REPORT OF THE COMMITTEE ON LEGAL ISSUES PERTAINING TO ANIMALS OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK REGARDING ITS RECOMMENDATION TO AMEND THE ANIMAL WELFARE ACT [FNa1]

A. Introduction

The history of the efforts of concerned individuals to obtain enforcement of laws protecting animals from abuse is a clear demonstration of the absolute necessity of adequate access to justice in a functioning system of law. Indeed, there are few undertakings more fraught with potential frustration than the effort to apply laws protecting animals. While many statutes exist protecting animals and setting certain standards for their care, they are frequently not enforced. Normally, this is a situation in which the potential beneficiaries of a statute turn to the courts, either by way of a citizen's suit provision, or by way of a proceeding against the government to improve the way the statute is enforced. However, when a lawyer is approached by someone who is concerned about the illegal mistreatment of animals, there is generally little to offer in the way of possible legal recourse. Even where there is substantial evidence of clear violations of a regulatory statute, the people who wish to bring actions to enforce it almost never have standing to do so because they do not own the animals. Indeed, it is generally the animals' owners who are accused of having violated the law.

The fact is that animals living in captivity live almost completely under the control of their human owners. Experience has shown that, without being compelled, certain of these owners will not properly care for the physical and psychological needs of these animals. This situation is particularly problematic for the enormous number of animals held in institutional settings. State laws prohibiting cruelty to animals, which have traditionally been animals' primary means of protection, do not always apply to animals in particular institutional settings, including research facilities, and, in any case, are often inadequately enforced against all types of institutional animal users. Recent history is replete with shocking examples of neglect and indifference, or worse, to animals who are unlucky enough to fall into the hands of bad actors within certain industries. Examples include so-called "roadside" zoos, which are unaccredited, often seedy facilities that exhibit exotic animals for whom they are ill prepared to care; "puppy mills," i.e., breeding facilities for pure-bred puppies destined for the retail pet trade where both mothers and offspring are caged in substandard, and, at times, horrifying, conditions; and some research facilities, where budget-minded administrators sometimes forget that the subjects of experiments are not simply another sort of inventory, but, at the very least, deserve appropriate care and respect in exchange for the enormous sacrifices they endure for humankind.

B. The Animal Welfare Act

In recognition of these problems, in 1966 Congress enacted, and, in 1970, 1976, and 1985, amended, the Animal Welfare Act [FN1] ["AWA" or "the Act" ] with the goal of providing some protection for animals, such as by setting "minimum standards" for food, water, shelter, ventilation and veterinary care. The Act does not apply to all animals in captivity and is limited to certain animals in certain industries, i.e., in the pet trade, in research, and on exhibition, such as in zoos and circuses, and to certain animals during transportation in interstate and foreign commerce. [FN2] Most notably, it does not cover the billions of animals intended for use as "food or fiber." [FN3] Recently, federal legislation has been enacted excluding rats, mice and birds, who constitute over ninety-five percent of the animals used in research, from the provisions of the Act that cover animals in research. [FN4] Moreover, the animal care provisions governing research institutions are meant to govern the care of the animals when they are not being experimented upon and do not govern the "design, outlines, guidelines, or performance of actual research or experimentation by a research facility as determined by such research facility." [FN5]

The United States Department of Agriculture ["USDA"] is charged with promulgating and enforcing regulations to carry out the purposes of the AWA and is authorized and, in some cases required, to conduct inspections. If violations are found, potential consequences include the scheduling of follow- up inspections until the problem is resolved, injunctive relief, civil penalties such as license suspension and fines of up to $2500, and criminal penalties, i.e., a fine of up to $2500 and/or a prison term of up to one year. The most severe penalties of fines of up to ten thousand dollars and ten years in prison are reserved for interference with the official duties of inspectors rather than for animal abuse. [FN6]

C. Failure in AWA Enforcement

Although enactment of the Act was commendable, a law is only as useful as its enforcement. Experience has shown that the enforcement of the AWA has been poor at best, and the USDA has developed a long *347 and notorious reputation for ineffective enforcement. Although this failure has often been attributed to underfunding, and there are obviously benefits to increasing funding for enforcement, increased funding will not cure what appears to be a fundamental lack of interest on the part of the USDA.

While documented complaints by private parties and animal protection organizations regarding the USDA's failure to enforce the Act are legion, [FN7] some of the most credible and pointed criticism of the enforcement of the Act comes from government studies, including reports from the USDA itself.

