Animal Leg Def Fund v. Glickman, Daniel

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 1997 Decided December 9, 1997

No. 97-5009

Animal Legal Defense Fund, Inc., et al.,

Appellees

v.

Daniel R. Glickman, Secretary,

United States Department of Agriculture, et al.,

Appellants

National Association for Biomedical Research,

Intervenor-Appellant

Consolidated with

Nos. 97-5031 & 97-5074

Appeals from the United States District Court

for the District of Columbia

(No. 96cv00408)

John S. Koppel, Attorney, United States Department of

Justice, argued the cause for the federal appellants, with

whom Frank W. Hunger, Assistant Attorney General, Eric

H. Holder, Jr., United States Attorney at the time the briefs

were filed, and Michael Jay Singer, Attorney, United States

Department of Justice, were on the briefs.

Harris Weinstein argued the cause and filed the briefs for

intervenor-appellant National Association for Biomedical Re-

search.

Katherine A. Meyer argued the cause for appellees, with

whom Valerie J. Stanley was on the briefs.

Andrew L. Frey was on the brief for amicus curiae Phar-

maceutical Research and Manufacturers of America.

Leslie G. Landau, Susan Hoffman, and Tiffany R. Hedg-

peth were on the brief for amicus curiae The Jane Goodall

Institute for Wildlife Research, Education and Conservation.

Barry J. Cutler and Joseph R. Austin entered appearances.

Before: Wald, Sentelle and Henderson, Circuit Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Dissenting opinion filed by Circuit Judge Wald.

Sentelle, Circuit Judge: An animal welfare group and

four individuals sued the United States Department of Agri-

culture and some of its officials (collectively, "USDA" or "the

Department") under the Administrative Procedure Act

("APA"), 5 U.S.C. s 551 et seq. (1988). These plaintiffs

argued that a USDA regulation concerning the treatment of

primates failed to comply with the requirements of the gov-

erning statute, the Animal Welfare Act ("AWA" or "the Act"),

and asked the district court to set the regulation aside. After

concluding that the plaintiffs had standing to sue, the district

court entered judgment invalidating the challenged regulation

and ordered USDA to promulgate a new regulation in compli-

ance with the Act. See Animal Legal Defense Fund, Inc. v.

Glickman, 943 F. Supp. 44 (D.D.C. 1996). USDA appealed.

After reviewing the record, we conclude that all of the

plaintiffs (now appellees) lack constitutional standing to pur-

sue their claims. Accordingly, we vacate the judgment of the

district court and remand with instructions to dismiss the

case for want of jurisdiction.

I.

This appeal is but the latest chapter in the ongoing saga of

Animal Legal Defense Fund, Inc.'s ("ALDF") effort to enlist

the courts in its campaign to influence USDA's administration

of the Animal Welfare Act, 7 U.S.C. s 2131 et seq. Congress

enacted the Act in 1966 to ensure the humane care and

treatment of various animals used in research or for exhibi-

tion or kept as pets. 7 U.S.C. s 2131. Pursuant to a 1985

amendment, the Act requires the Secretary of USDA ("Secre-

tary") to "promulgate standards to govern the humane han-

dling, care, treatment, and transportation of animals by deal-

ers, research facilities, and exhibitors." 7 U.S.C.

s 2143(a)(1). Such standards must include "minimum re-

quirements ... for a physical environment adequate to pro-

mote the psychological well-being of primates." 7 U.S.C.

s 2143(a)(2)(B).

In 1991, pursuant to section 2143(a), the Secretary promul-

gated rules on the handling, care and treatment of primates.

See 9 C.F.R. s 3.75 et seq. The rule at issue in this appeal

requires regulated entities to "develop, document, and follow

an appropriate plan for environment enhancement adequate

to promote the psychological well-being of nonhuman pri-

mates." 9 C.F.R. s 3.81. According to that rule, such a plan

"must be in accordance with the currently accepted profes-

sional standards as cited in appropriate professional journals

or reference guides, and as directed by the attending veteri-

narian," and must address several specified topics, including

"[s]ocial grouping" and "[e]nvironmental enrichment." Id.

In 1991, ALDF, along with three individuals and two other

organizations, filed a lawsuit challenging several USDA regu-

lations promulgated under the AWA, including section 3.81.

The plaintiffs' principal argument was that, by permitting the

regulated entities to develop their own environmental en-

hancement plans, the regulations failed to include "minimum

requirements" as mandated by the AWA, see 7 U.S.C.

s 2143(a)(2), and instead impermissibly delegated promul-

gation of these requirements to the regulated entities. The

district court ruled for the plaintiffs, and set aside the chal-

lenged regulations. See Animal Legal Defense Fund v.

