United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued in banc May 13, 1998 Decided September 1, 1998
No. 97-5009
Animal Legal Defense Fund, Inc., et al.,
Appellees
v.
Daniel R. Glickman, Secretary of Agriculture, et al.,
and
National Association for Biomedical Research,
Appellants
Consolidated with
Nos. 97-5031, 97-5074
Appeals from the United States District Court
for the District of Columbia
(No. 96cv00408)
Stephen W. Preston, Deputy Assistant Attorney General,
United States Department of Justice, argued the cause for
appellants Daniel R. Glickman, et al., with whom Frank W.
Hunger, Assistant Attorney General, Wilma A. Lewis, United
States Attorney, Eric H. Holder, Jr., United States Attorney
at the time the briefs were filed, Michael Jay Singer and
John S. Koppel, Attorneys, were on the briefs.
Harris Weinstein argued the cause for appellant National
Association for Biomedical Research, with whom Michael G.
Michaelson and Gail H. Javitt were on the briefs.
Katherine A. Meyer argued the cause for appellees, with
whom Valerie J. Stanley was on the briefs.
Andrew L. Frey was on the briefs for amicus curiae
Pharmaceutical Research and Manufacturers of America.
Leslie G. Landau, Susan Hoffman and Tiffany R. Hedg-
peth were on the briefs for amicus curiae The Jane Goodall
Institute for Wildlife Research, Education and Conservation.
Before: Edwards, Chief Judge, Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson, Randolph,
Rogers, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Dissenting Opinion filed by Circuit Judge Sentelle, with
whom Silberman, Ginsburg and Henderson, Circuit Judges,
join.
Wald, Circuit Judge: The 1985 amendments to the Animal
Welfare Act ("AWA") direct the Secretary of Agriculture to
"promulgate standards to govern the humane handling, care,
treatment, and transportation of animals by dealers, research
facilities, and exhibitors." Pub. L. No. 99-198, 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 mini-
mum requirements" for, inter alia, "a physical environment
adequate to promote the psychological well-being of pri-
mates." Id. Pursuant to this authority, the United States
Department of Agriculture ("USDA") issued regulations for
primate dealers, exhibitors, and research facilities that includ-
ed a small number of mandatory requirements and also
required the regulated parties to "develop, document, and
follow an appropriate plan for environment enhancement
adequate to promote the psychological well-being of nonhu-
man primates. The plan must be in accordance with the
currently accepted professional standards as cited in appro-
priate professional journals or reference guides, and as di-
rected 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 obligated to make them
available to members of the public. See id.
The individual plaintiffs, Roseann Circelli, Mary Eagan,
and Marc Jurnove,1 challenge these regulations on the ground
that they violate the USDA's statutory mandate under the
AWA and permit dealers, exhibitors, and research facilities to
keep primates under inhumane conditions. The individual
plaintiffs allege that they suffered aesthetic injury during
their regular visits to animal exhibitions when they observed
primates living under such conditions.2 A divided panel of
this court held that all of the plaintiffs lacked constitutional
standing to pursue their claims. See Animal Legal Defense
Fund, Inc. v. Glickman, 130 F.3d 464, 466 (D.C. Cir. 1997).
__________
1 Audrey Rahn, a fourth individual plaintiff, also appeared
before the district court in this case. However, Rahn's claim
focused only on the USDA's allegedly inadequate enforcement of its
existing regulations, an issue not before this court on appeal. See
Animal Legal Defense Fund, Inc. v. Glickman, 943 F. Supp. 44, 51,
62-64 (D.D.C. 1996).
2 The Animal Legal Defense Fund ("ALDF"), an animal wel-
fare organization, alleges that the USDA violated the notice and
comment provisions of the Administrative Procedure Act ("APA"), 5
U.S.C. s 553 (1994), by failing to provide adequate opportunity to
comment on the agency's decision to require regulated entities to
keep their plans at their own facilities, see 9 C.F.R. s 3.81(e)(3),
thereby protecting these plans from disclosure under the Freedom
of Information Act, 5 U.S.C. s 552 (1994). The panel opinion held
that ALDF lacked standing to sue, and the in banc court limited
itself to considering Marc Jurnove's standing.
This court subsequently vacated that judgment and granted
rehearing in banc.
We hold that Mr. Jurnove, one of the individual plaintiffs,
has standing to sue. Accordingly, we need not pass on the
standing of the other individual plaintiffs. See Mountain
States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C.
Cir. 1996) ("For each claim, if constitutional and prudential
standing can be shown for at least one plaintiff, we need not
consider the standing of the other plaintiffs to raise that
claim."). We leave consideration of the merits of the individ-
ual plaintiffs' case to a future panel of this court to be
selected by the usual means.
I. Background
A. Marc Jurnove's Affidavit
Mr. Jurnove's affidavit is an uncontested statement of the
injuries that he has suffered to his aesthetic interest in
observing animals living under humane conditions. See Ani-
mal Legal Defense Fund, Inc. v. Glickman, 943 F. Supp. 44,
49 (D.D.C. 1996) (granting summary judgment to plaintiffs on
all legal claims except one that plaintiffs have not appealed;
defendants did not allege any genuine disputes of material
fact, but instead moved only to dismiss for lack of standing).
For his entire adult life, Mr. Jurnove has "been employed
and/or worked as a volunteer for various human and animal
relief and rescue organizations." Jurnove Affidavit 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, the USDA has
not questioned the adequacy of this facility's plan for the
psychological well-being of primates.
Mr. Jurnove's first visit to the Game Farm, in May 1995,
lasted approximately six hours. See id. While there, Mr.
Jurnove saw many animals living under inhumane conditions.
For instance, the Game Farm housed one primate, a Japa-
nese Snow Macaque, in a cage "that was a distance from and
not in view of the other primate cages." Id. p 14. "The only
cage enrichment device this animal had was an unused
swing." Id. Similarly, Mr. Jurnove "saw a large male chim-
panzee named Barney in a holding area by himself. He could
not see or hear any other primate." Id. p 8. Mr. Jurnove
"kn[e]w that chimpanzees are very social animals and it upset
[him] very much to see [Barney] in isolation from other
primates." Id. The Game Farm also placed adult bears next
to squirrel monkeys, although Jurnove saw evidence that the
arrangement made the monkeys frightened and extremely
agitated. See id. p 11.
The day after this visit, Mr. Jurnove began to contact
government agencies, including the USDA, in order to secure
help for these animals. Based on Mr. Jurnove's complaint,
the USDA inspected the Game Farm on May 3, 1995. Ac-
cording to Mr. Jurnove's uncontested affidavit, however, the
agency's resulting inspection report "states that [the USDA
inspectors] found the facility in compliance with all the stan-
dards." Id. p 18. Mr. Jurnove returned to the Game Farm
on eight more occasions to observe these officially legal
conditions.
On July 17, 18, and 19, 1995, he found "virtually the same
conditions" that allegedly caused him aesthetic injury during
his first visit to the Game Farm in May. Id. p 20. For
instance, Barney, the chimpanzee, and Samantha, the Japa-
nese Snow Macaque, were still alone in their cages. See id.
This time, Mr. Jurnove documented these conditions with
photographs and sent them to the USDA. See id. pp 19-20.
Nevertheless, the responding USDA inspectors found only a
few violations at the Game Farm; they reported "nothing"
about many of the conditions that concerned Mr. Jurnove and
that he had told the agency about, such as "the fact that
numerous primates were being housed alone" and the lack of
adequate stimulation in their cages. Id. p 21.
Mr. Jurnove devoted two trips in August and one in
September to "videotaping the conditions that the inspection
missed," and on each trip he found that the inhumane condi-
tions persisted. Id. pp 22-28. At the end of September, the
USDA sent three inspectors to the Game Farm in response to
Mr. Jurnove's continued complaints and reportage; they
found violations, however, only with regard to the facility's
fencing. See id. p 29.
Mr. Jurnove returned to the Game Farm once more on
October 1, 1995. Indeed, he only stopped his frequent visits
when he became ill and required major surgery. See id. p 30.
After his health returned, Mr. Jurnove visited the Game
Farm in April 1996, hoping to see improvements in the
conditions that he had repeatedly brought to the USDA's
attention. He was disappointed again; "the animals [were] in
literally the same conditions as [he] had seen them over the
summer of 1995." Id. p 33. Mr. Jurnove's resulting com-
plaints prompted the USDA to inspect the Game Farm in late
May 1996. For the fourth time, the agency found the facility
largely in compliance, with a few exceptions not relevant to
the plaintiffs' main challenge in this case. See id. p 42. In
June 1996, Mr. Jurnove filed the affidavit that is the basis of
his claim here. He concluded this affidavit by stating his
intent to "return to the Farm in the next several weeks" and
to "continue visiting the Farm to see the animals there." Id.
p 43.
B. The Plaintiffs' Complaint
The plaintiffs' complaint elaborates a two-part legal theory
based on the factual allegations in the individual plaintiffs'
affidavits. First, the plaintiffs allege that the AWA requires
the USDA to adopt specific, minimum standards to protect
primates' psychological well-being, and the agency has failed
to do so. See, e.g., First Amended Complaint p 97 ("In
issuing final Part 3 regulations, USDA violated its statutory
obligation [under 7 U.S.C. s 2143(a)(2)(B)] to set standards
'for a physical environment adequate to promote the psycho-
logical well-being of primates,' and instead delegated this
responsibility to regulated entities by requiring that regulat-
ed entities devise 'plans' for this purpose."); id. p 106 ("In-
stead of issuing the standards on this topic, USDA's regula-
tion [at 9 C.F.R. s 3.81] simply states that the 'plans' must be
in accordance with currently accepted professional stan-
dards."); id. p 107 ("By providing that animal exhibitors and
other regulated entities shall develop their own 'plans' for a
physical environment adequate to promote the psychological
well-being of non-human primates, USDA has failed to satisfy
the statutory requirement that it set the 'minimum' stan-
dards.").
Second, the plaintiffs contend that the conditions that
caused Mr. Jurnove aesthetic injury complied with current
USDA regulations, but that lawful regulations would have
prohibited those conditions and protected Mr. Jurnove from
the injuries that he describes in his affidavit. See id. p 53
("Marc Jurnove has been and continues to be injured by
USDA's failure to issue and implement standards for a physi-
cal environment adequate to promote the psychological well-
being of primates because this harms the nonhuman primates
he sees at the Long Island Game Farm and Zoo which in turn
caused and causes him extreme aesthetic harm and emotional
and physical distress."); id. ("[B]ecause USDA regulations
permit the nonhuman primates in zoos, such as the Long
Island Game Farm and Zoological Park to be housed in
isolation, Marc Jurnove was exposed to and will be exposed in
the future to behaviors exhibited by these animals which
indicate the psychological debilitation caused by social depri-
vation. Observing these behaviors caused and will cause
Marc Jurnove personal distress and aesthetic and emotional
injury."); id. p 58 ("Marc Jurnove experienced and continues
to experience physical and mental distress when he realizes
that he, by himself, is powerless to help the animals he
witnesses suffering when such suffering derives from or is
traceable to the improper implementation and enforcement of
the Animal Welfare Act by USDA.").3
C. Procedural History
The United States District Court, Judge Charles R. Richey,
held that the individual plaintiffs had standing to sue, finding
in their favor on a motion for summary judgment. See 943
F. Supp. at 54-57.4 On the merits, the district court held that
9 C.F.R. s 3.81 violates the Administrative Procedure Act
("APA") because it fails to set standards, including minimum
requirements, as mandated by the AWA; that the USDA's
failure to promulgate standards for a physical environment
adequate to promote the psychological well-being of primates
constitutes agency action unlawfully withheld and unreason-
ably delayed in violation of the APA; and that the USDA's
failure to issue a regulation promoting the social grouping of
nonhuman primates is arbitrary, capricious, and an abuse of
discretion in violation of the APA. See id. at 59-61.
A split panel of this court held that none of the plaintiffs
had standing to sue and accordingly did not reach the merits
of their complaint. See 130 F.3d at 466. This court granted
rehearing in banc, limited to the question of Marc Jurnove's
standing.
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3 Although the crux of the plaintiffs' complaint alleges that the
USDA failed to promulgate minimum standards as required by the
AWA, the complaint also states that the USDA has inadequately
enforced even its existing regulations, by allegedly failing to inspect
facilities and by allegedly instructing its inspectors to avoid docu-
menting violations. See First Amended Complaint pp 122-23. As
the district court found, see 943 F. Supp. at 62-64, the USDA's
decisions about whether to undertake enforcement actions are
generally unsuitable for judicial review, see, e.g., Heckler v. Chaney,
470 U.S. 821, 831 (1985). The plaintiffs have not appealed that
judgment to this court.
4 The district court also held that ALDF had standing to sue in
its own capacity on its notice and comment claim, see 943 F. Supp.
at 53-54, and found for ALDF on the merits, see id. at 61-62.
