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Critters

Horses in the Oven: The USDA is not the Enemy

Today, Judge Armijo will hold a status conference with all the lawyers in the Front Range Equine Rescue et al v. Vilsack et al court case.

The USDA and defendant interveners have asked for an expedited hearing on the merits of the case, rather than go through the preliminary injunction process. The plaintiffs have agreed, but have also asked the Judge to modify her Temporary Restraining Order (TRO) so that it’s impacting on the USDA only, and not the two meat processing plants who have been given a horse slaughter inspection permit. The groups have also asked for a bond reduction, as the bond amount is excessive for a NEPA action.

Several in the horse welfare movement are up in arms about the government’s request—thinking that the government is trying to ram through a court decision. That’s not happening, and I’m concerned there’s a hostility towards the USDA that isn’t warranted. At least not in this case. I think much of this hostility is due to the fact that there’s as much rumor as fact surrounding the case. I’m not a lawyer, but I have been following other, similar court cases, so I’m going to take a shot at laying out the facts in the case. If I make a mistake in my understanding, please let me know.

The plaintiffs based the lawsuit on the Administrative Procedures Act (APA) and the National Environmental Policy Act (NEPA). Basically, what’s happened is the USDA has made a decision to begin inspections at horse slaughter facilities. The plaintiffs assert this agency decision causes them harm. They have exhausted all other efforts to seek redress for this harm, and seek a remedy in court. According to the amended complaint, “The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”), provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

What is the legal wrong? That’s where NEPA comes in. The legal wrong is that the USDA did not perform an environmental analysis of the possible negative consequences of its decision to issue horse slaughter inspections; did not provide a statement of such an analysis; and did not provide opportunity for the public to comment on the potentially negative consequences of the agency’s action. Returning to the amended complaint, “Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance of procedure required by law.”

Considering the negative environmental consequences of horse slaughter plants in the past, the plaintiffs should be able to establish standing. To sue, the plaintiffs have to establish that they have a stake in the outcome of the court case, that they have suffered a legal injury by action of the defendant, and that the court can redress this injury. Among the plaintiffs are people who live in the immediate vicinity of these plants, and who can, and most likely will, be impacted by the operation of these plants. These people are members of the Humane Society of the United States (HSUS), who is participating in the suit on their behalf.

In addition to the HSUS and other plaintiffs, the State of New Mexico has been granted leave to intervene on the side of the plaintiffs in the case. In its memorandum in support of its intervention, the Attorney General for the state writes:

New Mexico has a legal interest in its sovereign right to regulate land, air and water quality within its borders within the parameters of federal law. The impacts of Valley Meat’s
proposed horse slaughter operation, particularly its disposal of carcasses and other wastes, on the environment and public health are subject to regulation by the New Mexico Environment Department and the New Mexico Department of Health. Moreover, federal laws, such as the Clean Water Act and the Clean Air Act, allow states to regulate and enforce their own environmental quality programs, so long as such programs are approved by the federal government.

Since the meat processing plants have processed beef in the past, some may question why there’s concern about horse meat, but not about beef. Well, the major difference, as noted by the Judge in her TRO, is that horses, unlike cows, are primarily companion animals. As such, *companion animals are given drugs strictly forbidden to food animals. These drugs can not only lead to dangerously adulterated meat (which New Mexico does not want sold from the state), they can also enter into the ground, and into the waterways surrounding the plants. These drugs could impact on the health and safety of the people surrounding the plant, as well as potentially impacting negatively on other food products. The state, as guardian for land and water for New Mexico, will also incur added expense ensuring these drugs do not contaminate the land and the water. I’m actually astonished other potentially impacted states have also not sought to intervene, for this same reason.

According to Judge Armijo’s decision:

Turning to the grants of inspection, as previously stated, the grants of inspection were based, in relevant part, on the existence of the FSIS Directive to protect the public health and safety. The Court is not persuaded that the grants of inspection would have been issued in the absence of this Directive, the express purpose of which was to protect the public health and safety from the unique chemical residues possibly present in equines. Although the Court must afford deference to the FSIS’s actions, the Court does not find credible the Federal Defendants’ assertions that the grants of inspection would have been issued in the absence of the Directive given the express purpose of the Directive to protect the public health and safety and given the fact that FSIS specifically incorporated the Directive into their grants of inspection. The Court therefore concludes that Plaintiffs have established a substantial likelihood of success on the merits of their NEPA and APA claims challenging the grants of inspection.

