The Doggie in the Window
Page 4
So what, exactly, is a puppy mill? What is a dog breeder? Where do they intersect, and where do they diverge? Many people use the two terms synonymously but, for the purposes of being as fair as possible, I will not.
Let’s start with what the federal government considers to be a commercial dog breeder. The Animal Welfare Act defines a breeder as a person “whose business involving animals consists only of animals that are bred and raised on the premises in a closed or stable colony and those animals acquired for the sole purpose of maintaining or enhancing the breeding colony.”
Translation: a breeder runs a business that produces new animals. The animals used for this operation are part of a business and are not the breeder’s pets.
So who needs a USDA license to be a breeder?
Breeders are required to obtain a class A license to operate under USDA oversight only if they have more than four breeding females in their facility. Any breeder with four or fewer breeding females is considered a hobby breeder and is not subject to federal regulation.1 Breeders who sell directly to consumers with all parties present at the time of purchase—buyer, seller, and dog—are also exempt from federal regulations and do not need to obtain a license, no matter how many breeding females they have. They are considered, in these cases, to be operating as retail pet stores, which are not regulated by the Animal Welfare Act. While it may seem egregious that a breeder with hundreds of dogs can claim exemption from federal oversight by selling in person, this regulation is actually now more stringent than it used to be. Until 2013, breeders were selling puppies online all over the country without any USDA oversight at all. But much more on that later.
In the USDA-regulated system, licensed brokers often transport the puppies from breeders to pet stores or even directly to consumers. These middlemen go breeder by breeder, buying up pups for a small fraction of what the consumer will pay. Then the brokers pack them up in vans or even eighteen-wheelers to drive them cross-country and wholesale them to pet shops where they can fetch an impressive price. These brokers are required to obtain a different, class B license to stay in compliance with the USDA.
So now that we know what the government considers to be a commercial breeder, what does the government consider to be a puppy mill?
Well, the term puppy mill does not appear in any federal statute. It certainly doesn’t appear in the Animal Welfare Act. But in the early 1980s, a federal court in Minnesota did define the term puppy mill for the purposes of its case, leading to the most commonly accepted definition used today.
AVENSON V. ZEGART (1984)
In March 1982, then-executive director for the Minnesota Humane Society Lesley Zegart was investigating commercial dog breeders across the state to determine who was running puppy mills. After receiving complaints about the Park Rapids breeding operation of Merle and Jean Avenson, Zegart teamed up with the county deputy sheriff to visit the property and ask the pair to voluntarily cooperate with a search of their facilities. Zegart and the officer knocked on the Avensons’ door to find no one home.
Once he stepped out of the sheriff’s car, Zegart spotted a barn housing several dogs who appeared to be displaying signs of the skin disease mange. While neither Zegart nor the sheriff’s deputy physically entered the barn, their observations from the entryway were enough for them to issue a search warrant for the property. Four days later, the warrant was carried out. Some of the sickest dogs were seized from the Avensons’ farm and had to be euthanized. As for the Avensons, they were arrested and charged with several counts of animal abuse. These charges, however, were later dropped by the county prosecutor.
The Avensons filed suit against Zegart seeking $1 million in damages. The breeders alleged that Zegart’s first visit to the property with the sheriff’s deputy violated their Fourth Amendment rights protecting them against any unreasonable search.
In 1984, the U.S. District Court for the District of Minnesota dismissed the Avensons’ case. But the ruling was notable in that it provided the first and only definition in a legal context of what exactly constitutes a puppy mill. The decision defines a puppy mill as “a dog-breeding operation in which the health of the dogs is disregarded in order to maintain a low overhead and maximize profits.”2
This is a definition that is now generally agreed upon by most attorneys and animal welfare groups.
In short, puppy mills are not illegal. Unethical? Sure. Cruel? No doubt. But if, in fact, the definition put forth in Avenson v. Zegart is the most widely accepted one for a puppy mill, then it’s easy to see how almost any commercial breeder—even those with USDA licenses, following the regulations put forth in the Animal Welfare Act with no violations on their inspection records—could still be defined as a puppy mill. Profits first. Dogs a distant second.
So I asked the USDA directly: How can the regulations they enforce allow a licensed facility to be a puppy mill? After all, if I kept my dog at home in the exact same conditions as she would be kept in a violation-free, USDA-licensed breeding operation, the local police could seize her, fine me, or even send me to jail for animal cruelty.
“How do you reconcile that difference?” I ask Gibbens. “From what I’m allowed to do with a dog privately and what [a USDA-licensed breeder] is allowed to do with a dog?”
Gibbens surprises me with his response.