II. Analysis
"The question of standing involves both constitutional limi-
tations on federal-court jurisdiction and prudential limitations
on its exercise." Bennett v. Spear, 117 S. Ct. 1154, 1161
(1997) (citation and quotation marks omitted). To meet the
"case or controversy" requirement of Article III, a plaintiff
must demonstrate: (1) that she has suffered "injury in fact;"
(2) that the injury is "fairly traceable" to the defendant's
actions; and (3) that a favorable judicial ruling will "likely"
redress the plaintiff's injury. Id.; see also Lujan v. Defend-
ers of Wildlife, 504 U.S. 555, 560-61 (1992). In addition, the
Supreme Court has recognized prudential requirements for
standing, including "that a plaintiff's grievance must arguably
fall within the zone of interests protected or regulated by the
statutory provision or constitutional guarantee invoked in the
suit." Bennett, 117 S. Ct. at 1161.
We find that Mr. Jurnove's allegations fall well within these
requirements.
A. Injury in Fact
Mr. Jurnove's allegations solidly establish injury in fact.
As his affidavit indicates, Mr. Jurnove "enjoy[s] seeing [ani-
mals] in various zoos and other parks near [his] home"
"[b]ecause of [his] familiarity with and love of exotic animals,
as well as for recreational and educational purposes and
because [he] appreciate[s] these animals' beauty." Jurnove
Affidavit p 7. He decided to tour the primate cages at the
Game Farm "in furtherance of [his] appreciation for exotic
animals and [his] desire to observe and enjoy them." Id.
During this tour and the ones that followed, Mr. Jurnove
suffered direct, concrete, and particularized injury to this
aesthetic interest in observing animals living under humane
conditions. At this particular zoo, which he has regularly
visited and plans to keep visiting, he saw particular animals
enduring inhumane treatment. He developed an interest,
moreover, in seeing these particular animals living under
humane treatment. As he explained, "[w]hat I observed [at
the Game Farm] was an assault on my senses and greatly
impaired my ability to observe and enjoy these captive ani-
mals." Id. p 17 (emphasis added). "I want to observe, study,
and enjoy these animals in humane conditions." Id. p 43.
Simply put, Mr. Jurnove has alleged far more than an
abstract, and uncognizable, interest in seeing the law en-
forced. See Allen v. Wright, 468 U.S. 737, 754 (1984) ("This
Court has repeatedly held that an asserted right to have the
Government act in accordance with law is not sufficient,
standing alone, to confer jurisdiction on a federal court.");
Schlesinger v. Reservists Committee to Stop the War, 418
U.S. 208, 223 n.13 (1974) (rejecting standing of plaintiffs who
alleged nothing but "the abstract injury in nonobservance of
the Constitution"); Humane Society v. Hodel, 840 F.2d 45,
51-52 (D.C. Cir. 1988). To the contrary, Mr. Jurnove has
made clear that he has an aesthetic interest in seeing exotic
animals living in a nurturing habitat, and that he has attempt-
ed to exercise this interest by repeatedly visiting a particular
animal exhibition to observe particular animals there. This
interest was allegedly injured, however, when Mr. Jurnove
witnessed the actual living conditions of the primates de-
scribed and named in his affidavit. It is, of course, quite
possible that many other people might visit the same zoo,
observe the same animals there, and suffer similar injuries
upon seeing these animals living under inhumane conditions.
But the fact that many may share an aesthetic interest does
not make it less cognizable, less "distinct and palpable."
Allen, 468 U.S. at 751 (citation and quotation marks omitted);
Clinton v. City of New York, 118 S. Ct. 2091, 2101-02 (1998)
("[It is a] self-evident proposition that more than one party
may have standing to challenge a particular action or inaction.
Once it is determined that a particular plaintiff is harmed by
the defendant, and that the harm will likely be redressed by a
favorable decision, that plaintiff has standing--regardless of
whether there are others who would also have standing to
sue."); FEC v. Akins, 118 S. Ct. 1777, 1786 (1998) ("Often the
fact that an interest is abstract and the fact that it is widely
shared go hand in hand. But their association is not invaria-
ble, and where a harm is concrete, though widely shared, the
Court has found 'injury in fact.' "); United States v. SCRAP,
412 U.S. 669, 688 (1973) ("To deny standing to persons who
are in fact injured simply because many others are also
injured, would mean that the most injurious and widespread
Government actions could be questioned by nobody."); Sierra
Club v. Morton, 405 U.S. 727, 734 (1972) ("Aesthetic and
environmental well-being, like economic well-being, are im-
portant ingredients of the quality of life in our society, and
the fact that particular environmental interests are shared by
the many rather than the few does not make them less
deserving of legal protection through the judicial process.").
The Supreme Court has repeatedly made clear that injury
to an aesthetic interest in the observation of animals is
sufficient to satisfy the demands of Article III standing.
Defenders of Wildlife states explicitly that "the desire to use
or observe an animal species, even for purely esthetic pur-
poses, is undeniably a cognizable interest for purpose of
standing." 504 U.S. at 562-63 (emphasis added). Similarly,
in Japan Whaling Association v. American Cetacean Society,
478 U.S. 221 (1986), the Court found that the plaintiffs had
"undoubtedly ... alleged a sufficient 'injury in fact' in that
the whale watching and studying of their members will be
adversely affected by continued whale harvesting," id. at 231
n.4 (citing Sierra Club v. Morton, 405 U.S. 727 (1972); United
States v. SCRAP, 412 U.S. 669 (1973)); see also Animal
Legal Defense Fund, Inc. v. Espy ("ALDF I"), 23 F.3d 496,
505 (D.C. Cir. 1994) (Williams, J., concurring in part and
dissenting in part) ("Japan Whaling Association and Defend-
ers of Wildlife clearly recognize people's affirmative aesthetic
interest in viewing animals enjoying their natural habitat.").
The key requirement, one that Mr. Jurnove clearly satis-
fies, is that the plaintiff have suffered his injury in a personal
and individual way--for instance, by seeing with his own eyes
the particular animals whose condition caused him aesthetic
injury. As the Supreme Court noted in Defenders of Wild-
life, "[i]t is clear that the person who observes or works with a
particular animal threatened by a federal decision is facing
perceptible harm." 504 U.S. at 566 (emphasis added); see
also id. at 582 & 584 n.2 (Stevens, J., concurring in the
judgment) ("In my opinion a person who has visited the
critical habitat of an endangered species, has a professional
interest in preserving the species and its habitat, and intends
to revisit them in the future has standing to challenge agency
action that threatens their destruction.... [R]espondents
would not be injured by the challenged projects if they had
not visited the sites or studied the threatened species and
habitat.") (emphasis added); Animal Legal Defense Fund,
Inc. v. Espy ("ALDF II"), 29 F.3d 720, 726 (D.C. Cir. 1994)
(Mikva, C.J., concurring) ("Had the [plaintiffs] challenging
the Secretary's regulations alleged an interest in protecting
the well-being of specific laboratory animals (an interest
predating this litigation), I think [the plaintiffs] would have
had standing to challenge those regulations for providing
insufficient protection to the animals.") (emphasis added);
Didrickson v. United States Dep't of the Interior, 982 F.2d
1332, 1340-41 (9th Cir. 1992) (finding standing where plain-
tiffs "declared that they have observed, enjoyed and studied
sea otters in specific areas in Alaska.... The [plaintiffs] are
concerned with action harming sea otters in Alaska, where
[they] live and in particular areas that they frequent, unlike
the declarants in Defenders of Wildlife.") (emphasis added);
cf. Defenders of Wildlife, 504 U.S. at 567 ("It goes beyond the
limit, however, and into pure speculation and fantasy, to say
that anyone who observes or works with an endangered
species, anywhere in the world, is appreciably harmed by a
single project affecting some portion of that species with
which he has no more specific connection.").
This court's precedent, moreover, specifically recognizes
that people have a cognizable interest in "view[ing] animals
free from ... 'inhumane treatment.' " Humane Society v.
Babbitt, 46 F.3d 93, 99 n.7 (D.C. Cir. 1995) (quoting Animal
Welfare Institute v. Kreps, 561 F.2d 1002, 1007 (D.C. Cir.
1977)); see also ALDF I, 23 F.3d at 505 (Williams, J.,
concurring in part and dissenting in part) ("Our own cases
have indicated a recognition of people's interest in seeing
animals free from inhumane treatment."). In Animal Wel-
fare Institute v. Kreps, 561 F.2d 1002 (D.C. Cir. 1977), the
plaintiff organizations alleged, inter alia, an interest in "en-
joy[ing] Cape fur seals alive in their natural habitat under
conditions in which the animals are not subject to ... inhu-
mane treatment," id. at 1007 (citation and quotation marks
omitted). This court held that these plaintiffs' aesthetic
interests satisfied the requirements of standing. See id. at
1007-10.5 Similarly, Humane Society v. Hodel found stand-
ing 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," 840 F.2d at 52. As this Court noted, "[t]hese are
classic aesthetic interests, which have always enjoyed protec-
tion under standing analysis." Id.6
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5 The dissent attempts to limit Animal Welfare Institute to
support standing only where the challenged governmental action is
"diminishing the opportunity to observe [the animal], not affecting
the quality of the observation." Dissent at 6. This statement does
not accurately reflect either the injury alleged in Animal Welfare
Institute or this court's holding in that case. In articulating the
nature of their aesthetic injury, the Animal Welfare Institute
plaintiffs alleged an interest in observing Cape fur seals who lived
under "not ... inhumane" conditions, 561 F.2d at 1007--in other
words, an interest in the quality of animal life, rather than the
quantity of animals alive. To be sure, the "inhumane treatment"
that concerned these particular plaintiffs revolved, as the dissent
notes, around the manner in which the seals were being killed. See
id. at 1012-13. But this fact does not reduce the plaintiffs' claim to
one challenging the government only for causing the diminishment
of an animal population. To the contrary, the plaintiffs in Animal
Welfare Institute were alleging aesthetic injury based on how the
Cape fur seals were living and how they were dying; the plaintiffs
did not simply focus on the fact that the seals were, in fact, dying.
Moreover, in holding that the plaintiffs' aesthetic interests would
satisfy the requirements of standing if the plaintiffs could establish
that they were among the injured, this court never distinguished
between the plaintiffs' claims based on the quality of animal life and
those based on the number of animals in existence.
6 Not surprisingly, the dissent also reads Humane Society v.
Hodel to support standing only where the challenged governmental
action has or will deplete the supply of an animal population. See
Dissent at 6. In fact, the case explicitly rejects that reading. The
complaint in Humane Society v. Hodel stated both "that the exis-
The Ninth Circuit has similarly recognized an aesthetic
interest in observing animals living under humane conditions.
In Fund for Animals, Inc. v. Lujan, 962 F.2d 1391 (9th Cir.
1992), the plaintiffs alleged aesthetic injuries stemming from
the mistreatment of bison, who were subject to a population
management plan that operated by shooting animals who
strayed outside the boundaries of Yellowstone. In finding
standing, the court observed "that the Fund's members had
standing to sue because of the psychological injury they
suffered from viewing the killing of the bison in Montana.
Mr. Pacelle testified that several Fund members had been
emotionally harmed when they saw bison 'who were just
standing outside the boundary of the park shot and crumbled
[sic] to their feet.' " Id. at 1396 (quoting testimony and citing
Humane Society v. Hodel, 840 F.2d 45 (D.C. Cir. 1988)).7
__________
tence of hunting on wildlife refuges forces Society members to
witness animal corpses and environmental degradation" (a claim
based on the quality of the aesthetic experience of observing
animals) and that the challenged hunting regulations also "de-
plet[ed] the supply of animals and birds that refuge visitors seek to
view" (a claim based on the number of animals in existence). 840
F.2d at 42. This court, moreover, clearly recognized both of these
claims, stating: "These are classic aesthetic interests, which have
always enjoyed protection under standing analysis." Id. (emphasis
added).
7 It was suggested, not altogether facetiously, at oral argument
that recognition of an aesthetic interest in observing animals might
be problematic because it could encapsulate the aesthetic interest of
a sadist in seeing animals living under inhumane conditions and the
injury he suffered upon seeing particular animals living in a humane
environment. There is a major difficulty with this argument. The
meaning of "injury in fact" under our constitutional standing test
does not incorporate every conceivable aesthetic interest. To the
contrary, our standing jurisprudence defines injury in fact as "an
invasion of a legally protected interest." Defenders of Wildlife, 504
U.S. at 560 (emphasis added). Thus, if the hypothetical sadist
challenged the regulations at issue here (presumably, for being too
protective of animal welfare), he would not be able to establish
injury in fact because the AWA, the relevant statute, recognizes no
interest in sadism. To the contrary, it requires dealers, exhibitors,
Analogously, the Supreme Court and this circuit have
frequently recognized the injury in fact of plaintiffs who
suffered aesthetic injury stemming from the condition and
quality, or despoliation, of an environmental area that they
used. In Mountain States Legal Foundation, for instance,
the plaintiffs asserted injury flowing from government action
that would allegedly make the Kootenai National Forest more
vulnerable to forest fire. This court found an "aesthetic and
environmental interest[ ] in having such areas free of devas-
tating forest fire ... clearly sufficient for Article III stand-
ing." 92 F.3d at 1234. Similarly, in Montgomery Environ-
mental Coalition v. Costle, 646 F.2d 568 (D.C. Cir. 1980), the
plaintiffs challenged the Environmental Protection Agency's
__________
and research facilities to treat animals humanely. See 7 U.S.C.
s 2143. This sadist would also find his claim immediately excluded
under the APA, which only grants standing to people "adversely
affected or aggrieved by agency action within the meaning of a
relevant statute." 5 U.S.C. s 702 (1994) (emphasis added); see also
Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 394 (1987); Associa-
tion of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,
153-54 (1970); ALDF II, 29 F.3d at 723; ALDF I, 23 F.3d at 499.
