Monday, November 23, 2009
Page 3
Ninth Circuit: Activists Cannot Sue Over Turkey Slaughter
By SHERRI M. OKAMOTO, Staff Writer
Animal welfare activists lack standing to sue the federal government over what they claim is its failure to require the humane slaughter of chickens, turkeys and other domestic fowl, the Ninth U.S. Circuit Court of Appeals ruled Friday.
U.S. District Judge Marilyn Hall Patel of the Northern District of California had granted summary judgment in favor of the U.S. Department of Agriculture on the merits, but the appellate panel vacated her ruling without reaching the substantive issues of the case.
The plaintiffs, who identified themselves as consumers and poultry workers as well as advocates for animal welfare, filed suit against the USDA in 2005 claiming that “inhumane methods” of poultry slaughter increased the risk of food-borne illnesses, posed health and safety dangers to poultry workers, and caused “aesthetic injury” to them.
They contended that the slaughter of poultry was covered by 7 U.S.C. §§ 1901-07, sometimes referred to as the Humane Methods of Slaughter Act of 1958.
This legislation mandates that “the slaughtering of livestock and the handling of livestock in connection with slaughter shall be carried out only by humane methods” and directed the secretary of agriculture to designate “humane” methods of slaughter for “each species of livestock.”
The 1958 act also prohibited the federal government from purchasing any livestock products if the animals were slaughtered by methods other than those designated and approved by the secretary, but it did not provide a definition for the term “livestock.”
Inspection Act
In 1978, Congress repealed certain sections of the 1958 act, including the prohibition on federal government purchases of inhumanely slaughtered livestock products, and incorporated humane slaughter provisions into the Federal Meat Inspection Act.
However, the FMIA only imposed inspection requirements for “cattle, sheep, swine, goats, horses, mules, and other equines.”
This list was replaced with the term “amendable species” in 2005, which was defined as the species previously subject to the FMIA as well as “any additional species of livestock that the Secretary considers appropriate.”
In response to “considerable congressional and public interest in the humane treatment of animals, including poultry,” the secretary issued a Federal Register Notice in September 2005 stating that “there is no specific federal humane handling and slaughter statute for poultry.”
Plaintiffs asserted that the USDA violated the terms of the 1958 act, abused its discretion and acted arbitrarily and capriciously in violation of the Administrative Procedure Act in issuing the 2005 notice.
They sought a declaration that the USDA’s decision to exclude poultry species from the 1958 act’s humane slaughter requirements was a violation of that act and the APA, and that the USDA’s statement regarding the absence of any specific federal guidelines for the slaughter of poultry was unlawful.
Plaintiffs also requested an injunction preventing the USDA from excluding poultry from the protections provided by the 1958 act.
The USDA filed a motion to dismiss the complaint, arguing that the plaintiffs lacked standing, but Patel found that the plaintiffs’ alleged injuries were redressable.
Even though the 1958 act had no statutory enforcement mechanisms, Patel determined that redressability was likely because of the availability of an alternative method of enforcement.
Humane Slaughter Requirements
She suggested that the USDA could, and likely would, enforce humane slaughter requirements through the FMIA and that legislation’s grant of authority to the secretary to include whatever additional “species of livestock” he “consider[ed] appropriate” within the scope of the humane slaughter requirements set forth in the FMIA and the 1958 act.
Patel later ruled on cross-motions for summary judgment in favor of the USDA and entered judgment dismissing the action.
In his decision for the appellate panel, U.S. District Judge George H. Wu of the Central District of California, sitting by designation, said that Patel erred in finding the plaintiffs claims were likely to be redressed by a favorable judicial ruling in the dispute.
Because the 1958 act had no enforcement provision, Wu posited that the secretary “would have to make the independent policy determination (taking into consideration the ruling in this case or not) that he should deem chickens, turkeys and birds to be ‘amenable species’ ” for the plaintiffs to have any possibility of relief, and reasoned that it would be “exceedingly difficult to say any change would be ‘likely’ ” without the threat of enforcement afforded by the FMIA.
Wu concluded that a judicial determination the phrase “other livestock” in the 1958 act includes poultry would not compel the secretary to designate poultry an “amenable species” in the FMIA, and therefore would not redress the plaintiffs’ claimed injuries.
Senior Judge Alfred T. Goodwin and Judge Pamela Ann Rymer joined Wu in his opinion.
The case is Levine v. Vilsack, 08-16441.
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