USDA APHIS Pulls Access to Essential Inspection Database

Top part of an inspection report

For many years I and many others have had free and open access to USDA APHIS Animal Welfare Act inspection reports. The Humane Society of the US uses the data to compile its list of the 100 worst puppy mills in the United States. I’ve used the records to highlight the atrocities of one of the worst puppy millers in the US: Donald Schrage’s Rabbit Ridge Kennel.

Yesterday, without any warning, the USDA pulled down the database. In its place is a message that says, in part:

APHIS, during the past year, has conducted a comprehensive review of the information it posts on its website for the general public to view.  As a result of the comprehensive review, APHIS has implemented actions to remove certain personal information from documents it posts on APHIS’ website involving the Horse Protection Act and the Animal Welfare Act.  Going forward, APHIS will remove from its website inspection reports, regulatory correspondence, research facility annual reports, and enforcement records that have not received final adjudication.  APHIS will also review and redact, as necessary, the lists of licensees and registrants under the AWA, as well as lists of designated qualified persons (DQPs) licensed by USDA-certified horse industry organizations.

During the past year…

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The Killing of the Profanity Peak Wolf Pack

Gray wolf at rest

By the time you read this, the Profanity Peak wolf pack in Washington State will be no more.

At last count, six wolves of the 11 member pack have been destroyed. All that remains is one adult and four cubs. And if the last remaining adult is killed, the cubs will most likely starve to death.

What’s left of the pack will either survive long enough to join another pack , or they won’t. Regardless, the Profanity Peak wolf pack is gone.

Washington State Proud

Washington State prides itself on not being the same as its neighbors to the east and north. It doesn’t immediately issue a shoot-to-kill order for endangered wolves when one head of cattle is killed or injured. No, Washington State has a Wolf Advisory Board. On this Board are wolf conservation groups, like Defenders of Wildlife, Humane Society of the United States, Conservation Northwest, and Wolf Haven International.

This Board has helped Washington State develop a protocol for when wolves are killed; a set of non-lethal actions that must be followed before the kill order is given.

The reality is, though, the wolves in the Profanity Peak pack are being killed. Just like the wolves are being killed in Idaho, Wyoming, Alaska, and other states. But we’re not supposed to feel outrage at such an action because Washington State has a Wolf Advisory Board, and it has guidelines.

The Animal Welfare Group Statement

Four of the animal welfare organizations on the Advisory Board issued a statement about the Profanity Peak wolves:

The authorized removal of wolves in the Profanity Peak wolf pack in northeast Washington is deeply regrettable. The Washington Department of Fish and Wildlife (WDFW) is, however, following the protocol developed by Washington State’s Wolf Advisory Group (WAG) – a diverse group of stakeholders. The WAG and WDFW have committed to evaluating how the protocol worked on the ground this season in order to improve it for next year. In addition, we intend to conduct a thorough and open-minded assessment of the issues raised by all stakeholders involved.

We remain steadfast that our important goals remain the long-term recovery and public acceptance of wolves in our state alongside thriving rural communities. In the meantime, we ask our community and the citizens of Washington State and beyond to engage in respectful and civil dialogue as we work through these challenging events. We believe that ultimately we can create conditions where everyone’s values are respected and the needs of wildlife, wildlife advocates, and rural communities are met.

The organizations don’t want us to be outraged. They want us to accept that “Eh, these things happen.” They want us to treat the destruction of an entire pack of endangered wolves as if it’s just another Sunday, and here’s a cookie. We’re to engage in a respectful and civil dialogue.

An entire pack of endangered wolves is being killed, and they want us to be respectful and civil?

OK, then. Let’s engage in a respectful and civil dialogue.

Grazing Permits and National Forests

The cattle are on public land in the Colville National Forest. They are on this land because the rancher has a grazing permit. His cattle join with approximately 32,000 or so other privately held cattle allowed to graze on public land in Washington State. Graze at a taxpayer-subsidized rate—grazing permit holders don’t pay full value for the true cost of grazing on public land.

The rancher is Len McIver, of the Diamond M Ranch. He’s a multi-generation rancher who uses grazing permits to raise his cattle. You might say, since grazing permits are subsidized, he’s the fourth generation rancher benefiting from taxpayer support. A common term used for this type of rancher is “welfare rancher”.