For example, a January 1995 audit report by the USDA's Office of the Inspector General ["OIG"] focused on various research facilities and licensed dealers and found that the division within the USDA that is entrusted with enforcement of the Act, the Animal and Plant Health Inspection System ["APHIS" ] did not effectively use its enforcement authority. For example, the report noted that APHIS penalties, which were often so low that violators regarded them as a cost of doing business, were not aggressively collected and were often arbitrarily reduced. Moreover, APHIS accommodated facilities that repeatedly refused access to inspectors, rather than suspending their licenses. "As a result, facilities had little incentive to comply with the requirements of the Act." The report also noted that certain problems that had been set forth in a 1992 report had not been resolved, including that APHIS still did not reinspect all facilities where serious violations had been found, did not effectively prioritize upcoming inspections, and did not always properly classify violations that threatened animals' health and safety. [FN8]

At times, poor enforcement of the AWA has actually limited the ability of states to enforce their own laws to protect certain animals and to protect the public. A 1996 OIG audit regarding licensing practices in regard to animal exhibitors warned that individuals were able to keep wild or exotic animals as pets in circumvention of state law by obtaining federal exhibitors' licenses through APHIS in spite of little, if any, experience in handling and caring for the animals, amongst whom were bears and tigers. The report noted that APHIS inspections of these facilities, resulting in the issuance of licenses, sometimes took place before the facilities were even in possession of the exotic or wild animal and when they had only common domestic animals, such as rabbits. [FN9]

A 1998 OIG study that focused on inspections of airlines found that, for the more than two year period of review, only 32% of 221 sample sites had been inspected; APHIS could not readily determine whether particular airports were inspected; and APHIS inspections were unsuccessful because inspectors could not predetermine when a registered carrier was actually transporting animals. Indeed, of 297 inspections, only 43 (14.5%) were performed with animals present. Where animals were present, over thirty-seven percent of the inspections revealed violations. The report also noted that the primary way APHIS is informed of violations is through a consumer complaints and that, by the time it can investigate, it is difficult to obtain evidence. [FN10]

While recent efforts have been made to increase funding for APHIS for the purpose of enforcing the Act, there is good reason to suppose that these efforts, on their own, will never result in the fulfillment of the goals of the Act. The agency's ninety-nine inspectors are responsible for inspecting over ten thousand facilities nationwide, each of which possesses numerous animals, often of many different species, with vastly different needs. The task of adequately inspecting these facilities is a massive one, for which much greater increases in government funding than has heretofore been forthcoming would be needed. Given the enormity of the task, it is unlikely that there will ever be truly adequate funding. Moreover, a review of the USDA's funding requests reveals a distinct lack of interest in improving the situation.

For example, for Fiscal Years 1996 through 1998, the USDA consistently requested, and was granted, approximately $9.2 million per year for enforcement of the Act by Animal Care--the program under APHIS responsible for conducting inspections to ensure compliance with the Act. [FN11] However, in Fiscal Year 1999, the USDA inexplicably cut its request to only $6.4 million for enforcement of the Act, while Congress, in the unusual position of having to foist money upon an undemanding agency, nevertheless appropriated $9.2 million. [FN12] In Fiscal Year 2000, the USDA requested $9.7 million, but Congress, again recognizing that the agency's needs were greater than it stated, appropriated $10.2 million. [FN13]

In Fiscal Year 2001, USDA did request increases in its funding for enforcement, and Congress appropriated $12.1 million. [FN14] However, while, in the context of the history of enforcement of the AWA, this was a substantial increase, it still fell woefully short of what is necessary to adequately enforce the Act, allowing the addition of only eleven more inspectors, bringing the total number, at that point, to eighty-five. [FN15] For Fiscal Year 2002, the USDA requested a less than $700,000 increase for enforcement of the Act, while Congress actually ultimately appropriated $15,167,000. Not surprisingly, for 2003, USDA again requested less than Congress had given it the year before, i.e., $14,381,000, but Congress appropriated $16,408,000. Thus, Congress appears to be more concerned with adequately funding the agency than the agency itself. Indeed, the Senate Appropriations Committee specifically stated, in recommending the 2002 increase:
The Committee remains concerned about press accounts of inhumane treatment of animals and reports that the inadequate enforcement of animal welfare regulations has led to repeat violations and continuing mistreatment of animals. [FN16]

D. Lack of Right of Action/Standing

When citizens for whose benefit a statute has been passed discover that it is not being adequately enforced, their traditional recourse is to turn to the courts. A fundamental problem for those who would like to see the AWA better enforced is that it was not passed for the purpose of protecting humans, but for the purpose of protecting animals, and there are, therefore, no obvious plaintiffs who may bring actions when the agency charged with its enforcement is unable, or unwilling, to do the job. Thus, despite many attempts to bring such suits, human plaintiffs have had difficulty in bringing the merits of their arguments before the courts because of the lack of any citizen suit provision within the Act.