The dissent attempts further to build on the suggestion put forth
at oral argument that no one should be able to establish constitu-
tional standing based on an aesthetic interest in observing animals
living under humane conditions because definitions of what is
"humane" may differ so widely. See Dissent at 6-7. But the
dissent, again, forgets that not every aesthetic interest can form the
basis for a lawsuit; our injury-in-fact test protects only those
aesthetic interests that have been "legally protected." 504 U.S. at
560. At its heart, the dissent's complaint may reflect a fear that the
AWA does not do enough to define what it means by "humane,"
although the statute does indicate, in its sections focusing on animal
research, a particular concern with minimizing "animal pain and
distress." See, e.g., 7 U.S.C. s 2143(a)(3)(A). Yet "humane" does
convey a basic meaning of compassion, sympathy, and consideration
for animals' health, safety, and well-being, and it is not that unusual
for this court to apply relatively broad statutory language to
particular claims by looking to the normal usage of words, even
when different people may disagree as to their application to a
variety of factual situations.
("EPA's") regulation of "two sewage treatment plants that
discharge pollutants into the Potomac River and its tributar-
ies," id. at 573. They "profess[ed] an interest in the preser-
vation and enhancement of the natural environment situated
along the Potomac estuary," id. at 576, and alleged that the
EPA had issued "permits too lax to protect the water quality
of the Potomac," id. at 573. This court found standing. See
id. at 578. Committee for Auto Responsibility v. Solomon,
603 F.2d 992 (D.C. Cir. 1979) (per curiam), involved "a
challenge to the leasing by the General Services Administra-
tion (GSA) of the Great Plaza area of the Federal Triangle in
Washington, D.C., for use as a parking facility for employees
of federal agencies," id. at 996. Plaintiffs, "two organizations
whose purposes include improvement of the quality of the
environment, together with three individuals who live and
attend school in the District of Columbia," id. at 997, success-
fully established injury in fact based on allegations that they
were "affected by noise, air pollution and congestion from
vehicles utilizing the Great Plaza parking lot," id. at 998. In
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990),
the plaintiffs challenged federal action that allegedly "threat-
en[ed] the aesthetic beauty and wildlife habitat potential" of
the South Pass-Green Mountain area of Wyoming, id. at 886
(citation and quotation marks omitted). The Supreme Court
stated that it had "no doubt" that this threat could constitute
aesthetic injury under Article III, noting that "[t]he only
issue" was whether the individual plaintiffs in the case had
established that their interests "were actually affected." Id.;
see also id. at 901 n.2 (Blackmun, J., dissenting) (arguing that
plaintiffs had established their standing and observing that
"[a Bureau of Land Management] Mineral Report issued
June 17, 1982, concluded that mining and associated activities
'could have an adverse impact on crucial moose habitat, deer
habitat, some elk habitat, and a variety of small game and
bird species. Improvements at campgrounds, as well as land
in the immediate vicinity, could either be damaged or de-
stroyed.' ") (citation omitted).
Indeed, Humane Society v. Hodel, which recognized an
aesthetic interest in seeing animals living under humane
conditions, explicitly acknowledged the usefulness of analogiz-
ing such an aesthetic interest to a plaintiff's interest in the
condition of an environmental area that he uses. That case
drew on our opinion in National Wildlife Federation v.
Hodel, 839 F.2d 694 (D.C. Cir. 1988), which held that a
wildlife organization had standing to challenge regulations
that allegedly threatened to degrade the environment, see id.
at 703-16. The Humane Society court noted that the two
cases involved "strikingly analogous" injuries, explaining:
"There the National Wildlife Federation's standing rested in
part on the aesthetic injuries to those members who com-
plained of viewing degraded landscapes, and here the Hu-
mane Society's standing similarly rests on the aesthetic inju-
ries to members who complain of viewing the despoliation of
animals." 840 F.2d at 52 (citations omitted).
In the environmental context, too, however, plaintiffs must
establish that they have actually used or plan to use the
allegedly degraded environmental area in question. It is this
failure to show such direct use that has resulted in the denial
of standing in several high-profile environmental cases. For
instance, the injury alleged in Sierra Club v. Morton would
have been "incurred entirely by reason of the change in the
uses to which Mineral King [Valley] will be put, and the
attendant change in the aesthetics and ecology of the area."
405 U.S. at 734. Specifically, the Sierra Club alleged that the
challenged development of the Valley " 'would destroy or
otherwise adversely affect the scenery, natural and historic
objects and wildlife of the park and would impair the enjoy-
ment of the park for future generations.' " Id. (emphasis
added).8 The Supreme Court "[did] not question that this
type of harm may amount to an 'injury in fact' sufficient to
lay the basis for standing under s 10 of the APA." Id.
However, having found "a cognizable interest," the Court held
that the Sierra Club had not established that its members
__________
8 The Mineral King Valley "is designated as a national game
refuge by special Act of Congress." 405 U.S. at 728. The Sierra
Club alleged, inter alia, "that various aspects of the proposed
development contravene federal laws and regulations governing the
preservation of ... game refuges." Id. at 730.
were "among the injured." Id. at 734-35. As the Court
explained, "[t]he impact of the proposed changes in the
environment of Mineral King will not fall indiscriminately
upon every citizen. The alleged injury will be felt directly
only by those who use Mineral King and Sequoia National
Park, and for whom the aesthetic and recreational values of
the area will be lessened by the highway and ski resort." Id.
at 735 (emphasis added). "The Sierra Club failed to allege
that it or its members would be affected in any of their
activities or pastimes by the Disney development. Nowhere
in the pleadings or affidavits did the Club state that its
members use Mineral King for any purpose, much less that
they use it in any way that would be significantly affected by
the proposed actions of the respondents." Id.
Similarly, the plaintiffs in Lujan v. National Wildlife Fed-
eration lacked standing because their affidavits "state[d] only
that one of [the Federation's] members use[d] unspecified
portions of an immense tract of territory, on some portions of
which mining activity has occurred or probably will occur by
virtue of the governmental action," rather than making clear
that a plaintiff used the smaller area of land that was
allegedly threatened. 497 U.S. at 889. In contrast, a plaintiff
in Mountain States Legal Foundation, who established inju-
ry in fact based on aesthetic injury, stated "that he use[d] the
forest [in question] for, inter alia, hiking, hunting, camping,
fishing, observing wildlife, finding solitude, and picking ber-
ries." 92 F.3d at 1234 (citations omitted). The plaintiffs in
Committee for Auto Responsibility, who also successfully
established their injury in fact, "claim[ed] that they or their
members live in or near the District of Columbia and regular-
ly travel to educational, cultural and recreational facilities
within the immediate vicinity of the Great Plaza [parking
lot]." 603 F.2d at 998; see also Montgomery Environmental
Coalition, 646 F.2d at 578 ("[The Coalition's] members in-
clude residents of Maryland, Virginia, and the District of
Columbia, by whose shores the Potomac River flows. We
may take judicial notice of the fact that that river can be seen
and smelt from those shores, and even that, as an important
source of drinking water, it can be tasted.... Petitioners'
members are users of the Potomac River, and their standing
to challenge the Blue Plains and Seneca permits is clear.").
Other circuits have also recognized injury in fact based on
injury to a plaintiff's interest in the quality and condition of
an environmental area that he used. In Public Interest
Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d
64 (3d Cir. 1990), the Research Group's members "resided in
the vicinity of or owned property on or near the Kill Van Kull,
or recreated on or near the Kill Van Kull," id. at 71. They
successfully "claimed injury to their aesthetic and recreation-
al interests because the Kill Van Kull [was] polluted." Id.
One member alleged that he "was particularly offended by
the brown color and bad odor of the water. He stated that he
would birdwatch more frequently and enjoy his recreation on
the Kill Van Kull more if the water were cleaner." Id. In
Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th
Cir. 1988), the "Sierra Club submitted the affidavit of mem-
ber John Railey attesting to his interest, as one regularly
using and enjoying the Patapsco River and surrounding land,
in preserving the environmental integrity of the river," id. at
1112. Mr. Railey established Article III injury based on an
affidavit alleging that:
" 'My interest, use or enjoyment of the Patapsco River
and surrounding area includes preserving the health,
safety and welfare of the river basin, preserving marine
life and water integrity within the river, and eliminating
odorous and unsightly illegal pollution. I regularly hike
along the river. My activities and interests with respect
to the Patapsco River have been adversely affected phys-
ically, aesthetically and emotionally by Simkin's [sic]
Industries' failure to comply with its NPDES permit and
resulting illegal pollution.' "
Id. at 1112 n.3 & 1113 (citation omitted). Friends of the
Earth v. Consolidated Rail Corp., 768 F.2d 57 (2d Cir. 1985),
recognized injury in fact based on the pollution of "Conrail's
A.E. Perlman Yard in Selkirk, New York (Selkirk Yard), a
diesel locomotive repair and refueling facility, which discharg-
es treated wastes from its operations through point sources
into the Hudson River and South Albany Creek," id. at 59,
where the individual plaintiffs used the Hudson River and
lived near its shores, see id. at 61; see also Save Our
Community v. U.S. Environmental Protection Agency, 971
F.2d 1155, 1157, 1161 (5th Cir. 1992) (per curiam) (finding
injury in fact where plaintiff alleged aesthetic injury stem-
ming from "the draining of several ponds on the site of a
proposed expansion of a 73-acre landfill"); United States v.
Metropolitan St. Louis Sewer District, 883 F.2d 54, 56 (8th
Cir. 1989) ("Missouri Coalition and two of its named members
allege that many of the 25,000 members visit, cross, and
frequently observe the bodies of water identified in the
United States' complaint and that from time to time these
members use these waters for recreational purposes. They
also allege that these interests are adversely affected by the
pollution of these waters. These allegations are sufficient to
give the Coalition and its members constitutional stand-
ing...."); Chesapeake Bay Found. v. American Recovery
Co., 769 F.2d 207, 209 (4th Cir. 1985) (per curiam) ("[P]lain-
tiffs here ... allege that their members resided in the vicinity
of the affected waters and that those members 'recreate in,
on or near, or otherwise use and enjoy' those waters.").
These myriad cases recognizing individual plaintiffs' injury
in fact based on affronts to their aesthetic interests in observ-
ing animals living in humane habitats, or in using pristine
environmental areas that have not been despoiled, articulate a
second principle of standing. It has never been the law, and
is not so today, that injury in fact requires the elimination (or
threatened elimination) of either the animal species or envi-
ronmental feature in question. In Sierra Club v. Morton, the
Sierra Club did not allege that the Mineral King Valley would
disappear in the wake of the challenged development, or that
the desecration of the Valley would leave the Club's members
with no other, pristine parks that they could conveniently use.
See 405 U.S. at 734. Yet the Supreme Court held that
plaintiffs could establish injury in fact based on a decline in
the quality and condition of one environmental area that they
did use. See id.
To be sure, a number of cases that have recognized stand-
ing based on an aesthetic interest in the observation of
animals have involved government action that allegedly
threatened to diminish the overall supply of an animal spe-
cies. See Defenders of Wildlife, 504 U.S. at 562; Japan
Whaling Ass'n, 478 U.S. at 231 n.4. But there is no case that
we know of establishing that the elimination of a species or
even the deaths of particular animals is an indispensable
element of the plaintiffs' aesthetic injury, and we see no
reason to import such a requirement into our standing doc-
trine so late in the day. Indeed, the standing cases that do
stress the threat of diminished animal populations were those
brought under conservation statutes whose mission is to
preserve the number of animals in existence. See Defenders
of Wildlife, 504 U.S. at 558 ("[The Endangered Species Act]
seeks to protect species of animals against threats to their
continuing existence caused by man."); Japan Whaling
Ass'n, 478 U.S. at 225 ("Because of the [International Whal-
ing Commission's] inability to enforce its own quota and in an
effort to promote enforcement of quotas set by other interna-
tional fishery conservation programs, Congress passed the
Pelly Amendment to the Fisherman's Protective Act of 1967.
Principally intended to preserve and protect North American
Atlantic salmon from depletion by Danish fisherman in viola-
tion of the ban imposed by the International Convention for
the Northwest Atlantic Fisheries, the Amendment protected
whales as well."). It is not surprising, then, that the plaintiffs
who brought suit to allege violations of these statutes would
emphasize that the challenged agency action threatened to
diminish the supply of an animal species, in contravention of
the express purpose of those conservation statutes. In con-
trast, the Animal Welfare Act, with which we deal here, is
explicitly concerned with the quality of animal life, rather
than the number of animals in existence. It seeks "to pro-
mote the psychological well-being of primates." Pub. L. No.