Oh. I’m sorry. Was that not respectful? I’ll try to do better.

The Diamond M Ranch Connection

This isn’t the first time Len McIrvin has been involved in the destruction of a wolf pack. In 2012, it was his cattle that led to the decision to kill off the Wedge wolf pack, in the same area as the profanity Peak pack. In a 2012 interview, his son, Bill McIrvin, claimed that wolves are the worst predator:

Bill tells me that the first confirmed wolf kill on the Diamond M was in 2007, and probably from the same pack accused of livestock depredation now, the Wedge pack. When I ask about other predators, Bill says lots of predators go after their cattle, including black bear and cougar, although he is unable to tell me how many cattle succumb to these animals yearly. But wolves, he says, are the worse. Why? I ask. Because they are killing but not eating–for fun, not merely for food, he responds.

Wolves kill for fun. It’s an odd thing, but of all the reasons given why wolves kill, not one wolf expert has stated that wolves kill for fun.

One could say that Bill McIrvin is a lying sack of cow poop if one wasn’t attempting to remain civil.

The Anti-Wolf Message

What’s interesting about Bill and Len McIrvin is how dedicated they’ve been about spreading the message that wolves are killers, wolves and cattle don’t mix, and how all wolves need to be killed. I contrast this with the assurances we’ve been given that any and all non-lethal measures were taken, first, by these same individuals before the decision was made to kill both Wedge pack in 20012, and the Profanity Peak pack this month.

I hope I won’t seem disrespectful if I happen to believe that two people passionate about removing wolves won’t do everything in their power to ensure wolves can remain.

Evidently, the McIrvins do support some wolves. I’m not sure what the definition of some is. I mean, it isn’t as if people are tripping over the wolves on a daily basis in Washington state: there are less than 90 wolves now, and it’s a big state. Decrease the number of wolves much more, and you don’t have any wolves.

Contrary to the Washington Department of Fish & Wildlife diagram, wolf packs in Washington aren’t growing. In fact, they’ve shrunk by two. And I suspect the Ranchers McIrvin believe this is still too many.

graph of wolf packs in Washington

I also suspect that some wolves the McIrvins want, is more about geography than numbers. Some wolves are OK. Those wolves over there (and not here) are some wolves. Those wolves are OK.

Let’s Not Overly Impact the Ranchers

In 2012, Mitch Friedman from Conservation Northwest, discussed the McIrvin’s motives and processes.

Mitch Friedman, Conservation Northwest executive director, said he remains unconvinced about McIrvin’s efforts to manage his herd to reduce conflicts with wolves. He does not agree that there are no options for better herd management.

“We want to see more clarity, certainty, that wolves are responsible for these past incidences,” he said. “We’re aware there are experts raising questions and the field biologists are themselves not convinced that all, or perhaps even any, of these incidents, are conclusively wolves.”

Friedman believes the state is under pressure and needs to take more time. He accused McIrvin of alerting the media first, then the local sheriff’s office, then the wildlife department while reaching out to county and state legislators to turn up the heat.

“Generally, when wolves are in the neighborhood, everything gets blamed on them,” he said. “But when the evidence is in, it’s a small portion of incidents that actually ends up involving wolves.”

If it’s not a wolf, Friedman isn’t certain what would be the cause. While he admitted to hemorrhaging on the rear flanks and groin in one of the recent calf attacks, there were no puncture wounds in the hide.

“We want to work collaboratively, we want to make this work so ranchers are not overly impacted by the presence of wolves,” he said.

How nice. Let’s ensure that the ranchers aren’t inconvenienced. That should be top priority for an animal welfare group.

By the way, this is the same Mitch Friedman who now exhorts us all to be respectful and civil about the killing of the Profanity Peak pack.

About Those Non-Lethal Measures

A couple of days after the decision to kill the Profanity Peak wolf pack was made, Robert Wielgus, of the Large Carnivore Lab at Washington State University, provided some surprising revelations.

“This livestock operator elected to put his livestock directly on top of their den site; we have pictures of cows swamping it, I just want people to know,” Wielgus said in an interview Thursday.

Evidently, the McIrvins deliberately introduced cattle directly into the den area for the Profanity Peak wolf pack.