Secretary of Agriculture, 813 F. Supp. 882 (D.D.C. 1993).

We reversed, holding that all of the plaintiffs lacked standing

to challenge the regulations. Animal Legal Defense Fund,

Inc. v. Espy, 29 F.3d 720, 722 (D.C. Cir. 1994) ("ALDF II" ).1

ALDF mounted a second challenge to section 3.81 in 1996.

This time, it was joined by a different group of individual co-

plaintiffs: Roseann Circelli, Mary Eagan, Marc Jurnove, and

Audrey Rahn. Ruling on the plaintiffs' motion for summary

judgment, the district court again invalidated section 3.81,

and ordered the Secretary to promulgate a new regulation in

compliance with the "minimum requirements" mandate of the

AWA.

II.

Under Article III of the Constitution, the "judicial power"

of the United States is restricted to the resolution of "cases"

and "controversies." U.S. Const. art. III, s 2, cl. 1. In order

to limit the docket of federal courts to "disputes ... which

are traditionally thought to be capable of resolution through

the judicial process" and to restrict federal courts "to a role

consistent with a system of separated powers," Valley Forge

Christian College v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 472 (1982) (quoting

Flast v. Cohen, 392 U.S. 83, 97 (1968)) (internal quotation

marks omitted), our Article III jurisprudence has identified a

cluster of doctrines, " 'standing[,] mootness, ripeness, political

question, and the like,' by which we test the fitness of

controversies for judicial resolution." Louisiana Environ-

mental Action Network v. Browner, 87 F.3d 1379, 1382 (D.C.

1 We shall refer to this case as ALDF II to distinguish it from an

earlier case with the same name, which involved a challenge to a

different USDA regulation. See Animal Legal Defense Fund, Inc.

v. Espy, 23 F.3d 496 (D.C. Cir. 1994) ("ALDF I").

Cir. 1996) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984))

(additional citations and internal punctuation omitted).

In furtherance of the limitations of Article III, the standing

doctrine requires would-be federal litigants to demonstrate an

(1) injury in fact; (2) which is caused by, or is fairly traceable

to, the alleged unlawful conduct; and (3) which is likely to be

redressed by a favorable decision of the court. Valley Forge,

454 U.S. at 471-72; see also Bennett v. Spear, 117 S. Ct. 1154,

1161 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992). The party invoking federal jurisdiction bears

the burden of establishing these elements, FW/PBS, Inc. v.

Dallas, 493 U.S. 215, 231 (1990), and may not pursue its

claims before the federal judiciary if it fails to demonstrate

any one of them. Florida Audubon Soc'y v. Bentsen, 94

F.3d 658, 662-63 (D.C. Cir. 1996) (in banc). Neither the

individual appellees nor the Animal Legal Defense Fund have

successfully borne that burden. We consider first the indi-

vidual appellees Circelli, Jurnove and Eagan.2 We assume

their factual allegations to be true for purposes of this appeal.

See Defenders of Wildlife, 504 U.S. at 561.

A.

Roseann Circelli, Marc Jurnove and Mary Eagan have

viewed primates housed in isolation at local zoos. Circelli saw

an orangutan who could neither see nor hear other primates,

and who sat quietly by himself in a corner. Circelli Affidavit

p 8. Jurnove saw a large male chimpanzee who was kept in

isolation from other primates, and whose hands and feet were

covered with scars and cuts. Jurnove Affidavit p 8. Eagan

has seen primates housed in isolation as well, "including one

baby baboon and another primate named Charlie." Eagan

Affidavit p 4.

These appellees, all of whom enjoy visiting animals in

captivity, say they have suffered aesthetic and recreational

2 The district court did not rule that plaintiff Audrey Rahn had

standing to challenge section 3.81. See Animal Legal Defense

Fund, Inc., 943 F. Supp. at 54-57. Thus, we shall not address her

claims here.

injuries resulting from their observation of these primates.

Under some circumstances, interference with the observation

and study of animals may constitute injury in fact for stand-

ing purposes.3 Humane Soc'y of the U.S. v. Babbitt, 46 F.3d

93, 97 (D.C. Cir. 1995). It is not apparent, however, that

these appellees have met their burden of demonstrating a

cognizable injury in fact. "[G]eneral emotional 'harm,' no

matter how deeply felt, cannot suffice for injury-in-fact for

standing purposes." Id. at 98. It is part of the price of living

in society, perhaps especially in a free society, that an individ-

ual will observe conduct that he or she dislikes. "[T]he

psychological consequence presumably produced by observa-

tion of conduct with which one disagrees ... is not an injury

sufficient to confer standing under Art. III...." Valley

Forge, 454 U.S. at 485. Even assuming that appellees have

suffered sufficient injury, we conclude that they nonetheless

lack constitutional standing because their claimed injuries are

not "fairly traceable" to the Secretary's alleged failure to

promulgate "minimum requirements" as mandated by the

AWA, and because such injuries are not likely to be re-

dressed by the relief sought in this case. See Defenders of

Wildlife, 504 U.S. at 560-61; Florida Audubon Soc'y, 94 F.3d

at 663-64.