Now, returning to the issue of an expedited hearing. The USDA did not ask for this because it’s a bad ass or meanie. It did so, because once it submitted the Administrative Record relevant to its decision to begin horse meat plant inspections, all the relevant facts pertinent to the case are now available to the judge. Some of the defendant intervenors had requests for discovery, but these really aren’t relevant for an APA case (as the plaintiffs’ lawyer, Bruce Wagman, noted).

(Note, I have a FOIA into the USDA to get a copy of the documents linked in the Administrative Record Index. When I get copies, I’ll post at my Documents web site.)

The plaintiffs concur with the request for an expedited hearing, as long as their motion for re-wording the TRO and a reconsideration of the bond amount are considered. I imagine these will be discussed in today’s Status hearing.

The point is, the facts are in, the arguments have been made, and are being made, and the Judge will have what she needs to make a decision sooner, rather than later. This is better for everyone. An expedited hearing doesn’t strengthen the USDA’s case, or undermine the animal welfare folks case. Point of fact, based on precedent and argument, it’s highly likely the plaintiffs will win this case. I would be extremely surprised if they didn’t.

So the USDA is not the bad guy in this.When Congress reinstated horse meat inspection funding, the USDA had no choice but to begin the process to issue horse meat inspection permits. When Valley Meat et al sued the USDA to begin issuing permits, it had no choice but to hasten its deliberations (and skip NEPA in the process). And the USDA has no choice when it comes to arguing this case in court to the best of its ability, or to work for an expedited decision, as responsible representatives of the citizens of the country, as well as the agency tasked with enforcing the laws passed by Congress.

If the plaintiffs succeed, then the permits will be on hold while the USDA fulfills its NEPA responsibilities. While this is happening, those of us who do not support slaughtering horses for meat, have an opportunity to permanently ban horse meat slaughter, and the transport of horses for horse meat slaughter, by supporting the SAFE Act.

Front Range Equine Rescue et al v. Vilsack et al court documents

*More on this in a companion article, Eating Flicka: A Good Idea?

Categories
Documents Legal, Laws, and Regs

No Appeal on PACER Fee Exemption Decision

Courthouse News Service posted a story about journalists losing a court case on PACER fees. The journalists were from a non-profit organization, which can usually apply for a PACER fee exemption. However, they’re also journalists, and a new policy note attached to the 2013 fee schedule change warned against fee exemptions for journalists.

The note states:

Courts may exempt certain persons or classes of persons from payment of the user access fee. Examples of individuals and groups that a court may consider exempting include: indigents, bankruptcy case trustees, pro bono attorneys, pro bono alternative dispute resolution neutrals, Section 501(c)(3) not-for-profit organizations, and individual researchers associated with educational institutions. Courts should not, however, exempt individuals or groups that have the ability to pay the statutorily established access fee. Examples of individuals and groups that a court should not exempt include: local, state or federal government agencies, members of the media, privately paid attorneys or others who have the ability to pay the fee. [emph. added]

Unfortunately, the note is making a rather dated assumption that all journalists work for the Washington Post, when in actuality, many journalists work for small nonprofits who don’t have a great deal of cash on hand.

Problems with fee exemption language aside, what stood out in this case was the court’s aside on the fact that there really is no way for an individual or organization to appeal a PACER fee decision. As Judge O’Scannlain noted at the beginning of his opinion:

I write individually to acknowledge “the elephant in the room”: to whom does one go for review when an application for an exemption from PACER fees has been denied?

Yes, indeed: who do we go to when appealing a PACER fee exemption decision? Considering how expensive PACER is, and how the costs can quickly escalate because of arbitrary charging for almost all activity, entities can find it extremely expensive to access court documents via the application. Yet many of the entities serve the needs of the community when accessing the documents, and do so without generating a profit. So, where do these entities go when a fee exemption decision doesn’t go their way?

Evidently, as things now stand, nowhere. At the end of O’Scannlain’s opinion, he wrote:

PACER fee determinations are just one of the “increasing numbers of administrative responsibilities” being assigned to district courts “that are not subject to review by appeal.”….

Because (as the opinion discusses) there is “no right of formal appeal” to contest the amount of a Criminal Justice Act fee award, Congress decided to create an administrative “review process separate from the traditional right of appeal.” In re Smith, 586 F.3d 1169, 1173 (9th Cir. 2009) (explaining that “excess fees must be approved both by the presiding judge and the chief circuit judge or his delegate”).