The thing with cattle is they drive out most other animals in the area where they graze—they are inherently destructive of their surroundings. They decimate the plant life, damage the trees, churn up and damage the soil, and they muddy creeks and streams, as well as damage stream banks. Animals native to the land have no other choice but to leave.

Cause and effect: If all other prey animals are driven out, a wolf pack has little recourse but to hunt what animals remain. Though of course, they only do so for fun…not because they’re desperately trying to survive, and feed their young.

The Judas Wolves

The decision was made to kill the entire Profanity Peak wolf pack. All 6 adults and 5 cubs.

You know, wolves are hard to hunt. They’re intelligent and cunning. They know how to avoid hunters, even hunters using high-powered rifles from helicopters.

Helicopter and shooter

But the Profanity Peak pack was operating under a handicap: members of the pack were equipped with radio collars, allowing them to be tracked.

Such wolves are called “Judas wolves”because their presence is a threat to the entire pack. I don’t know what’s more disturbing: that we allow hunting of a species that’s so rare, we actually equip them with tracking collars that cost thousands of dollars; or that wolves with such collars have been hunted so much, we actually have a term for them.

Thanks to the radio collars, the 11 member Profanity Peak pack is down to five remaining members. And the hunt still continues.

No, Washington State is Not “Better”

The wolf welfare organizations mentioned earlier have been receiving a great deal of heat in their Facebook posts related to the Profanity Peak pack.

If HSUS had a post with the Profanity Peak statement, it’s since removed it. But a post still remains in Conservation Northwest, Defenders of Wildlife, and Wolf Haven International.  In one comment to their post, Defenders of Wildlife stated:

Washington state has made it a requirement that ranchers use multiple nonlethal methods to deter wolves before the state will even consider a lethal option. Once a depredation has occurred, the state also steps in to help ramp up the nonlethal measures, with the goal of exhausting every possible nonlethal option. It is certainly not a perfect plan, but far better than the “shoot first” approach some other states have. As a member of the Wolf Advisory Group, we hope to continue to help revise the state’s protocols to better protect wolves. (emp. added)

The consensus among these groups is that, while it’s sad that the Profanity Peak pack is being killed, Washington State is still better than other states that have no advisory board. Animal welfare and conservation groups have a seat at the table. They have a hand in the decisions. This is better.

It’s an intellectual response to an emotional event…and it’s dead wrong.

We should be reacting emotionally to this event. We should be outraged. All those who support wolves should be speaking with one voice.

This isn’t a few animals killed among many: this is the deliberate extermination of 11 members of a group of 90, in the entire state. The number of wolves in Washington is so low, claiming they’ve recovered borders on the ludicrous. The State pontificates about “recovery” of the wolves, and how they’re no longer endangered, but we’re only talking about 90 wolves.

No. Now we’re only talking about 80. Well, unless those four cubs survive, which is doubtful.

Washington State allows 32,000 heads of cattle to graze on public land, and it won’t cut even a small break for the 90 wolves currently in its borders. It isn’t “better” than Idaho or Wyoming. Its process isn’t superior, or more humane. The only difference between the states is optics.

Never Lose the Outrage

I had a strong scorched earth initial reaction to all of the animal welfare groups that issued such a passive, capitulating statement about the Profanity Peak wolves. I think there were some feelings of sowing salt into the ground at their feet, too.

I am calm enough today to know that ripping these organizations to shreds, while momentarily satisfying, doesn’t really address the problem. The problem is that our government doesn’t value us.

They value ranchers. They value farmers. They value hunters. They value people with guns. But they don’t value people who care about the animals just because the animals exist. In the great scheme of things, we’re expendable.  And so are the wolves.

Six cattle were supposedly killed and that’s enough to wipe out an entire wolf pack. By all that’s sane, this isn’t equitable, balanced, decent, humane, or right. Washington State, for all of its high-mindedness, is no better than Idaho or Alaska or any other state that advocates killing off wolves so ranchers, hunters, and farmers aren’t inconvenienced. Let’s lose this feel-good facade.

What also wasn’t right was the statement the Humane Society of the US, Conservation Northwest, Wolf Haven International, and Defenders of Wildlife made. They were profoundly wrong to urge restraint. They have allowed their participation in the Advisory Board to file down their teeth, blunt their claws, and to remove the only weapons they have to fight for real change.