B.

In analyzing the "causation" element of constitutional

standing, we ask whether it is "substantially probable" that

the challenged acts of the defendant--as opposed to the acts

of an independent third party--caused a plaintiff's particular-

ized injury. Florida Audubon Soc'y, 94 F.3d at 663 (citations

omitted). Our "redressability" inquiry asks whether the re-

lief sought by a plaintiff is likely to alleviate the plaintiff's

3 As our dissenting colleague acknowledges, see Dissent at 5 n.1,

all of the Supreme Court cases recognizing such an injury have

done so when the challenged conduct threatens to diminish the

overall supply of an animal species available for observation or

study. Since this case does not involve allegations of such conduct,

none of the cases cited by the dissent compels the conclusion that

the individual appellees have articulated a cognizable constitutional

injury.

injury. Id. at 663-64. Causation, then, focuses on whether a

particular party is appropriately before the court; redressa-

bility focuses on whether the court is the appropriate forum

for the parties' dispute. Id. at 664.

When a plaintiff asserts injuries attributed to " 'the govern-

ment's allegedly unlawful regulation (or lack of regulation) of

someone else,' " 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. 1994) (Wald, J.) (emphasis in original) (quoting

Defenders of Wildlife, 504 U.S. at 562). Under these circum-

stances, standing is not necessarily precluded, but the "indi-

rectness 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 redressabili-

ty of injury." Id. at 417 (quoting Defenders of Wildlife, 504

U.S. at 562) (internal quotation marks and brackets omitted).

In this case, the zoos at which the primates were housed

acted independently; no laws or regulations compelled them

to keep the primates in the conditions witnessed by appellees.

Granted, when the government takes action that has a "deter-

minative or coercive effect" on a third party, the government

may be said to have "caused" injuries which are directly

attributable to the third party. Bennett, 117 S. Ct. at 1164.

But we are aware of no cases--and appellees have provided

us with none--in which the government was said to have

caused a constitutional injury by failing to issue regulations

that would have forbidden third parties from engaging in

conduct that caused a plaintiff's injury. The attenuated

connection between appellees' claimed injuries and the gov-

ernment's alleged failure to promulgate "minimum require-

ments" does not present a sufficient " 'causal nexus between

the agency action and the asserted injury' " to establish

causation. Humane Soc'y, 46 F.3d at 100 (quoting Freedom

Republicans, 13 F.3d at 418).

Our dissenting colleague is convinced that Jurnove's affida-

vit establishes standing because it alleges that the inhumane

conditions at the Long Island Game Farm are permitted by

USDA regulations. Dissent at 6. We disagree, first of all,

that a regulation which permits third parties to engage in

offensive behavior, but does not require them to do so, may

fairly be said to cause an injury resulting from the behavior

of the third parties; such a regulation would not have the

"determinative or coercive effect" on the third parties which

would render the alleged injuries fairly traceable to govern-

mental action. See Bennett, 117 S. Ct. at 1164.

Furthermore, we disagree with the dissent's interpretation

of Jurnove's affidavit. To be sure, as the dissent emphasizes,

the affidavit states that USDA inspectors found the Long

Island Game Farm to be in compliance with existing regula-

tions on several occasions. See Dissent at 6-7. However, the

gravamen of Jurnove's affidavit is that USDA failed to en-

force existing regulations, not that the offensive behavior was

permitted by them. Jurnove states this conclusion explicitly:

he says that the USDA inspection report finding the Game

Farm to be "in compliance with all standards" was "incor-

rect," Jurnove Affidavit WW 18-19, and adds that "[he] knew

[that the appalling conditions in which the animals were

housed] violated the minimum requirements of the Animal

Welfare Act." Id. p 17. The dissent ignores these allega-

tions, which we are bound to accept as true. See Defenders of

Wildlife, 504 U.S. at 561.

We turn now to redressability. Our conclusion that appel-

lees' alleged injuries are not "fairly traceable" to the Secre-

tary's actions leads us to the related conclusion that appellees'

injuries are not likely to be redressed by compelling the

Secretary to promulgate new regulations. See National

Wildlife Fed'n v. Hodel, 839 F.2d 694, 705 (D.C. Cir. 1988)

("causation" and "redressability" tend to merge in cases

where plaintiffs seek cessation of allegedly illegal conduct).