“I think we have to be careful to avoid reconciling that difference, or else we wouldn’t be able to do the job we’ve been asked to do,” he says frankly. “We’ve got to apply the standards that are in place… Whenever we can use those standards to help our animals, that’s what we can do… I think it’s important that our folks try to keep a very level-headed, neutral approach to what we are doing. And when we’ve got animals in trouble, it’s pretty unusual we can’t use our regulations or standards to help.”3
It’s worth noting that it is often local animal cruelty statutes that end up putting bad breeders out of business, not the Animal Welfare Act. For example, in 2016, the USDA terminated licenses for fewer than ten of its more than two thousand licensees, according to the Humane Society.4 The USDA does have the authority to terminate a license at any time. Termination, however, opens the door for the breeder to reapply for a USDA license in a year or two, depending on judge’s orders. Revocation of a license, while permanent, can take years of hearings and appeals through the court system. But these instances of termination and revocation are rare and are often reserved for repeat offenders who are truly the absolute worst of the worst. In most cases, the USDA simply inspects, cites, and then repeats the process over and over, giving even routinely bad breeders the chance to correct violations every time.
Still, as many animal welfare advocates and animal behavioral experts argue, it’s the inadequate standards and regulations contained in the Animal Welfare Act that are actively to blame for putting animals in both physical and mental distress in the first place.
“The problem is that the standards as they exist are survival standards at best,” John Goodwin, senior director for the Humane Society’s Stop Puppy Mills campaign tells me. “A female breeding dog can spend her entire life in a cage that’s only six inches larger than her body, and her paw may never touch a blade of grass. She’ll be bred until her body runs out, and even the most highly motivated inspector with the best of intentions is powerless to do anything about that because the rules are so abysmal.”5
So if a dog in my home mandates one type of treatment under local animal cruelty laws and a dog in a breeding facility is considered an agricultural commodity requiring different treatment, is the USDA really the right agency to assign to the protection of animals destined to be pets?
To say that the USDA and its inspectors are in bed with American agriculture sounds like a nasty accusation, and it’s one I hear often from the animal welfare side of the equation. However, the USDA would not be upholding its own mission if it did not work to support America’s farmers, a group which, oddly enough, includes dog breeders. After all, it is the USDA’
s own self-described mission to help “rural America to thrive [and] to promote agriculture production.”6 Nowhere in the agency’s mission does it say it is their job to protect the health and welfare of the animals themselves. As for APHIS, the department within the USDA that directly oversees the inspections of dog breeders, its topline mission statement is simply “To protect the health and value of American agriculture and natural resources.” In its longer explanation of its mission statement, APHIS includes a mention that it is charged with “administering the Animal Welfare Act.”7
I ask Goodwin at the Humane Society if he thinks the problem is, in part, that USDA inspectors side too frequently with the breeders as a result of the agency’s core mission—or, as animal legal expert Joyce Tischler says, if the agency treats breeders as its customers.
“I think it’s more nuanced because there’s about one hundred inspectors nationwide, and that’s not very many. And they’re not just inspecting the two thousand or so puppy mills that are licensed by the USDA,” Goodwin says, referring to the other facilities that the USDA is charged with inspecting outside of the dog-breeding world. “So you have a small number [of inspectors] to cover all these facilities. The rules that are given are very bare bones and minimal. Are [the USDA inspectors] on the side of the breeder? Not necessarily. It really depends. Probably about 30 percent of these USDA-licensed puppy mills can’t go a year without a citation. So they are giving out citations. There certainly are some inspectors who will give a certain bad actor a less severe citation… and you’re left wondering where the consistency is. There are some puppy mills that never get cited until a new inspector comes in. Then it starts getting citations. So there are definitely going to be bad apples, but that doesn’t mean that all [the USDA inspectors] are bad apples. In fact, I think a lot of them are probably decent. But look at the rules that they have to work with. A lot of inspectors can and want to do the right thing, but we can’t indict the individuals. Instead, we have to look at fixing the system.”
Gibbens does not deny the Humane Society’s assessment that manpower is a significant obstacle for his agency. He estimates that there are about 115 inspectors making the rounds on well over 2,000 licensed dog breeders nationwide. He says some 60 percent of these inspectors are veterinarians—a plus for an aspiring USDA Animal Care inspector but not a job requirement. Their job duties on a daily basis, however, are astonishingly varied.
“They might go to a circus in the morning and a dog breeder in the afternoon and an airport at night. So they have a wide variety in what they do. We’ve got around eight thousand regulated facilities right now. I think just over two thousand [of those] are licensed dog breeders. So 75 percent of what we do are not licensed dog breeders,” Gibbens explains.
But does Gibbens think the Animal Welfare Act regulations that the USDA is enforcing are enough?
“You know, that’s gotta be for society and for Congress to determine,” Gibbens says. “Our role is to enforce the law as it is now. I’m sure if you asked our 115 inspectors what their opinion is on this, you’d get a pretty wide variance. As you know, we don’t regulate the dogs at home, and we’ve been given specific, performance-based standards to apply to the dogs that are regulated under the Animal Welfare Act. So I know it sounds like I’m trying to avoid the question, but it’s the approach that you have to use if you’re an inspector in the field out there every day.”
As I can personally attest from what I’ve witnessed in investigating these USDA-licensed commercial breeding operations, there is some room for interpretation with these rules. I ask Gibbens about it.
“The inspector calls it like they see it,” Gibbens confirms. “And then, if the licensee disagrees, the licensee has the opportunity to file an appeal.”