Membership on the Board or not, they should have howled, as loud as the wolves howled before death. They should have said to all of us, “Don’t accept this! Fight this!”

They should have embraced outrage, instead of trying to damp it down. If they can’t be outraged and serve on the Board, then they have no place on this board. Or they have no place in the animal welfare movement.

I’m not ready to abandon the groups, but I’m not ready to embrace them, either. They screwed up.

Don’t accept this. Get in people’s faces. Be mad. Be vocal. Be loud. And if being loud means to hell with respectful and civil discourse, so be it.

Photos, public domain by US Fish & Wildlife

 

 

 

Koster’s Right to…collect large campaign contributions from big Agribusiness Interests

I was not surprised to read that Missouri’s Attorney General, Chris Koster, has come out in support of Amendment 1, the so-called Right to Farm Amendment. He used Missouri tax payer money to sue the state of California on behalf of a few large egg producers in the state. It’s pretty obvious that Mr. Koster is regretting that whole “I’m now a Democrat” thing, especially among the rural, large agribusiness types.

It must also sadden Mr. Koster to realize that the egg lawsuit isn’t doing all that well. California and other intervenor defendants moved to dismiss the lawsuit under the reasonable claim that Missouri can’t sue because it doesn’t have standing. States can sue, but only if a significant percentage of the population of the state is impacted by the lawsuit. I don’t work in the chicken or egg industry, and I have a strong suspicion neither does a significant number of other Missourians.

I strongly doubt the lawsuit will survive, and I believe Koster knows this, which is why he claims the costs will be less than $10,000. But it doesn’t matter in the end, because it makes Koster look real good to large agribusiness interests in the state. Large agribusiness interests that are known to donate big bucks to election campaigns.

Koster’s support for Amendment 1 is more of the same. You’d think a state Attorney General would know the costly, negative impacts from such a vaguely worded piece of legislation. Legal analysis has demonstrated that the Right to Farm Amendment is an awful piece of drivel that will clutter up an already cluttered up state Constitution and costs millions to defend in court. At best. At worst it can mire critical decisions in uncertainty and contentiousness.

But there you go, Koster supports Amendment 1, and he supports his ill-considered lawsuit against California. So does a new libertarian legal entity in Missouri called the Missouri Liberty Project. They filed an Amicus Curiae brief in opposition to California’s motion to dismiss. The group was founded by Joshua Hawley, and if you don’t recognize that name, he’s one of the lawyers who represented Hobby Lobby in its successful drive to get the Supreme Court to recognize that corporations can go to church on Sunday.

Josh Hawley’s name might also be familiar to those interested in the Amendment 1 vote, because Hawley wrote a piece in favor of the amendment, just before Nixon decided to put it to the vote in August instead of November. The piece contains the usual references to farming and how it hasn’t changed all that much since Jefferson’s time (just ignore those CAFOs with rivers of pink manure, and genetically altered corn implanted with some kind of bug DNA). According to him, all this innocent little Amendment will do is ensure that farmers can continue doing what farmers have been doing since the dawn of time.

But then he slips a little and writes:

Unfortunately, Missouri agriculture is under attack from government bureaucrats and outside interest groups that want to tie down farmers with burdensome regulations.

But, but…don’t all industries have to conform to one regulation or another? After all, we don’t allow oil companies to drill anywhere they want, nor can coal-fired utilities dump their waste into waters, putting wildlife, livestock, and people at risk—not without suffering consequences. Car makers have to ensure air bags inflate when they’re supposed to, planes really do need to stay in the air, and most of us just hate it when banks—or cable companies—rip us off.

Come to think of it, we’re not all that happy when we find out that rare beef hamburger we just ate comes with a generous dose of E.coli, or that the cow that supplies the milk the little ones drink can glow in the dark. And yeah, I don’t really want to eat the meat of a animal that’s so sick, some idiot in a fork lift has to lift her up to get her ready to be killed. It’s that whole, not wanting to die because I lost the luck of the draw in the food safety game, thing.

Then there’s that whole issue of clean water. I’ve seen some creeks and streams in Missouri that are so clear, you can see the fins on the tiny fish that inhabit them. I’d really hate to see these streams turned pink and murky, and all those cute little fish killed off before they have a chance to develop into nice big trout.