Appellees have not shown that it is "likely" that the relief

they want (compelling the Secretary to promulgate new regu-

lations) will alleviate their claimed aesthetic and recreational

injuries. See Florida Audubon Soc'y, 94 F.3d at 663-64. In

any event, appellees were not entirely clear as to how any

such alleviation would be accomplished. For example, our

review of their affidavits reveals that all of the appellees claim

to suffer persisting, painful memories of animal mistreatment.

See Jurnove Affidavit p 43 ("I continue to think about [the

animals I have witnessed at the Long Island Game Farm],

and experience the assault on my senses from remembering

their plight."); Circelli Affidavit p 17 ("I continue to think

about the animals I observed at the Scotch Plains Zoo in May,

1995, and I continue to be haunted by the horrible conditions

in which I saw them living."); Eagan Affidavit p 4 ("I ...

continue to carry the memories of these inhumanely treated

animals with me every day, which depresses me and causes

me distress."). Appellees do not claim, much less demon-

strate, that their painful memories are likely to be obliterated

by compelling the Secretary to promulgate new legal regula-

tions.

Appellees' claims of redressability are further undercut,

given that the district court, whether directly or through

appellants, has no power to compel the exhibitors to continue

maintaining primates at all, let alone in a manner aesthetical-

ly pleasing to appellees. By way of comparison, in Fulani v.

Brady, 935 F.2d 1324 (D.C. Cir. 1991), we rejected the

claimed standing of a would-be competitor in the presidential

debates who challenged the tax-exempt status of the sponsor-

ing organization. We did so noting that if we ordered the

Treasury to revoke that status, the sponsoring committee

might decline to hold the debates at all, a possibility that

would not enable the plaintiff to participate as she sought.

Id. at 1329. Similarly, if a court ordered the Department to

issue different regulations concerning primates, for all we

know, the exhibitors might cease keeping primates.

We hold that appellees Jurnove, Circelli and Eagan have

failed to carry their burden of alleging facts that would

demonstrate that the choices of the animal exhibitors "have

been or will be made in such manner as to produce causation

and permit redressability of injury." Defenders of Wildlife,

504 U.S. at 562. Thus, these appellees lack constitutional

standing to raise their claims, and we lack power to resolve

them.

III.

Having determined that the individual appellees have no

standing to bring the present action, we must consider the

standing of the Animal Legal Defense Fund. Organizational

plaintiffs may assert standing of two sorts. First, an organi-

zation may have standing on its own behalf when its rights

and immunities as an entity have suffered recognizable inju-

ry, redressable in the action at bar. Second, "under proper

conditions," it may "sue on behalf of its members asserting

the members' individual rights." Common Cause v. Federal

Election Comm'n, 108 F.3d 413, 417 (D.C. Cir. 1997) (citing

Warth v. Seldin, 422 U.S. 490, 511 (1975)). Either way, an

organizational plaintiff still must meet the constitutional

standing requirements set forth above.

In the present action, ALDF claims standing for injury to

its own rights, rather than standing derived from its mem-

bers. Its claimed injury is an alleged violation of its proce-

dural rights in USDA's adoption of section 3.81 governing the

"plans" for psychological enrichment of primates. Under the

final version of the rule, the regulated keepers of primates

need not file such plans with USDA, where they would be

subject to disclosure under the Freedom of Information Act,

5 U.S.C. s 552, but only must maintain such plans on their

own premises, making them available to USDA "upon re-

quest." ALDF, noting that the "upon request" language

appeared for the first time in the final rule, complains that

neither it nor any other party had the opportunity to submit

comments on the language to USDA before its adoption.

ALDF argues that the Secretary's failure to provide public

notice of the "upon request" language constitutes a violation

of the notice and comment procedures of the Administrative

Procedure Act. See 5 U.S.C. s 553. According to ALDF,

this violation gave rise to a purely procedural injury: the

inability to participate in rulemaking as provided by the APA.

Indeed, ALDF specifically disclaims any informational injury

resulting from a violation of the Animal Welfare Act; it

insists instead that its injury "is caused by the agency's

violation of the APA."

