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

                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

ASSOCIATED DOG CLUBS OF NEW
YORK STATE, et al.,

                       Plaintiffs,
                                                    Civil Action No. 1:13-cv-1982 (CRC)
                       v.

TOM VILSACK, Secretary, United States
Department of Agriculture, and UNITED
STATES DEPARTMENT OF
AGRICULTURE,

                       Defendants,

THE HUMANE SOCIETY OF THE
UNITED STATES

                       Proposed-
                       Intervenor/Defendant.

                            MEMORANDUM OPINION AND ORDER

       Plaintiffs brought suit to challenge a Department of Agriculture rule extending the licensing

requirements of the Animal Welfare Act to certain on-line pet dealers. The Humane Society of the

United States seeks to intervene in the action to defend the rule. Because the Humane Society has

demonstrated that the challenge may impede its well established animal cruelty programs and that

the USDA may not adequately represent its interests in defending the suit, the Court will grant the

Humane Society’s motion to intervene.

       I.      Background

       The Animal Welfare Act, (“AWA”), 7 U.S.C. § 2131, et seq., establishes licensing and

operational requirements for pet dealers. Id. § 2133. The AWA defines “dealer” as any person who

for profit buys or sells dogs or other specified animals for use as pets, but it specifically excludes

“retail pet store[s]” from that definition. Id. § 2132(f). The Act itself does not define the term
“retail pet store.” Congress left that to the Secretary of Agriculture, who administers the Act. Id. §

2151.

        For over forty years, the USDA maintained a regulation that, with certain exceptions,

broadly defined “retail pet store” as “any outlet” where dogs, cats and twelve other categories or

species of animals are sold to the public for use as pets. 9 C.F.R. § 1.1 (2004). The agency

defended that definition against a challenge from animal protection groups as recently as 2003. See

Doris Day Animal League v. Venemon, 315 F.3d 297 (D.C. Cir. 2003). In 2012, however, the

USDA changed course. Responding to concerns raised by the animal protection community,

including the Humane Society, over the alleged proliferation of on-line “puppy mills,” the agency

issued a proposed rule to revise the “definition of retail pet store and related regulations to bring

more animals sold at retail under the protection” of the AWA. 77 Fed. Reg. 28799-01 (May 16,

2012). The new rule, which became final on September 18, 2013, redefined “retail pet store” to

mean “a place of business or residence at which the seller, buyer and the animal available for sale

are physically present so that every buyer may personally observe the animal prior to purchasing

and/or taking custody of that animal after purchase[.]” 9 C.F.R. § 1.1. 1

        Plaintiffs are a collection of dog and cat breeding clubs that object to the regulatory

requirements they claim will result from the new retail pet store definition. Bringing suit under the

Administrative Procedures Act (“APA”), they contend that the USDA failed to justify the new rule,

did not consider objections filed by the plaintiffs during the notice and comment period, and

exceeded its authority under the AWA.




        1
          Presumably to lessen the impact of the new definition on small breeders, the rule also
widened an existing exemption based on the number of animals a breeder keeps on his or her
premises. Under the expanded exemption, breeders are not subject to licensing if they maintain
four or fewer breeding females on their premises and sell only the offspring of those animals for use
as pets or for exhibition. Id. § 2.1.
                                                    2
       Apparently concerned that that the USDA “might agree to settle rather than litigate” the

plaintiffs’ challenge to the rule that it helped bring about, the Humane Society moved to intervene

as a defendant in the case. Mot. to Intervene at 17. It argues that it will be forced to expend

additional resources to respond to “animal cruelty emergencies at non-USDA licensed puppy mills”

if the rule is set aside and questions whether USDA adequately represents its interests in defending

the rule. The breeding clubs oppose the motion to intervene because, in their view, the Humane

Society’s voluntary expenditure of resources “to hound breeders acting within the bounds of the

law” is not a “legally protected” interest justifying intervention and because the USDA adequately

represents the Humane Society’s interests, whatever they may be. Opp. to Mot. to Intervene at 4–