Though I live in the city, I’m also sympathetic to the small, organic farmer, fighting to keep pesticide off his or her field, and the country home dweller who once lived next to a corn field, only to wake up to 5,000 hogs the next day. Right next door.

And yeah, I like puppies. I like dogs, cats, horses, elephants, bats, bees, deer, and whole host of critters. I hate to think of any of them suffering or dying unnecessarily because of greed, stupidity, and cruelty. True, some animals we make into pets, some we eat, and some we leave alone, but that doesn’t mean any of them deserve abuse. I’d like to think we humans are better than that.

Regulations may sound scary, but they ensure we all have at least a fighting chance for a decent life. And a fighting chance to be decent human beings.

Amendment 1 isn’t about outside interest groups—it’s about people who live here, in Missouri. It’s about our interests, our concerns, and our responsibilities. Right to Farm sounds innocent, but it’s a backdoor method to undermine every county, city, and state-based regulation that impacts on anything even remotely related to agriculture. And it’s a way of making it almost impossible to adapt our laws to new information, new concerns, and new discoveries. It permanently enshrines the worst of behavior into the State Constitution for one single industry.

I’m thankful that Josh Hawley at least had the decency to come out and say that Amendment 1 is about undermining state and other regulations. That’s more than you’ll get from Chris Koster.

After reading all this, do you still think it’s all about the farmers? How’s this then: Go move a mile down river from a CAFO with 5,000 hogs and then tell me you’re going to vote for Amendment 1. Just be careful not to step in the pink stuff on your way to the poll.

Responding to Charity Navigator’s DA on the Humane Society of the United States

I was sent a link to a story and asked if it was true. The story noted that Charity Navigator, the charity watch dog group, had attached a Donor Advisory to the Humane Society of the United State’s listing, specifically because of the lawsuits related to the Ringling Brothers circus.

I was astonished. A donor advisory because of a single Endangered Species Act lawsuit? Many nonprofits are involved in lawsuits as they work to achieve the goals that are part of their underlying mission. I have a hefty annual PACER (federal court document system) fee because of the documents I download for the numerous environmental and animal welfare cases I follow—and I’m only following a tiny fraction of the cases I’d really like to follow.

Was the Donor Advisory given because the animal welfare groups lost the case? I would hope not, because penalizing nonprofits for taking a chance in court would have a chilling effect on their ability to do their work.

Was the Advisory given, then, because they also entered into a settlement for attorney fees? That seems to be more likely, especially considering the hefty size of the attorney fee settlement ($15 million). However, that a single incident related to a single court case would override 60 years of history in the Charity Navigator’s decision seemed both capricious and arbitrary. If civil lawsuits were not part of the arsenal of the organization, or if HSUS was in the habit of losing these cases and having to pay hefty attorney fees on a regular basis, then I think it would give most people pause before donating—but a single instance? Frankly, my first reaction was, “Well, aren’t you the precious.”

Charity Navigator also referenced the fact that Ringling Brothers filed a counter-lawsuit against the animal welfare organizations based on RICO—the Racketeering law. The reference to RICO does sound serious, if it weren’t for the fact that because of the RICO law’s overly loose design, and due to the Supreme Court’s over-reliance on the “intent” of Congress when passing the law, RICO’s purpose has been badly muddied over the years. Now, rather than go after the Mafia or sophisticated white-collar criminal networks, RICO has become a highly tempting tool in corporate America’s tool belt, especially after the recent findings in the Chevron RICO lawsuit related to the earlier lawsuit brought by poor Ecuadorians against the oil company for environmental damage to their lands.

Regardless, neither lawsuit—the original Endangered Species Act lawsuit brought by the animal welfare groups (not including HSUS), or the RICO case—ever reached a decision on the merits. The former was dismissed because of lack of standing, and the second never went to trial. As part of the attorney fee settlement, Feld Entertainment (parent company for the circus) agreed to dismiss the RICO lawsuit. The fact that the corporation filed a complaint should be seen as irrelevant and not figure into any agency’s determination of whether the organizations involved are sound or not. Not unless Charity Navigator believes that all one has to do is file a complaint in court and it’s automatically taken as true.

