Associated Dog Clubs of New York State, Inc. v. Vilsack

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ASSOCIATED DOG CLUBS OF NEW
YORK STATE, et al.,
Plaintiffs,
Civil Action No. 1:13-cv-1982 (CRC)
v.
TOM VILSACK, Secretary, United States
Department of Agriculture, and UNITED
STATES DEPARTMENT OF
AGRICULTURE,
Defendants,
THE HUMANE SOCIETY OF THE
UNITED STATES
Proposed-
Intervenor/Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiffs brought suit to challenge a Department of Agriculture rule extending the licensing
requirements of the Animal Welfare Act to certain on-line pet dealers. The Humane Society of the
United States seeks to intervene in the action to defend the rule. Because the Humane Society has
demonstrated that the challenge may impede its well established animal cruelty programs and that
the USDA may not adequately represent its interests in defending the suit, the Court will grant the
Humane Society’s motion to intervene.
I. Background
The Animal Welfare Act, (“AWA”), 7 U.S.C. § 2131, et seq., establishes licensing and
operational requirements for pet dealers. Id. § 2133. The AWA defines “dealer” as any person who
for profit buys or sells dogs or other specified animals for use as pets, but it specifically excludes
“retail pet store[s]” from that definition. Id. § 2132(f). The Act itself does not define the term
“retail pet store.” Congress left that to the Secretary of Agriculture, who administers the Act. Id. §
2151.
For over forty years, the USDA maintained a regulation that, with certain exceptions,
broadly defined “retail pet store” as “any outlet” where dogs, cats and twelve other categories or
species of animals are sold to the public for use as pets. 9 C.F.R. § 1.1 (2004). The agency
defended that definition against a challenge from animal protection groups as recently as 2003. See
Doris Day Animal League v. Venemon, 315 F.3d 297 (D.C. Cir. 2003). In 2012, however, the
USDA changed course. Responding to concerns raised by the animal protection community,
including the Humane Society, over the alleged proliferation of on-line “puppy mills,” the agency
issued a proposed rule to revise the “definition of retail pet store and related regulations to bring
more animals sold at retail under the protection” of the AWA. 77 Fed. Reg. 28799-01 (May 16,
2012). The new rule, which became final on September 18, 2013, redefined “retail pet store” to
mean “a place of business or residence at which the seller, buyer and the animal available for sale
are physically present so that every buyer may personally observe the animal prior to purchasing
and/or taking custody of that animal after purchase[.]” 9 C.F.R. § 1.1. 1
Plaintiffs are a collection of dog and cat breeding clubs that object to the regulatory
requirements they claim will result from the new retail pet store definition. Bringing suit under the
Administrative Procedures Act (“APA”), they contend that the USDA failed to justify the new rule,
did not consider objections filed by the plaintiffs during the notice and comment period, and
exceeded its authority under the AWA.
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Presumably to lessen the impact of the new definition on small breeders, the rule also
widened an existing exemption based on the number of animals a breeder keeps on his or her
premises. Under the expanded exemption, breeders are not subject to licensing if they maintain
four or fewer breeding females on their premises and sell only the offspring of those animals for use
as pets or for exhibition. Id. § 2.1.
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Apparently concerned that that the USDA “might agree to settle rather than litigate” the
plaintiffs’ challenge to the rule that it helped bring about, the Humane Society moved to intervene
as a defendant in the case. Mot. to Intervene at 17. It argues that it will be forced to expend
additional resources to respond to “animal cruelty emergencies at non-USDA licensed puppy mills”
if the rule is set aside and questions whether USDA adequately represents its interests in defending
the rule. The breeding clubs oppose the motion to intervene because, in their view, the Humane
Society’s voluntary expenditure of resources “to hound breeders acting within the bounds of the
law” is not a “legally protected” interest justifying intervention and because the USDA adequately
represents the Humane Society’s interests, whatever they may be. Opp. to Mot. to Intervene at 4–
6. The government takes no position on the motion.
II. Analysis
The Humane Society seeks to intervene both as of right and permissively under Federal
Rules of Civil Procedure 24(a) and (b). Because the Court concludes that the Humane Society has
met the requirements for intervention as of right, it need not reach the Humane Society’s permissive
intervention argument. Rule 24(a)(2) permits parties to intervene in a pending action if (1) the
motion to intervene is timely; (2) the movant “claims an interest relating to the property or
transaction that is the subject of the action”; (3) the movant “is so situated that disposition of the
action may as a practical matter impair or impede the movant’s ability to protect its interest”; and
(4) the movant’s interest is not adequately represented by existing parties. Fed. R. Civ. P. 24(a);
accord Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (quoting Mova Pharm.
Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998)). Additionally, a party seeking to intervene
as of right in this Circuit “must demonstrate that it has standing under Article III of the
Constitution.” Fund for Animals, 322 F.3d at 731–32 (citing Military Toxics Project v. EPA), 146
F.3d 948, 953 (D.C. Cir. 1998)). The Court will first address whether the Humane Society has
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standing.