99-198, s 1752, 99 Stat. 1354, 1645 (1985) (codified at 7 U.S.C.
s 2143(a) (1994)) (emphasis added). Quite naturally, suits
alleging violations of this statute will focus on the conditions
under which animals live. Cf. ALDF II, 29 F.3d at 722 ("The
primary purpose of the [Federal Laboratory Animal Welfare]
Act is to ensure the humane care and treatment of various
animals used in research or for exhibition or kept as pets. 7
U.S.C. s 2131. To this end, the Act requires, inter alia, that
the Secretary of Agriculture 'promulgate standards to govern
the humane handling, care, treatment, and transportation of
animals by dealers, research facilities, and exhibitors.' Id.
s 2143(a)(1)."). Along these lines, this court has already
noted in Animal Welfare Institute, which recognized injury in
fact based on an aesthetic interest in seeing animals living
under humane conditions, that "[w]here an act is expressly
motivated by considerations of humaneness toward animals,
who are uniquely incapable of defending their own interests
in court, it strikes us as eminently logical to allow groups
specifically concerned with animal welfare to invoke the aid of
the courts in enforcing the statute." 561 F.2d at 1007.
Moreover, and perhaps more importantly, it does not make
sense, as a matter of logic, to suppose that people suffer
aesthetic injury from government action that threatens to
wipe out an animal species altogether, and not from govern-
ment action that leaves some animals in a persistent state of
suffering. To the contrary, the latter seems capable of
causing more serious aesthetic injury than the former.
Mr. Jurnove has adequately alleged injury to an aesthetic
interest in observing animals living under humane conditions.
His affidavit describes both the animal exhibition that he
regularly visits, and the specific animals there whose condi-
tion caused Mr. Jurnove injury. It requires no expansion of
existing standing doctrine to find that he has established a
cognizable injury in fact.
B. Causation
Plaintiffs allege that the AWA, 7 U.S.C. s 2143, requires
the USDA to adopt explicit minimum standards to govern the
humane treatment of primates, and that the agency did not
do so. See First Amended Complaint WW 97, 106, 107. They
further contend that the conditions that caused Mr. Jurnove
injury complied with current USDA regulations, but that
lawful regulations would have prohibited those conditions and
protected Mr. Jurnove from the injuries that his affidavit
describes. See id. pp 53, 58. We find that these allegations
satisfy the causation prong of Article III standing.
As Mr. Jurnove's affidavit elaborates, he allegedly suffered
aesthetic injury upon observing conditions that the present
USDA regulations permit. Mr. Jurnove, for instance, "saw a
large male chimpanzee named Barney in a holding area by
himself. He could not see or hear any other primate."
Jurnove Affidavit p 8. Mr. Jurnove also "viewed a monkey
cage [containing one Japanese Snow Macaque] that was a
distance from and not in view of the other primate cages."
Id. p 14. As the plaintiffs observe, see First Amended Com-
plaint pp 84, 95, 114-17, the housing of these two primates
appears to be compatible with current regulations, which
state only that "[t]he environment enhancement plan must
include specific provisions to address the social needs of
nonhuman primates of species known to exist in social groups
in nature. Such specific provisions must be in accordance
with currently accepted professional standards, as cited in
appropriate professional journals or reference guides, and as
directed by the attending veterinarian." 9 C.F.R. s 3.81(a)
(emphasis added). Thus, an exhibition may apparently com-
ply with the procedural requirement that this standard cre-
ates--by establishing a plan that "address[es]" the social
needs of primates--and still leave a primate caged singly.
Similarly, 9 C.F.R. s 3.81(a)(3) provides that "[i]ndividually
housed nonhuman primates must be able to see and hear
nonhuman primates of their own or compatible species unless
the attending veterinarian determines that it would endanger
their health, safety, or well-being." Here again, the regula-
tion is structured so that an exhibitor that secured the
approval of the veterinarian in its employ could comply with
the regulation without actually housing nonhuman primates
within the sight or sound of other primates. Contrary to the
dissent, see Dissent at 13-14, plaintiffs do not suggest that
the regulation is flawed simply because it leaves room for
bribery in securing a veterinarian's consent to an exception;
rather, they contend that the regulation gives exhibitors too
much leeway to shop around for a compliant veterinarian and
that placing such broad and unguarded discretion in the
hands of the veterinarian in an exhibitor's own employ is an
insufficient safeguard to protect primate well-being. Whatev-
er the ultimate merits of the plaintiffs' case, they most
definitely assert that the AWA requires minimum standards
to prohibit or more rigidly restrict the occasions on which
such allegedly inhumane treatment can occur.
Mr. Jurnove's affidavit also states that "[t]he pen next to
the adult bears housed the squirrel monkeys.... I observed
the monkeys repeatedly walking over to the door and sniffing
and acting very upset when the bears came near." Jurnove
Affidavit p 11. Plaintiffs allege that the current regulations
permit the housing of incompatible species next to each other.
See First Amended Complaint pp 46-47. Specifically, these
regulations state that "[n]onhuman primates may not be
housed with other species of primates or animals unless they
are compatible." 9 C.F.R. s 3.81(a)(3) (emphasis added).
This provision does not expressly regulate animals housed
next to each other, but in separate cages. But even if section
3.81(a)(3) does apply to the situation that Mr. Jurnove ob-
served, it includes the caveat that "[c]ompatibility of nonhu-
man primates must be determined in accordance with gener-
ally accepted professional practices and actual observations,
as directed by the attending veterinarian," thus again permit-
ting wide discretion on the part of the local veterinarian.
Similarly, Mr. Jurnove's affidavit observes that "[t]he only
cage enrichment device [a Japanese Snow Macaque] had was
an unused swing." Jurnove Affidavit p 14. The plaintiffs
allege that such a situation is perfectly legal under the
present regulations, see First Amended Complaint p 84, which
provide only that "[t]he physical environment in the primary
enclosures must be enriched by providing means of express-
ing noninjurious species-typical activities." 9 C.F.R.
s 3.81(b). The regulations do not include any specific re-
quirements governing the particular kind or number of en-
richment devices. According to the plaintiffs, providing only
a single swing, and one that the primate appears to shun,
offends the AWA's mandate for minimum standards, although
it is perfectly compatible with 9 C.F.R. s 3.81(b).9
The USDA's own actions in this case further support the
plaintiffs' allegation that the agency's current regulations
allow the conditions that allegedly caused Mr. Jurnove injury.
As Mr. Jurnove's affidavit makes clear, the Game Farm has
repeatedly submitted to inspection by the USDA. The alleg-
edly inhumane conditions at the Game Farm have persisted
precisely because the USDA inspectors have concluded on the
basis of these visits that in every important aspect the
conditions at the Game Farm comply with the USDA regula-
tions. If the USDA had found the Game Farm out of
compliance with current regulations, or if the governing regu-
lations had themselves been more stringent, the Game Farm's
owners would have been forced (in order to remain in accord
with the law) to either alter their practices or go out of
business and transfer their animals to exhibitors willing to
operate legally; either scenario would protect Mr. Jurnove's
aesthetic interest in observing animals living under humane
conditions. Instead, however, the USDA has not questioned
the legality of the Game Farm's plan since 1992. Since May
1995, when Mr. Jurnove began visiting the Game Farm and
__________
9 The United States argues that Mr. Jurnove has not demon-
strated causation, on the ground that the above-described injuries
are self-inflicted. The assertion appears to turn on the fact that
Mr. Jurnove first traveled to the Game Farm "in [his] capacity as
an equine investigator, [after being] apprised that several ponies
needed to be checked on at that location." Jurnove Affidavit p 7.
This argument may--or may not--have merit with regard to equine
mistreatment at the Game Farm. However, there is no need in this
case to offer any opinion about whether so-called "self-inflicted"
wounds can give rise to standing. According to Mr. Jurnove's
uncontested affidavit, he visited the primates at the Game Farm,
the subject of the present suit, out of an aesthetic interest in
observing animals living under humane conditions. See id. ("Once
[Mr. Jurnove] was there [at the Game Farm]," he decided "to look
around at the other animals housed there" "in furtherance of [his]
appreciation for exotic animals and [his] desire to observe and enjoy
them.").
complaining to the agency, the USDA inspectors have exam-
ined, and largely approved, the actual conditions at the facili-
ty at least four times. The USDA's first inspection report
"states that [the USDA inspectors] found the facility in
compliance with all the standards." Jurnove Affidavit p 18.
Although subsequent inspection reports identify a few condi-
tions that Mr. Jurnove agrees violate the USDA regulations,
the USDA continued--in at least three more inspection re-
ports--to conclude that the Game Farm was in compliance
with existing USDA regulations in all other respects, includ-
ing presumably the existence of a plan that met the regula-
tions' standards.10
Supreme Court precedent establishes that the causation
requirement for constitutional standing is met when a plain-
tiff demonstrates that the challenged agency action authorizes
the conduct that allegedly caused the plaintiff's injuries, if
__________
10 The dissent makes much of the fact that Mr. Jurnove occa-
sionally expresses doubt in his affidavit about the soundness of the
USDA's multiple determinations that the Game Farm was in com-
pliance with essentially all of the relevant regulations, contending
that "the thrust of the affidavit" is that "the USDA went through
the motions and wrote up incorrect reports." Dissent at 12. This
argument is flawed on two counts. First, Mr. Jurnove's affidavit is
the wrong place to look for a statement of the plaintiffs' legal theory
of this case. Mr. Jurnove is not a lawyer and his affidavit purports
to articulate only his alleged injuries. The plaintiffs' legal argu-
ments are put forth in their complaint, where they explicitly allege
that the conditions at the Game Farm that caused Mr. Jurnove
injury complied with the present USDA regulations. See First
Amended Complaint pp 53, 58. Second, even if we were to look to
Mr. Jurnove's affidavit to determine the plaintiffs' legal theory, the
"thrust of the affidavit" is certainly not that the conditions at the
Game Farm violated the USDA's regulations. Indeed, so far as the
record before us reflects, no decisionmaking authority has ever
made the determination that there are widespread regulatory viola-
tions at the Game Farm. And the USDA, the agency with regula-
tory control over the Game Farm, repeatedly came to the opposite
conclusion, finding that the Game Farm was in legal compliance
with the USDA regulations that the plaintiffs challenge here.
that conduct would allegedly be illegal otherwise. For in-
stance, Simon v. Eastern Kentucky Welfare Rights Organiza-
tion, 426 U.S. 26 (1976), stated in describing earlier cases
that:
The complaint in [Association of ] Data Processing [Ser-
vice Organizations, Inc. v. Camp, 397 U.S. 150 (1970),]
alleged injury that was directly traceable to the action of
the defendant federal official, for it complained of injuri-
ous competition that would have been illegal without that
action. Accord, Arnold Tours, Inc. v. Camp, 400 U.S. 45
(1970); Investment Co. Institute v. Camp, 401 U.S. 617,
620-621 (1971). Similarly, the complaint in Data Pro-
cessing's companion case of Barlow v. Collins, 397 U.S.
159 (1970), was sufficient because it alleged extortionate
demands by plaintiffs' landlord made possible only by the
challenged action of the defendant federal official. See
id., at 162-163.
Id. at 45 n.25. Japan Whaling Association, in turn, recog-
nized the standing of plaintiffs who claimed aesthetic injury
(there, injury to their interest in whale watching) based on
the government's failure to adequately regulate a third party
(there, the United States's failure to certify that the Japanese
whaling industry was exceeding its quota under international
law). See 478 U.S. at 231 n.4.
This circuit's case law confirms the proposition that a
plaintiff satisfies the causation prong of constitutional stand-
ing by establishing that the challenged agency rule permitted
the activity that allegedly injured her, when that activity
would allegedly have been illegal otherwise. Louisiana En-
ergy and Power Authority ("LEPA") v. FERC, 141 F.3d 364
(D.C. Cir. 1998), for instance, involved LEPA's challenge to a
FERC decision that allowed one of LEPA's competitors to
sell electric energy at unregulated rates, thus allegedly free-
ing this competitor "to use predatory pricing to lure away
LEPA's customers," id. at 366. In holding that LEPA had
standing to sue, this court first noted that " 'petitioners
sufficiently establish their constitutional standing by showing
that the challenged action authorizes allegedly illegal transac-
tions.' " Id. at 367 (quoting Associated Gas Distributors v.
FERC, 899 F.2d 1250, 1259 (D.C. Cir. 1990)). It went on to
elaborate that "[a] party need not prove that the agency
action it attacks is unlawful ... in order to have standing to
level that attack. As we said in Claybrook v. Slater, 111 F.3d
904, 907 (D.C. Cir. 1997), '[w]hether a plaintiff has a legally
protected interest (and thus standing) does not depend on
whether he can demonstrate that he will succeed on the
merits.' " Id. at 368. Similarly, Telephone and Data Sys-
tems, Inc. v. FCC, 19 F.3d 42 (D.C. Cir. 1994), recently
explained that "one narrow proposition at least is clear:
injurious private conduct is fairly traceable to the administra-
tive action contested in the suit if that action authorized the
conduct or established its legality," id. at 47. International
Ladies' Garment Workers' Union v. Donovan, 722 F.2d 795
(D.C. Cir. 1983), also held that the appellants had established
their standing to sue because "the relief sought by appellants
would make the injurious conduct of third parties complained
of in this case illegal; only by taking extraordinary mea-
sures--i.e., violating the law or starting new businesses over-
seas--could third parties prevent redress of the appellants'
injuries," id. at 811; see also National Wildlife Federation v.