Charity Navigator noted the reasons why the Judge dismissed the ESA case for lack of standing, though the agency’s understanding of the legal documents and associated time line of all the events are equally confused and inaccurate. For one, the agency stated that Feld filed the RICO lawsuit after the ESA case was decided. Feld originally filed the RICO lawsuit in 2007 when Judge Sullivan denied the company’s request to amend its answer and assert a RICO counter-claim. The new lawsuit was stayed until the ESA case was decided in 2009, and Feld amended its original complaint in 2010, when the RICO case started up again.

I wanted to pull out part of the memorandum Judge Sullivan wrote in 2007 when he rejected Feld Entertainment’s request to amend their answer (leading to the RICO lawsuit). It relates to Feld’s implication that the animal welfare groups were involved in a complex and corrupt scheme to pay their co-plaintiff, Tom Rider that the company lawyers claimed they didn’t know about until 2006.

Finally, the Court cannot ignore the fact that defendant has been aware that plaintiff Tom Rider has been receiving payments from the plaintiff organizations for more than two years. Although defendant alleges an “elaborate cover-up” that prevented it from becoming “fully aware of the extent, mechanics, and purpose of the payment scheme until at least June 30, 2006,” Def.’s Mot. to Amend at 4, such a statement ignores the evidence in this case that was available to defendant before June 30, 2006 and does not excuse defendant’s delay from June 30 forward. Plaintiffs’ counsel admitted in open court on September 16, 2005 that the plaintiff organizations provided grants to Tom Rider to “speak out about what really happened” when he worked at the circus.

In other words, Feld’s lawyers found out about the “elaborate scheme” to fund Tom Rider, because the animal welfare groups mentioned funding Tom Rider during a court hearing in 2005.

As for that funding, it is true that the animal welfare groups paid Tom Rider about $190,000 over close to ten years. However, what isn’t noted is that some of that “money” wasn’t money at all. Rider was given a computer, a cell phone to keep in contact with the groups, a used van so he could travel around the country speaking out about the trial and his experiences with the circus, and various other goods. The groups also provided IRS forms for years 2000 through 2006 for Rider. When I added up the income for these years, it came to $152,176.00. However, after all of Tom Rider’s expenses were deducted, over the seven years he “took home” a total of $12,582, for an average of $149.78 a month. That’s to pay for all of his personal expenses—including a cheap dark blue polyester suit and equally cheap white shirt and tie he wore to the trial. (Tom Rider must have stood out for the plainness of his garb when next to Feld Entertainment’s $825.00 an hour DC lawyers during the trial.)

Among the small selection of oddly one-sided court documents that Charity Navigator linked, another was the Judge Sullivan decision denying the animal welfare group’s motion to dismiss the RICO case. What stands out in this document is a reference to the original Judge Sullivan decision, specifically a comment about the Rider funding:

The Court further found that the ESA plaintiffs had been “less than forthcoming about the extent of the payments to Mr. Rider.”

I compare this statement with Sullivan’s statement I quoted earlier, wherein Sullivan denied Feld’s request to amend its complaint because of the supposed underhanded and secret funding—an assertion that Sullivan rejected in 2007. The newer constradictory 2009 statement was just one of the many inconsistencies in Judge Sullivan’s decisions over the years related to these two cases.

But the last issue that Charity Navigator seemed to fixate on was Feld’s attempt to get confidential donor lists from the animal welfare groups. I’ve written about this request, and my great disappointment in Judge Facciola’s decision to grant the request.

Nothing will ever convince me this wasn’t a bad decision, with the potential to set an extremely bad precedent. Even when the discovery was limited primarily to those people who attended a single event, it’s appalling that a confidential donor lists can be given to a corporation who represents everything the donors loath and disdain—and a corporation with a particularly bad record when it comes to dealing with animal welfare groups and other people—not to mention its abysmal record when it comes to its animal acts.