First, under current case law, an enforcement action brought directly under the AWA is likely to be dismissed for failure to state a claim upon which relief can be granted, as the courts have held that the AWA provides no implied private cause of action. [FN17]

AWA plaintiffs, seeking to avoid this result, have sued instead under the Administrative Procedure Act ["APA"] which provides a right to bring suit against a government agency to any person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute," [FN18] and permits a reviewing court to, inter alia, "compel agency action unlawfully withheld or unreasonably delayed." [FN19] One of the necessary limitations in this approach is that the action must be brought against the government for failing to enforce the Act and cannot be brought directly against the party who allegedly violated the Act.

Moreover, while these suits have not been dismissed for failure to state a claim, they have in many instances been dismissed for lack of standing, both constitutional and prudential. Briefly, the standard set forth to satisfy constitutional standing requirements in federal courts under Article III's "cases or controversies" requirement include (1) that the plaintiff itself has suffered an "injury in fact," (2) that the defendant caused the injury, and (3) that the injury is redressable by a favorable decision. [FN20] In addition, while not constitutionally required, federal courts require a plaintiff to show "prudential standing," which requires that the interest the plaintiff seeks to protect must be "arguably within the zone of interests to be protected or regulated by the statute." [FN21] This requirement has posed substantial problems for many plaintiffs seeking redress under the APA for injuries arising from alleged violations of the AWA. [FN22]

Recently, the courts have begun to recognize certain instances in which human plaintiffs have demonstrated both constitutional and prudential standing to bring an action against the government for its failure to enforce the AWA. In Animal Legal Defense Fund v. Glickman, [FN23] a plaintiff who claimed to have suffered aesthetic injury by having repeatedly observed a chimpanzee confined by himself in extremely poor conditions at a "game farm" was found to have standing to challenge USDA regulations that allegedly did not comply with the AWA mandate that the Secretary set minimum requirements for an environment that will "promote the psychological well-being of primates." In Alternatives Research & Development Foundation v. Glickman, [FN24] the court held that one of the plaintiffs, a student in a college research laboratory who claimed to have repeatedly viewed laboratory rats being treated inhumanely, had suffered an aesthetic injury which entitled her to standing to challenge USDA regulations that excluded birds, mice and rats from the AWA's definition of "animal."

While these cases are an enormous step in the right direction, they demonstrate that the development of citizen's standing on a case-by-case basis in the courts under the APA will certainly result in unpredictable, inconsistent, and spotty access to the courts.

First, the necessity that all actions be brought against the federal government to require it to enforce the Act, rather than against the party who actually violated the Act, means that the available remedies will always be at least one step removed from the violator and will still leave actual enforcement in the hands of an underfunded and disinterested agency.

Moreover, the necessity that actions be brought only by an individual human plaintiff who has suffered sufficient aesthetic harm to have constitutional standing means that only people who can establish that they have observed the animal[s] over a significant period of time and have had a strong emotional response can bring an action. While animal protection groups may have substantial evidence, gathered from various sources, that egregious, illegal abuse is ongoing, without the right plaintiff the merits will never reach the courts. Such plaintiffs are obviously few and far between, particularly for actions against institutional facilities such as puppy mills, where the animals are hidden from public view and seen regularly only by those who profit from their confinement. This result is anomalous and does not comport with the primary purpose of the Act, which is to protect animals, regardless of whether the harm to them is concurrent to a harm to a particular human. Fundamentally, an animal living in isolation and misery, such as the chimpanzee who was the subject of Animal Legal Defense Fund v. Glickman, is no less harmed by the fact that he has never been observed by a human who is saddened by his fate. Thus, these cases establish the necessity for immediate legislative action to provide consistent, efficient, and effective judicial enforcement of the Act. [FN25]