A. Standing
To satisfy the Article III standing requirements,
the plaintiff must have suffered an “injury in fact”—an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
be “fairly . . . trace[able] to the challenged action of the defendant, and not . . .
th[e] result [of] the independent action of some third party not before the court.”
Third, it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (footnote, citations, and quotations
omitted). An organization “‘may have standing in its own right to seek judicial relief from injury to
itself and to vindicate whatever rights and immunities the association itself may enjoy.’” Abigail
Alliance for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir.
2006) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). To establish standing in its own right,
an organization must demonstrate that that it has suffered a “concrete and demonstrable injury to
[its] activities—with [a] consequent drain on the organization’s resources—constitut[ing] . . . more
than simply a setback to the organization’s abstract social interests.” Nat’l Taxpayers Union, Inc.
v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) (quoting Havens Realty Corp. v. Coleman,
455 U.S. 363, 379 (1982)).
The Humane Society has made this showing. The organization’s animal cruelty programs
are well established. See Humane Society of U.S. v. Postal Serv., 609 F. Supp. 2d 85, 89 (D.D.C.
2009) (describing Humane Society programs). And it has demonstrated how invalidating the rule
would require it to divert additional resources to police suspected animal cruelty by non-licensed
breeders. See Mot. to Intervene at 13. Citing as examples the costs incurred treating animals
captured in two federal raids, the Humane Society explains that “if the Final Rule remains in place,
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it is highly likely that [it] would no longer have to engage in so many raids of unlicensed breeding
facilities.” Id. at 13–14. The Humane Society also asserts that a successful challenge to the rule
would hamper its investigatory and educational programs by depriving it of information collected
on licensed breeders. Id. at 14–16. Indeed, the breeding clubs themselves acknowledge that “the
newly promulgated Rule saves HSUS money, enables HSUS to be more efficient in gathering
information, and gives HSUS additional traction in its lobbying efforts.” Opp. to Mot. to Intervene
at 4. Case law in this Circuit firmly establishes that these types of impediments to an advocacy
organization’s activities constitute “concrete and demonstrable” injuries sufficient to confer
standing. See, e.g., Action Alliance of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931,
937–38 (D.C. Cir. 1986) (elimination of compliance and information collecting services by
government agency harmed private entity by increasing the burden on its “information-dispensing,
counseling, and referral activities”); People for the Ethical Treatment of Animals (“PETA”) v.
Dep’t of Agric., 13-976, 2013 WL 6571845, at *4 (D.D.C. Dec. 16, 2013) (USDA’s alleged “failure
to enforce the AWA with respect to birds” deprived the PETA “of key information that it relies on
to educate the public” forcing it to “expend additional resources . . . by pursuing complaints about
bird mistreatment . . . and by conducting its own investigations.”); Humane Society of U.S., 609 F.
Supp. 2d at 89 (Humane Society had standing to challenge postal service rule that increased costs of
responding to animal cruelty raids).
The Humane Society’s standing to intervene is not diminished, as the breeding clubs argue,
because it seeks to defend, rather than challenge, the USDA rule. Opp. to Mot. to Intervene at 6. 2
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While the breeding clubs direct this argument to the “legally protected interest” prong for
intervention as of right, Opp. to Mot. to Intervene at 4–6, the Court will address it in discussing
whether the Humane Society has standing because the inquiries are functionally identical under this
Circuit’s precedent. See, e.g., Cal. Valley Miwok Tribe v. Salazar, 281 F.R.D. 43, 47 (D.D.C.
2012) (citing Jones v. Prince George’s Cnty., 348 F.3d 1014, 1019 (D.C. Cir. 2003)); Am. Horse
Prot. Ass’n v. Veneman, 200 F.R.D. 153, 157 (D.D.C. 2001).
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Harm caused to an organization’s programs by the invalidation of a rule is no less concrete or
demonstrable than the same harm caused by an agency’s failure to enforce a rule. Consistent with
this principle, a number of decisions in this Circuit have permitted intervention by parties seeking
to defend government action. See Fund for Animals, 322 F.3d at 733–34 (agency of the Mongolian
government and private groups could intervene to defend Department of the Interior regulation
enabling hunters of Mongolian sheep to bring trophies to the United States); Military Toxics
Project, 146 F.3d at 954 (trade association had standing to intervene to defend EPA rule because its
members would be harmed if rule was set aside); Wildearth Guardians v. Salazar, 272 F.R.D. 4, 13–
18 (D.D.C. 2010) (coal mines intervened to defend Department of the Interior decision selling them
land against a challenge by environmental groups). In American Horse Protection Association v.
Veneman, 200 F.R.D. 153 (D.D.C. 2001), for example, an animal protection organization brought
suit to challenge USDA’s allegedly lax enforcement of rules designed to protect show horses from
training injuries. Id. at 155–56. A group of show horse trainers who were directly affected by the
rules moved to intervene to defend the agency’s enforcement regime. Id. at 156–57. The court
ruled that the trainers had standing to intervene as of right because they demonstrated that they
“will be injured in fact by the setting aside of the government’s action it seeks to defend, that this
injury will have been caused by that invalidation, and the injury would be prevented if the
government action is upheld.” Id. at 156. The same is true here.
