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The Doris
Day Animal League Lawsuit
Animal extremist organizations,
like the ones that Dr. Holt admits to
meeting with in the few days before
Sen. Santorum introduced PAWS, have
had hobby breeders in their sights for
a long time. About that there is no
secret and can be no dispute.
In 1995, the Doris Day
Animal League (DDAL) filed with the
USDA a Petition for Rule-making Change.
In its petition, DDAL requested that
USDA amend its definition of retail
pet store to exclude residential breeders
fiom the definition of a retail "outlet":
The Congressional amendment
specifically excluded "retail
pet stores." The Department of
Agriculture promulgated regulations
interpreting the term "retail
pet store" to include any retail
"outlet" under the 1970
Amendments. The arbitrary expansion
of the "retail pet store"
exemption called for in the statute
to include any "outlet"
selling to the consumer confounds
any reasonable definition of "store"
in the English language and undermines
the clear intent of the statute. This
expanded exclusion allows dozens if
not hundreds of dog breeders to keep
animals in inhumane conditions, without
adequate veterinary care and completely
protected fiom public view by simply
raising and selling pets directly
to the public. 13
The Secretary of Agriculture
published the petition in the Federal
Register and received more than 36,000
comments.14 The Secretary
denied DDAL's petition and announced
that he would retain the definition.
It is important to understand the reason
given:
The definition of retail
pet store in 9 CFR part 1 was established
to ensure that the appropriate retail
facilities were exempt from licensing
and inspection requirements. . . All
retail facilities that meet
the definition of retail pet store,
even those that are not traditional
retail pet stores, are exempt
fiom licensing and inspection requirements.
. .(Emphasis added).
. . .we considered
amending the definition of "retail
pet store" to cover only traditional
"stores"-- nonresidential,
commercial retail businesses--that
sell primarily pets and pet products.
If this change had been adopted, many
retail pet dealers would no longer
have been considered retail pet stores,
and, unless otherwise exempt under
the regulations, would have been
required to be licensed and inspected
in accordance with part 2. However,
after careful consideration of comments
we received from the public and further
review of this issue, we have decided
to retain the current definition of
"retail pet store." We based
this decision on our experience enforcing
the regulations, specifically the
several factors discussed below. (Emphasis
added).
First, we believe that
our current definition of "retail
pet store" conforms with Congress'
intention that the AWA focus
primarily on dealers who sell wholesale.
During congressional revisions to
the AWA, Congress has not challenged
our definition of "retail pet
store." Therefore, we are confident
that our current definition accurately
reflects the original and continuing
intent of Congress. (Emphasis added).
Further, we believe
our implementation of the AWA has
significantly improved the well-being
of animals owned by the wholesale
dealers we regulate, as well as that
of the animals owned by retail dealers.
Many retail outlets have improved
the living standards of their animals
in order to meet the standards of
their wholesale counterparts.
Second, we have determined
that retail dealers, especially
those who sell from their homes,
are already subject to a degree of
self-regulation and oversight
by persons who purchase animals
from the retailers' homes, as well
as by breed and registry organizations.
Breed and registry organizations,
such as kennel clubs, require their
registrants to meet certain guidelines
related to the health and genetic
makeup of animals bred and to the
education of the registrants. These
organizations also monitor the conditions
under which animals are bred and raised.
Wholesale dealers typically do
not have this type of oversight from
the public. (Emphasis added).
Third, we have determined
that amending the definition of "retail
pet store" to include only nonresidential,
commercial retail businesses would
not offer us the regulatory flexibility
we need to concentrate our resources
on those facilities that present the
greatest risk of noncompliance
with the regulations. If we were to
amend the definition of "retail
pet store," it is conceivable
that a significant portion of our
annual personnel and financial resources
would be used to regulate a very small
fraction of the animals covered under
our regulations. This disproportionate
expenditure of funds would not be
in the best interest of animal welfare.
(Emphasis added).