E. Creating a Cause of Action and Overcoming Prudential Standing Concerns

A citizen suit provision explicitly enables a private citizen to bring an action arising from violation of that statute and, if sufficiently broad, can enable a private citizen to bring an action against anyone who has violated a statute, thus extending the ability to sue far beyond that provided by the APA (subject to constitutional limits). One example of a broadly worded citizen suit provision is that found in the Endangered Species Act ["ESA" ], which permits "any person" to bring such a suit against any person or the government alleged to be in violation of the ESA or regulations issued thereunder. [FN26] The existence of this citizen suit provision has been held to negate the prudential standing zone-of-interest test as to actions brought under the ESA. [FN27] (Of course, a citizen suit provision cannot grant standing to people who cannot, under Article III, bring suit in Federal court. We turn to this issue below.)

In order to allay concerns over the use of a citizen's suit provision to permit harassment, it is important to point out that citizen's suit provisions have been in existence for many years in a wide array of statutes, and have not resulted in the often predicted flood of litigation. One reason is that such suits are generally subject to substantial restrictions, such as jurisdictional limitations, [FN28] limits on the available remedies, [FN29] notice requirements, [FN30] and provisions allowing the court to award attorney's fees where appropriate. [FN31]

First, an appropriate jurisdictional limitation for a citizen's suit provision under the AWA would be to limit access to the courts to claims of violation of standards and regulations that relate directly to the care and welfare of the animals. The Act sets licensing requirements and substantial recordkeeping requirements, which are appropriately enforced solely by the USDA and need not be the subject of a citizens' suit provision. Moreover, regulations requiring the consideration of pain management and the use of alternatives in research facilities could be exempt from the citizen's suit provision.

Second, an additional limitation that would help guard against excessive litigation would be the imposition of a notice requirement, similar to that in the Endangered Species Act and other citizen's suit provisions. This would require any potential litigant to notify the government and the alleged violator of the violation in writing sixty days prior to commencement of the action, thereby giving them an opportunity to rectify the situation. An exception could be made for emergencies threatening immediate grievous harm. [FN32]

Third, a provision permitting the court to assess costs and attorney's fees to any party whenever the court determines such an award is appropriate would permit a court to assess such fees against plaintiffs where they have initiated a frivolous lawsuit. [FN33]

Fourth, in order to further deter frivolous lawsuits, a requirement could be imposed that complaints must be stated with particularity.

Fifth, as to available remedies, in light of the nature of the Animal Welfare Act and the wide variety of behavior it regulates, it would be appropriate to permit citizen's suits to seek both injunctions and civil penalties, payable to the government [FN34] to address both ongoing and past violations. For example, violations of the Act can be widespread, institutional policies, for which an injunction may be appropriate, along with the appropriate civil fines. On the other hand, a violation may relate to the abusive treatment of a small number of animals, or even a single animal, who may even be dead by the time the violation is discovered and the action brought. In this circumstance, a civil penalty, payable to the government, may be the only appropriate remedy. Plaintiffs however, would not have any prospect of obtaining compensatory damages either on their own behalf or on behalf of the animals. This has been recognized as a substantial deterrent to the bringing of frivolous actions under citizen's suit provisions. [FN35]

In addition, the significant protections afforded generally in the federal courts to protect against frivolous or harassing practices would be in place to further protect the courts and potential defendants from excessive litigation. Under Rule 11 of the Federal Rules of Civil Procedure, the courts may impose significant sanctions for filings that are frivolous or designed to harass. Moreover, there is substantial authority on the part of the federal courts to limit discovery. Rule 26(g) subjects lawyers to sanctions for making frivolous discovery requests. Rule 26(b)(2) provides that a court may limit the availability of even relevant discovery if the discovery sought is disproportionate to any likely benefits from the information. Rule 26(c) allows courts to impose a wide array of tailored protective orders to protect a person from "annoyance, embarrassment, oppression, or undue burden or expense," including ones providing that "confidential research . . . not be revealed . . . ."

F. Overcoming Constitutional Standing Concerns

Citizen suit provisions do not create constitutional standing; that is, any citizen who brings suit must also meet the constitutional requirements for standing. [FN36] A lack of constitutional standing is, under current law, a particularly vexatious problem for those who wish to compel enforcement of the Animal Welfare Act. As noted, supra, while the purpose of the Act is to protect animals, in order to bring an action it is necessary to find situations in which humans have been harmed as a result of violations of the Act.

