3d 1493 (D.C. Cir. 1996), did not, as the majority
claims, "explicitly reject[ ] the distinction between permissive and
mandatory government regulation." Majority at 30. That case involved
regulations that governed the approval of new generic drugs which could
not be marketed under relevant conditions without the regulator's approval.
Bristol-Myers, 91 F.3d at 1494-95. In light of the fact that the regulator
explicitly authorized the conduct at issue, there was a neat causal fit
between the authorization and the act that allegedly caused the injury.
|||Telephone and Data Systems, Inc. v. FCC, 19 F.3d 42 (D.C. Cir. 1994),
upon which the Bristol-Myers court and derivatively the majority today rely,
is also not to the contrary. It supports the distinction between the authorization
of particular conduct and the failure to prevent it. In Telephone and Data
Systems, the FCC had entered an order which authorized the operation of
a licensed entity under certain conditions, and another which would merely
allow the transfer of a particular license. In the portion cited by the
majority, we held that an appellant allegedly injured by the conduct expressly
authorized by the FCC in the first order had made out causation. Id. at
47. In a portion of the opinion not cited by the majority, we held that
the same appellant had not made out causation in its allegation of potential
anticompetitive collusion on the part of the potential transferee. Id. at
48. In no part of the opinion did we provide any precedent for the proposition
that a bare failure to prevent conduct by regulation is tantamount to causation.
|||The remainder of the cases cited by the majority are simply a repetition
of the same refrain. See Motor & Equipment Manufacturers Assoc. v. Nichols,
142 F.3d 449, 457 (D.C. Cir. 1998) (holding that a competitive injury was
fairly traceable to EPA's deemed-to-comply rule because the regulation "create[d]
a tremendous incentive for manufacturers to install [on-board emissions
diagnostic devices] that comply with California's regulations in all their
cars"); Louisiana Energy and Power Authority v. FERC, 141 F.3d 364,
367 (D.C. Cir. 1998) (holding that a competitive injury was fairly traceable
to FERC's decision to "lift regulatory restrictions on their competitors");
International Ladies' Garment Workers' Union v. Donovan, 722 F.2d 795, 799
(D.C. Cir. 1983) (holding that the petitioners had standing to challenge
the Secretary of Labor's decision to "rescind longstanding restrictions
on the employment of workers in their homes (homeworkers) in the knitted
outerwear industry"). In each of these cases, we reasoned that the
commercial conduct of third parties was fairly traceable to the government,
because the conduct was expressly authorized by the government's economic
regulation. In contrast, Jurnove can point to no such authorization. It
is no answer to say that USDA's regulations do not prohibit the allegedly
inhumane conditions that he observed at the Game Farm. What matters, under
our consistent case law, is whether the third party conduct follows directly
on the heels of a government decision that affirmatively approved that conduct.
Jurnove has made no such submission.
|||I would further hold that Jurnove fails the test of redressability. To
explain why I find his claims of redressability wanting, I offer this example.
Jurnove claims that he was aesthetically injured by viewing primates with
inadequate cage enrichment devices. In particular, he states that he was
disturbed by viewing a Japanese Snow Macaque housed in a cage with only
one such cage enrichment device: an unused swing. Jurnove Affidavit ¶ 14.
He takes issue with the existing regulation concerning such devices because
they violate the Animal Welfare Act's minimum standards mandate. The regulation
provides that "[t]he physical environment in the primary enclosures
must be enriched by providing means of expressing noninjurious species-typical
activities." 9 C.F.R. § 3.81(b). According to Jurnove (and the majority),
these regulations authorized the Game Farm to keep primates in an offensive
|||To find redressability on Jurnove's claims would require that we ignore
the well-established rule that Article III standing requires it to "be
likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision." Bennett v. Spear, 117 S. Ct. 1154, 1163 (1997);
accord Defenders of Wildlife, 504 U.S. at 560-61.
|||How would a judicial order invalidating section 3.81(b) and directing
USDA to promulgate a new regulation redress Jurnove's claims of aesthetic
injury? Under Jurnove's theory, to comply with the "minimum standards"
mandate of the AWA, the new regulation would require certain specific cage
enrichment devices to be included. But due to the fuzzy nature of Jurnove's
asserted injury, it would require sheer speculation to presume that any
enrichment devices specified in a future regulation would satisfy Jurnove's
aesthetic tastes. We only know that Jurnove does not like seeing primates
kept in cages with only one enrichment device. We do not know what conditions
would satisfy his individual taste. We do not know, for example, how many
enrichment devices Jurnove would prefer to see, or of what type.
|||This problem-how could we possibly know whether a future regulation comports
with Jurnove's aesthetic interests-is directly related to the nature of
Jurnove's claimed injury itself. When an animal viewer asserts an aesthetic
interest in not seeing a species diminished, it is easy to tell when that
injury is redressed: a judicial order may prevent the government from diminishing
the species. But when, as here, a plaintiff asserts that a regulation has
injured an unquantifiable interest (the plaintiff's own taste), it seems
to me nearly impossible to redress such an injury by a general court order
directing the government to try again.
|||Furthermore, as the majority acknowledges, an order directing USDA to
promulgate tougher standards might result in the Game Farm's deciding to
sell its primates to another exhibitor who is willing to abide by the new
regulation. The majority views this scenario as "protect[ing] Mr. Jurnove's
aesthetic interest in observing animals living under humane conditions."