Both we and the Supreme Court have had recent occasion

to analyze the standing requirements applicable to an asser-

tion of procedural injury. We concluded that "a plaintiff may

have standing to challenge the failure of an agency to abide

by a procedural requirement only if that requirement was

'designed to protect some threatened concrete interest' of the

plaintiff." Florida Audubon Soc'y, 94 F.3d at 664 (quoting

Defenders of Wildlife, 504 U.S. at 573 n.8). Therefore, "[t]he

mere violation of a procedural requirement ... does not

permit any and all persons to sue to enforce the require-

ment." Id. Rather, a party claiming to be injured by a

procedural violation must show that the violation is likely to

harm the party in a specific and individualized way. Id.; see

also Defenders of Wildlife, 504 U.S. at 573 n.8 (holding that a

plaintiff may enforce procedural rights "so long as the proce-

dures in question are designed to protect some threatened

concrete interest of his that is the ultimate basis of his

standing").

Here, ALDF claims that the Secretary has failed to comply

with the notice and comment procedures of the APA. This

abstract, generalized "injury" is not sufficient to afford stand-

ing. ALDF may have been deprived of the opportunity to

submit comments on the "upon request" language of section

3.81. But this predicament is shared by many others, indeed

by the world at large. ALDF has failed to make the case

that it has suffered a concrete injury as distinguished from

the abstract procedural right to submit comments to USDA.

Its articulated "injury" amounts to no more than a " 'general

interest [in the alleged procedural violation] common to all

members of the public.' " Florida Audubon Soc'y, 94 F.3d at

664 (quoting Ex Parte Lvitt, 302 U.S. 633, 634 (1937)).

Thus, it lacks constitutional standing to pursue the asserted

violation in federal court.

IV.

We conclude that none of the appellees have standing to

challenge section 3.81. Accordingly, we vacate the judgment

of the district court, and remand the case with directions to

dismiss for want of jurisdiction.

There are two additional appeals before us: (1) ALDF's

appeal of the district court's order permitting the National

Association of Biomedical Research ("NABR") to intervene in

the case for purposes of appealing the district court's invali-

dation of section 3.81; and (2) NABR's appeal from the ruling

of the district court that invalidated section 3.81. Given our

decision to vacate the judgment of the district court, we order

these separate appeals dismissed as moot.

Wald, Circuit Judge, dissenting: I find that Marc Jur-

nove's uncontested affidavit is more than sufficient to meet

both the constitutional and the prudential requirements of

standing in this case. Hence, I will highlight Mr. Jurnove's

claims, without passing on those of the other individual

plaintiffs or ALDF. In my view, Mr. Jurnove's affidavit

amply illustrates how far the majority opinion has strayed

from a reasonable interpretation of standing requirements

under Supreme Court and our circuit's law.

I. Background

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 trans-

portation of animals by dealers, research facilities, and exhibi-

tors." Pub. L. No. 99-198, s 1752, 99 Stat. 1354, 1645 (1985)

(codified at 7 U.S.C. s 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 man-

datory requirements and also required the regulated parties

to "develop, document, and follow an appropriate plan for

environment enhancement adequate to promote the psycho-

logical well-being of nonhuman primates. This plan must be

in accordance with the currently accepted professional stan-

dards as cited in appropriate professional journals or refer-

ence guides, and as directed by the attending veterinarian."

9 C.F.R. s 3.81 (1997). Although these plans must be made

available to the USDA, the regulated parties are not obligat-

ed to make them available to members of the public. See id.;

infra at 7.

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 p 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. p 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. p 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. Through-

out this period, and since as far back as 1992, USDA has not

questioned the adequacy of this facility's plan for the psycho-

logical well-being of primates.

Mr. Jurnove's first visit to the Game Farm, in May 1995,

lasted approximately six hours. While there, Mr. Jurnove

saw many animals living under conditions that caused him

deep distress. For instance, the Game Farm housed one

primate, a Japanese Snow Macaque, in a cage lacking both a

solid floor and any kind of heating device. Mr. Jurnove

reports that he saw this monkey "shivering," "huddled up

with her head tucked in and arms hugging herself." Id. p 14.

The Game Farm also placed adult bears next to squirrel

monkeys, although Jurnove immediately saw evidence that

the arrangement made the monkeys frightened and extreme-

ly agitated.

The day after this visit, Mr. Jurnove began to contact

government agencies, including USDA, in order to secure

help for these animals. Based on Mr. Jurnove's complaint,

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 inspec-

tors] found the facility in compliance with all the standards."

Id. p 18. Mr. Jurnove returned to the Game Farm on eight

more occasions because these purportedly legal conditions left

him gravely concerned.

On July 17, 18, and 19, 1995, he observed "virtually the

same conditions" that allegedly caused him aesthetic injury

during his first visit to the Game Farm in May. Id. p 20.

This time, Mr. Jurnove documented these conditions with

photographs and sent them to USDA. 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.