Gibbens tells me that fewer than 1 percent of his inspectors’ findings are appealed by breeders annually. But there might be more to this impressively low number of appeals than meets the eye.
THE OFFICE OF THE INSPECTOR GENERAL REPORT
I’m certainly not the first person to point out the USDA’s problematic and often failed enforcement of the Animal Welfare Act. As it turns out, even the USDA’s own Office of the Inspector General has put the agency on notice for being too lenient in its inspections of licensed dog breeders.
In 2010, the USDA’s Animal Care group was subject to an internal audit from the Office of the Inspector General (OIG). The investigation yielded a sixty-nine-page report that was damning to say the very least. The audit found that Animal Care’s enforcement of problematic dog breeders was “ineffective” and failed to adequately document violations so that appropriate action could be taken. Furthermore, even when the agency had been empowered by Congress to triple the maximum penalties it could slap on violators of the Animal Welfare Act, inspectors managed to actually “misuse guidelines” to calculate penalties that were 20 percent less than before. The report reads:
Specifically, [Animal Care inspectors] inconsistently counted violations; applied “good faith” reductions without merit; allowed a “no history of violations” reduction when the violators had a prior history; and arbitrarily changed the gravity of some violations and the business size. [Animal Care] told us that it assessed lower penalties as an incentive to encourage violators to pay a stipulated amount rather than exercise their right to a hearing.8
But this report that brought into the light the deliberate failings of the USDA’s inspections of dog breeders only came about after years of pressure from animal welfare groups.
Attorney Ed Green, senior counsel for the Washington, DC, office of law firm Crowell & Moring, worked with the Companion Animal Protection Society (CAPS) pro bono for years to help the animal welfare group make its case on Capitol Hill. He has been a fixture in Washington for decades and served as an attorney for the U.S. Department of the Interior drafting federal regulations. When the audit report finally emerged, Green recalls being very pleased with its hardline stance on the agency’s failures. But as time passed, it became clear the report was not having the desired effect. Green recalls wading through a morass of excuses from the USDA for why the agency could not tighten the inspection and enforcement processes following the report.
“It all sounded nice, but it was all bullshit. They just truly were stuck in the mud and did things the way they wanted to do them,” he says.9
I ask if this type of bureaucratic and uninspired mind-set is typical of most government agencies. Green is adamant that the USDA is unique in this regard.
“Most of the agencies with which I deal are much more mission oriented than the folks at USDA. At least the [Animal Care] group anyway. I can’t speak for other parts of the USDA. But I think USDA—parts of it are quite aggressive and enthusiastic in terms of what they do, but mostly it’s sort of a humdrum group that’s been around for a century and a half now, and it just does its business. Certainly the Animal Welfare Act implementation is, to say the least, modest in terms of what it does,” he says. “These people are down in the bowels of the executive branch, and they’re down in the bowels of the U.S. Department of Agriculture—nobody really gives a shit about them frankly. Well, and the animals don’t know—it’s sad.”
Because working directly with the USDA was proving to be without much merit, Green took CAPS to Capitol Hill to try and convince various committees and subcommittees in both the House and the Senate to take action.
“We were always received sympathetically and, in some cases, even enthusiastically. But the bottom line was: dogs don’t vote,” he says.
When I spoke to Gibbens, I asked him what became of the hard-won 2010 OIG report. Did the audit actually change anything?
“After the audit that was released in 2010, the Secretary [of Agriculture] declared the ‘Age of Enforcement,’ which meant that we were supposed to cite every little thing we found,” Gibbens tells me. “So we did that and wound up with hundreds of enforcement cases, more than the system could handle. So those were just closed out with warnings,
and we focused on the more serious ones.”
To me, closing out hundreds of cases does not seem to be in the spirit of an “Age of Enforcement.” But as Gibbens explains, this new inundation of violations spurred by the OIG report inspired the agency to develop another tactic—one that has since been reviled by animal welfare groups.
“We needed another tool, simply besides citing every little thing,” Gibbens continues.
So the agency began using what it calls “teachable moments.”
A VIOLATION IS A VIOLATION IS A VIOLATION
There are two main categories of violations available to inspectors to describe the level of severity of their findings. The most serious type of infraction is called a direct violation: something that is immediately impacting the health of an animal. A nondirect violation is anything that is not having an immediate impact, like, for example, a backed-up drain outside of a dog’s cage.10 However, there is no master list that itemizes specifics of what inspectors must cite as a direct violation—there are a few overarching examples provided to inspectors, but they have to take it from there using their experience and common sense. Just as Gibbens says, the inspector calls it like he sees it, and it’s up to the breeder to appeal the decision. But several animal welfare watchdog groups tell me this lack of specificity has led to inspectors finding ways not to document veterinary care violations as direct violations—even in cases of repeated noncompliances. Furthermore, I’ve pinpointed a theme in the inspection reports that I’ve obtained where the USDA inspector often gives only one citation for multiple sick animals when each one should be documented as its own separate noncompliance.
But if direct and nondirect violations are the two main categories that inspectors use to enforce the Animal Welfare Act, what is a teachable moment?