Court Gives Activist Standing to Sue on Behalf of Apes

Court Gives Activist Standing to Sue on Behalf of Apes

Reverses previous decision

By: Norma Bennett Woolf  Date: 01/10/2012 Category: | Animal Legislation |


Reversing a previous decision made by a split panel of the US Court of Appeals for the District of Columbia Circuit, the full court granted standing for Marc Jurnove to sue the US Department of Agriculture on behalf of apes held at the Long Island Game Farm.

On September 1, in a seven-to-four decision that has wide-ranging implications for all who keep non-human primates in captivity, the court told the plaintiff that he did indeed have standing to sue because his aesthetic interest in captive primates had been damaged by the failure of the USDA to obey the edict of Congress to write or enforce regulations for the keeping of primates in captivity.

The lawsuit was filed by several individuals and by the Animal Legal Defense Fund, an animal rights organization frequently involved in attempts to gain legal standing for or on behalf of animals, but the court addressed only Jurnove's standing. However, once he has been granted the right to sue, the case can now proceed unless the USDA appeals to the US Supreme Court.

Pursuant to 1985 amendments to the Animal Welfare Act, USDA wrote regulations for minimum housing standards for non-human primates and required that exhibitors, researchers, and others working with primates provide an enrichment plan for the animals' psychological well-being. These plans were to be on file with USDA but not made public.



Writing for the majority, Judge Wald summarized the case: Jurnove, an employee or volunteer in various animal relief organizations, visited the Long Island Game Farm several times in 1995 and 1996 and saw many animals living in what he described as inhumane conditions. These included a Japanese snow macaque living alone in a cage with a swing, a chimpanzee living alone out of view of other primates, and squirrel monkeys caged adjacent to a bear exhibit. In May, 1995, Jurnove complained to USDA, and the agency sent an investigator to the facility. In July, he complained again, and in August and September he videotaped the conditions he witnessed. In July and September both, USDA responded by sending inspectors who found only minor violations of the law.

In April 1996, after a long illness, Jurnove visited the game farm again, and again complained to USDA about conditions. A fourth inspection had the same result: minor violations unconnected with Jurnove's complaints. In June 1996, Jurnove filed his affidavit, which has not been contested. Instead, USDA claimed that he had no standing to bring the suit.


The suit

The lawsuit was filed on two grounds: that the conditions at the Long Island Game Farm caused Jurnove "aesthetic injury," and that, while the facility is in compliance with current regulations, USDA failed to write detailed regulations to assure the animals' psychological well-being as required by Congress.

"[B]ecause USDA regulations permit the non-human primates in zoos, such as the Long Island Game Farm and Zoological Park to be housed in isolation, Marc Jurnove was exposed to and will be exposed to in the future to behaviors exhibited by these animals which indicate the psychological debilitation caused by social deprivation. Observing these behaviors will cause Marc Jurnove personal distress and aesthetic and emotional injury," the suit claimed.



The court found that Jurnove meets all the requirements set forth in Article III of the US Constitution to establish standing. They said

he has an injury in fact because he enjoys seeing animals in parks and zoos near his home and the conditions at the game farm prevented his enjoyment he has causation to sue because USDA could have prevented his injury by writing lawful regulations.

his injuries could be redressed by the promulgation and enforcement of lawful regulations because he plans to visit the game farm in the future.

The minority disagreed. Writing the dissent, Judge Sentelle said that the majority opinion about Jurnove's injury-in-fact was based on faulty reading of precedents dealing with aesthetic interests and dabbled in "constitutionally uncharted waters." The precedents cited dealt with aesthetic injury due to diminution of species caused by government policies that may reduce the availability of animals for observation or study, not for the conditions under which the animals may be viewed.

"Aesthetic injury is, by its nature, a matter of individual taste. For example, Jurnove might find it aesthetically pleasing to view primates in groups, another person might prefer to watch them kept alone. Still another person might prefer to see primates in brightly-colored cages or in cages in which recordings of Mozart piano concertos are played around the clock, or not in cages at all. Under the majority's theory, it appears that Article III encompasses the injury of a person who states that he has an aesthetic interest in seeing primates kept under such conditions, and that he believes primates that are not kept under these conditions are treated inhumanely."

He went on: "According to the majority's theory, a sadist with an interest in seeing animals kept under inhumane conditions is constitutionally injured when he views animals kept under humane conditions."

The dissenting opinion also held that Jurnove failed to meet both the causation and redressability requirements for stand.

Quoting Jurnove's own affidavit, Sentelle said that the plaintiff clearly thought that USDA was derelict in its duty to enforce current regulations, not that the agency had neglected to write additional regulations to meet the Congressional mandate to provide for the psychological well-being of non-human primates. Therefore, the judge said, USDA could not be responsible for any injury allegedly caused by failure to write more detailed rules.

"I find it frightening at a constitutional level the majority's assumption that the government causes everything that it does not prevent," the judge said.

As for redressability, Sentelle asked: "How would a judicial order . . . directing USDA to promulgate a new regulation redress Jurnove's claims of aesthetic injury?"

And he answered his own query: "Under Jurnove's theory, to comply with the 'minimum standards' mandate of the AWA, the new regulation would require certain specific cage enrichment devices to be included. But due tot he fuzzy nature of Jurnove's asserted injury, it would require sheer speculation to presume that any enrichment devices specified in a future regulation would satisfy Jurnove's aesthetic tastes. We only know that Jurnove doesn't like seeing primates kept in cages with only one enrichment device. We do not know what conditions would satisfy his individual taste. We do not know, for example, how many enrichment devices he would prefer to see, or of what type."

In addition, promulgation of additional regulations could result in the sale of the primates at the game farm, the judge said, and Jurnove would not be able to view them at all. If this happens, new regulations would have the opposite effect of that sought in the suit.


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Editor and Writer for the National Animal Interest Alliance.

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