Mr. Jurnove, however, remained unflagging in his determi-

nation to rectify conditions at the Game Farm that USDA had

now twice concluded were legal. He 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 troubling conditions persisted. Id. pp 22-28. The Japa-

nese snow monkey, for instance, still had no comfortable place

to sit; her only cushion against the wire mesh of her cage was

a small rag that one visitor had apparently thrown to her. At

the end of September, USDA sent three inspectors to the

Game Farm in response to Mr. Jurnove's continued com-

plaints and reportage; they found violations, however, only

with regard to the facility's fencing.

Mr. Jurnove returned to the Game Farm once more on

October 1, 1995. Indeed, he only stopped his frequent visits

and thorough surveys when he became ill and required major

surgery. 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 USDA's atten-

tion. He was disappointed again; "the animals [were] in

literally the same conditions as [he] had seen them over the

summer of 1995." Id. p 33; see also id. p 35 ("The Japanese

Snow Monkey had no access to a feeding station. No play

toys were in her cage. She just sat huddled and shivering

violently with head tucked in. She was doing the same thing

she had done last April to deal with the cold and the fact she

was not provided a heat lamp."). Mr. Jurnove's resulting

complaints prompted USDA to inspect the Game Park in late

May 1996. For the fourth time, the agency found the facility

largely in compliance, with a few exceptions. 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.

p 43.

II. Analysis

To my mind, Mr. Jurnove has more than met the require-

ments for standing. First, his allegations solidly establish

injury in fact. As the majority acknowledges, see Majority

opinion ("Maj. op.") at 6, the Supreme Court has repeatedly

made clear that injury to an aesthetic interest in the observa-

tion of animals is sufficient to satisfy the demands of Article

III standing. In Japan Whaling Association v. American

Cetacean Society, 478 U.S. 221 (1986), for instance, 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 230 n.4 (citing Sierra Club

v. Morton, 405 U.S. 727 (1972); United States v. SCRAP, 412

U.S. 669 (1973)); see also Sierra Club, 405 U.S. at 734

("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."). Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992), reiterated that "the desire to use or observe an animal

species, even for purely esthetic purposes, is undeniably a

cognizable interest for purpose of standing," id. at 562-63

(emphasis added). This statement precisely describes Mr.

Jurnove's claim. Contrary to the majority's suggestion, see

Maj. op. at 6, Mr. Jurnove has not only alleged "general

emotional 'harm' " stemming from the observation of conduct

with which he disagrees, Humane Soc'y v. Babbitt, 46 F.3d

93, 98 (D.C. Cir. 1995). Rather, Mr. Jurnove's affidavit

describes in great detail how conditions at the Game Farm

directly impair his well-established and lifelong aesthetic in-

terest in observing, studying, and enjoying animals by pre-

venting him from seeing these animals in a humane environ-

ment.

This court's precedent specifically recognizes that people

have a significant interest in observing animals living under

humane conditions. 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. This court held that these plaintiffs' aesthetic interests

satisfied the requirements of standing. See id. Similarly,

Humane Society v. Hodel, 840 F.2d 45 (D.C. Cir. 1988), 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 deplet-

ing the supply of animals and birds that refuge visitors seek

to view," id. at 52; 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) ("Our

own cases have indicated a recognition of people's interest in

seeing animals free from inhumane treatment.").1

The majority also finds that Mr. Jurnove has not satisfied

the causation and redressibility prongs of Article III stand-

ing. It contends, first, that Mr. Jurnove has failed to estab-

lish causation because he has not adequately established that

the Game Farm's treatment of its animals is causally linked

to the actions (or inactions) of the USDA. This argument is

false. As the Supreme Court necessarily recognized in Ja-

1 I do not think it dispositive that the Supreme Court cases that

have thus far recognized standing based on an aesthetic interest in

the observation or study of animals have all involved challenged

conduct that allegedly threatened to diminish the overall supply of

an animal species available for observation or study. See Lujan,

504 U.S. at 562; Japan Whaling Ass'n, 478 U.S. at 230 n.4; see also

Maj. op. at 6 n.3. I cannot believe that constitutional standing

actually turns on the difference between an observer's aesthetic

injury from government action that threatens to wipe out an animal

species altogether and government action that leaves some of the

animals in a persistent state of suffering, which in all probability

eventually will insure their demise. Indeed, the latter seems

capable of causing more serious aesthetic injury in many instances.

pan Whaling Association, plaintiffs claiming aesthetic injury

(there, injury to plaintiffs' interest in whale watching) can

establish standing based on the government's failure to ade-

quately regulate a third party (there, the government's failure

to certify that the Japanese whaling industry was exceeding

its quota under international law). See 478 U.S. 230 n.4.

