APHIS Lawsuit Update: Response to Motion to Intervene

On the afternoon of January 13, 2014, our Response to the HSUS Motion to Intervene as a Defendant in the Lawsuit was filed. (A copy of our Response will be posted on the KODA Website.) A summary of key quotes set out in our Response is as follows:

1. The HSUS “does not have standing to intervene (as a defendant) in this case.”
2. The “USDA is capable of defending without the intervention of the HSUS.”
3. The “Plaintiffs’ challenge will not cause the HSUS ‘immediate and concrete harm.'”
4. “HSUS presents no evidence that either of its examples involved members of any of the 42 Plaintiffs.”
5. The “HSUS has not identified a single “so-called puppy mill” among the 19,000 small-scale dog and cat hobby breeder who comprised the membership of the forty-two Plaintiffs.”
6. The “HSUS has not offered a single fact to support intervention to prevent Plaintiffs from setting aside the Rule based on the substantial, detrimental effects it has on their activities as small-scale dog and cat hobby breeders.”
7. “In other words, the newly promulgated Rule saves the HSUS money, enables the HSUS to be more efficient in gathering information, and gives HSUS additional traction in its lobbying efforts, which is what it does.”
8. “Overheated rhetoric aside, HSUS’ decision to hound breeders acting within the bounds of the law was entirely voluntary, and the fact that this decision allegedly cost hundreds of thousands of dollars is a telling measure of the substantial resources available to HSUS, and nothing more.”
9. The “HSUS does not allege injury due to USDA’s inaction, but instead argues that it will be injured by Plaintiff’s challenge to a USDA action that HSUS supports.”
10. “HSUS suggests that Defendant’s commitment to the Retail Pet Store Rule is suspect, and that they will be less than vigorous in defending the Rule.”
11. “(N)one of the cases cited by the HSUS supports intervention on the side of a defendant government agency to defend that agency’s rule.”
12. “(F)or the HSUS to assert that USDA will not now vigorously defend the defend that Rule is speculative at best and cynical at worst.”
13. “If, as HSUS fears, USDA ‘might agree to settle rather than litigate, and remand the rule for additional review. . . USDA has discretion to do so.”
14. “Defendant’s Notice . . . stating that they take no position regarding HSUS’ Motion to intervene plainly suggests that HSUS’s assistance is not needed.”
15. “The parade of horribles that HSUS describes as the reason for the Rule simply does not apply to Plaintiffs or their members, all of which are small-scale hobby breeders.”
16. “The exposition of HSUS’ position would unduly delay the presentation of Plaintiffs’ case, and would prejudice the adjudication of Plaintiff’ claims by making Plaintiffs appear to be something they are not.”

The Rules of the Court provide that the HSUS will have seven (7) days to respond to our Response. We do not anticipate that the government will submit any response to our lawsuit until after the HSUS files its Response to our Response, which we expect will be filed on January 20, 2014. However, on January 13, 2014 the Justice Department did file its Response to the HSUS Motion to Intervene, and stated, as referenced above, the following: “Defendants take no position regarding the Motion to Intervene of the Humane Society of the United States.”

Frank Losey

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