Assuming ordinary PACER-fee determinations are not reviewable by the judiciary’s administrative apparatus, it will be up to Congress to decide whether to fashion an appellate review mechanism, or whether to leave them within the exclusive purview of district courts.

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Documents

Is Your Web Site Popular Enough to Deserve a FOIA Fee Waiver?

Another great resource for finding court documents related to interesting and/or important court cases is the Courthouse News Service. Thanks to it, I discovered two separate court decisions about fee waivers for PACER and FOIA requests. I’ll talk about the FOIA case in this writing, and cover the PACER decision in a follow up.

In the first decision, Judge Emmet Sullivan ruled that a non-profit organization was not eligible for a fee waiver for a FOIA request, because, bluntly, it wasn’t popular enough. Or, to be more exact, the plaintiff, Cause of Action, couldn’t demonstrate a capability of disseminating the acquired information to enough people to justify the government absorbing the expense of meeting the FOIA request.

In the decision, Judge Sullivan wrote:

To show the requested information would increase understanding of the public at large, Plaintiff must demonstrate “in detailed and non-conclusory terms,” that it has the intent and ability to effectively convey the information to a broad segment of the public and therefore, the FTC, as surrogate for the public, should foot the bill for a fee waiver…Although requestors are not required to explain their dissemination plan with “pointless specificity” to satisfy this element, they must identify several methods of disseminating the information and provide some concrete basis upon which the agency can conclude that those methods are adequate to convey the requested information to a wide audience.

By law, we have access to certain government information via the Freedom of Information Act, but obtaining this information can be resource intensive for the government agency meeting the demand, and costly to the entity making the demand. In order to ensure as open an access as possible, the Freedom of Information Act includes provisions for fee waivers.

Whether an entity is charged a fee or not is based on a determination: fees are waived “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester”. People and organizations can ask to have fees waived, but they need to meet the two primary tests: that the requested information contributes to the public knowledge about how the government operates, and the requester doesn’t want the information for primarily commercial reasons.

Once an entity has proved it doesn’t plan on using the information for commercial purposes, then the fun part starts. To establish the public interest component, the government agency applies a 4-factor test to determine if the fees may be waived.

In Judge Sullivan’s decision:

First, requestors must demonstrate that the information they seek concerns the operations or activities of government. Second, they must demonstrate that the disclosure is likely to contribute to an understanding of the operations or activities of government. Third, they must show that the disclosure will contribute to an understanding of the subject by the public at large. Fourth, they must demonstrate that the information will contribute significantly to such understanding.

The court case decision encompassed three separate FOIA requests.

In the first request, Cause of Action was able to successfully “pass” the first, second, and fourth tests, but failed in the third.

Throughout its voluminous correspondence with the FTC regarding its first FOIA request, it identified only two methods of dissemination, which it discussed only in footnotes: its website and articles published by news media that have relied upon COA’s past work on other issues…Plaintiff did not provide any estimate of the number of people likely to view its website, nor did it demonstrate other ways in which it would disseminate the information itself, without relying on another source. Id. And although COA provided a string cite of articles authored and published by other outlets as a result of its past efforts to gather information on other topics, it specified no organizations which would disseminate this information.

Another fee waiver request was denied because it failed the third and fourth tests.

The Court finds that Plaintiff did not satisfy this third element for the same reasons that Plaintiff did not satisfy this third element for its first request: COA did not specifically
demonstrate its intent and ability to disseminate the requested information to the public. Regardless of whether or not the website was functional, Plaintiff made no attempt to explain how many people likely view its website and thus would likely view the requested information…Plaintiff has also not satisfied the fourth element of the test and shown that the information would significantly contribute to public understanding. Because the primary beneficiary of the requested information is Plaintiff, the information is not likely to significantly contribute to public understanding.

This decision concerns me because I do make FOIA requests, and then use the information in articles I publish primarily at my web sites. I also post the raw data online, here at Documents at Burningbird. I’ve not been charged, yet, for any of my FOIA requests; thankfully, because I have limited funds and if the charges are too high, I would have to abandon the FOIA request.

Do I now have to be concerned about the popularity of my sites before I make a fee request? If so, what is the threshold for popularity? And how do I demonstrate that I meet this threshold? Do I need to provide screenshots of my web page statistics? Is there some W rating, similar to the infamous Q rating, I must meet in order to be deemed sufficiently popular enough to justify the fee waiver?

Do I have to appear on radio or television in addition to the Web? Must I be a guest on the Daily Show in order to demonstrate my viability as a medium of information dissemination?