One way that constitutional standing requirements could be met in actions seeking civil penalties is through the simple expedient of creating a qui tam action, which would permit a modest payment to be made out of the civil penalty assessed upon the violator to those who sue successfully for violations of the Act, thereby allowing them to sue as an assignee, or partial assignee, of the government's claim. By creating a qui tam action, Congress would obviate the necessity that the individual human plaintiff show that he or she had personally suffered an injury in order to sustain the action. Instead of allowing suits by people on their own behalf and to redress their own injury, the qui tam mechanism allows the complainant to sue as a private attorney general on behalf of the government. [FN37] The Supreme Court has recently held that it is not necessary for such a plaintiff to show that he or she suffered an injury to sustain the action and that the injury to the government is shown by the "injury to its sovereignty from violation of its laws." [FN38]

An alternative, and the most obvious, way to ensure that litigants have constitutional standing to bring actions against violators of the Animal Welfare Act is to create a mechanism whereby the primary victims of those violations, i.e., the animals themselves, may bring an action. There is no constitutional bar to permitting animals standing in this fashion. As stated recently by Professor Cass Sunstein, "Congress has the authority to grant animals standing to protect their interests, in the sense that injured animals might be counted as juridical persons, to be protected by human plaintiffs initiating proceedings on behalf of animals." Indeed, standing has never been limited to humans, and has been granted to fictional entities, such as corporations and trusts, and to inanimate objects, such as ships. [FN39] Similarly, Professor Laurence Tribe has recently stated:
Recognizing the animals themselves by statute as holders of rights would mean that they could sue in their own name and in their own right . . . . Such animals would have what is termed legal standing . . . . Guardians would ultimately have to be appointed to speak for these voiceless rights- holders . . . . But giving animals this sort of "virtual voice" would go a long way toward strengthening the protection they receive under existing laws *355 and hopefully improved laws, and our constitutional history is replete with instances of such legislatively conferred standing. [FN40]

Professor Cass L. Sunstein has also voiced support for such an approach:
Reforms might be adopted with the limited purpose of stopping conduct that is already against the law, so that the law actually means, in practice, what it says on paper. Here, then, we can find a slightly less minimal understanding of animal rights. On this view, representatives of animals should be able to bring private suits to ensure that anticruelty and related laws are actually enforced . . . . In a sense, this would be a dramatic proposal. It might even be understood to mean that animals should be allowed to sue in their own name--and whoever the nominal plaintiff, there would be no question that the suit was being brought to protect animals, not human beings. The very idea might seem absurd. But is simpler and more conventional than it appears. Of course any animals would be represented by human beings, just like any other litigant who lacks ordinary (human) competence . . . . [FN41]

Nor is there any substantial practical bar. As Professors Tribe and Sunstein both note, it is clear that many parties who cannot properly speak for themselves, such as children and incompetent adults, appear in the courts on a very regular basis. Thus, the mere legal incompetence of animals is no obstacle to such a proposal. Since the subject matter of such an action would be limited to violation of the Act, there would be no difficulty in ensuring that a human attempting to bring such an action actually represented the interest of the animal--it could simply be presumed that Congress has determined that enforcement of the Act is in the interest of the animal. Because the scope of such a provision would permit actions based only on violations of this particular statute, there is no worry that this would open the "floodgates" to lawsuits by animals, or humans purporting to represent them, on other subjects.

This approach, while perhaps startling at first glance, would provide the simplest and most direct access to the courts for enforcement of the Animal Welfare Act in a way that would most fully carry out Congress's purpose in enacting it.

G. Recommendation

RESOLVED, that Congress should adopt an amendment to the Animal Welfare Act (7 USC § 2131 et. seq.) that provides that:

1. To the extent permitted by the Constitution, any person would have a right of action against any person or the government for violation of a provision of the Act or a regulation promulgated pursuant to the Act directly relating to the care and welfare of animals; excluding violations of 7 USC § 2143 (a)(3), regulations promulgated pursuant to such section and all recordkeeping requirements; provided that:

a. no action may be commenced under this section prior to sixty days after written notice of the violation has been given to the Secretary of Agriculture and to any alleged violator of any such provision or regulation, except that such action may be brought immediately after such notification in the case of an action under this section respecting an emergency posing an immediate risk of death or grievous suffering to the well-being of any animal covered by the Act;

b. no action may be commenced if the violation underlying such action has been resolved within the sixty day period referred to in paragraph (1)(a), supra;

c. any action must be commenced by a complaint in which the circumstances alleged to constitute the violation are stated with particularity;

d. the court is permitted to assess costs and attorney's fees to any party whenever the court determines such an award is appropriate; and