6. The government takes no position on the motion.

       II.     Analysis

       The Humane Society seeks to intervene both as of right and permissively under Federal

Rules of Civil Procedure 24(a) and (b). Because the Court concludes that the Humane Society has

met the requirements for intervention as of right, it need not reach the Humane Society’s permissive

intervention argument. Rule 24(a)(2) permits parties to intervene in a pending action if (1) the

motion to intervene is timely; (2) the movant “claims an interest relating to the property or

transaction that is the subject of the action”; (3) the movant “is so situated that disposition of the

action may as a practical matter impair or impede the movant’s ability to protect its interest”; and

(4) the movant’s interest is not adequately represented by existing parties. Fed. R. Civ. P. 24(a);

accord Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (quoting Mova Pharm.

Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998)). Additionally, a party seeking to intervene

as of right in this Circuit “must demonstrate that it has standing under Article III of the

Constitution.” Fund for Animals, 322 F.3d at 731–32 (citing Military Toxics Project v. EPA), 146

F.3d 948, 953 (D.C. Cir. 1998)). The Court will first address whether the Humane Society has

                                                    3
standing.

               A. Standing

       To satisfy the Article III standing requirements,

            the plaintiff must have suffered an “injury in fact”—an invasion of a legally
            protected interest which is (a) concrete and particularized, and (b) actual or
            imminent, not conjectural or hypothetical. Second, there must be a causal
            connection between the injury and the conduct complained of—the injury has to
            be “fairly . . . trace[able] to the challenged action of the defendant, and not . . .
            th[e] result [of] the independent action of some third party not before the court.”
            Third, it must be likely, as opposed to merely speculative, that the injury will be
            redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (footnote, citations, and quotations

omitted). An organization “‘may have standing in its own right to seek judicial relief from injury to

itself and to vindicate whatever rights and immunities the association itself may enjoy.’” Abigail

Alliance for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir.

2006) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). To establish standing in its own right,

an organization must demonstrate that that it has suffered a “concrete and demonstrable injury to

[its] activities—with [a] consequent drain on the organization’s resources—constitut[ing] . . . more

than simply a setback to the organization’s abstract social interests.” Nat’l Taxpayers Union, Inc.

v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) (quoting Havens Realty Corp. v. Coleman,

455 U.S. 363, 379 (1982)).

       The Humane Society has made this showing. The organization’s animal cruelty programs

are well established. See Humane Society of U.S. v. Postal Serv., 609 F. Supp. 2d 85, 89 (D.D.C.

2009) (describing Humane Society programs). And it has demonstrated how invalidating the rule

would require it to divert additional resources to police suspected animal cruelty by non-licensed

breeders. See Mot. to Intervene at 13. Citing as examples the costs incurred treating animals

captured in two federal raids, the Humane Society explains that “if the Final Rule remains in place,



                                                    4
it is highly likely that [it] would no longer have to engage in so many raids of unlicensed breeding

facilities.” Id. at 13–14. The Humane Society also asserts that a successful challenge to the rule

would hamper its investigatory and educational programs by depriving it of information collected

on licensed breeders. Id. at 14–16. Indeed, the breeding clubs themselves acknowledge that “the

newly promulgated Rule saves HSUS money, enables HSUS to be more efficient in gathering

information, and gives HSUS additional traction in its lobbying efforts.” Opp. to Mot. to Intervene

at 4. Case law in this Circuit firmly establishes that these types of impediments to an advocacy

organization’s activities constitute “concrete and demonstrable” injuries sufficient to confer

standing. See, e.g., Action Alliance of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931,

937–38 (D.C. Cir. 1986) (elimination of compliance and information collecting services by

government agency harmed private entity by increasing the burden on its “information-dispensing,

counseling, and referral activities”); People for the Ethical Treatment of Animals (“PETA”) v.

