(CN) - Though it has failed to go after bird abusers or regulate avian mistreatment, the government cannot be sued because of agency discretion, a federal judge ruled.
Animal defenders have been waiting over 10 years for the U.S. Department of Agriculture to follow through on its obligation under the 2002 amendment of the Animal Welfare Act to end the inhumane treatment of birds.
People for the Ethical Treatment of Animals sued the agency and USDA secretary Thomas Vilsack this past June for an injunction under the Administrative Procedures Act.
It claimed the regulatory delays had led to incidents such as feral dogs attacking flamingoes and waterfowl, and pet stores that allow parakeets to die from starvation and disease. In both cases, the USDA has allegedly failed to take action.
Though U.S. District Judge James Boasberg agreed Monday that the USDA has dragged its feet, he nevertheless dismissed the action for failure to state a claim.
The Animal Welfare Act gives the agency complete discretion regarding regulations and the subsequent enforcement of such rules, according to the ruling in Washington, D.C.
"The court concludes that PETA's enforcement-related claim must fail," Boasberg said. "To the extent that it is a challenge to individual decisions by USDA not to enforce the AWA with respect to particular avian incidents, those decisions are unreviewable because they are 'committed to agency discretion by law.' To the extent that it is a challenge to USDA's 'general enforcement policy' with respect to birds, PETA has not identified any concrete statement of that policy for the court to review."
PETA sent a statement noting that "countless birds in roadside zoos across the country are languishing in conditions that plainly violate the federal Animal Welfare Act - they are denied adequate veterinary care; forced to live in cramped, filthy enclosures; denied clean drinking water; and more."
"PETA has uncovered and urged the U.S. Department of Agriculture to investigate indisputable violations of federal law - including the neglect at one facility alone that resulted in the deaths of hundreds of birds from starvation and parasite infestation - which it has refused," the group said in a statement. "PETA will continue to work to ensure that these birds receive the legal protection to which they are entitled and will pressure the government until it does its job."
Judge Boasberg found, however, that any obligation an agency might face to issue regulations does not require it to act immediately.
"The fact that USDA believes that it must contemplate, and eventually adopt, bird-specific regulations does not mean that the agency has concluded that those regulations are essential as of this moment; in the meantime, the agency might believe that the general animal-welfare regulations will do just fine," he wrote.
PETA additionally cannot base a lawsuit on things the Department of Agriculture publicly mentions it might do, the judge found.
"PETA cites no authority for the proposition that USDA's public statements can create binding obligations on the agency, enforceable under § 706(1)" of the APA, Boasberg wrote. "On the contrary, the Supreme Court has indicated that 'a statement by [an agency] about what it plans to do, at some point, provided it has the funds and there are not more pressing priorities, cannot be plucked out of context and made a basis for suit under § 706(1)."
Though Boasberg dismissed the suit on that basis, he found that PETA did have standing.
"It is clear that the injuries complained of ... are caused by the agency," he wrote.
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