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Newell v. Baldridge

Summary: <p> Newell was a tropical fish importer who became involved in a mislabeling scheme to import endangered sea turtles.&nbsp; On appeal, Newell claimed he lacked the requisite knowledge or intent because he did not directly handle the imported sea turtles, he could not have known that they were mislabeled.&nbsp; The court held that substantial evidence in the record supports the findings below that Newell knew or should have known of the mislabeling of the shipments of sea turtles.&nbsp; Further, the court upheld the imposition of $1,000 penalty for each violation of the Lacey Act because of the&nbsp;mulit-violation, mislabeling scheme and the vital public interest in deterring illegal wildlife trade. </p>

Newell was a tropical fish importer who became involved in a mislabeling scheme to import endangered sea turtles.  On appeal, Newell claimed he lacked the requisite knowledge or intent because he did not directly handle the imported sea turtles, he could not have known that they were mislabeled.  The court held that substantial evidence in the record supports the findings below that Newell knew or should have known of the mislabeling of the shipments of sea turtles.  Further, the court upheld the imposition of $1,000 penalty for each violation of the Lacey Act because of the mulit-violation, mislabeling scheme and the vital public interest in deterring illegal wildlife trade.

In Defense of Animals v. National Institutes of Health

Summary: <p> This FOIA case was brought against the National Institutes of Health ("NIH") by In Defense of Animals (&ldquo;IDA&rdquo;) seeking information related to approximately 260 chimpanzees located as the Alamogordo Primate Facility (&ldquo;APF&rdquo;) in New Mexico. Before the court now is NIH's Motion for Partial Reconsideration as to the release of records. This Court rejected NIH&rsquo;s arguments that the records are not &ldquo;agency records&rdquo; because they belong to NIH's contractor, Charles River Laboratories, Inc. (&ldquo;CRL&rdquo;), a publicly held animal research company. Also, the Court was equally unconvinced that the information requested here is &ldquo;essentially a blueprint of the APF facility,&rdquo; and that release of such information presents a security risk to the facility. </p>

This FOIA case was brought against the National Institutes of Health ("NIH") by In Defense of Animals (“IDA”) seeking information related to approximately 260 chimpanzees located as the Alamogordo Primate Facility (“APF”) in New Mexico. Before the court now is NIH's Motion for Partial Reconsideration as to the release of records. This Court rejected NIH’s arguments that the records are not “agency records” because they belong to NIH's contractor, Charles River Laboratories, Inc. (“CRL”), a publicly held animal research company. Also, the Court was equally unconvinced that the information requested here is “essentially a blueprint of the APF facility,” and that release of such information presents a security risk to the facility.

Haviland v. Butz

Summary: <p> This case addresses whether the Secretary of Agriculture intended to include &ldquo;animal acts&rdquo; under the AWA. Animal acts are any performance of animals where such animals are trained to perform some behavior or action or are part of a show, performance, or exhibition. Defendant presented an animal act with dogs and ponies to paying audiences and occasionally appeared on commercial television. Defendant asserted that he did not &ldquo;exhibit&rdquo; animals simply by showing dogs and ponies and argued that the Secretary unconstitutionally added &ldquo;animal acts&rdquo; to the AWA. The court held that the inclusion of &ldquo;animal acts&rdquo; was authorized as&ldquo;[t]he words &lsquo;includes&rsquo; and &lsquo;such as&rsquo; [in the AWA] point convincingly to the conclusion that the listing of types of exhibitions in the statutory text was intended to be but partial and illustrative.&rdquo; </p>

This case addresses whether the Secretary of Agriculture intended to include “animal acts” under the AWA. Animal acts are any performance of animals where such animals are trained to perform some behavior or action or are part of a show, performance, or exhibition. Defendant presented an animal act with dogs and ponies to paying audiences and occasionally appeared on commercial television. Defendant asserted that he did not “exhibit” animals simply by showing dogs and ponies and argued that the Secretary unconstitutionally added “animal acts” to the AWA. The court held that the inclusion of “animal acts” was authorized as“[t]he words ‘includes’ and ‘such as’ [in the AWA] point convincingly to the conclusion that the listing of types of exhibitions in the statutory text was intended to be but partial and illustrative.”

In re: JAMES JOSEPH HICKEY, JR., d/b/a S & H SUPPLY CO., AND JERRY R. BRANTON

Summary: <span> Respondents' failure to file timely answer, or deny allegations of complaint, constituted admission of complaint allegations and waiver of hearing, irrespective of respondents' contention that they were justified in not filing answer because ALJ did not rule on respondents' motions to sever, strike and make more definite and certain, since Department's rules of practice do not alter time for filing answer when such motions are filed. </span>

Respondents' failure to file timely answer, or deny allegations of complaint, constituted admission of complaint allegations and waiver of hearing, irrespective of respondents' contention that they were justified in not filing answer because ALJ did not rule on respondents' motions to sever, strike and make more definite and certain, since Department's rules of practice do not alter time for filing answer when such motions are filed.

In re: DELTA AIR LINES, INC.