Dep’t of Agric., 13-976, 2013 WL 6571845, at *4 (D.D.C. Dec. 16, 2013) (USDA’s alleged “failure

to enforce the AWA with respect to birds” deprived the PETA “of key information that it relies on

to educate the public” forcing it to “expend additional resources . . . by pursuing complaints about

bird mistreatment . . . and by conducting its own investigations.”); Humane Society of U.S., 609 F.

Supp. 2d at 89 (Humane Society had standing to challenge postal service rule that increased costs of

responding to animal cruelty raids).

       The Humane Society’s standing to intervene is not diminished, as the breeding clubs argue,

because it seeks to defend, rather than challenge, the USDA rule. Opp. to Mot. to Intervene at 6. 2



2
  While the breeding clubs direct this argument to the “legally protected interest” prong for
intervention as of right, Opp. to Mot. to Intervene at 4–6, the Court will address it in discussing
whether the Humane Society has standing because the inquiries are functionally identical under this
Circuit’s precedent. See, e.g., Cal. Valley Miwok Tribe v. Salazar, 281 F.R.D. 43, 47 (D.D.C.
2012) (citing Jones v. Prince George’s Cnty., 348 F.3d 1014, 1019 (D.C. Cir. 2003)); Am. Horse
Prot. Ass’n v. Veneman, 200 F.R.D. 153, 157 (D.D.C. 2001).
                                                  5
Harm caused to an organization’s programs by the invalidation of a rule is no less concrete or

demonstrable than the same harm caused by an agency’s failure to enforce a rule. Consistent with

this principle, a number of decisions in this Circuit have permitted intervention by parties seeking

to defend government action. See Fund for Animals, 322 F.3d at 733–34 (agency of the Mongolian

government and private groups could intervene to defend Department of the Interior regulation

enabling hunters of Mongolian sheep to bring trophies to the United States); Military Toxics

Project, 146 F.3d at 954 (trade association had standing to intervene to defend EPA rule because its

members would be harmed if rule was set aside); Wildearth Guardians v. Salazar, 272 F.R.D. 4, 13–

18 (D.D.C. 2010) (coal mines intervened to defend Department of the Interior decision selling them

land against a challenge by environmental groups). In American Horse Protection Association v.

Veneman, 200 F.R.D. 153 (D.D.C. 2001), for example, an animal protection organization brought

suit to challenge USDA’s allegedly lax enforcement of rules designed to protect show horses from

training injuries. Id. at 155–56. A group of show horse trainers who were directly affected by the

rules moved to intervene to defend the agency’s enforcement regime. Id. at 156–57. The court

ruled that the trainers had standing to intervene as of right because they demonstrated that they

“will be injured in fact by the setting aside of the government’s action it seeks to defend, that this

injury will have been caused by that invalidation, and the injury would be prevented if the

government action is upheld.” Id. at 156. The same is true here.

       Nor does it matter that the Humane Society voluntarily chooses to engage in its programs.

See Opp. to Mot. to Intervene at 4. While “[a]n organization is not injured by expending resources

to challenge [a] regulation,” Abigail Alliance, 469 F.3d at 133, injuries to programs undertaken by

choice may be sufficient to establish standing. See Havens Realty, 455 U.S. at 368 (describing

organization and program); see also Humane Society of U.S., 609 F. Supp. 2d at 89 (Humane

Society had standing to challenge government actions that harmed voluntary program to address

                                                   6
animal cruelty).

               B. Timeliness

       Moving to Rule 24(a)’s timeliness requirement, the Humane Society filed its motion to

intervene 14 days after the breeding clubs filed their initial complaint. The motion is clearly timely,

which the breeding clubs do not dispute. See, e.g., Fund for Animals, 322 F.3d at 735 (filing

motion “less than two months after the plaintiffs filed their complaint and before the defendants

filed an answer” is timely).

