Judge Wings USDA Over Bird Abuse

Photograph by Susanne Friedrich/Getty Images

What does the U.S. Department of Agriculture have against birds?

That’s the crux of a lawsuit against the agency that alleges that the USDA has failed to protect birds under the provisions of the Animal Welfare Act. People for the Ethical Treatment of Animals filed an appeal in the suit on June 20, and while it’s true that PETA has a long history of grandstanding, in this case it would seem to have a point: The agency has shown a rather inexplicable indifference to birds, allegedly brushing off complaints of inhumane treatment and dragging its feet on drawing up regulations, according to court records.

The USDA prevailed in the first decision in the case in December, in part by arguing that it has the discretion to ignore bird abuse if it wants. Its lawyers characterized the suit as “an improper attempt by an advocacy group to dictate the manner and pace of policy determinations” that are the provenance of the USDA. U.S. District Judge James Boasberg agreed, but not before expressing his sympathy to PETA’s cause:

The nation’s circle of concern expanded a little wider in 2002 when Congress amended the Animal Welfare Act to include birds as creatures deserving of legal protection. The agency charged with implementing the Act—the United States Department of Agriculture—has, however, so far failed to defend the country’s feathered friends, both by not enforcing the Act against bird abusers and by not promulgating regulations specific to the mistreatment of avians.

The Animal Welfare Act was passed in 1966 to ensure the humane treatment of animals used for research, bred for commercial sale, exhibited to the public, or commercially transported. The USDA didn’t consider birds covered under the law until Congress amended the act in 2002, at which point the agency promised to write specific regulations covering birds. It solicited input from the public and received more than 7,400 comments, court records show. But there are still no rules governing the protection of birds.

“Instead, with surprising regularity, the agency has repeatedly set, missed, and then rescheduled deadlines for the publication of bird-specific regulations,” Boasberg wrote.

A spokeswoman for the agriculture department declined to comment, citing the ongoing litigation. In court documents, lawyers for the agency said writing regulations for birds was complex, and cited limited resources and other, higher priorities. ”There has been no unreasonable delay in this case,” the lawyers maintained. In addition, the agency says that it has investigated claims of alleged bird abuse and taken informal action to address them.

Even without fowl-specific regulations, birds should still be covered by the general regulations included in the Animal Welfare Act. In its lawsuit, PETA says the agency has failed to do so and that USDA employees don’t even know that birds fall under the Act. Boasberg agreed:

Despite USDA’s official position that avians are protected by the AWA, USDA officials have repeatedly responded to complaints about the inhumane treatment of birds by claiming either they are not regulated by USDA or that they do not fall under USDA jurisdiction. Indeed, USDA is not even on the same page as its own FOIA director, who answered a request for information related to the agency’s investigations into avian mistreatment by explaining that “Agency employees conducted a thorough search of all files and advised our office that birds are not being regulated.”

Among the instances of abuse cited by PETA are zoos that fail to protect flamingos and waterfowl from attacks by feral dogs, and pet stores that allowed hundreds of parakeets to die from starvation and disease.

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