Nor does it matter that the Humane Society voluntarily chooses to engage in its programs.
See Opp. to Mot. to Intervene at 4. While “[a]n organization is not injured by expending resources
to challenge [a] regulation,” Abigail Alliance, 469 F.3d at 133, injuries to programs undertaken by
choice may be sufficient to establish standing. See Havens Realty, 455 U.S. at 368 (describing
organization and program); see also Humane Society of U.S., 609 F. Supp. 2d at 89 (Humane
Society had standing to challenge government actions that harmed voluntary program to address
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animal cruelty).
B. Timeliness
Moving to Rule 24(a)’s timeliness requirement, the Humane Society filed its motion to
intervene 14 days after the breeding clubs filed their initial complaint. The motion is clearly timely,
which the breeding clubs do not dispute. See, e.g., Fund for Animals, 322 F.3d at 735 (filing
motion “less than two months after the plaintiffs filed their complaint and before the defendants
filed an answer” is timely).
C. Interest Related to the Action
A party seeking to intervene must next “claim[] an interest relating to the property or
transaction that is the subject of the action.” Fed. R. Civ. P. 24(a). The Humane Society has met
this requirement because “in this Circuit, ‘satisfying constitutional standing requirements
demonstrates the existence of a legally protected interest.’” Cal. Valley Miwok Tribe v. Salazar,
281 F.R.D. 43, 47 (D.D.C. 2012) (quoting Jones v. Prince George’s Cnty., 348 F.3d 1014, 1019
(D.C. Cir. 2003)); accord Am. Horse Prot. Ass’n, 200 F.R.D. at 157.
D. Action Will Impede the Movant’s Interest
The Humane Society also satisfies Rule 24(a)’s requirement that disposition of the action
will impair the movant’s ability to protect its interest. Whether the action will impede the movant’s
interest depends on the “‘practical consequences of denying intervention, even where the possibility
of future challenge to the regulation remain[s] available.’” Fund for Animals, 322 F.3d at 735(quoting Natural Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977)). As noted above,
Plaintiffs acknowledge that the new rule benefits the Humane Society’s programs and that vacating
that rule would remove that benefit. Opp. to Mot. to Intervene at 4. This potential harm is not
obviated by the Humane Society’s ability to “reverse an unfavorable ruling by bringing a separate
lawsuit,” given the cost and delay of doing so. See Fund for Animals, 322 F.3d at 735 (citing
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Natural Res. Def. Council, 561 F.2d at 910); accord Am. Horse Prot. Ass’n, 200 F.R.D. at 158–59.
E. Adequate Representation
Finally, a party seeking to intervene under Rule 24(a)(2) must show that that its interests are
not “adequately represented” by existing parties. This requirement is “‘not onerous.’” Fund for
Animals, 322 F.3d at 735 (quoting Dimond v. Dist. of Columbia, 792 F.2d 179, 192 (D.C. Cir.
1986)). The movant need only show that the current representation “‘may be inadequate[.]’” Id.(quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). As a result, this
Circuit “often conclude[s] that governmental entities do not adequately represent the interests of
aspiring intervenors.” Id. at 736–37 (citing Dimond, 792 F.3d at 192–93) & n.9 (collecting cases).
The Humane Society argues that, in light of the USDA’s prior defense of the broader retail
pet store definition, it might not defend the new rule as vigorously as the Humane Society would
like, particularly because the government is “obligated to consider the desires of the entirety of the
American public” over the Humane Society’s narrower interests. Mot. to Intervene at 17. The
breeding clubs assert that the USDA adequately represents the Humane Society’s interests because
“USDA [will] defend the Rule as being in [the] best interests of ‘the entirety of the American
public,’ especially [the Humane Society].” Opp. to Mot. to Intervene at 7.
The Humane Society has overcome the low hurdle required to show inadequacy of present
representation. “[M]erely because parties share a general interest in the legality of a program or
regulation does not mean their particular interests coincide so that representation by the agency
alone is justified.” Am. Horse Prot. Ass’n, 200 F.R.D. at 159. The Humane Society has “a distinct
and weighty interest” in furthering its investigatory and information-dissemination programs that is
not equivalent to the government’s broader concerns. See, e.g., Cal. Valley Miwok Tribe, 281
F.R.D. at 47–48; see also, Fund for Animals, 322 F.3d at 736 (“taking the [proposed intervenor’s]
efforts ‘into account’ does not mean giving them the kind of primacy that the [proposed intervenor]
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would give them”).
II. Conclusion
For the foregoing reasons, the Humane Society has met the requirements for intervention as
of right under Rule 24(a). It is hereby ORDERED that the Motion to Intervene by the Humane
Society of the United States is GRANTED
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: May 16, 2014
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