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.