Fourth, retail outlets
are not unregulated. There are already
many State and local laws and
ordinances in place to monitor
and respond to allegations of inhumane
treatment of and inadequate housing
for animals owned by private retail
dealers. If we were to regulate these
dealers along with State and local
officials, it would clearly not
be the most efficient use of our resources.
(Emphasis added).
Fifth, our inspectors
would have to enforce cleaning, sanitation,
handling, and other regulatory requirements
in private homes, because most
small retail dealers operate from
their homes. Many commenters stated
that they would regard this as an
unnecessary intrusion by the Federal
Government and a serious invasion
of privacy. (Emphasis added).
Based on these factors,
we have etermined that a change to
the definition of "retail pet
store" would not improve
animal welfare in general or
our current regulatory program. Therefore,
we are retaining our current definition
of "retail pet store." 15
(Emphasis added).
The USDA recognized throughout
their analysis of the AWA a profound,
qualitative distinction between those
to be regulated and those who are not.
The AWA targets wholesale sellers of
dogs and cats only. Retail sellers already
have a degree of self-regulation, in
that buyers can inspect the facilities
to ensure care standards are met, as
well as registry bodies like the AKC
and CFA who help ensure humane treatment
of animals. To regulate retail sellers
would result in an inappropriate use
of USDA resources, which would not be
in the best interests of animal welfare.
Finally, USDA inspections of private
homes - and this is an important point
that has not been emphasized enough
in discussing PAWS - would result in
a "serious invasion of privacy."
DDAL responded as animal
extremist organizations often do when
they don't get their way. They sued.
Mr. Holt's assertion
that the sole issue in the DDAL lawsuit
was the authority of USDA to implement
their regulation defining retail pet
store to include residential sales does
a disservice to the fancy because his
assertion falls short of explaining
the rationale of the U.S. Court of Appeals.
The Court announced the issue before
it this way:
The question is what "retail
pet store" in § 2132(f)(i)
means, or more precisely, what Congress
intended it to mean. Those who sell
dogs as pets to consumers fiom their
residences are selling pets at retail.
But is a residence a "store"?
. . . If a homeowner raised dogs;
set up a separate place on his property
- say, for instance, a small building;
installed a counter and a cash register;
displayed leashes, collars, and other
dog paraphernalia for sale; and advertised
the sale of puppies at his address,
it would not be much of a stretch
to view this too as a store. The local
zoning authority might also view the
matter that way. . .
Plaintiffs' more serious claim, one
that convinced the district court,
rests on the structure of 7 U.S.C.
§ 2132(f), the provision defining
"dealer." The definition
of "dealer" has two exceptions.
The first we have already mentioned:
it provides that "dealer"
does not include a "retail pet
store" (unless the animals are
sold to a research facility, exhibitor,
or dealer). Id. § 2132(f)(i).
The second excludes from the definition
of dealer "any person who does
not sell, or negotiate the purchase
or sale of any wild animal, dog, or
cat, and who derives no more than
$500 gross income from the sale of
other animals during any calendar
year." Id. § 2132(f)(ii).
One of plaintiffs' arguments is that
by not giving sellers of dogs a de
minimis ($500) exemption in subsection
(ii), Congress meant to make sure
that those who sold dogs from their
homes remained covered by the Act
no matter how much income they generated.
But the argument begs the question.
If subsection (i) already gave an
exemption to residential sellers of
dogs as pets (because they were "retail
pet stores"), there was no need
to give them a de minimis
exemption in subsection (ii). Plaintiffs
also point out that if Congress had
wanted to exempt individuals selling
dogs from their homes, it could easily
have written subsection (i) to cover
"any person" rather than
"retail pet store," as it
did in subsection (ii). The argument
is weak. It may be countered by arguing
that if Congress wanted to exclude
residential sellers from the definition
of retail pet store it easily could
have said as much.
Under the regulation, residential
retail sellers, like traditional pet
stores, are exempt from licensing
regardless of whether they make a
substantial part of their income from
this activity. If the Secretary's
interpretation of "retail pet
store" is correct, it would have
been senseless for Congress to add
retail residential sellers in the
"other person" clause of
§ 2133; that would have created
a redundancy, or an overlap between
the two classes exempt from licensing.