               C. Interest Related to the Action

       A party seeking to intervene must next “claim[] an interest relating to the property or

transaction that is the subject of the action.” Fed. R. Civ. P. 24(a). The Humane Society has met

this requirement because “in this Circuit, ‘satisfying constitutional standing requirements

demonstrates the existence of a legally protected interest.’” Cal. Valley Miwok Tribe v. Salazar,

281 F.R.D. 43, 47 (D.D.C. 2012) (quoting Jones v. Prince George’s Cnty., 348 F.3d 1014, 1019

(D.C. Cir. 2003)); accord Am. Horse Prot. Ass’n, 200 F.R.D. at 157.

               D. Action Will Impede the Movant’s Interest

       The Humane Society also satisfies Rule 24(a)’s requirement that disposition of the action

will impair the movant’s ability to protect its interest. Whether the action will impede the movant’s

interest depends on the “‘practical consequences of denying intervention, even where the possibility

of future challenge to the regulation remain[s] available.’” Fund for Animals, 322 F.3d at 735

(quoting Natural Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977)). As noted above,

Plaintiffs acknowledge that the new rule benefits the Humane Society’s programs and that vacating

that rule would remove that benefit. Opp. to Mot. to Intervene at 4. This potential harm is not

obviated by the Humane Society’s ability to “reverse an unfavorable ruling by bringing a separate

lawsuit,” given the cost and delay of doing so. See Fund for Animals, 322 F.3d at 735 (citing

                                                   7
Natural Res. Def. Council, 561 F.2d at 910); accord Am. Horse Prot. Ass’n, 200 F.R.D. at 158–59.

               E. Adequate Representation

       Finally, a party seeking to intervene under Rule 24(a)(2) must show that that its interests are

not “adequately represented” by existing parties. This requirement is “‘not onerous.’” Fund for

Animals, 322 F.3d at 735 (quoting Dimond v. Dist. of Columbia, 792 F.2d 179, 192 (D.C. Cir.

1986)). The movant need only show that the current representation “‘may be inadequate[.]’” Id.

(quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). As a result, this

Circuit “often conclude[s] that governmental entities do not adequately represent the interests of

aspiring intervenors.” Id. at 736–37 (citing Dimond, 792 F.3d at 192–93) & n.9 (collecting cases).

       The Humane Society argues that, in light of the USDA’s prior defense of the broader retail

pet store definition, it might not defend the new rule as vigorously as the Humane Society would

like, particularly because the government is “obligated to consider the desires of the entirety of the

American public” over the Humane Society’s narrower interests. Mot. to Intervene at 17. The

breeding clubs assert that the USDA adequately represents the Humane Society’s interests because

“USDA [will] defend the Rule as being in [the] best interests of ‘the entirety of the American

public,’ especially [the Humane Society].” Opp. to Mot. to Intervene at 7.

       The Humane Society has overcome the low hurdle required to show inadequacy of present

representation. “[M]erely because parties share a general interest in the legality of a program or

regulation does not mean their particular interests coincide so that representation by the agency

alone is justified.” Am. Horse Prot. Ass’n, 200 F.R.D. at 159. The Humane Society has “a distinct

and weighty interest” in furthering its investigatory and information-dissemination programs that is

not equivalent to the government’s broader concerns. See, e.g., Cal. Valley Miwok Tribe, 281

F.R.D. at 47–48; see also, Fund for Animals, 322 F.3d at 736 (“taking the [proposed intervenor’s]

efforts ‘into account’ does not mean giving them the kind of primacy that the [proposed intervenor]

                                                   8
would give them”).

        II.    Conclusion

        For the foregoing reasons, the Humane Society has met the requirements for intervention as

of right under Rule 24(a). It is hereby ORDERED that the Motion to Intervene by the Humane

Society of the United States is GRANTED

SO ORDERED.




                                                           CHRISTOPHER R. COOPER
                                                           United States District Judge

Date:          May 16, 2014




                                                 9