Standing on their own four legs: the future of animal welfare litigation after Animal Legal Defense Fund, Inc. v. Glickman.

• Author: Smith, Rob Roy

1. INTRODUCTION

   Marc Jurnove could not believe what he saw at the Long Island Game Park Farm and Zoo. Having spent the majority of his adult life working for various human and animal relief and rescue organizations,(1) Mr. Jurnove knew inhumane treatment when he saw it. This was certainly inhumane treatment. Primates, inherently social creatures, were kept in cages isolated from other primates, often not in view of the other cages.(2) Squirrel monkeys were kept in a cage next to adult bears, causing the monkeys fright and agitation.(3) Deprived of their psychological needs, the twenty-two primates(4) housed at the Game Farm were in need of assistance.

   Because of his familiarity with and love for exotic animals,(5) Mr. Jurnove was deeply affected by his observations. After the first of his nine visits to the Game Farm, Mr. Jurnove contacted the United States Department of Agriculture (USDA) to secure help for these animals, but help never came. On repeated occasions, USDA failed to find any violations of the Animal Welfare Act (AWA)(6) at the Game Farm,(7) prompting Mr. Jurnove and three other individuals to seek legal action against USDA.

   In 1996, in Animal Legal Defense Fund, Inc. v. Glickman (ALDF v. Glickman),(8) the Animal Legal Defense Fund (ALDF) successfully sued USDA on behalf of Mr. Jurnove for failing to adopt minimum standards for a physical environment adequate to promote the psychological well-being of animals at research facilities and roadside zoos.(9) However, the victory was short lived. There was still something keeping the primates from getting the help they needed--a legal fiction known as standing.

   "Standing involves only one question: Who can obtain judicial review of an otherwise reviewable government action? Yet, standing law suffers from inconsistency, unreliability, and inordinate complexity."(10) In the first appellate review of ALDF v. Glickman,(11) a three judge panel of the United States Court of Appeals for the District of Columbia returned the type of decision that was known all too well by animal welfare activists and their attorneys. Without reaching the merits of the case, Judge David Sentelle, writing for the majority of the panel, held that the plaintiffs lacked the constitutional standing needed to challenge USDA's regulations.(12) Framing the issue as "the latest chapter in the ongoing saga of [ALDF's] effort to enlist the courts in its campaign to influence USDA's administration of the [AWA],"(13) the majority found that Marc Jurnove failed to meet two of the three requirements of standing under Article III of the United States Constitution--causation and redressability.(14) The decision was different from previous holdings, however. In a scathing dissent,(15) Judge Patricia Wald laid the groundwork for a rehearing en banc(16) that ultimately reversed the panel's ruling. In a seven to four decision, the court found Mr. Jurnove had proven that he suffered direct harm when he witnessed the living conditions of the primates at the Game Farm,(17) thereby opening a door to judicial review previously closed to animal welfare plaintiffs.

   This Note examines the future of animal rights litigation after this groundbreaking decision. ALDF v. Glickman represents more than the first time individual plaintiffs were able to challenge USDA regulations for primate dealers, exhibitors, and research facilities. The ALDF v. Glickman case is important because it lays a foundation for animal welfare litigation to follow. A primary reason for the ineffectiveness of the AWA has been the inability of animal welfare plaintiffs and organizations to litigate under the statute. This does not result from deficient claims, but rather from jurisdictional challenges to third-party standing. By documenting the facts necessary to achieve standing, ALDF v. Glickman will enable other third-party plaintiffs to clear a once insurmountable hurdle. Further, the decision will result in renewed political pressure to improve enforcement of the AWA by adding a citizen suit provision to afford concerned citizens such as Mr. Jurnove additional opportunities to help animals living under inhumane conditions.(18)

   This Note is divided into six parts. Part II discusses the evolution of the standing doctrine over the last two decades that led to the final decision in ALDF v. Glickman. Part III discusses and analyzes the majority and dissenting opinions of this landmark decision. Part IV addresses the implications that the decision will have on future animal welfare cases and presents the proper litigation strategy for animal welfare plaintiffs to follow to satisfy the elements of standing. Part V considers the ramifications of the decision outside of the litigation process, in particular, the potential for the creation of a citizen suit provision in the AWA. This Note concludes in Part VI that ALDF v. Glickman is neither a radical departure from previous standing cases nor a mere aberration. Rather, it represents the culmination of years of struggle to achieve standing on behalf of animals and fashions a precedent that will allow just that. It further concludes that ALDF v. Glickman's vindication of the animal welfare movement will spark a legal and political revolution in animal law.

