KODA Update 3/6/2014 Challenge To Standing Withdrawn Something, a bit out of the ordinary has occurred! Last week the Government informed us that it would withdraw its objection to the Plaintiffs’ “legal standing” to bring our lawsuit challenging the Retail Pet Store Rule if we file an Amended Complaint. This is an interim but very significant victory because it gets us over the hurdle of proving that the Plaintiffs have a legal right to challenge the Rule, which is the defense the Government raises in every case. By way of background, on February 7, we filed our opposition brief to the Government’s motion to dismiss, which incorporated six affidavits from individual members of the Plaintiffs explaining the adverse economic effects that the Rule will have on their hobby breeding, which is what the Plaintiffs are required to show in order to establish legal standing. The Government apparently was persuaded that our opposition brief sufficiently demonstrated that we in fact do have standing. The Government offered to file a Joint Motion with us to set out a time schedule for Plaintiffs to file an Amended Complaint and for the Government to file its Answer to the Amended Complaint. We filed the Joint Motion on February 28, and the Court granted the Joint Motion on March 5. We filed an Amended Complaint with the Court on the same day, March 5, 2014. Our Amended Complaint incorporates the essence of what we had filed in our opposition to the Governments Motion to Dismiss our Lawsuit based on a lack of Legal Standing.” In short, extracts from the Six Affidavits that were attached to our Response to the Governments Motion to Dismiss were included in our Amended Complaint. Based on the fact that the Government has agreed to file an answer to the Amended Complaint rather than file another motion to dismiss, it appears that the assertions of many naysayers who stated, with confidence, that we had no Legal Standing were unfounded. . Hopefully, the naysayers will now support the Lawsuit that is challenging the Retail Pet Store Rule. We now anticipate that the Lawsuit will proceed to go forward on the merits of our assertions that the Rulemaking Process for the Retail Pet Store was flawed in that it failed to comply with the Administrative Procedures Act; that APHIS did not adequately consider the issues raised in the Six Affidavits that are referenced in our Amended Complaint; that tens of thousands of hobby breeders are subject to experiencing concrete harm as a result of the Rule; and that APHIS and the USDA should withdraw the Rule, and do what often is referred to as a DO OVER. This action, which we have asserted should occur, is totally consistent with the fact that Congress expressly stated in the Conference Report Language, that accompanied the Farm Bill, that APHIS must do a new rulemaking to address such issues as what is the definition of de minimis and what is the definition of a breeding female, as well as clarify issues relating to face to-face sales which the Report Language was referring to when it further stated that APHIS must address what is meant by “oversight of . . . sales . . . transactions in interstate commerce as provided for under the Commerce Clause.” And we are asserting that the only way to resolve the confusion in the regulated community - - not our words, but the words quoted from the Congressional Conference Report Language - - is for the existing Retail Pet Store Rule to be, in essence, rescinded so that the flaws in the prior rulemaking may be addressed during the same new rulemaking process that Congress has explicitly directed APHIS to undertake. And in light of the NOT SO WARM FUZZY response we received from APHIS that was dated February 21, 2014, and which indicated that the Farm Bill may not have ANY effect on the Retail Pet Store Rule, it is even more imperative than ever before that the Lawsuit move forward, as we now anticipate it will. The chilling extract from the APHIS Response should remove any doubt from anyones mind that representations that have been made by the naysayers, that the behind the scenes efforts of others have resolved the concerns of tens of thousands of hobby breeders, may not have been resolved after all. In this regard, the chilling extract reads as follows: USDA is currently reviewing the statutory changes the Farm Bill makes to the AWA and evaluating their effect, if any, on the retail pet store rule. . . . That quote clearly suggests that the business model of APHIS continues to be the equivalent of damned the torpedoes, full speed ahead! And that is why I am pleased to report that contrary to the unfounded assertions that the Lawsuit would fail for lack of Legal Standing, the Lawsuit is now expected to proceed to the next stage, which will allow the Plaintiffs to ask the Court to direct that APHIS rescind the Retail Pet Store Rule and to conduct a new rulemaking as directed by Congress in order to address the confusion in the regulated community has been caused by a lack of a clear and simple definition of de minimis; and a lack of a clear and simple definition of a breeding female; and by the failure of APHIS to clarify what is meant by “oversight of . . . sales . . . transactions in interstate commerce as provided for under the Commerce Clause,” as it relates to Rules requirement for face-to-face sales in order to qualify for an exemption. BOTTOMLINE: It appears that Plaintiffs’ Legal Standing is no longer an issue, and the Lawsuit will proceed to address the flaws that we believe will spay and neuter the legal efficacy of the Retail Pet Store Rule. Now that the Legal Standing Issue no longer appears to be an obstacle to the Lawsuit, continued financial support of the 42 Plaintiffs in the Lawsuit will set the stage for a successful challenge of the Retail Pet Store Rule, which success will inure to the benefit of tens of thousands of responsible and caring hobby breeders who represent the regulated community which continues to languish in the Fog of Confusion. Frank
Posted on: Fri, 07 Mar 2014 06:47:29 +0000
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