What is required in a case where "a plaintiff's asserted injury

arises from the government's allegedly unlawful regulation

(or lack of regulation) of someone else" is that the plaintiff

"adduce facts showing that those choices [by the third party]

have been or will be made in such manner as to produce

causation and permit redressibility of injury." Lujan, 504

U.S. at 562. I believe that Mr. Jurnove has met this test.

As Mr. Jurnove's affidavit makes clear, the Game Farm has

repeatedly submitted to inspection by the USDA. The alleg-

edly inhumane conditions at the Game Farm have persisted

precisely because the USDA inspectors have always conclud-

ed on the basis of these visits that these conditions comply

with USDA regulations; it is entirely reasonable to presume

that if the USDA had found the Game Farm out of compli-

ance with current regulations, or if the governing regulations

had themselves been more stringent, the Game Farm's own-

ers would have acted to remain in accord with the law, either

by altering their practices or by going out of business and

transferring their animals to exhibitors willing to operate

legally (two scenarios that would do more to protect Mr.

Jurnove's aesthetic interest in observing animals living under

humane conditions than the current situation). See id. at 585

(Stevens, J., concurring) ("We must presume that if this

Court holds that s 7(a)(2) requires consultation, all affected

agencies would abide by that interpretation and engage in the

requisite consultations."). Instead, however, 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, USDA inspectors have

examined, and largely approved, the actual conditions at the

facility at least four times. USDA's first inspection report

"states that [the USDA inspectors] found the facility in

compliance with all the standards." Jurnove Affidavit p 18.

Although subsequent inspection reports identify a few condi-

tions that Mr. Jurnove agrees violate USDA regulations,

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. As the majority notes, see Maj. op. at 8, Mr.

Jurnove alleges in his affidavit that USDA has failed to

enforce even its own existing regulations. However, Mr.

Jurnove's affidavit is not limited to this allegation. Instead,

he additionally alleges that the conditions at the Game Farm,

conditions that USDA inspectors repeatedly concluded com-

ply with existing USDA regulations, violate "the minimum

requirements" of the governing statute--the Animal Welfare

Act. Jurnove Affidavit p 17.

Asking Mr. Jurnove to show more than this as a constitu-

tional prerequisite to standing places him in a Catch-22. One

reason ALDF is dissatisfied with USDA's implementation of

the 1985 amendments to the Animal Welfare Act is that

USDA's present regulations do not require regulated entities

to give a copy of their plans to the agency, where they would

be subject to Freedom of Information Act requests. See 9

C.F.R. s 3.81 (1997); Kissinger v. Reporters Committee for

Freedom of the Press, 445 U.S. 136, 151-52 (1980) (finding

that "FOIA is only directed at requiring agencies to disclose

those 'agency records' for which they have chosen to retain

possession or control"). This oversight structure means that

Mr. Jurnove has no access to the Game Farm's plan, no way

to determine whether the facility is following it, and no means

to discover whether the plan itself conforms to current USDA

regulations. See Oral Argument (statement of government

counsel) (confirming that the Game Farm's owners are not

obligated to show their plans to the plaintiffs) 2; Oral Argu-

2 The oral argument proceeded as follows:

Q.Correct me if I'm not mistaken: It's pretty hard for the

plaintiffs or Mr. Jurnove to know what's in the plan because it

isn't accessible to them. Is that correct?

A.Yes, your honor.

ment (statement of ALDF counsel) (reporting that plaintiffs

have not been able to see any exhibitor plans).3 Under the

regulatory regime that USDA created, and that Mr. Jurnove

challenges, all he can do is rely on USDA's repeated determi-

nations that the Game Farm is operating legally. In my

view, that is all a reasonable interpretation of causation can

demand of him.

The majority's discussion of redressibility, in turn, mischar-

acterizes Mr. Jurnove's claims. Mr. Jurnove's alleged inju-

ries are not limited to "persisting, painful memories of animal

mistreatment." Maj. op. at 9. Rather, Mr. Jurnove also

alleges that he has a current routine of regularly visiting the

Game Farm and provides a limited 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 p 43.

More stringent regulations, that prohibit the inhumane condi-

tions that have consistently caused Mr. Jurnove aesthetic

injury in the past, will necessarily improve his aesthetic

experience during his planned, future trips to the Game

Farm. If one makes the assumption, which I think one

should, that the Game Farm's owners will abide by the law,

then tougher regulations will either allow Mr. Jurnove to visit

Q.I mean, can they go to the Long Island Zoo, the farm, and

say I want to see your plan?

A.Well, they can try. I don't think the exhibitors have any

obligation.

Q.But the exhibitor doesn't have to make it available to him

under the regulations.