Hodel, 839 F.2d at 705 ("[M]ere indirectness of causation is
no barrier to standing, and thus, an injury worked on one
party by another through a third party intermediary may
suffice.... It is well settled that a plaintiff has standing to
challenge conduct that indirectly results in injury.... We
are concerned here not with the length of the chain of
causation, but on [sic] the plausibility of each of the links that
comprise the chain.") (citations and quotation marks omitted).
A question was raised at oral argument about whether Mr.
Jurnove has nonetheless failed to satisfy the causation prong
of constitutional standing, on the ground that the governing
law simply permits the conditions that allegedly injured him,
rather than requiring animal exhibitors to follow the allegedly
inhumane practices. The background condition governing
animal exhibitors, this argument proceeds, is that anything
the exhibitors do is legal unless statutes and regulations make
specific conduct illegal. Because neither the AWA nor the
USDA's implementing regulations have changed this status
quo--i.e., in no way have they affected the conditions that
allegedly injured Mr. Jurnove--there is no causal link be-
tween any government action and Mr. Jurnove's injury.
This argument, however, is founded on a false premise.
The proper comparison for determining causation is not be-
tween what the agency did and the status quo before the
agency acted. Rather, the proper comparison is between
what the agency did and what the plaintiffs allege the agency
should have done under the statute. The plaintiffs' legal
theory of this case, which we accept for purposes of determin-
ing Mr. Jurnove's standing, is grounded on their view that
animal exhibitors are in fact governed by a mandatory legal
regime. Specifically, the plaintiffs allege that the AWA re-
quires the USDA to establish specific, mandatory require-
ments that establish humane living conditions for animals.
See 7 U.S.C. s 2143(a) (1994) (directing the Secretary of
Agriculture to "promulgate standards to govern the humane
handling, care, treatment, and transportation of animals by
dealers, research facilities, and exhibitors" and providing that
these standards "shall include minimum requirements" for
"a physical environment adequate to promote the psychologi-
cal well-being of primates") (emphasis added). According to
this view, the AWA itself prohibits the conditions that alleg-
edly injured Mr. Jurnove, and the USDA regulations misin-
terpret the statute by permitting these conditions. See First
Amended Complaint pp 53, 57, 97, 106, 107. Both the Su-
preme Court and this circuit have repeatedly found causation
where a challenged government action permitted the third
party conduct that allegedly caused a plaintiff injury, when
that conduct would have otherwise been illegal. Neither
court has ever stated that the challenged law must compel the
third party to act in the allegedly injurious way. In Invest-
ment Co. Institute v. Camp, 401 U.S. 617 (1971), for instance,
investment companies had standing to challenge a regulation
from the Comptroller of the Currency that "authorize[d],"
but did not require, "banks to establish and operate collective
investment funds," id. at 618-19 (emphasis added). In Ar-
nold Tours, Inc. v. Camp, 400 U.S. 45 (1970) (per curiam),
independent travel agents had standing to contest "a ruling
by the Comptroller that, incidental to their banking services,
national banks may provide travel services for their custom-
ers," id. at 45 (emphasis added). Barlow v. Collins, 397 U.S.
159 (1970), involved plaintiffs who were allegedly "suffering
irreparable injury under the [challenged] regulation because
it provide[d] their landlord 'with the opportunity to demand
that [they] and all those similarly situated assign the [upland
cotton program] benefits in advance as a condition to obtain-
ing a lease to work the land,' " id. at 163 (emphasis added).
In Association of Data Processing Service Organizations,
Inc. v. Camp, 397 U.S. 150 (1970), data processing service
organizations had standing to challenge a regulation provid-
ing that "national banks ... may make data processing
services available to other banks and to bank customers," id.
at 151 (emphasis added).
In this circuit, Bristol-Myers Squibb Co. v. Shalala, 91
F.3d 1493 (D.C. Cir. 1996), explicitly rejected the distinction
between permissive and mandatory government regulation.
There, the plaintiff challenged the legality of Food and Drug
Administration ("FDA") regulations governing the approval
of new generic drugs. This court found that Bristol-Myers
Squibb ("BMS") had standing to sue, on the ground that "[i]f
BMS is correct [about its claim that the FDA's regulations
violate the governing statute], then it is no answer to say that
the FDA is merely permitting a competitive product to enter
the market and leaving the purchasing decision to the con-
sumer. See Telephone and Data Systems, Inc. v. FCC, 19
F.3d 42, 47 (D.C. Cir. 1994) ('injurious private conduct is
fairly traceable to the administrative action contested in the
suit if that action authorized the conduct or established its
legality')." Id. at 1499 (emphasis added). The dissent seeks
to distinguish Bristol-Myers Squibb Co. from the present
case on the ground that, in the earlier case, the FDA had
authorized the distribution of a drug under a legal regime in
which no new drug could be marketed without such govern-
ment approval. See Dissent at 15. In other words, Bristol-
Myers Squibb Co. involved a situation in which private action
that was once regulated loosely, or not at all, by the federal
government, was now prohibited unless specifically permitted.
The plaintiff in Bristol-Meyers Squibb Co. claimed that the
FDA's exercise of its authorization authority in that instance
violated its statutory mandate. See 91 F.3d at 1494-95. The
dissent has provided no sound grounds for distinguishing the
present case. Under the plaintiffs' legal theory in this case,
which we accept for purposes of determining their standing to
sue, the AWA itself prohibits the allegedly inhumane condi-
tions that injured Mr. Jurnove; the regulatory backdrop for
the plaintiffs' claim is that all private exhibitions that involve
inhumane treatment of animals are already illegal by statute.
Thus here, the plaintiffs are also contending that the USDA's
decision to permit the conditions that allegedly injured Mr.
Jurnove violated the agency's statutory mandate.
Motor & Equipment Manufacturers Association
("MEMA") v. Nichols, 142 F.3d 449 (D.C. Cir. 1998), involved
a challenge to EPA regulations governing on-board emissions
diagnostic devices ("OBDs"). These regulations provided
that any car manufacturer who complied with California's
stricter OBD requirements would be " 'deemed-to-comply' "
with the federal government's OBD requirements. Id. at 452.
The manufacture of cars meeting California's OBD standards
was likely to injure the petitioners (who manufacture, rebuild,
and sell spare parts) financially, but the EPA argued that its
regulation had not caused this injury because the "deemed-to-
comply" policy did not compel auto manufacturers to comply
with California's OBD regulations, but simply permitted them
to do so. See id. at 457. This court rejected that argument,
pointing out the incentives that car manufacturers have to
take the "deemed-to-comply" route, which allows them to
"make one kind of each car they sell instead of two kinds, one
of which would be for sale in states that follow California's
OBD regulations, and the other for sale in states that follow
federal OBD regulations." Id. We found causation, in other
words, although the government regulation allowed, rather
than required, the allegedly injurious third-party conduct, and
we also recognized the incentives that third parties often have
to minimize their expenditure of money and effort. Some
animal exhibitors have similar incentives, of course, to comply
with the bare requirements of the governing USDA regula-
tions without exceeding them in any potentially expensive or
time-consuming way.
Along the same lines, the plaintiffs in Telephone and Data
Systems, Inc. had standing to challenge the FCC's grant of "a
conditional permit" that allowed a competitor "to construct
and operate cellular communications services in the Atlantic
City market," but did not require him to do so. 19 F.3d at
44. Similarly, the plaintiffs in International Ladies' Garment
Workers' Union had standing to challenge a Labor Depart-
ment regulation that permitted the employment of people
working in their homes in the knitted outerwear industry, but
did not require manufacturers to employ these workers. See
722 F.2d at 799.
Mr. Jurnove's affidavit accordingly falls well within our
established causation requirement for constitutional standing.
He alleges that the USDA failed to adopt the specific, mini-
mum standards that the AWA requires. He further de-
scribes how the conditions that caused him injury complied
with current USDA regulations, and alleges that regulations
complying with the AWA would have prohibited those condi-
tions and protected him from the injuries that his affidavit
recounts.
C. Redressibility
We also find that Mr. Jurnove has satisfied the redressibili-
ty element of constitutional standing. Mr. Jurnove's affidavit
alleges that he has a current routine of regularly visiting the
Game Farm and provides a finite time period within which he
will make his next visit, stating that he plans to "return to the
Farm in the next several weeks" and to "continue visiting the
Farm to see the animals there." Jurnove Affidavit p 43. As
the plaintiffs' complaint argues, more stringent regulations,
which prohibit the inhumane conditions that have consistently
caused Mr. Jurnove aesthetic injury in the past, would neces-
sarily alleviate Mr. Jurnove's aesthetic injury during his
planned, future trips to the Game Farm. See First Amended
Complaint WW 53, 58. Tougher regulations would either allow
Mr. Jurnove to visit a more humane Game Farm or, if the
Game Farm's owners decide to close rather than comply with
higher legal standards, to possibly visit the animals he has
come to know in their new homes within exhibitions that
comply with the more exacting regulations.
The Supreme Court's recent decision in FEC v. Akins,
moreover, rejects the possible counterargument that the re-
dressibility element of constitutional standing requires a
plaintiff to establish that the defendant agency will actually
enforce any new binding regulations against the regulated
third party. There, the plaintiffs, "a group of voters with
views often opposed to those of AIPAC [the American Israel
Public Affairs Committee]," sought to have AIPAC classified
as a "political committee" within the meaning of the Federal
Election Campaign Act ("FECA"), which "imposes extensive
recordkeeping and disclosure requirements upon groups that
fall within the Act's definition of a 'political committee.' " 118
S. Ct. at 1781-82. The FEC argued that these plaintiffs had
not established either causation or redressibility, on the
ground that, even if the Commission had accepted the plain-
tiffs' interpretation of FECA, "it is possible that ... [the
FEC] would still have decided in the exercise of its discretion
not to require AIPAC to produce the information." Id. at
1786. The Supreme Court soundly rejected this argument,
noting:
that fact does not destroy Article III 'causation' [or
redressibility,] for we cannot know that the FEC would
have exercised its prosecutorial discretion in this way.
Agencies often have discretion about whether or not to
take a particular action. Yet those adversely affected by
a discretionary agency decision generally have standing
to complain that the agency based its decision upon an
improper legal ground. If a reviewing court agrees that
the agency misinterpreted the law, it will set aside the
agency's action and remand the case--even though the
agency (like a new jury after a mistrial) might later, in
the exercise of its lawful discretion, reach the same result
for a different reason.
Id. (citations omitted).
Mr. Jurnove, accordingly, has met all three of the constitu-
tional requirements for standing.
D. Prudential Standing/Zone of Interests
Mr. Jurnove also falls within the zone of interests protected
under the AWA's provisions on animal exhibitions. As the
Supreme Court has recently reaffirmed, the zone of interests
test is generous and relatively undemanding. "[T]here need
be no indication of congressional purpose to benefit the
would-be plaintiff." National Credit Union Admin. v. First
National Bank & Trust Co., 118 S. Ct. 927, 934 (1998)
(citation and quotation marks omitted). Instead, the test, a
gloss on APA s 10(a), 5 U.S.C. s 702 (1994), asks only
"whether the interest sought to be protected by the complain-
ant is arguably within the zone of interests to be protected by
the statute," National Credit Union Admin., 118 S. Ct. at 935
(citation, internal quotation marks, and alteration omitted);
see also Akins, 118 S. Ct. at 1783 ("[P]rudential standing is
satisfied when the injury asserted by a plaintiff arguably falls
within the zone of interests to be protected or regulated by
the statute in question.") (citation, internal quotation marks,
and alterations omitted). Our circuit has further explained
that "[t]his analysis focuses, not on those who Congress
intended to benefit, but on those who in practice can be
expected to police the interests that the statute protects."
Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1075
(D.C. Cir. 1998); see also ALDF I, 23 F.3d at 502 ("The [zone
of interests] test precludes review of administrative action if
the particular interest asserted is 'so marginally related to or
inconsistent with the purposes implicit in the statute that it
cannot reasonably be assumed that Congress intended to
permit the suit.' ") (quoting Clarke v. Securities Indus. Ass'n,
479 U.S. 388, 399 (1987)); Autolog Corp. v. Regan, 731 F.2d
25, 29-30 (D.C. Cir. 1984) ("[T]he zone of interests test
requires some indicia--however slight--that the litigant be-
fore the court was intended to be protected, benefitted or
regulated by the statute under which suit is brought. Courts
should give broad compass to a statute's zone of interests in
recognition that this test was originally intended to expand
the number of litigants able to assert their rights in court.")
(citations and internal quotation marks omitted).