In addition to the ambiguity associated with determining which entity does, and does not, have the ability to disseminate information broadly enough, both the agency receiving the FOIA request—the FTC— and Judge Sullivan demonstrated a breathless lack of understanding about web technologies. True, Cause of Action didn’t help itself by not having a web site online at the time it made its requests. But if it did, it would most likely share one thing in common with my web site: the fact that its web pages are accessed by search engine bots that then incorporate what they find into search results in tools such as Google.

Is Google, then, sufficiently popular?

Open Google in your browser. Search for the court case, “Front Range Equine Rescue et al v. Vilsack et al”. Now, have I sufficiently demonstrated my ability to broadly disseminate information?

And what does it mean, to “disseminate information”? Evidently, it has something to do with the purpose and format of making the information available, in addition to breadth of delivery. Judge Sullivan stated the following in regards to Cause of Action’s request for fee waiver as representatives of news media:

Upon review of the administrative record, the Court finds Plaintiff did not satisfy the third element of the news media requestor definition. First, Plaintiff has not specifically demonstrated its intent and ability to disseminate the requested information to the public rather than merely make it available [emph added]. In EPIC, the requestor satisfied this element by indicating that its newsletter reached 15,000 readers and had been published every two weeks for the past eight years…Second, the administrative record does not show that Plaintiff’s activities are organized especially around dissemination. For a “representative of the news media” fee waiver request, the requestor should be identified by its activities rather than by its description

Here at Documents at Burningbird, am I making information available, or disseminating information? Must I have a newsletter, or is posting links for writings to Twitter, Facebook, and Google+ sufficient?

The Freedom of Information Act was created in order to ensure transparency in government. Though we shouldn’t encourage frivolous FOIA requests, nor insist that government agencies drop their other needed work in order to fulfill FOIA requests (or go broke trying to meet overly broad FOIA requests), when a legitimate, targeted request is submitted by an entity, we shouldn’t demand that the entity meet some arbitrary level of popularity in order to determine whether the fee should be waived or not. Neither should the entity arbitrarily be forced into supporting multiple media in order to justify fee waiver requests.

What we can take away from Judge Sullivan’s decision is that we do make a FOIA request, we’ll have to be even more cautious in how we word a request for fee waivers. We’ll need to demonstrate not only that the information is in the public interest, but also provide details in how we’ll ensure public access to the information. We’ll also need to, somehow, convey the purpose of the information access—that we’re disseminating the information rather than just making it available, especially if we’re representing ourselves as part of the news media.

(If I’m not part of the news media, can I just make it available? Am I hurting my FOIA fee waiver requests by having a site like Documents at Burningbird?)

Unfortunately, the difficulty we face composing fee waiver requests is compounded by the fact that the different agencies apply different “standards” when determining fee waiver eligibility, with some being quite open to the requests (USDA and generally the EPA), and others being less so (the FTC). Our efforts also aren’t assisted by judicial decisions that don’t reflect understandings about current technologies.

Categories
Documents Legal, Laws, and Regs

Another excellent court resource: Justia

I was reminded of another valuable resource for accessing court documents: Justia. I’ve used the site many a time, and it’s helped me discover cases related to one entity or another more than once.

You can search for a court case for free at Justia, and once you’ve found the case, you can then directly access the PACER court documents from the returned result. Using Justia you can save on the dime-a-page query forms that PACER provides.

As an example, when I searched on “Front Range Equine Rescue” and New Mexico, I found the listing for the court case I’m currently following related to horse meat plants and USDA inspections that has been on fire with activity today. Yes, I still need to use PACER to access the docket and court cases, but I’ve saved from a dime to a dollar just finding the case.

Hey, every penny counts.

Categories
Documents Legal, Laws, and Regs

Front Range Equine Rescue vs. USDA on allowing horse slaughter: Update

This court case has been on fire today. Several new filings, all related to the recent motion by the plaintiffs to re-word the TRO (Temporary Restraining Order) and bond amount. The judge gave the defendant USDA and interveners until noon today to respond.

I’m re-doing the docket sheet for the case, and will post it and links to all downloaded court documents later. I’m also writing a follow up article on the case at Burningbird web site. For now, though: links to today’s filings.

Motion against filed by Responsible Transportation

Motion against filed by International Equine Business Association and a pack of other people and groups.

Declaration by Ricardo De Los Santos

Motion against by the USDA

Motion against filed by Valley Meat Company et al

Memo in support by the State of New Mexico

There are associated attachments, too, but this should be enough to keep folks busy.