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Animal Legal Defense Fund, et al v. United States Department of

December 3, 2012



On August 22, 2012, Plaintiffs Animal Legal Defense Fund, Orca Network, People for the Ethical Treatment of Animals, Inc., Howard 21 Garrett, Shelby Proie, Patricia Sykes, and Karen Munro 22 ("Plaintiffs") filed a complaint for declaratory and injunctive 23 relief against Defendants United States Department of Agriculture 24 ("USDA"), Tom Vilsack, in his official capacity as Secretary of the 25 USDA, and Elizabeth Goldentyer, in her official capacity as Eastern 26 Regional Director of the USDA Animal and Plant Health Inspection 27 Service (collectively, "Federal Defendants"). Plaintiffs' 28 complaint challenges the living conditions of an orca whale named Lolita that for forty years has been held at the Miami Seaquarium 2 ("Seaquarium"). Plaintiffs assert that the Federal Defendants' 3 April 12, 2012 decision to renew the Seaquarium's license to hold 4 Lolita violated provisions of the Animal Welfare Act ("AWA"), 7 5 U.S.C. §§ 2131 et seq., and the Administrative Procedure Act 6 ("APA"), 5 U.S.C. § 706(2)(C). 7

Now pending before the Court is the Federal Defendants' motion

8 to dismiss or transfer this case. ECF No. 16. Federal Defendants' 9 position is that this case should be heard in either 10 Columbia (the District where the agency and the Secretary of Agriculture reside), or the Eastern District of North Carolina (the District where the Eastern Regional Office of the USDA is located and where the challenged license extension decision was made), or the Southern District of Florida (the District in which [Seaquarium] and [Lolita] are located). Id. at 2. Plaintiffs argue that venue before this Court is proper. ECF No. 18. The Marine Exhibition Corporation, which does business as the Seaquarium, has filed, on a proposed basis, a brief joining 18 in and in support of the Federal Defendants' motion. ECF No. 23 ("Seaquarium Reply"). 20

Seaquarium was not named in Plaintiffs' complaint and moves to 21 intervene. ECF No. 19. Plaintiffs do not oppose the motion and 22 Defendants take no position on it. Id. at 2; ECF No. 31-1 ¶ 4. 23 Seaquarium seeks intervention as of right pursuant to Federal Rule 24 of Civil Procedure 24(a)(2) or, in the alternative, permissive 25 intervention under Federal Rule of Civil Procedure 24(b)(1).

The Court concludes that intervention as of right is warranted 27 and therefore considers Seaquarium's motion under only that 28 standard. Rule 24(a)(2) motions are subject to a four-factor test: Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc)). In applying 9 this standard, the Court must be "guided primarily by practical and 10 equitable considerations" and construe Rule 24 "broadly in favor of proposed intervenors." United States v. City of Los Angeles, Cal., 12

As to the first factor, Seaquarium's motion is timely because this case is in the earliest stages of litigation; no substantive 15 motions other than the motion on venue have yet been filed. Second, Seaquarium has a significantly protectable interest in its license to house Lolita. Third, disposition of this action may, as 18 a practical matter, impair or impede Seaquarium's ability to 19 protect its interest in its license because, if Plaintiffs prevail 20 in this action, the federal government may be obliged to rescind 21 that license. It would be inequitable to allow Seaquarium's 22 license to be rescinded without Seaquarium having been given the 23 opportunity to defend it. Fourth, the Federal Defendants' interest 24 in this litigation is different enough from Seaquarium's that their 25 presence is not, by itself, enough to safeguard Seaquarium's 26 interest. As Seaquarium succinctly puts it, the Federal Defendants 27 represent the public interest, while Seaquarium represents its own, 28 narrower business interest in exhibiting exotic wildlife. E.g., (1) The motion must be timely; (2) the applicant must claim a "significantly protectable" interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede[] its ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action.

(N.D. Cal. Mar. 2, 2012) (citing Wilderness Soc. v. U.S. Forest 288 F.3d 391, 397 (9th Cir. 2002). 1998).

Accordingly, the motion to intervene of Marine Exhibition Corporation d/b/a Miami Seaquarium is GRANTED. 5 Granting that motion makes a number of other administrative 6 matters ripe for determination: 7

* The Court deems Seaquarium's proposed answer to Plaintiffs' complaint, ECF No. 21, FILED as of November 16, 2012, and the Seaquarium Reply FILED as of November 20, 2012.

* Seaquarium's administrative motion requesting that the Court consider the Seaquarium Reply, ECF No. 31, is GRANTED.

Because this Order decides Seaquarium's motion to intervene, its motion for an order shortening time to have that motion heard, ECF No. 22, is DENIED AS MOOT.

* Plaintiffs' administrative motion for leave to file a response to the Seaquarium Reply, ECF No. 34, is GRANTED.

The Court deems Plaintiffs' proposed ...

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