ELR Citation: ELR 20232
No(s). 04-15788 (9th Cir. Nov 22, 2006)

The court reversed the dismissal of an action challenging the U.S. Department of Agriculture's (USDA's) decision not to adopt a draft policy that would have provided guidance to zoos, research facilities, and other regulated entities in how to ensure the psychological well-being of non-human primates under the Animal Welfare Act (AWA). At least one of the individual plaintiffs, a "long-time volunteer and advocate for primates," had Article III standing based on the aesthetic injury she described, and, thus, federal jurisdiction was proper. In addition, the USDA's withdrawal of the draft policy constituted a final agency action reviewable under the Administrative Procedure Act (APA). Had the policy been adopted, it would have been reviewable because it would have been characterized as a proposed interpretive rule having legal consequences that clarify existing obligations prescribed by the AWA. Similarly, the USDA's decision not to adopt the policy carried legal consequences. By leaving the status quo in place, the USDA gave regulated entities no incentive to adopt environmental enhancement plans and comply with standards once deemed necessary for the effective implementation of the AWA. Additionally, prior to abandoning its draft policy, the USDA held rulemaking proceedings and assembled a record amenable to judicial review. On remand, the district court must determine whether the USDA's withdrawal of the draft policy was arbitrary and capricious in violation of §706(2) of the APA.