Federal appellate court revives animal welfare lawsuit pushing for bird regulations

[Fern Davies]

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Many, many moons ago, the USDA regulations exempted rats, mice, and birds from the Animal Welfare Regulations.

After litigation in 2000, the USDA agreed to change its regulations to include rats, mice, and birds. However, before the USDA could promulgate regulations pertaining to rats, mice, and birds, the U.S. Congress, by way of a provision in the 2002 Farm Bill codified the exclusion of rats, mice, and birds. Unfortunately, a typographical error in the final legislation had the effect of excluding ONLY birds bred for use in research.** The Ornithological Council worked diligently to have the Congress correct this error and nearly succeeded but our efforts were thwarted by a very powerful animal rights organization.

The USDA then began working on regulations to implement this new definition for several years. In 2004, the USDA APHIS Animal Care program published an advance notice of public rulemaking, asking for "comments from the public to help determine how we should regulate the care and use of those animals."

The OC filed comments, suggesting, among other things, that given the number of wild bird species, the enormous variation among species, and the lack of experience and information pertainingto the keeping of most species in captivity that regulations would necessarily have to be very flexibleand nonspecific. Further, that inspection of field sites was unrealistic at best given that the USDA does not have enough inspectors, much less inspectors knowledgeable in field biology, to inspect field sitesand that it would be unreasonable to expect wildlife biologists to bear the costs of such inspections.

Those comments and other information were considered by the USDA when writing the new regulations, which had been expected to be released by the end of 2011.

However, at a December 2011 conference on Animal Welfare Act compliance in the context of wildlife biology, organized by OC and the American Society of Mammalogists, USDA officials announced that the proposed regulation, which was still under review within the USDA,would be delayed due to concerns about the ability of the agency to implement the regulation given the need for a very substantial increase in the number of USDA inspectors at a time when agency budgets are shrinking.

And then....nothing.

Well, since 2013,animal rights groups have tried and failed in bringing lawsuits against the USDA to compel it to promulgate bird-specific regulations. See People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087, 1091-92 (D.C. Cir. 2015). More recently, two other animal rights groups–the American Anti-Vivisection Society and Avian Welfare Coalition–tried again, arguing that USDA's failure to promulgate bird-specific regulations violated the Administrative Procedure Act ("APA").

The federal district court dismissed their claims, but recently a panel of the D.C. Circuit reversed. Am. Anti-Vivisection Society & Avian Welfare Coalition v. USDA, No. 19-5015 (D.C. Cir. Jan. 10, 2020). The D.C. Circuit panel disagreed with the District Court that the plaintiffs' "unreasonably delayed" claim  failed. As the Court explained, to bring an "unreasonably delayed" claim, the groups must "assert that [USDA] failed to take a discrete agency action that it is required to take." Am. Anti-Vivisection Soc'y & Avian Welfare Coalition v. USDA, No. 19-5015 (D.C. Cir. Jan. 10, 2020). The Court found that the groups successfully made such an assertion–that the AWA requires USDA to issue standards governing the humane treatment of birds, and the USDA has conceded that its general, catch-all AWA regulations are inadequate for birds–therefore USDA has failed to take the "discrete action" that it is "required to take": issuing standards to protect birds.

Whether the plaintiffs' claim ultimately survives, however, turns on whether the issuance of bird regulations has been "unreasonably delayed." Because that issue was not briefed to the D.C. Circuit, the panel remanded to the district court to consider the issue in the first instance.

Even if the USDA eventually writes regulations for birds, such regulations are likely to pertain only to birds studied in captivity. The existing regulations pertaining to other taxa cover topics such as housing, feeding, water, sanitation, transit, and handling.

NOTE:

** Lest anyone conclude that the Ornithological Council or its member societies oppose the oversight of wild birds studied in research, we refer you to the introductory material in our Guidelines to the Use of Wild Birds in Research:

https://birdnet.org/info-for-ornithologists/guidelines-to-the-use-of-wild-birds-in-research/

and specifically this text:

The Ornithological Council believes strongly that birds, both wild and captive-bred, should be treated humanely, both in the laboratory and in research conducted in the wild. It is for this reason that we publish this peer-reviewed Guidelines to the Use of Wild Birds in Research. Our objection to the inclusion of birds in the Animal Welfare Act regulations is based solely on the fact that it is likely to impose additional burdens on research without producing an improvement in the humane treatment of birds, because, as explained below, this research is already regulated under the Health Research Extension Act of 1985, which makes the Animal Act applicable to all vertebrates. We object only to duplicative and potentially conflicting sets of regulations and burdensome procedural compliance, without contributing to the humane treatment of birds in research.