In this case, logic, legislative history, and the structure of
the AWA, all indicate that Mr. Jurnove's injury satisfies the
zone of interests test. The very purpose of animal exhibitions
is, necessarily, to entertain and educate people; exhibitions
make no sense unless one takes the interests of their human
visitors into account. The legislative history of both the 1985
amendments to the Animal Welfare Act and the 1970 act that
first included animal exhibitions within the AWA confirms
that Congress acted with the public's interests in mind.
In introducing the 1985 amendments, Senator Robert Dole
explained "that we need to ensure the public that adequate
safeguards are in place to prevent unnecessary abuses to
animals, and that everything possible is being done to de-
crease the pain of animals during experimentation and test-
ing." 131 Cong. Rec. 29,155 (1985) (statement of Sen. Dole)
(emphasis added). The Congressmen who went on the House
floor to introduce the act that first extended the AWA to
cover animal exhibitions recognized that their bill "ha[d] been
a focal point of concern among animal lovers throughout the
Nation for some time" and spoke of the "great pleasure" that
animals bring to the people who see them. 116 Cong. Rec.
40,159 (1970) (statement of Rep. Mizell); see also H.R. Rep.
No. 91-1651, at 1 (1970) ("Beginning with the legislation
passed in 1966 (Public Law 89-544), the United States Gov-
ernment has implemented a statutory mandate that small
helpless creatures deserve the care and protection of a strong
and enlightened public.") (emphasis added). Indeed, Con-
gress had placed animal exhibitions within the scope of the
AWA after hearings documenting how inhumane conditions at
these exhibitions affected the people who came and watched
the animals there. See Care of Animals Used for Research,
Experimentation, Exhibition, or Held for Sale as Pets:
Hearings on H.R. 13957 Before the Subcomm. on Livestock
and Grains of the House Comm. on Agriculture, 91st Cong.
38 (1970) (letter from John M. Mehrtens) [hereinafter Hear-
ings]; id. at 39 (letter from Chris Sullivan); id. at 67 (state-
ment of Pearl Twyne); id. at 79 (statement of Mary Frances
Morrisette).
Throughout, the Congressmen responsible for including
animal exhibitions within the AWA encouraged the continued
monitoring of humane societies and their members. They
spoke, for instance, of how America had long depended on
humane societies to bring the mistreatment of animals to
light. See, e.g., 116 Cong. Rec. 40,305 (1970) (statement of
Rep. Whitehurst). The Congressmen further acknowledged
that humane societies were the moving force behind the
legislation to include animal exhibitions within the AWA.
See, e.g., 116 Cong. Rec. 40,156 (1970) (statement of Rep.
Foley).
The structure of the AWA also makes clear that Mr.
Jurnove falls within the statute's zone of interests. While the
AWA establishes oversight committees with private citizen
members for research facilities, see 7 U.S.C. s 2143(b)(1)
(1994), it created no counterpart for animal exhibitions. But,
as the legislative history shows, the AWA anticipated the
continued monitoring of concerned animal lovers to ensure
that the purposes of the Act were honored. Mr. Jurnove, a
regular viewer of animal exhibitions regulated under the
AWA, clearly falls within the zone of interests the statute
protects. His interests are among those that Congress
sought to benefit through the AWA, and he certainly is one of
the individuals "who in practice can be expected to police the
interests that the statute protects." Mova Pharmaceutical
Corp., 140 F.3d at 1075.
III. Conclusion
Mr. Jurnove has standing to sue. He satisfies the injury,
causation, and redressibility elements of constitutional stand-
ing, and also falls within the zone of interests for the Animal
Welfare Act. We accordingly have no need to consider the
standing of the other individual plaintiffs. We leave a deter-
mination of the merits of the plaintiffs' claim to a future panel
of this court.
So ordered.
Circuit Judge Sentelle, with whom Judge Silberman,
Judge Ginsburg, and Judge Henderson join, dissenting: Marc
Jurnove visited the Long Island Game Farm about a dozen
times over the course of a year and was upset by the
conditions of the primates he saw there. Some primates
were kept in isolation; others were kept in cages without
sufficient "cage enrichment devices"; and still others were
kept in cages that were not properly maintained. At Jur-
nove's urging, the United States Department of Agriculture
inspected the Game Farm several times, but failed to take
steps to improve these conditions. Frustrated by USDA's
ineffectiveness, Jurnove filed a lawsuit seeking the invalida-
tion of federal regulations concerning the treatment of pri-
mates on the grounds that those regulations failed to live up
to the mandate of the Animal Welfare Act. At issue is
whether Jurnove had standing to bring this suit.
The majority concludes that Jurnove has a cognizable
constitutional interest in viewing particular primates kept
under humane conditions, and finds Jurnove's claimed inju-
ries fairly traceable to USDA's failure to promulgate tougher
regulations and redressable by a judicial order forcing USDA
to promulgate such regulations. Because I believe the major-
ity significantly weakens existing requirements of constitu-
tional standing, I dissent.
I.
Under Article III of the Constitution, the "judicial power"
of the United States is limited to the resolution of "Cases" or
"Controversies." U.S. Const. art. III, s 2. Like the other
doctrines of justiciability associated with Article III (for
example, mootness, ripeness and political question), the doc-
trine of standing "state[s] fundamental limits on federal judi-
cial power in our system of government." Allen v. Wright,
468 U.S. 737, 750 (1984). Standing--"perhaps the most im-
portant of these doctrines," id.--involves the question of
"whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues." Id. at 750-51
(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
At an "irreducible minimum," Article III standing requires
those invoking the jurisdiction of a federal court to demon-
strate an (1) injury-in-fact; (2) which is caused by, or is fairly
traceable to the defendant's alleged unlawful conduct; and (3)
which is likely to be redressed by a favorable decision of the
court. Valley Forge Christian College v. Americans United
for Separation of Church and State, Inc., 454 U.S. 464, 472
(1982); see also Bennett v. Spear, 117 S. Ct. 1154, 1161 (1997);
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
A would-be federal litigant must "clearly and specifically set
forth facts sufficient to satisfy these Art. III standing re-
quirements." Whitmore v. Arkansas, 495 U.S. 149, 155
(1990).
By imposing these requirements, Article III limits the
power of the federal judiciary to "those disputes which con-
fine federal courts to a role consistent with a system of
separated powers and which are traditionally thought to be
capable of resolution through the judicial process." Valley
Forge, 454 U.S. at 472 (quoting Flast v. Cohen, 392 U.S. 83,
97 (1968)); see also Allen, 468 U.S. at 750 (case-or-
controversy doctrines are "founded in concern about the
proper--and properly limited--role of the courts in a demo-
cratic society") (quoting Warth, 422 U.S. at 498). Article III
standing is "not merely a troublesome hurdle to be overcome
if possible so as to reach the 'merits' of a lawsuit which a
party desires to have adjudicated." Valley Forge, 454 U.S. at
476. To the contrary, it is an "essential and unchanging part
of the case-or-controversy requirement of Article III." De-
fenders of Wildlife, 504 U.S. at 560.
A federal court deciding matters outside the scope of
Article III, then, exercises power that is "not judicial ... in
the sense in which judicial power is granted by the Constitu-
tion to the courts of the United States." Valley Forge, 454
U.S. at 471 (quoting United States v. Ferreira, 13 How. 40, 48
(1852)). To permit a federal court to rule on the claims of a
plaintiff lacking Article III standing would "create the poten-
tial for abuse of the judicial process, distort the role of the
Judiciary in its relationship to the Executive and the Legisla-
ture and open the Judiciary to an arguable charge of provid-
ing 'government by injunction.' " Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 222 (1974). Thus,
"[t]he powers of the federal judiciary will be adequate for the
great burdens placed upon them only if they are employed
prudently, with recognition of the strengths as well as the
hazards that go with our kind of representative government."
Id. (emphasis added) (quoting Flast, 392 U.S. at 131 (Harlan,
J., dissenting)).
It is therefore imperative to exercise prudence when decid-
ing a case--like the case before us today--that would lower
existing Article III barriers to standing. We should not
lightly tinker with the constitutional source of federal judicial
power, see Whitmore, 495 U.S. at 161, even when we may
sympathize with the ideological goals of plaintiffs in a particu-
lar case. Id. (rejecting a "relaxed application of standing
principles"; concluding that "[i]t is not for this Court to
employ untethered notions of what might be good public
policy to expand our jurisdiction in an appealing case").
With these principles in mind, I turn now to Marc Jur-
nove's claims of Article III standing.
II.
A. Injury-in-Fact
The first of the familiar triad of requirements for constitu-
tional standing is "injury in fact," which is an "invasion of a
legally protected interest which is (a) concrete and particular-
ized and (b) actual or imminent, not conjectural or hypotheti-
cal." Defenders of Wildlife, 504 U.S. at 560 (citations and
internal quotation marks omitted). The majority concludes
that Jurnove has articulated a "concrete and particularized"
injury to his "legally protected interest" in "observing ani-
mals living under humane conditions." Majority at 22; see
also First Amended Complaint p 43 (alleging that Jurnove
has an "aesthetic, recreational, personal and educational in-
terest in observing, photographing, writing about, learning
about and interacting with wild and exotic animals kept in
humane environments").
Despite the majority's assertion to the contrary, see Majori-
ty at 21-22, today's ruling is indeed a departure from existing
aesthetic injury jurisprudence. Granted, "the desire to use or
observe an animal species, even for purely esthetic purposes,
is undeniably a cognizable interest for purpose of standing."
Defenders of Wildlife, 504 U.S. at 562-63. However, as we
have observed before, the Supreme Court cases addressing
aesthetic injury resulting from the observation of animals are
limited to cases in which governmental action threatened to
reduce the number of animals available for observation and
study. See Humane Society v. Babbitt, 46 F.3d 93, 97 (D.C.
Cir. 1995) (citing Sierra Club v. Morton, 405 U.S. 727, 734
(1972); Defenders of Wildlife, 504 U.S. at 563; Japan Whal-
ing Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 231 n.4
(1986)).
Nor has this circuit previously crossed this diminution-of-
the-species line and found the existence of a constitutional
interest in the conditions under which one views animals.
The majority misleadingly suggests that we did so in Animal
Welfare Institute v. Kreps, 561 F.2d 1002, 1007 (D.C. Cir.
1977). In fact, that decision does not make it at all clear what
the nature of the injury is which the court found sufficient.
On this cited page, under the heading "Traditional Analysis
... Injury in Fact," the court quoted more than a full column
of the plaintiffs' complaint cataloging various allegations of
injury. Without specifying what part of the plaintiffs' allega-
tions of injury made out standing, the opinion goes on to note
that "[t]he District Court agreed that appellants' interests
were cognizable," but had held that appellants lacked stand-
ing because the injury was not personal to them, as opposed
to being shared with "any other concerned citizen." Id. at
1008. Our opinion then goes on to discuss the sufficiency of
the allegations that specific members of the plaintiff group
intended to conduct the observations underlying their factual
allegations. Insofar as the majority claims that our decision
adopted the view that the conditions of observation constitute
a cognizable interest such that interference therewith consti-
tutes injury-in-fact for Article III standing purposes, the
opinion simply will not bear that weight.
In that case, environmental groups had filed a lawsuit that
challenged a decision by the Secretary of Commerce to waive
a statutory moratorium on the taking or importation of
marine mammals or marine mammal products. The result of
the government's decision was to permit baby fur sealskins to
be imported into the United States from South Africa. Id. at
1004. The plaintiffs alleged in their lawsuit that the govern-
ment's action would "contribute to the death and injury of
marine mammals and injury to the ecosystem of the South
Atlantic Ocean." Id. at 1007. The plaintiffs articulated their
aesthetic injury as follows:
Through sanctioning the seal harvesting method of the
South African Government, the [Secretary's] decision
impairs the ability of members of the Plaintiff organiza-
tions to see, photograph, and enjoy Cape fur seals alive
in their natural habitat under conditions in which the
animals are not subject to excessive harvesting, inhu-
mane treatment and slaughter of pups that are very
young and still nursing.
Id. (emphasis added). Citing Sierra Club, the Animal Wel-
fare Institute court determined that the plaintiffs had stated
a cognizable injury-in-fact. Id. at 1007-08.
The majority avers that the Animal Welfare Institute court
recognized a cognizable interest in viewing seals free from
inhumane treatment. Majority at 12-13. However, as the
opinion makes clear, "inhumane treatment," as it appears in
the above quotation and in the Marine Mammal Protection
Act, is a term of art referring to the manner in which seals
are killed: plaintiffs argued on the merits that "humane"
killing of seals, within the meaning of that statute, involved
killing with a single blow (and they argued, unsuccessfully,
that South African harvesting practices did not live up to this
degree of "humaneness"). See id. at 1012-13; 16 U.S.C.
s 1362(4) (1975). Animal Welfare Institute, then, involved
allegations that governmental action will "contribute to the
death" of seals. Id. at 1007. Accordingly, this case falls
squarely within the line of Supreme Court precedents recog-
nizing claims of aesthetic injury to governmental action di-
minishing the opportunity to observe, not affecting the quality
of the observation.