Majority at 25. It is difficult to fathom how this is so. As the majority
acknowledges, Jurnove's interest is in seeing particular primates-that is,
the Game Farm primates-kept under certain conditions. But if the Game Farm
primates are sold to another exhibitor, presumably Jurnove (who "enjoy[s]
seeing [animals] in various zoos and other parks near [his] home,"
Jurnove Affidavit ¶ 7 (emphasis added)) would not be able to see the Game
Farm primates at all, much less under humane conditions. The relief he seeks
may well result in his not being able to view the Game Farm primates at
all. This too undercuts Jurnove's claims of redressability.
|||Marc Jurnove says that he objects to a federal regulation because it permits
results that offend his aesthetic interests. Due to the majority's expansive
reading of standing doctrine,*fn13
Jurnove may ask a court to force USDA to promulgate a new regulation that
comports with his individual notion of aesthetics. Jurnove's complaints,
formerly addressable only by the political branches, may now be aired in
|||I am reminded of Justice Powell's remark that "[r]elaxation of standing
requirements is directly related to the expansion of judicial power."
United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J., Concurring).
Indeed, I believe justice Powell's warnings concerning federal taxpayer
or citizen standing have particular resonance here, and are worth quoting
|||It seems to me inescapable that allowing unrestricted taxpayer or citizen
standing would significantly alter the allocation of power at the national
level, with a shift away from a democratic form of government. I also believe
that repeated and essentially head-on confrontations between the life-tenured
branch and the representative branches of government will not, in the long
run, be beneficial to either. The public confidence essential to the former
and the vitality critical to the latter may well erode if we do not exercise
self-restraint in the utilization of our power to negative the actions of
the other branches. We should be ever mindful of the contradictions that
would arise if a democracy were to permit general oversight of the elected
branches of government by a nonrepresentative, and in large measure insulated,
judicial branch. Moreover, the argument that the Court should allow unrestricted
taxpayer or citizen standing underestimates the ability of the representative
branches of the Federal Government to respond to the citizen pressure that
has been responsible in large measure for the current drift toward expanded
standing. Indeed, taxpayer or citizen advocacy, given its potentially broad
base, is precisely the type of leverage that in a democracy ought to be
employed against the branches that were intended to be responsive to public
attitudes about the appropriate operation of government. "We must as
Judges recall that, as Mr. Justice Holmes wisely observed, the other branches
of the Government 'are ultimate guardians of the liberties and welfare of
the people in quite as great a degree as the courts.' Missouri, Kansas &
Texas R. Co. v. May, 194 U.S. 267, 270 (1903)." Flast, 392 U.S. at
131 (Harlan, J., Dissenting).
|||Id. at 188-89 (footnote omitted).
|||By expanding the definition of an Article III "Case" or "Controversy,"
the majority increases federal judicial power at the expense of that of
the political branches. I Dissent from the majority's unwarranted erosion
of the standards for constitutional standing.
Rahn, a fourth individual plaintiff, also appeared before the district court
in this case. However, Rahn's claim focused only on the USDA's allegedly
inadequate enforcement of its existing regulations, an issue not before
this court on appeal. See Animal Legal Defense Fund, Inc. v. Glickman, 943
F. Supp. 44, 51, 62-64 (D.D.C. 1996).
Animal Legal Defense Fund ("ALDF"), an animal welfare organization,
alleges that the USDA violated the notice and comment provisions of the
Administrative Procedure Act ("APA"), 5 U.S.C. § 553 (1994), by
failing to provide adequate opportunity to comment on the agency's decision
to require regulated entities to keep their plans at their own facilities,
see 9 C.F.R. § 3.81(e)(3), thereby protecting these plans from disclosure
under the Freedom of Information Act, 5 U.S.C. § 552 (1994). The panel opinion
held that ALDF lacked standing to sue, and the in banc court limited itself
to considering Marc Jurnove's standing.
the crux of the plaintiffs' complaint alleges that the USDA failed to promulgate
minimum standards as required by the AWA, the complaint also states that
the USDA has inadequately enforced even its existing regulations, by allegedly
failing to inspect facilities and by allegedly instructing its inspectors
to avoid documenting violations. See First Amended Complaint WW 122-23.