3 The oral argument proceeded as follows:

Q.Have you ever, did.... At any point in this lawsuit, you

didn't ever see any of these plans, did you?

A.No, your honor. We're not allowed to see them. That's the

other thing. These are secret plans. This is secret law to the

nth degree, your honor. These are, these plans are taking the

place of the minimum requirements that Congress directed the

Secretary to promulgate, yet the public doesn't even get to see

what those minimum requirements are because their plans are,

by deliberate action of the agency, are kept at the facility and

thereby kept from public disclosure.

a more humane Game Farm or (if the Game Farm's owners

decide to close rather than comply with higher legal stan-

dards), to visit the animals he has come to know in their new

homes within exhibitions that comply with the more exacting

regulations.

In addition to satisfying the three constitutional require-

ments for standing, Mr. Jurnove also falls within the zone of

interests protected under the AWA's provisions on animal

exhibitions:

"[I]n cases where the plaintiff is not itself the subject of

the contested regulatory action, the [zone of interests]

test denies a right of review if the plaintiff's interests are

so marginally related to or inconsistent with the pur-

poses implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the suit. The

test is not meant to be especially demanding; in particu-

lar, there need be no indication of congressional purpose

to benefit the would-be plaintiff."

Akins v. Federal Election Comm'n, 101 F.3d 731, 739 (D.C.

Cir. 1997) (en banc) (quoting Clarke v. Securities Indus.

Ass'n, 479 U.S. 388, 399-400 (1987)), cert. granted, 117 S. Ct.

2451 (1997); 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, 479 U.S. at 399)); 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 protect-

ed, 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 the 1985 amendments to the Animal Welfare Act

confirms that Congress acted with the public's interests in

mind. In introducing these 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). Moreover, while the AWA establishes oversight com-

mittees with private citizen members for research facilities,

see 7 U.S.C. s 2143(b)(1) (1994), it creates no counterpart for

animal exhibitions, leaving the representation of the public

interest wholly to individuals like Mr. Jurnove. Mr. Jurnove,

a regular viewer of animal exhibitions regulated under the

AWA, clearly falls within the zone of interests the statute

protects.

III. Conclusion

Twenty-five years ago, Justice Douglas argued in dissent

that "[t]he critical question of 'standing' [in environmental

cases] would be simplified and also put neatly in focus if we

fashioned a federal rule that allowed environmental issues to

be litigated before federal agencies or federal courts in the

name of the inanimate object about to be despoiled, defaced,

or invaded by roads and bulldozers." Sierra Club, 405 U.S.

at 741 (Douglas, J., dissenting). This case hardly requires us

to recognize the independent standing of animals; Mr. Jur-

nove's allegations fall well within the requirements of our

existing precedent. But it is striking, particularly in a world

in which animals cannot sue on their own behalf, how far the

majority opinion goes toward making governmental action

that regulates the lives of animals, and determines the experi-

ence of people who view them in exhibitions, unchallengeable.

See Oral Argument (statement of government counsel) (voic-

ing his inability to identify one party who would have stand-

ing to challenge the USDA regulations implementing the

AWA provisions on animal exhibitions).4 Because such a

result offends the compassionate purposes of the statute, and

our precedents do not require it, I respectfully dissent.

4 The oral argument proceeded as follows:

Q.Can you conceive of a situation where, can you envision, or

could you enlighten us on whether you think there could ever

be a situation under this Act where any kind of a plaintiff could

make a necessary showing?

A.Your honor, we wouldn't absolutely rule it out. But, we do

believe....

Q.No, no. But I can't even, I can't conceptualize it myself. I

thought you might help me, if your arguments here are valid

ones.

A.Again, we are really only dealing with the parties, and the

facts, and the circumstances of this case.

Q.Well, I know.

A.We can't rule out the possibility there would be a plaintiff.

Q.But you can't, you can't....

Q.(second judge) If the answer is no, you might want to say no.

Q.(back to original questioner) Yeah, yeah, yeah. But you can't

think of it; I can't think of it. I don't know that that destroys

your argument, I just thought there might be some extra

element that you could identify that was, you know, missing

here. Somebody says I go to the zoo, the highlight of my

week, I go to the zoo every Saturday afternoon at two o'clock.

And I know they have a plan on file, and I know that the

USDA said the plan is adequate. But when I go there, there

are these animals crying, and all alone, and lying in their feces,

and all the other kinds of things there. That's not adequate?

I'm just trying to figure out can anything ever be adequate? I

guess the answer is no. I mean the answer that I can think

of....

A.Probably not. Probably not, your honor.

Q.So what you're saying is Congress just never meant there to

be anything except the official enforcement mechanism?

A.Yes, your honor.