Summary: <span> <span> The Judicial Officer affirmed the Decision by Chief Judge Palmer (Chief ALJ) assessing civil penalties of $140,000, with $60,000 held in abeyance for 1 year, for transporting 108 dogs and cats in a cargo space that was without sufficient air, causing the death of 32 dogs. The Order also directs Respondent to cease and desist from violating the Act, regulations and standards, and, in particular, to cease and desist from failing to ensure that dogs and cats have a supply of air sufficient for normal breathing.&nbsp; On appeal, the court held that when regulated entity fails to comply with Act, regulations or standards, there is separate violation for each animal consequently harmed or placed in danger. </span> </span>

The Judicial Officer affirmed the Decision by Chief Judge Palmer (Chief ALJ) assessing civil penalties of $140,000, with $60,000 held in abeyance for 1 year, for transporting 108 dogs and cats in a cargo space that was without sufficient air, causing the death of 32 dogs. The Order also directs Respondent to cease and desist from violating the Act, regulations and standards, and, in particular, to cease and desist from failing to ensure that dogs and cats have a supply of air sufficient for normal breathing.  On appeal, the court held that when regulated entity fails to comply with Act, regulations or standards, there is separate violation for each animal consequently harmed or placed in danger.

U.S. v. Stevens

Summary: <strong> Note that certiorari was granted in 2009 by --- S.Ct. ----, 2009 WL 1034613 (U.S.&nbsp;Apr 20, 2009). </strong> In this case, the Third Circuit held that&nbsp;18 U.S.C. &sect; 48, the federal&nbsp;law that criminalizes depictions of animal cruelty,&nbsp;is an unconstitutional infringement on free speech rights guaranteed by the First Amendment. The defendant in&nbsp;this case was&nbsp;convicted after investigators arranged to buy three dogfighting videos from defendant in sting operation.&nbsp; Because the statute addresses a content-based regulation on speech, the court considered whether the statute survived a strict scrutiny test. The majority was unwilling to extend the rationale of <u> Ferber </u> outside of child pornography without direction from the Supreme Court.&nbsp; The majority&nbsp;found that the conduct at issue in &sect; 48 does not give rise to a sufficient compelling interest.

Note that certiorari was granted in 2009 by --- S.Ct. ----, 2009 WL 1034613 (U.S. Apr 20, 2009). In this case, the Third Circuit held that 18 U.S.C. § 48, the federal law that criminalizes depictions of animal cruelty, is an unconstitutional infringement on free speech rights guaranteed by the First Amendment. The defendant in this case was convicted after investigators arranged to buy three dogfighting videos from defendant in sting operation.  Because the statute addresses a content-based regulation on speech, the court considered whether the statute survived a strict scrutiny test. The majority was unwilling to extend the rationale of Ferber outside of child pornography without direction from the Supreme Court.  The majority found that the conduct at issue in § 48 does not give rise to a sufficient compelling interest.

IN RE: MICHEAL McCALL AND KATHY McCALL

Summary: <span> This opinion held that the USDA&nbsp;may impose sanctions even if respondent dealer is not licensed.&nbsp;Respondents&nbsp;were operators of kennel facilities in Washington, Kansas, and in nearby Reynolds, Nebraska. In 1991 and 1992, Respondents each applied for dealer's licenses under the Act and both were denied. The Judicial Officer affirmed that part of the Order by Judge Bernstein (ALJ) assessing civil penalties of $7,500, and ordering Respondents to cease and desist from engaging in any activity for which a license is required without being licensed, and failing to maintain their facilities in accordance with the regulations and standards involving housing, shelter, veterinary care, records, sanitation, cleaning, food, and water. However, the Judicial Officer increased from 1 year to 10 years the period in which Respondents are disqualified from becoming licensed under the Act and regulations. </span>

This opinion held that the USDA may impose sanctions even if respondent dealer is not licensed. Respondents were operators of kennel facilities in Washington, Kansas, and in nearby Reynolds, Nebraska. In 1991 and 1992, Respondents each applied for dealer's licenses under the Act and both were denied. The Judicial Officer affirmed that part of the Order by Judge Bernstein (ALJ) assessing civil penalties of $7,500, and ordering Respondents to cease and desist from engaging in any activity for which a license is required without being licensed, and failing to maintain their facilities in accordance with the regulations and standards involving housing, shelter, veterinary care, records, sanitation, cleaning, food, and water. However, the Judicial Officer increased from 1 year to 10 years the period in which Respondents are disqualified from becoming licensed under the Act and regulations.

IN RE: ALEX PASTERNAK

Summary: <p> The court concluded that respondent had committed more than thirty violations of the AWA for his abuse of his exhibition animals (mainly leopards).&nbsp; Among the violations were a failure to maintain required records, failure to provide veterinary care, failure to comply with standards affecting all aspects of cat care, and physically abusing animals. As a result, respondent's license was suspended, a civil penalty was imposed and an order was issued directing respondent to cease and desist from violating the Act. Although respondent sought the protection of the bankruptcy code, the automatic stay of proceedings provided by bankruptcy law does not prevent the Department from obtaining corrective action to preserve animal welfare. </p>

The court concluded that respondent had committed more than thirty violations of the AWA for his abuse of his exhibition animals (mainly leopards).  Among the violations were a failure to maintain required records, failure to provide veterinary care, failure to comply with standards affecting all aspects of cat care, and physically abusing animals. As a result, respondent's license was suspended, a civil penalty was imposed and an order was issued directing respondent to cease and desist from violating the Act. Although respondent sought the protection of the bankruptcy code, the automatic stay of proceedings provided by bankruptcy law does not prevent the Department from obtaining corrective action to preserve animal welfare.

IN RE: RONNIE FAIRCLOTH AND JR's AUTO & PARTS, INC.

Summary: <span> Individual who owned auto parts company, and who kept exotic animals on premises (allegedly as pets), was exhibitor for purposes of Act, even though economic benefit to him from exhibiting animals to public was de minimis, because individual's activities were in commerce. </span>

Individual who owned auto parts company, and who kept exotic animals on premises (allegedly as pets), was exhibitor for purposes of Act, even though economic benefit to him from exhibiting animals to public was de minimis, because individual's activities were in commerce.
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