2. In order to satisfy Article III standing requirements, provides either:

a. that any person may act as a private attorney general to bring an action on behalf of the government for a violation as set forth in Paragraph 1, supra, and, in the case of a success on the merits, would recover, in addition to legal fees, a modest civil penalty; or

b. that, solely for the purpose of bringing an action based on a violation as set forth in Paragraph 1, supra, animals covered by the Act would have standing.

[FNa1]. Printed with permission of the Association of the Bar of the City of New York.

[FN1]. 7 U.S.C. § § 2131 et seq. (2000).

[FN2]. 7 U.S.C. § § 2131-2132 (2000).

[FN3]. 7 U.S.C. § 2132(g) (2000).

[FN4]. 7 U.S.C. § 2132(g)(1) (2000).

[FN5]. 7 U.S.C. § 2143(a)(6)(A) (2000). While the Secretary of Agriculture is thus not authorized to promulgate regulations that dictate research protocols, certain provisions of the Act, including those that require consideration of pain management and alternatives (see 7 U.S.C. § 2143(a)(3)) could be considered to affect the nature of the research that is covered by the Act.

[FN6]. 7 U.S.C. § § 2146(b), 2149, 2159 (2000).

[FN7]. See generally Cass Sunstein, A Tribute to Kenneth L. Karst: Standing for Animals (with Notes on Animal Rights), 47 U.C.L.A. L. Rev. 1333 (2000); Katherine M. Swanson, Carte Blanche for Cruelty: The Non- Enforcement of the Animal Welfare Act, 35 U. Mich. J.L. Reform 937 (2002); Carole Lynn Nowicki, The Animal Welfare Act: All Bark and No Bite, 23 Seton Hall Legis. J. 443 (1999); Valerie Stanley, The Animal Welfare Act and USDA: Time for an Overhaul, 16 Pace Envtl. L. Rev. 103 (1998); see also Animal Legal Defense Fund v. Glickman, 943 F. Supp 44 (D.D.C. 1996) (Charles Richey, J.), aff'd, 154 F.3d 426, cert. denied, 526 U.S. 1064 ("[W]hile Congress set forth a clear mandate of humane treatment of animals, it then took away from that mandate by granting unbridled discretion to the agency which, as past experience indicates, will do little or nothing. The agency's conduct in this and other cases that have come before this member of the Court not only is egregious because of its delayed nature, but represents, in the eyes of at least more than 50,000 members of the plaintiff organization, one of the basic reasons why the American people have lost faith in much of their government. The inaction and eventual failure to act in accordance with law remind the Court of the sage and accurate statement of the late Judge J. Skelly Wright of the Court of Appeals for this Circuit when, in essence, he noted that the regulators in Washington are regulated by the regulated (citations omitted).").

[FN8]. USDA, OIG Audit Report No. 33600-1-CH (Jan. 1995).

[FN9]. USDA, OIG Audit Report No. 33601-1-CH (June 1996).

[FN10]. USDA, OIG Audit Report No. 33099-0002-CH (Aug. 1998).

[FN11]. Sen. Rpt. No. 105-51, at 43 (1997); Sen. Rpt. No. 104-317, at 46 (Jul. 16, 1996); H.R. Rpt. No. 104-172, at 32 (1995).

[FN12]. Sen. Rpt. No. 105-212, at 35 (1998); Sen. Rpt. No. 106-80, at 50 (1999).

[FN13]. Sen. Rpt. No. 106-288, at 56 (2000); Sen. Rpt. No. 106-80, at 50 (1999).

[FN14]. Sen. Rpt. No. 107-41, at 56 (2001); Sen. Rpt. No. 106-288, at 56 (2000).

[FN15]. Marian Dozier, U.S. Raps Animal Welfare Agency, The Sun Sentinel (Feb. 25, 2001).

[FN16]. Sen. Rpt. No. 107-41, at 58.

[FN17]. See e.g. Intl. Primate Protection League v. Inst. for Behavioral Research, Inc., 799 F.2d 934 (4th Cir. 1986), cert. denied, 481 U.S. 104; In Defense of Animals v. Cleveland Metroparks Zoo, 785 F. Supp. 100 (N.D. Ohio 1991).