The majority also cites Humane Society v. Hodel, 840 F.2d
45 (D.C. Cir. 1988), seemingly for the proposition that viewing
animals free from inhumane treatment is a constitutionally
cognizable injury. Majority at 13. But this case too comes
within the Supreme Court's diminution-of-the-species param-
eters, specifically recognizing as cognizable the "deplet[ion]
[of] the supply of animals and birds that refuge visitors seek
to view." 840 F.2d at 52.
Although the Supreme Court and this circuit have not
recognized a cognizable injury-in-fact to an aesthetic interest
based on the circumstances of observation, that does not
mean that interference with such an interest could not
amount to a constitutional injury-in-fact. Rather, as I set
forth above, I believe it is necessary to proceed with caution
when venturing into constitutionally uncharted waters. See
Section I., supra.
Having removed the diminution-of-the-species touchstone
of existing case law, the majority opens an expanse of stand-
ing bounded only by what a given plaintiff finds to be
aesthetically pleasing. Aesthetic injury is, by its nature, a
matter of individual taste. For example, although Jurnove
might find it aesthetically pleasing to view primates kept in
groups, another person might prefer to watch them kept
alone. Still another person might prefer to see primates in
brightly colored cages, or in cages in which recordings of
Mozart piano concertos are played around the clock, or not in
cages at all. Under the majority's theory, it appears that
Article III encompasses the injury of a person who states
that he has an aesthetic interest in seeing primates kept
under such conditions, and that he believes primates that are
not kept under these conditions are treated inhumanely.
Jurnove's injury, recognized by the majority as constitu-
tionally cognizable, is in seeing particular animals treated
humanely. "Humane" is defined as "marked by compassion,
sympathy, or consideration for other human beings or ani-
mals." Webster's New Collegiate Dictionary 556 (1973).
Humaneness, like beauty, is in the eye of the beholder: one's
individual judgment about what is or is not humane depends
entirely on one's personal notions of compassion and sympa-
thy. I find it difficult to imagine a more subjective concept
than this.
Furthermore, as the majority acknowledges, the reasoning
of its opinion is not limited to humaneness. The majority
recognizes an aesthetic injury in viewing animals in any
manner that does not comport with a plaintiff's individual
taste. According to the majority's theory, a sadist with an
interest in seeing animals kept under inhumane conditions is
constitutionally injured when he views animals kept under
humane conditions. In so doing, the majority labors mightily,
but unpersuasively, to limit the reasoning of its holding to the
recognition of an aesthetic injury that results from the inhu-
mane treatment of animals. For example, the majority dis-
putes that the hypothetical sadist with an interest in seeing
animals kept under inhumane conditions would be constitu-
tionally injured by viewing animals kept under humane condi-
tions. The majority explains the constitutional infirmity of
the sadist's claims by stating that only "legally protected"
injuries fall within the Article III injury-in-fact test. See
Majority at 14 n.7 (citing Defenders of Wildlife, 504 U.S. at
560). According to the majority, the sadist's injuries are not
"legally protected" "because the [Animal Welfare Act] ...
recognizes no interest in sadism." Id. But by relying on the
nature of the injury recognized by a governing statute as
"legally protected," the majority improperly conflates the
prudential zone-of-interests analysis with the Article III
injury-in-fact analysis. The majority's attempt to blend these
conceptually distinct tests is logically incoherent, and in no
way cures the ill-defined and essentially subjective nature of
the asserted injury before us today.
In recognizing Jurnove's purely subjective injury, the ma-
jority radically departs from our precedent. For example, we
refused to recognize "purely subjective" claims of injury that
could not be measured by "readily discernible standards" in
Metcalf v. National Petroleum Council, 553 F.2d 176, 187
(D.C. Cir. 1977) (citing Laird v. Tatum, 408 U.S. 1, 13-14
(1972)). One such "purely subjective" claim of injury in that
case was raised by United States Senator Lee Metcalf. Met-
calf claimed that the National Petroleum Council was unlaw-
fully operating as a federal advisory committee because its
membership was not "fairly balanced" as required by the
Federal Advisory Committee Act. Metcalf, at the time the
chairman of a Senate subcommittee on Minerals, Materials
and Fuels, alleged that the Council was providing him with
biased information, thus "imped[ing] [him] in his efforts to
develop the best possible legislative product." Id. at 185-86.
In rejecting Metcalf's proposed injury in fact, we specifical-
ly targeted the "purely subjective nature of his asserted
injury":
[Metcalf's] injury derives from his belief that he cannot
produce the "best possible legislative product" because of
the Council's allegedly tainted advice. There are no
objective standards to determine when a legislative prod-
uct is the "best" that it can be; such a determination
necessarily rests on each legislator's individual view of
the countless variety of factors which go into the formu-
lation of legislation. Were we to accept the pure subjec-
tivity put forth by appellant Metcalf in his capacity as an
individual legislator, the federal courts would become a
forum for the vindication of value preferences with re-
spect to the quality of legislation enacted by our national
legislature. Such a role for the courts is clearly inconsis-
tent with the "cases or controversies" limitation of Arti-
cle III.
Id. at 188.
Just as a legislator's view of what legislation is "best"
depends solely on the value preferences of the legislator, so
does Jurnove's notion of what is "humane" depend solely on
his own value preferences. And no objective standard could
possibly measure degrees of a concept--humaneness--that is
based entirely on one's subjective emotions. Under existing
law, a plaintiff may establish a "concrete and particularized"
injury when his interest in observing or studying animals is
directly affected by the reduction in the number of animals to
be viewed or studied. Today's decision goes much further,
recognizing an aesthetic injury based solely on a plaintiff's
subjective emotional response to something he sees. Under
today's decision, one's individual preference in viewing ani-
mals in a particular way is thought to be constitutionally
injured when government regulations do not require the
animals to be kept in a way that comports with one's taste. I
would follow Metcalf and hold that such a purely subjective
injury is outside the boundaries of Article III. The majori-
ty's contrary conclusion amounts to constitutional recognition
of the "psychological consequence presumably produced by
observation of conduct with which one disagrees." Valley
Forge, 454 U.S. at 485. Valley Forge, among many other
cases, makes it plain that this is "not an injury sufficient to
confer standing under Art. III...." Id.; see also Humane
Society v. Babbitt, 46 F.3d 93, 98 (D.C. Cir. 1995) ("[G]eneral
emotional 'harm,' no matter how deeply felt, cannot suffice for
injury-in-fact for standing purposes.") (citing additional
cases).
The majority accuses the panel opinion of "import[ing] ...
a requirement into our standing doctrine so late in the day"
by requiring a diminution in the opportunity to observe in
order to establish cognizable injury to aesthetic interests.
Majority at 21. This statement fundamentally misunder-
stands not only our precedent but the nature of standing. No
one was "importing" a new requirement. We simply have not
been asked before to find standing where the sole alleged
injury is an interference with the aesthetic taste of the
plaintiff. To pass on that novel question at its first appear-
ance is not "late in the day." It is simply the first time it has
been necessary to decide whether we will conclude that
constitutional standing extends to an area in which it has not
previously been asserted.
In short, Jurnove's asserted injuries are not "traditionally
thought to be capable of resolution through the judicial
process." See Valley Forge, 454 U.S. at 472 (quoting Flast,
392 U.S. at 97). Accordingly, I would find that he has not
met his burden of demonstrating a cognizable injury-in-fact.
This conclusion alone would bar Jurnove from seeking relief
in federal court. Florida Audubon Soc'y v. Bentsen, 94 F.3d
658, 662 (D.C. Cir. 1996) (en banc).
B. Causation
Even if I shared my colleagues' belief that an interference
with a plaintiff's aesthetic sensibilities absent a diminution in
the opportunity to exercise those sensibilities is sufficient to
make out the injury-in-fact element of constitutional standing,
I still could not conclude that the plaintiffs had established
that Jurnove has constitutional standing on the present com-
plaint. Even if such an injury were cognizable, and even if
the complaint has set forth that cognizable injury, their
attempt at standing stumbles at the second stile: they have
not established causation.
In analyzing the "causation" element of constitutional
standing, we ask whether it is "substantially probable" that
the challenged acts of the defendant--as opposed, for exam-
ple, to the acts of an absent third party--caused a plaintiff's
particularized injury. Florida Audubon Soc'y, 94 F.3d at 663
(citations omitted). Causation, therefore, is related to but
distinct from "redressability," which requires that the relief
sought by the plaintiffs is likely to alleviate the plaintiff's
injury. Id. at 663-64.
When a plaintiff asserts injuries attributed to "the govern-
ment's allegedly unlawful regulation (or lack of regulation) of
someone else," Defenders of Wildlife, 504 U.S. at 562 (empha-
sis in original), the causation and redressability elements of
standing analysis "require more exacting scrutiny." Freedom
Republicans, Inc. v. Federal Election Comm'n, 13 F.3d 412,
416 (D.C. Cir.) (Wald, J.), cert. denied, 513 U.S. 821 (1994).
Under these circumstances, standing is not necessarily pre-
cluded, but the "indirectness of injury 'may make it substan-
tially more difficult to meet the minimum requirements of
Art. III: to establish that, in fact, the asserted injury was the
consequence of the defendants' actions, or that prospective
relief will remove the harm.' " Id. (quoting Simon v. Eastern
Ky. Welfare Rights Org., 426 U.S. 26, 44-45 (1976)). A
plaintiff who claims to have been injured by the government's
regulation of a third party must "adduce facts showing that
the unfettered choices made by independent actors have been
or will be made in such manner as to produce causation and
permit redressability of injury." Id. at 417 (brackets omitted)
(quoting Defenders of Wildlife, 504 U.S. at 562).
The majority concludes that Jurnove has met his burden of
establishing that his claimed aesthetic injury is fairly tracea-
ble to government action. Jurnove's argument, accepted by
the majority, proceeds: (1) Jurnove was aesthetically injured
when he saw primates he believed to be mistreated at the
Game Farm; (2) the manner in which the Game Farm treated
the primates was permitted under existing regulations; (3)
existing regulations are not tough enough because they do not
include "minimum standards" as required by the Animal
Welfare Act; (4) by failing to promulgate tough regulations
that comply with the AWA, USDA is responsible for the
aesthetic injuries Jurnove suffered by viewing primates at the
Game Farm. Since Jurnove is asserting injuries attributed to
the government's regulation of a third party, his claims of
causation must be considered with "exacting scrutiny." Free-
dom Republicans, 13 F.3d at 416.
The cornerstone of Jurnove's claims of causation is that
existing regulations permit the conditions that troubled him.
Indeed, the majority stresses the fact that USDA's repeated
inspections of the Game Farm revealed no (or few) violations.1
__________
1 I note that we are reviewing the district court's entry of
summary judgment in favor of Jurnove and his co-plaintiffs. This
fact determines our standard of review: "while a motion to dismiss
may be decided on the pleadings alone, construed liberally in favor
of the plaintiff, a motion for summary judgment by definition entails
an opportunity for a supplementation of the record, and accordingly
a greater showing is demanded of the plaintiff." Wilderness Soci-
ety v. Griles, 824 F.2d 4, 16 (D.C. Cir. 1987) (finding plaintiffs'
allegations in summary judgment context to be insufficiently specif-
ic to meet their burden of establishing constitutional standing); see
also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 45
n.25 (1976) (acknowledging that a complaint's standing allegations
See Majority at 25-26. However, the gravamen of the affida-
vit is not that the events Jurnove witnessed were legal, but
that USDA is shirking its obligation to enforce the law, and is
only halfheartedly inspecting the Game Farm in order to
mollify Jurnove. Jurnove explicitly states that he has "con-
cluded that the USDA was just 'going through the motions' to
placate [him] because of [his] many calls and submissions
[complaining about the treatment of Game Farm primates]."
Jurnove Affidavit p 41. Furthermore, Jurnove states that he
"knew that the USDA inspection report [finding the Game
Farm in compliance with existing regulations] was incorrect."
Id. at p 19; see also id. at p 21 (alleging that the USDA
inspection report of July 21, 1995 included nothing about
conditions that Jurnove says were "required by USDA regu-
lations"). In light of the thrust of the affidavit (that USDA
went through the motions and wrote up incorrect reports),
Jurnove's legal claims of causation (that the regulations per-
mitted the conditions he witnessed) seem disingenuous. See
10A Wright, Miller & Kane, Federal Practice and Proce-
dure s 2721, at 365 (1998) ("The formal issues framed by the
pleadings are not controlling on a motion for summary judg-
ment....").
__________
"withstood a motion to dismiss, although [they] might not have
survived challenge on a motion for summary judgment"). Jurnove's
affidavit was submitted in support of his motion for summary
judgment. Rule 56(e) of the Federal Rules of Civil Procedure
requires such affidavits to be "made on personal knowledge; [to]
set forth such facts as would be admissible in evidence, and [to]
show affirmatively that the affiant is competent to testify to the
matters stated therein." Fed. R. Civ. P. 56(e). Clearly, Jurnove
would not have been permitted to testify about the conclusions of
USDA examiners (that the Game Farm was in compliance with
regulations) because those conclusions are hearsay and not based on
Jurnove's personal knowledge. However, because the government
never filed a motion to strike the hearsay portions of Jurnove's
affidavit, it waived its objections to them, and we may appropriately
consider them now in the absence of a "gross miscarriage of
justice." See 10B Wright, Miller & Kane, Federal Practice and
Procedure s 2738, at 372-73 (1998).