As the district court found, see 943 F. Supp. at 62-64, the USDA's decisions
about whether to undertake enforcement actions are generally unsuitable
for judicial review, see, e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985).
The plaintiffs have not appealed that judgment to this court.
district court also held that ALDF had standing to sue in its own capacity
on its notice and comment claim, see 943 F. Supp. at 53-54, and found for
ALDF on the merits, see id. at 61-62.
Dissent attempts to limit Animal Welfare Institute to support standing only
where the challenged governmental action is "diminishing the opportunity
to observe [the animal], not affecting the quality of the observation."
Dissent at 6. This statement does not accurately reflect either the injury
alleged in Animal Welfare Institute or this court's holding in that case.
In articulating the nature of their aesthetic injury, the Animal Welfare
Institute plaintiffs alleged an interest in observing Cape fur seals who
lived under "not ... inhumane" conditions, 561 F.2d at 1007-in
other words, an interest in the quality of animal life, rather than the
quantity of animals alive. To be sure, the "inhumane treatment"
that concerned these particular plaintiffs revolved, as the Dissent notes,
around the manner in which the seals were being killed. See id. at 1012-13.
But this fact does not reduce the plaintiffs' claim to one challenging the
government only for causing the diminishment of an animal population. To
the contrary, the plaintiffs in Animal Welfare Institute were alleging aesthetic
injury based on how the Cape fur seals were living and how they were dying;
the plaintiffs did not simply focus on the fact that the seals were, in
fact, dying. Moreover, in holding that the plaintiffs' aesthetic interests
would satisfy the requirements of standing if the plaintiffs could establish
that they were among the injured, this court never distinguished between
the plaintiffs' claims based on the quality of animal life and those based
on the number of animals in existence.
surprisingly, the Dissent also reads Humane Society v. Hodel to support
standing only where the challenged governmental action has or will deplete
the supply of an animal population. See dissent at 6. In fact, the case
explicitly rejects that reading. The complaint in Humane Society v. Hodel
stated both "that the existence of hunting on wildlife refuges forces
Society members to witness animal corpses and environmental degradation"
(a claim based on the quality of the aesthetic experience of observing animals)
and that the challenged hunting regulations also "deplet[ed] the supply
of animals and birds that refuge visitors seek to view" (a claim based
on the number of animals in existence). 840 F.2d at 42. This court, moreover,
clearly recognized both of these claims, stating: "These are classic
aesthetic interests, which have always enjoyed protection under standing
analysis." Id. (emphasis added).
was suggested, not altogether facetiously, at oral argument that recognition
of an aesthetic interest in observing animals might be problematic because
it could encapsulate the aesthetic interest of a sadist in seeing animals
living under inhumane conditions and the injury he suffered upon seeing
particular animals living in a humane environment. There is a major difficulty
with this argument. The meaning of "injury in fact" under our
constitutional standing test does not incorporate every conceivable aesthetic
interest. To the contrary, our standing jurisprudence defines injury in
fact as "an invasion of a legally protected interest." Defenders
of Wildlife, 504 U.S. at 560 (emphasis added). Thus, if the hypothetical
sadist challenged the regulations at issue here (presumably, for being too
protective of animal welfare), he would not be able to establish injury
in fact because the AWA, the relevant statute, recognizes no interest in
sadism. To the contrary, it requires dealers, exhibitors, and research facilities
to treat animals humanely. See 7 U.S.C. § 2143. This sadist would also find
his claim immediately excluded under the APA, which only grants standing
to people "adversely affected or aggrieved by agency action within
the meaning of a relevant statute." 5 U.S.C. § 702 (1994) (emphasis
added); see also Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 394 (1987);
Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,
153-54 (1970); ALDF II, 29 F.3d at 723; ALDF I, 23 F.3d at 499. The Dissent
attempts further to build on the suggestion put forth at oral argument that
no one should be able to establish constitutional standing based on an aesthetic
interest in observing animals living under humane conditions because definitions
of what is "humane" may differ so widely. See Dissent at 6-7.
But the dissent, again, forgets that not every aesthetic interest can form
the basis for a lawsuit; our injury-in-fact test protects only those aesthetic
interests that have been "legally protected." 504 U.S. at 560.
At its heart, the Dissent's complaint may reflect a fear that the AWA does
not do enough to define what it means by "humane," although the
statute does indicate, in its sections focusing on animal research, a particular
concern with minimizing "animal pain and distress." See, e.g.,
7 U.S.C. § 2143(a)(3)(A). Yet "humane" does convey a basic meaning
of compassion, sympathy, and consideration for animals' health, safety,
and well-being, and it is not that unusual for this court to apply relatively
broad statutory language to particular claims by looking to the normal usage
of words, even when different people may disagree as to their application
to a variety of factual situations.