[FN18]. 5 U.S.C. § 702 (2000).

[FN19]. 5 U.S.C. § 706(1) (2000).

[FN20]. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

[FN21]. Natl. Credit Union Admin. v. First Natl. Bank & Trust Co., 522 U.S. 479, 488 (1998).

[FN22]. See Animal Legal Defense Fund v. Espy, 29 F.3d 720 (D.C. Cir. 1994); Animal Legal Defense Fund v. Espy, 23 F.2d 496 (D.C. Cir. 1994).

[FN23]. 154 F.3d 426 (D.C. Cir. 1998) (en banc), cert. denied, 526 U.S. 1064.

[FN24]. 101 F. Supp. 2d 7 (D.D.C. 2000).

[FN25]. See Laurence H. Tribe, Ten Lessons Our Constitutional Experience Can Teach Us About the Puzzle of Animal Rights: The Work of Stephen M. Wise, 7 Animal L. 1, 3 (2001) ("[T]he worst loophole in those laws are the loopholes found in statutes like the ... Animal Welfare Act.... The loopholes I have in mind are structural. What I mean by that is that existing state and federal statutes depend on enforcement by chronically underfunded agencies and by directly affected and highly motivated people--and that's just not a sufficiently reliable source of protection.").

[FN26]. 16 U.S.C. § 1540(g)(1)(A) (2000).

[FN27]. See e.g. Bennett v. Spear, 520 U.S. 154, 164 (1997) (noting that it might be more accurate to say that the provision "expands" the zone of interests).

[FN28]. See e.g. Clean Air Act, 42 U.S.C. § 7604(a)(1); Emergency Planning and Community Right to Know Act, 42 U.S.C. § 11046 (a)(1).

[FN29]. See Endangered Species Act, 16 U.S.C. § 1540(g)(1).

[FN30]. See Endangered Species Act, 16 U.S.C. § 1540(g)(2)(A)(1); Clean Air Act, 42 U.S.C. § 7604(b); Clean Water Act, 33 U.S.C. § 1365(b); Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544m(b)(3); Surface Mining Control and Reclamation Act, 30 U.S.C. 1270(b)(1)(A); Safe Drinking Water Act, 42 U.S.C. § 300j-8(b).

[FN31]. See e.g. Clean Air Act, 42 U.S.C.S § 7607(f)); Endangered Species Act, 16 U.S.C. 1540(g)(4).

[FN32]. See e.g. Endangered Species Act, 16 U.S.C. 1540 (g)(2)(C).

[FN33]. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1977).

[FN34]. See e.g. Clean Water Act, 33 U.S.C. § 1365(a); Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a); Clean Air Act, 42 U.S.C. § 7604(a); see also discussion of qui tam actions, infra pt. II(F) (regarding payment of portion of fine to persons bringing the suit).

[FN35]. See 116 Cong. Rec. 33,104 (1970) (statement of Sen. Hart) (Citizen suits will not overburden the courts since damages are not available to the individual. Plaintiffs have nothing to gain and "the very real prospect of financial loss.... [O]nly in the case where there is a crying need for action will action in fact be likely.").

[FN36]. See e.g. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

[FN37]. See e.g. False Claims Act, 31 U.S.C. § § 3729 et seq. See also 25 U.S.C. § 201 (permitting suit in the name of the United States, and share of recovery, by "informer" for penalties for violation of Native American protection laws); 35 U.S.C. § 292(b) (permitting suit by any person, and share of penalty, against a person falsely marking patented articles); cf. 18 U.S.C. § 962 (providing for forfeiture to informer of share of vessels privately armed against friendly nations, but not expressly authorizing suit by informer); 46 U.S.C. § 723 (providing for forfeiture to informer of share of vessels removing undersea treasure from the Florida coast to foreign nations, but not expressly authorizing suit by informer).

[FN38]. Vt. Agency of Nat. Resources v. U.S., 529 U.S. 765, 771 (2000).

[FN39]. See e.g. The Gylfe v. The Trujillo, 209 F.2d 386 (2d Cir. 1954).

[FN40]. Tribe, supra n. 25, at 3 (emphasis in original).

[FN41]. Cass R. Sunstein, The Rights of Animals, 70 U. Chi. L. Rev. 387, 391-92 (2003).

END OF DOCUMENT