Lawyers representing the Department of Agriculture asked a federal court this October to dismiss a lawsuit by animal advocates who accuse the department of failing to fulfill its obligation under the Animal Welfare Act to promote the psychologic well-being of nonhuman primates.
The complaint was filed July 22 in the U.S. District Court for the Northern District of California on behalf of the Animal Legal Defense Fund, Animal Welfare Institute, and three citizens. The citizens allege primates with which they have had regular contact suffer severe psychologic distress resulting from inadequate environmental enrichment standards attributable to the USDA.
Specifically, they and the ALDF and AWI fault the USDA Animal and Plant Health Inspection Service for unreasonably delaying a final decision on the Policy on Environmental Enhancement for Nonhuman Primates the agency published in the July 15, 1999, Federal Register.
APHIS states in the notice that the draft policy clarifies what dealers, exhibitors, and research facilities must incorporate into environmental enrichment plans for primates, to comply with the Animal Welfare Act.
Plaintiffs are asking the court to declare the USDA to be in violation of the Animal Welfare Act and to make the agency issue a final decision regarding the draft policy.
In its motion to dismiss the suit, filed Oct. 14, the government contends that the decision not to finalize the draft policy isn't subject to judicial review. Moreover, a final decision has already been made, that is, APHIS deputy director Dr. Chester Gipson announced publicly in December 2002 that the USDA "was not going forward" with the draft policy. Also, the government says the plaintiffs cannot show their injuries are a result of the draft policy not being implemented.
The lawsuit can be traced to the 1985 amendments to the Animal Welfare Act, in which Congress directed the USDA to establish standards promoting the psychologic health of primates in zoos, laboratories, and other facilities.
This was no small task, considering that primates include more than 240 species varying in size and habitat, as well as in their nutritional and social requirements. Moreover, the regulations could not interfere with research involving primates.
The regulations APHIS implemented in 1991 were designed so dealers, exhibitors, and research facilities would have the flexibility to craft environmental enrichment plans that meet specific needs of the species or individual primate they maintain. They are performance standards, APHIS explained, and provide minimum requirements for how to meet those goals.
But when APHIS interviewed Animal Care inspectors in 1996 to evaluate the effectiveness of its program, the agency learned that regulated entities didn't understand how to develop plans that satisfy government standards. In addition, APHIS stated in the Federal Register notice that considerable disagreement existed among the public about whether the standards really promote psychologic well-being.
In 1997, APHIS Animal Care formed the Primate Environmental Enhancement Team. For one year, the team reviewed professional primatology literature, several environmental enhancement plans, and some enforcement case histories. The result was a report that provided the scientific basis for the Policy on Environmental Enhancement for Nonhuman Primates.
That draft policy identifies five elements APHIS considers essential to primates' psychologic well-being: social grouping, social needs of infants, structure and substrate, foraging opportunities, and providing objects that can be manipulated. Public comments were requested before the policy would be implemented. The notice drew 244 responses from a diverse array of stakeholders.
Citing the pending litigation, the USDA declined to comment for this story. But the government's motion for dismissal explains that the draft policy was advisory in nature and not a formal initiation of the rule-making process.
The Animal Legal Defense Fund, Animal Welfare Institute, and other plaintiffs say APHIS has yet to fulfill Congress' wishes as defined in the 1985 amendments, however.
"Here we are, it's 2003. What's changed?" asked ALDF executive director Joyce Tischler, adding that government regulations, to a large degree, have not improved the psychologic well-being of primates kept in laboratories and zoos.
Three examples of primates suffering as a result of inadequate regulations are cited in the lawsuit.
Terry and Chico are adult chimpanzees housed alone at zoos in Nevada and South Carolina, respectively. The alleged poor environmental conditions, such as lack of companionship or foraging opportunities, have caused the chimpanzees to be listless, pace, and show aggression—all atypical species behavior.
"Any healthy primates are going to start acting this way if they're kept permanently in an environment that lacks species-appropriate stimulation," said Dr. Viktor Reinhardt, laboratory animal adviser for the Animal Welfare Institute.
"A primate kept in a barren cage is literally a behavioral cripple," he said.
Two plaintiffs in the lawsuit claim to be harmed emotionally by these behaviors, which they attribute to inadequate regulation by APHIS.
The final example is that of Natalie, a young rhesus macaque at a laboratory in Georgia. The third plaintiff worked at the laboratory from 1998-2002, during which time she developed an emotional attachment to the monkey. Natalie was housed with 120 macaques and became leery and nervous around other primates. She was often attacked and was hospitalized four times during her first year of life.
The plaintiff claims to have suffered emotional and aesthetic injury that caused her to quit her research career in 2002 as a result of Natalie's inadequate living conditions and abnormal behavior.
When it comes to the psychologic welfare of primates, Terry, Chico, and Natalie are typical, according to Tischler of the ALDF. If regulated entities were to implement the draft policy published in 1999, the well-being of primates in laboratories, zoos, and elsewhere would improve considerably, she said.
Others believe the issue to be so complex that less government involvement is the answer. Frankie Trull, president of the National Association for Biomedical Research, represents the legislative and regulatory interests of more than 300 universities, medical and veterinary schools, pharmaceutical companies, and other animal research-related entities.
Trull thinks the APHIS draft policy created more confusion than clarity. Ask 20 veterinarians how to best meet the psychologic needs of primates and you'll get 20 different opinions, she said.
"That's why I think it's so important to leave these regulations—relative to professional judgment—pretty vague because people have different opinions and, generally, none of the opinions are wrong, they're just different," she said.
The first hearing in the case is scheduled for Dec. 18.