According to the majority, causation is established if a
plaintiff demonstrates that challenged governmental action
"authorizes" the plaintiff's injuries. But the majority uses
the term "authorize" in a very loose way. For example, 9
C.F.R. s 3.81(a)(3) provides that "[i]ndividually housed non-
human primates must be able to see and hear nonhuman
primates of their own or compatible species unless the attend-
ing veterinarian determines that it would endanger their
health, safety, or well-being." According to the majority, this
regulation authorized the Game Farm to house nonhuman
primates out of the sight or hearing of other primates.
Majority at 23.
The majority's view of "authorization" here is beyond ex-
pansive. The regulation says that individually housed pri-
mates must be able to see and hear other primates unless the
attending veterinarian determines otherwise. Thus, one of
two things must be true under existing law if a primate were
housed out of the sight or hearing of other primates. Either
the attending veterinarian determined that housing such a
primate within the sight or hearing of another primate "would
endanger their health, safety, or well-being," or the veterinar-
ian did not, in which case the housing of the primate would
violate the regulation. According to the majority, the regula-
tion authorizes inhumane treatment of primates. How? An
exhibitor that "secured the approval of the veterinarian in its
employ could comply with the regulation without actually
housing nonhuman primates within the sight or sound of
other primates." Id. (emphasis added). The obvious innuen-
do of this sentence is that an exhibitor could bribe its staff
veterinarian to determine falsely that a given primate's
"health, safety, or well-being" would be endangered, thus
permitting the primate to be housed away from the sight or
sound of other primates.2 But if this were so, any inhumane
__________
2 The majority suggests, without record citation, that appel-
lant's concern is not with bribery, but rather "that the regulation
gives exhibitors too much leeway to shop around for a compliant
veterinarian and that placing such broad and unguarded discretion
in the hands of the veterinarian in an exhibitor's own employ is an
insufficient safeguard to protect primate well being." Majority at
treatment would be the result of the exhibitor's failure to
follow existing regulations, and would not be traceable to the
regulations themselves.
The majority also addresses the causation of Jurnove's
alleged aesthetic injury in seeing squirrel monkeys housed
next to adult bears "repeatedly walking over to the door and
sniffing and acting very upset when the bears came near."
Jurnove Affidavit p 11. The majority acknowledges that un-
der existing regulations, "[n]onhuman primates may not be
housed with other species of primates or animals unless they
are compatible." Majority at 24 (citing 9 C.F.R. s 3.81(a)(3)).
It emphasizes, however, that this provision is not applicable
here because it does not "expressly regulate" incompatible
animals housed next to each other, but in separate cages. Id.
The majority's causation analysis comes down to this: when a
provision does not "expressly regulate" certain treatment, the
regulations "authorize" such treatment. See also Majority at
24-25 (asserting that a regulation that included no "specific
requirements governing the particular kind or number of
enrichment devices" authorized the Game Farm's decision to
furnish a cage with only one swing). Surely this analysis
proves too much. There are an infinite variety of things not
"expressly regulated" by section 3.81, and according to the
majority's reasoning any injury caused by those things is
fairly traceable to the government's failure to "expressly
regulate" them. I cannot subscribe to such a wide-ranging
theory of causation.
I find frightening at a constitutional level the majority's
assumption that the government causes everything that it
does not prevent. The majority rejects as "a false premise"
the proposition that "[t]he proper comparison for determining
causation is ... between what the agency did and the status
quo before the agency acted." Majority at 29. I submit that
consistent with our constitutional tradition of limited govern-
__________
23-24. This does not change the applicable analysis. A claim of
authorization through wide discretion is effectively the same as (or
close enough to) authorization through failure to forbid as to fall far
outside of the kind of express authorization required for Article III
causation.
ment that is precisely the correct premise for causation. The
cases offered by the majority, Investment Co. Institute v.
Camp, 401 U.S. 617 (1971); Arnold Tours, Inc. v. Camp, 400
U.S. 45 (1970); and Barlow v. Collins, 397 U.S. 159 (1970),
are not to the contrary. In each of those decisions the
alleged injury arose from conduct on the part of a regulated
entity whose conduct was expressly authorized by some regu-
lation enacted by the sued regulator. Thus, there was an
express authorization caused by the government defendants.
In the present case, Jurnove has pointed to no such express
authorization of any conduct that inflicts his alleged injuries.
Nor do decisions of our circuit sweep into causation the full
expanse of all conduct not forbidden by the alleged causer.
Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493 (D.C. Cir.
1996), did not, as the majority claims, "explicitly reject[ ] the
distinction between permissive and mandatory government
regulation." Majority at 30. That case involved regulations
that governed the approval of new generic drugs which could
not be marketed under relevant conditions without the regu-
lator's approval. Bristol-Myers, 91 F.3d at 1494-95. In light
of the fact that the regulator explicitly authorized the conduct
at issue, there was a neat causal fit between the authorization
and the act that allegedly caused the injury.
Telephone and Data Systems, Inc. v. FCC, 19 F.3d 42 (D.C.
Cir. 1994), upon which the Bristol-Myers court and deriva-
tively the majority today rely, is also not to the contrary. It
supports the distinction between the authorization of particu-
lar conduct and the failure to prevent it. In Telephone and
Data Systems, the FCC had entered an order which autho-
rized the operation of a licensed entity under certain condi-
tions, and another which would merely allow the transfer of a
particular license. In the portion cited by the majority, we
held that an appellant allegedly injured by the conduct ex-
pressly authorized by the FCC in the first order had made
out causation. Id. at 47. In a portion of the opinion not cited
by the majority, we held that the same appellant had not
made out causation in its allegation of potential anticompeti-
tive collusion on the part of the potential transferee. Id. at
48. In no part of the opinion did we provide any precedent
for the proposition that a bare failure to prevent conduct by
regulation is tantamount to causation.
The remainder of the cases cited by the majority are
simply a repetition of the same refrain. See Motor & Equip-
ment Manufacturers Assoc. v. Nichols, 142 F.3d 449, 457
(D.C. Cir. 1998) (holding that a competitive injury was fairly
traceable to EPA's deemed-to-comply rule because the regu-
lation "create[d] a tremendous incentive for manufacturers to
install [on-board emissions diagnostic devices] that comply
with California's regulations in all their cars"); Louisiana
Energy and Power Authority v. FERC, 141 F.3d 364, 367
(D.C. Cir. 1998) (holding that a competitive injury was fairly
traceable to FERC's decision to "lift regulatory restrictions
on their competitors"); International Ladies' Garment Work-
ers' Union v. Donovan, 722 F.2d 795, 799 (D.C. Cir. 1983)
(holding that the petitioners had standing to challenge the
Secretary of Labor's decision to "rescind longstanding restric-
tions on the employment of workers in their homes (home-
workers) in the knitted outerwear industry"). In each of
these cases, we reasoned that the commercial conduct of third
parties was fairly traceable to the government, because the
conduct was expressly authorized by the government's eco-
nomic regulation. In contrast, Jurnove can point to no such
authorization. It is no answer to say that USDA's regula-
tions do not prohibit the allegedly inhumane conditions that
he observed at the Game Farm. What matters, under our
consistent case law, is whether the third party conduct follows
directly on the heels of a government decision that affirma-
tively approved that conduct. Jurnove has made no such
submission.
C. Redressability
I would further hold that Jurnove fails the test of re-
dressability. To explain why I find his claims of redressa-
bility wanting, I offer this example. Jurnove claims that he
was aesthetically injured by viewing primates with inade-
quate cage enrichment devices. In particular, he states that
he was disturbed by viewing a Japanese Snow Macaque
housed in a cage with only one such cage enrichment device:
an unused swing. Jurnove Affidavit p 14. He takes issue
with the existing regulation concerning such devices because
they violate the Animal Welfare Act's minimum standards
mandate. The regulation provides that "[t]he physical envi-
ronment in the primary enclosures must be enriched by pro-
viding means of expressing noninjurious species-typical ac-
tivities." 9 C.F.R. s 3.81(b). According to Jurnove (and
the majority), these regulations authorized the Game Farm
to keep primates in an offensive single-swing cage.
To find redressability on Jurnove's claims would require
that we ignore the well-established rule that Article III
standing requires it to "be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision." Bennett v. Spear, 117 S. Ct. 1154, 1163 (1997);
accord Defenders of Wildlife, 504 U.S. at 560-61.
How would a judicial order invalidating section 3.81(b) and
directing USDA to promulgate a new regulation redress
Jurnove's claims of aesthetic injury? Under Jurnove's theo-
ry, to comply with the "minimum standards" mandate of the
AWA, the new regulation would require certain specific cage
enrichment devices to be included. But due to the fuzzy
nature of Jurnove's asserted injury, it would require sheer
speculation to presume that any enrichment devices specified
in a future regulation would satisfy Jurnove's aesthetic tastes.
We only know that Jurnove does not like seeing primates
kept in cages with only one enrichment device. We do not
know what conditions would satisfy his individual taste. We
do not know, for example, how many enrichment devices
Jurnove would prefer to see, or of what type.
This problem--how could we possibly know whether a
future regulation comports with Jurnove's aesthetic inter-
ests--is directly related to the nature of Jurnove's claimed
injury itself. When an animal viewer asserts an aesthetic
interest in not seeing a species diminished, it is easy to tell
when that injury is redressed: a judicial order may prevent
the government from diminishing the species. But when, as
here, a plaintiff asserts that a regulation has injured an
unquantifiable interest (the plaintiff's own taste), it seems to
me nearly impossible to redress such an injury by a general
court order directing the government to try again.
Furthermore, as the majority acknowledges, an order di-
recting USDA to promulgate tougher standards might result
in the Game Farm's deciding to sell its primates to another
exhibitor who is willing to abide by the new regulation. The
majority views this scenario as "protect[ing] Mr. Jurnove's
aesthetic interest in observing animals living under humane
conditions." Majority at 25. It is difficult to fathom how this
is so. As the majority acknowledges, Jurnove's interest is in
seeing particular primates--that is, the Game Farm pri-
mates--kept under certain conditions. But if the Game Farm
primates are sold to another exhibitor, presumably Jurnove
(who "enjoy[s] seeing [animals] in various zoos and other
parks near [his] home," Jurnove Affidavit p 7 (emphasis
added)) would not be able to see the Game Farm primates at
all, much less under humane conditions. The relief he seeks
may well result in his not being able to view the Game Farm
primates at all. This too undercuts Jurnove's claims of
redressability.
III.
Marc Jurnove says that he objects to a federal regulation
because it permits results that offend his aesthetic interests.
Due to the majority's expansive reading of standing doctrine,3
Jurnove may ask a court to force USDA to promulgate a new
regulation that comports with his individual notion of aesthet-
ics. Jurnove's complaints, formerly addressable only by the
political branches, may now be aired in federal court.
__________
3 The majority concludes that Jurnove has established pruden-
tial standing, as well as constitutional. Because I do not believe
Jurnove has established constitutional standing, I find it unneces-
sary to address prudential standing here.
I am reminded of Justice Powell's remark that "[r]elaxation
of standing requirements is directly related to the expansion
of judicial power." United States v. Richardson, 418 U.S.
166, 188 (1974) (Powell, J., concurring). Indeed, I believe
Justice Powell's warnings concerning federal taxpayer or
citizen standing have particular resonance here, and are
worth quoting at length:
It seems to me inescapable that allowing unrestricted
taxpayer or citizen standing would significantly alter the
allocation of power at the national level, with a shift away
from a democratic form of government. I also believe
that repeated and essentially head-on confrontations be-
tween the life-tenured branch and the representative
branches of government will not, in the long run, be
beneficial to either. The public confidence essential to
the former and the vitality critical to the latter may well
erode if we do not exercise self-restraint in the utilization
of our power to negative the actions of the other branch-
es. We should be ever mindful of the contradictions that
would arise if a democracy were to permit general over-
sight of the elected branches of government by a nonre-
presentative, and in large measure insulated, judicial
branch. Moreover, the argument that the Court should
allow unrestricted taxpayer or citizen standing underesti-
mates the ability of the representative branches of the
Federal Government to respond to the citizen pressure
that has been responsible in large measure for the
current drift toward expanded standing. Indeed, taxpay-
er or citizen advocacy, given its potentially broad base, is
precisely the type of leverage that in a democracy ought
to be employed against the branches that were intended
to be responsive to public attitudes about the appropriate
operation of government. "We must as judges recall
that, as Mr. Justice Holmes wisely observed, the other
branches of the Government 'are ultimate guardians of
the liberties and welfare of the people in quite as great a
degree as the courts.' Missouri, Kansas & Texas R. Co.
v. May, 194 U.S. 267, 270 (1903)." Flast, 392 U.S. at 131
(Harlan, J., dissenting).
Id. at 188-89 (footnote omitted).
By expanding the definition of an Article III "Case" or
"Controversy," the majority increases federal judicial power
at the expense of that of the political branches. I dissent
from the majority's unwarranted erosion of the standards for
constitutional standing.