The animal welfare groups settled because when you have a billionaire throwing $825.00 an hour lawyers at a case, and said billionaire doesn’t care how much it costs to win, it didn’t make sense to continue fighting a fight that was already stacked against them. When Judge Sullivan ruled on the ESA case, he should have recused himself in the RICO case, because to rule favorably for the animal welfare groups in the RICO case would be to say he was inherently mistaken in many of his assertions in the ESA case. When he turned the case over to the Magistrate Judge, Judge Facciola should have exercised independent thinking rather than just continue to parrot Judge Sullivan. In light of this judicial bias, and the fact that the groups would continue to spend way too much money fighting a lawsuit that the other side would deliberately stretch out as long as it possibly could, keeping up the fight was a lose-lose situation.

Top all that with the threat to the anonymity of their donors, and the groups settled. Point of fact, if they settled specifically to protect their donors, more power to them. They should be commended for doing so, not punished.

What’s ironic is in my original posts on the donor list request, I noted that if the animal welfare groups had to give these lists out, it would most likely impact on their ratings in sites such as Charity Navigator. Never in my wildest dreams did I expect that Charity Navigator would give a donor advisory to the groups just because a judge ordered that the list be provided, not that they were provided. The groups had planned on appealing this ruling before they settled, and frankly, I think they had a good chance of winning the appeal. But the very fact that a no longer existing possibility of an event is enough to trigger a donor advisory leaves me to wonder how many more innocent nonprofits will be labeled with a donor advisory just because someone sent in a newspaper article about the possibility of an event?

Kenneth Feld’s $825.00 an hour lead attorney, John Simpson, was recently interviewed for a legal publication. In it, he spoke about the donor list;

They didn’t want a situation where I’m taking the deposition of some donor asking — if you knew they were going to take this money to pay a witness, would you have given this donation?” Simpson said. “I don’t think they wanted that kind of discovery to take place. Some people might have made the donation anyway. But most of these people would have said — no, I wouldn’t have done that. And you would have been in the middle of their donor relations and potentially cutting off their donations in the future.”

In actuality, the one fund raiser that was at issue in the donor list request did specifically state that the money was for the lawsuit, and other requests for funds specifically stated the money was for Tom Rider’s media campaign. In addition, there is a legitimate concern about what would happen to individuals put into an intimidating situation by a high priced, DC powerhouse attorney. Mr. Simpson has a way of asking questions in depositions, and then subsequently paraphrasing the responses so that even the most innocent and naive utteranceseems dark, and dastardly. It was unfortunate that Judge Sullivan allowed his scarcely concealed disdain for Tom Rider to lead him to basically accept whatever Feld’s lawyers said, even though the animal welfare groups presented solid arguments in defense.

Lastly, Charity Navigator linked an article in the Washington Examiner, as if this was further evidence of good reasoning for the donor advisory. Might as well link Fox News as a character reference for the EPA, or The Daily Caller as a reasoned source of news for President Obama.

Just because something shows up in a publication online does not make what’s stated truth, or even reliable opinion. That a charity watch dog would link a publication known for its political and social bias, as some form of justification for a decision only undermines its own credibility. Yes, the HSUS and the FFA are involved in lawsuits with a couple of insurance companies regarding their liability coverage. As noted, though, it’s common for insurance companies to deny claims of liability when it comes to litigation fees. Kenneth Feld, himself, is involved in a lawsuit with his insurance company about it not wanting to pay those $825.00 an hour fees for Feld’s attorneys in the lawsuit with his sister.

However, there were several insurance companies involved with the groups and this court case. One way or another most, if not all, of the attorney fee settlement will be paid by one or more insurance companies.

An interesting side note about the insurance company lawsuits is the fact that the Humane Society’s lawsuit is being handled in federal court, while the Fund For Animals lawsuit is being managed in the Maryland state court system. This disproves one Feld Entertainment claim that HSUS and FFA are one organization (and hence, justifying Feld’s dragging HSUS into the lawsuit). The reason for the lawsuit split is that FFA is a Maryland corporation, while HSUS is not, and the insurance company was able to argue that it could move the HSUS case to the federal level because of jurisdictional diversity. Nothing more succinctly demonstrates that FFA and HSUS are not the same corporate organization. Yet HSUS has received a donor advisory for a lawsuit it was never involved in. FFA was involved in the ESA suit, but not HSUS.