2. AN INSURMOUNTABLE HURDLE? THE EVOLUTION OF THE

   STANDING DOCTRINE

   The passage of the AWA represents recognition by policy makers that animals must be afforded protection. The purpose of the Act is clear: "To insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment."(19) Even though the statute's original scope and purpose was expanded with later amendments,(20) the AWA's objectives remain unfulfilled. A primary reason for this failure lies in the inability of animal welfare activists and organizations "to litigate claims successfully against the federal government and individual violators under the statute."(21) Meritless claims are not the downfall of animal welfare plaintiffs; rather, "[i]t is in the doctrine of standing that animal rights activists have found their greatest obstacle to the extension of legal rights to animals."(22)

   1. The Elements of Standing

      "Standing is an essential, `threshold determinant of the propriety of judicial intervention."(23) There are two required types of standing--constitutional and prudential. Although these elements were developed by the courts, their application is often "tortured and overly technical."(24) The constitutional considerations are grounded in the "Cases" and "Controversies" requirement of the United States Constitution.(25) Three elements determine whether the courts can resolve the disputed issue--injury in fact, causation, and redressability.(26)

      Once the constitutional elements of standing are met, the plaintiffs must also satisfy prudential concerns. Prudential concerns arise because third-party plaintiffs must enforce animal laws such as the AWA; animals have no standing to sue on their own behalf. Established through the Administrative Procedure Act (APA),(27) prudential elements require plaintiffs to demonstrate they are within the "zone of interests" Congress sought to protect by the section of the statute under which the action is brought.(28) Although the initial goal of the standing doctrine was to ensure parties before the court were truly adversarial and had personal stakes in the outcome,(29) the doctrine has become a judicial barrier to environmental plaintiffs who seek access to the courts.(30)

   2. Standing Doctrine in Flux

      The most troubling aspect of standing for animal welfare plaintiffs is the injury in fact requirement that, at a bare minimum, focuses the relevant inquiry on the interests and injuries suffered by humans, rather than injuries to the animals.(31) Despite Congress's continued interest in protecting the environment, the Supreme Court and D.C. Circuit have used standing analysis to limit the availability of judicial review in applying the standing doctrine to environmental plaintiffs.(32) Two decisions illustrating the height of judicial restraint are Lujan v. National Wildlife Federation(33) and Lujan v. Defenders of Wildlife.(34) Defenders of Wildlife, while closing the door on the particular plaintiffs in the suit, did open a window of opportunity for future litigants. Writing for the majority, Justice Scalia found that the plaintiffs had failed to establish a concrete, particularized injury in fact.(35) In describing why the Defenders of Wildlife plaintiffs did not satisfy the first element of standing, he described what it would take to confer standing: "It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm."(36) Subsequently, injury to a particular animal, rather than an animal species, became a well-established interest sufficient to establish injury in fact.

      Whether the majority's analysis in Defenders of Wildlife is flawed,(37) there was no challenge to the additional limits placed on the type of injury that could satisfy the injury in fact requirement(38) until five years later when the Supreme Court granted certiorari in Bennett v. Spear.(39) Although Bennett deals with more expansive issues than Article III standing,(40) the Court's holding in this area significantly affects animal welfare plaintiffs. Again authoring the majority opinion, Justice Scalia changed injury in fact analysis by finding that 1) only minimal evidence is required at the pleading stage to demonstrate injury in fact, and 2) general allegations of the injury are sufficient to satisfy the first prong of constitutional standing.(41) Departing from earlier decisions by lessening the standing burden, Bennett represents a profound change in judicial attitudes towards the doctrine. Perhaps recognizing an error in his previous analysis, Justice Scalia ushered in a new era of standing doctrine by writing...