Given the regulation, a residential
seller may sell an unlimited number
of dogs to the public as pets, but
he may sell outside of retail channels
only if his sales of dogs are less
than a substantial portion of his
income. The regulation thus preserves
both parts of § 2133, allowing
each to operate in its sphere. . .
From what we can make out, Congress
has paid little attention to the question
posed in this case. Still, it is true
that in the years since passage of
the Act and the Secretary's adoption
of the regulation, Congress has not
altered the regulatory definition
of "retail pet store" although
it has amended the act three times.
One line of Supreme Court cases holds
that "when Congress revisits
a statute giving rise to a longstanding
administrative interpretation without
pertinent change, the 'congressional
failure to revise or repeal the agency's
interpretation is persuasive evidence
that the interpretation is the one
intended by Congress.' [citations
omitted].
This leaves the argument that the
Secretary's resolution of the meaning
of "retail pet store" is
not a reasonable one. In our judgment
the Secretary's decision and policy
statement declining to modify the
regulation is supported with reasoning
that is persuasive and faithful to
the Act's purpose of protecting animal
welfare. See generally Licensing
Requirements for Dogs and Cats, 64
Fed. Reg. 38,546 (July 19, 1999).
The Secretary spelled out several
policy considerations thus:
Second, we have determined that
retail dealers, especially those
who sell from their homes, are already
subject to a degree of self-regulation
and oversight by persons who purchase
animals from the retailers' homes,
as well as by breed and registry
organizations. Breed and registry
organizations, such as kennel clubs,
require their registrants to meet
certain guidelines related to the
health and genetic makeup of animals
bred and to the education of the
registrants. These organizations
also monitor the conditions under
which animals are bred and raised.
Wholesale dealers typically do not
have this type of oversight from
the public. . . .
Fourth, retail outlets are not
unregulated. There are already many
State and local laws and ordinances
in place to monitor and respond
to allegations of inhumane treatment
of and inadequate housing for animals
owned by private retail dealers.
If we were to regulate these dealers
along with State and local officials,
it would clearly not be the most
efficient use of our resources.
Id. at 38,547. While plaintiffs
are unhappy about the degree of self-regulation
and the amount of oversight from local
humane societies, kennel clubs, and
state agencies, the Secretary, applying
his expertise, was entitled to rely
on these factors in making his judgment
about the need for federal regulation.
And he was entitled also to differentiate
retail sales from wholesale sales
of dogs on the basis that "wholesale
dealers typically do not have this
type of oversight from the public."
Id. The Secretary also declined
to amend the definition on the ground
that the best interest of animal welfare
is supported by allowing the Department
to "concentrate [its] resources
on those facilities that present the
greatest risk of noncompliance with
the regulations." Id.
The Department has decided to focus
on wholesale dealers, where its resources
are likely to yield the greatest benefit.
This is a reasonable choice, keeping
in mind the purpose of the Act to
promote animal welfare. [Citation
omitted]. It was also within the authority
delegated to him by Congress for the
Secretary to decline to amend the
definition in light of the potential
invasions ofprivacy that would result
if federal inspectors began enforcing
"cleaning, sanitation, handling,
and other regulatory requirements
in private homes." 64 Fed. Reg.
at 38,547.
Taken together, the Secretary's
decision to retain the regulatory
definition of "retail pet store"
reflects the judgment of the agency
entrusted with administering the Animal
Welfare Act to fulfill the purpose
of the Act as effectively as possible.
For the reasons given, the regulation
is a permissible construction of the
statutory term "retail pet store."
The order of the district court granting
partial summary judgment to the plaintiffs
and declaring the regulation invalid
is therefore
Reversed.
Doris Day Animal League v. Veneman,
315 F.3d 297 (C.A.D.C. 2003).
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13 DDAL Petition for Rule-Making
Change, 62 FR 14044-01, March 25, 1997.
14 62 Fed. Reg. 14,044 (Mar.
25, 1997)
15 64 Fed. Reg. 38,546 (July
19, 1999).
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