There is so much to this case, too much to cover in a single writing, but I did want to touch on the major points given by Charity Navigator in its donor advisory. Will the advisory hurt an organization like HSUS? Unlikely. The Humane Society of the United States is one of the older, more established, and largest animal welfare organizations in the country. Its charity ratings to this point have been excellent. A reputable organization like the BBB lists it as an accredited charity, and one only has to do a quick search online to see that it is currently involved in many different animal welfare efforts across the country—from rescuing animals in North Carolina to defending American burros. If people donate or not to the organization it won’t be because of Charity Navigator’s listing, because most people wouldn’t need Charity Navigator to learn more about the HSUS.

But such donor advisories could negatively impact on lesser known, smaller charities. I hope that when Charity Navigator issues such a drastic warning from this day on, it does so based on a foundation that is a little less arbitrary, and much less capricious, than the one they used for HSUS and the other animal welfare groups involved in this court case.

Animal welfare groups settle with Feld Entertainment

Last update

I’ve had a day to get over the shock at the settlement amount.

All of the statements by the animal welfare folk I posted links to make logical sense. And believe it or not, once I got over the shock at the amount of the settlement, I wasn’t necessarily against a settlement in the ESA attorney fee battle—though, I believed it was important to continue the fight in the RICO case. What I had expected was a settlement closer to the amount given in the original animal welfare attorney fee reply—about five million.

This amount would have been a loss for the groups, yes, but it wouldn’t have been such a PR bonanza for Feld. The larger amount, though…that’s going to cut deep, and not just in a monetary sense.

Regardless of what I’ve said today, I am not mad at the groups. I am profoundly disappointed, which, in some ways, is worse.

This settlement has ramifications beyond just the animal welfare groups and the fight for circus elephants. Corporations have started using RICO as a weapon against nonprofits, and what the corporations now see is that nonprofits won’t even stay around to fight a RICO case when one is brought. No matter the “logic” or the legal arguments—and, most likely, the insurance company demands—the harmful consequences of this settlement will have a disturbing and lasting effect.

I have said I won’t finish my original book, and this is true. That book is dead. That book was based on a heroic battle against all odds. I guess, in a way, it was a book of fiction because in our courts and in our philosophical equivalencies, there is no room for heroes.

But I am still going to write something about these cases. I have so much of the history, have spent so much time in research and among court documents. I am going to write something—I’m just not sure what, and I’m not sure when.

second update

Other statements:

From firm of Meyer Glitzenstein & Crystal the animal welfare attorneys in the original Endangered Species Act lawsuit.

From the Animal Welfare Institute.

From Wayne Pacelle, President of the Humane Society of the US.

update The Humane Society of the United State has issued a statement. No donor money is going to Feld, the insurance companies that provide liability insurance for the animal welfare groups are most likely paying the costs.

Does this statement make this settlement better?

No.

earlier After all the years following this court case, what I didn’t expect was for the animal welfare groups to basically capitulate to Feld Entertainment.

They agreed to a $15.7 million dollar settlement. Combined with the previous $9.3 million settlement by the ASPCA and Feld Entertainment actually made a profit on this court case.

And oh, how Feld is crowing about it today.

“After winning 14 years of litigation, Feld Entertainment has been vindicated. This case was a colossal abuse of the justice system in which the animal rights groups and their lawyers apparently believed the ends justified the means. It also marks the first time in U.S. history where a defendant in an Endangered Species Act case was found entitled to recover attorneys’ fees against the plaintiffs due to the Court’s finding of frivolous, vexatious and unreasonable litigation,” said Feld Entertainment’s legal counsel in this matter, John Simpson, a partner with Norton Rose Fulbright’s Washington, D.C., office. “The total settlement amounts represent recovery of 100 percent of the legal fees Feld Entertainment incurred in defending against the ESA lawsuit.”

Justice was not served in this case, or with this payment. It’s difficult to see how we can trust any of these animal welfare groups to stay the course with any new litigation or other effort after this settlement.

I had originally planned on writing about this case. I have close to three years of research into these two legal cases. Thousands of dollars of PACER fees, too.

But what good is telling the story when it ends with, “…and the animal welfare groups, tails between their legs, slunk off into the sunset”?

And what of the battle for the circus elephants? Though this settlement doesn’t change the facts—that the life for circus elephants is miserable—how can we continue this fight, when every time we open our mouths, this settlement will get shoved into our faces?

I guess we’ll see what the future holds. I do know, Justice was not served in this case.