Mineral King Valley "is designated as a national game refuge by special
Act of Congress." 405 U.S. at 728. The Sierra Club alleged, inter alia,
"that various aspects of the proposed development contravene federal
laws and regulations governing the preservation of ... game refuges."
Id. at 730.
United States argues that Mr. Jurnove has not demonstrated causation, on
the ground that the above-described injuries are self-inflicted. The assertion
appears to turn on the fact that Mr. Jurnove first traveled to the Game
Farm "in [his] capacity as an equine investigator, [after being] apprised
that several ponies needed to be checked on at that location." Jurnove
Affidavit ¶ 7. This argument may-or may not-have merit with regard to equine
mistreatment at the Game Farm. However, there is no need in this case to
offer any opinion about whether so-called "self-inflicted" wounds
can give rise to standing. According to Mr. Jurnove's uncontested affidavit,
he visited the primates at the Game Farm, the subject of the present suit,
out of an aesthetic interest in observing animals living under humane conditions.
See id. ("Once [Mr. Jurnove] was there [at the Game Farm]," he
decided "to look around at the other animals housed there" "in
furtherance of [his] appreciation for exotic animals and [his] desire to
observe and enjoy them.").
The Dissent makes much of the fact that Mr. Jurnove occasionally expresses
doubt in his affidavit about the soundness of the USDA's multiple determinations
that the Game Farm was in compliance with essentially all of the relevant
regulations, contending that "the thrust of the affidavit" is
that "the USDA went through the motions and wrote up incorrect reports."
Dissent at 12. This argument is flawed on two counts. First, Mr. Jurnove's
affidavit is the wrong place to look for a statement of the plaintiffs'
legal theory of this case. Mr. Jurnove is not a lawyer and his affidavit
purports to articulate only his alleged injuries. The plaintiffs' legal
arguments are put forth in their complaint, where they explicitly allege
that the conditions at the Game Farm that caused Mr. Jurnove injury complied
with the present USDA regulations. See First Amended Complaint WW 53, 58.
Second, even if we were to look to Mr. Jurnove's affidavit to determine
the plaintiffs' legal theory, the "thrust of the affidavit" is
certainly not that the conditions at the Game Farm violated the USDA's regulations.
Indeed, so far as the record before us reflects, no decisionmaking authority
has ever made the determination that there are widespread regulatory violations
at the Game Farm. And the USDA, the agency with regulatory control over
the Game Farm, repeatedly came to the opposite conclusion, finding that
the Game Farm was in legal compliance with the USDA regulations that the
plaintiffs challenge here.
I note that we are reviewing the district court's entry of summary judgment
in favor of Jurnove and his co-plaintiffs. This fact determines our standard
of review: "while a motion to dismiss may be decided on the pleadings
alone, construed liberally in favor of the plaintiff, a motion for summary
judgment by definition entails an opportunity for a supplementation of the
record, and accordingly a greater showing is demanded of the plaintiff."
Wilderness Society v. Griles, 824 F.2d 4, 16 (D.C. Cir. 1987) (finding plaintiffs'
allegations in summary judgment context to be insufficiently specific to
meet their burden of establishing constitutional standing); see also Simon
v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 45 n.25 (1976) (acknowledging
that a complaint's standing allegations "withstood a motion to dismiss,
although [they] might not have survived challenge on a motion for summary
judgment"). Jurnove's affidavit was submitted in support of his motion
for summary judgment. Rule 56(e) of the Federal Rules of Civil Procedure
requires such affidavits to be "made on personal knowledge; [to] set
forth such facts as would be admissible in evidence, and [to] show affirmatively
that the affiant is competent to testify to the matters stated therein."
Fed. R. Civ. P. 56(e). Clearly, Jurnove would not have been permitted to
testify about the Conclusions of USDA examiners (that the Game Farm was
in compliance with regulations) because those Conclusions are hearsay and
not based on Jurnove's personal knowledge. However, because the government
never filed a motion to strike the hearsay portions of Jurnove's affidavit,
it waived its objections to them, and we may appropriately consider them
now in the absence of a "gross miscarriage of Justice." See 10B
Wright, Miller & Kane, Federal Practice and Procedure § 2738, at 372-73
The majority suggests, without record citation, that appellant's concern
is not with bribery, but rather "that the regulation gives exhibitors
too much leeway to shop around for a compliant veterinarian and that placing
such broad and unguarded discretion in the hands of the veterinarian in
an exhibitor's own employ is an insufficient safeguard to protect primate
well being." Majority at 23-24. This does not change the applicable
analysis. A claim of authorization through wide discretion is effectively
the same as (or close enough to) authorization through failure to forbid
as to fall far outside of the kind of express authorization required for
Article III causation.
The majority concludes that Jurnove has established prudential standing,
as well as constitutional. Because I do not believe Jurnove has established
constitutional standing, I find it unnecessary to address prudential standing
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