September 2013 - USDA 43-C-0269

by Justice William W. Bedsworth

I am a sucker for animals. Humans I’m not that crazy about, but animals I love. I can name a dozen human beings I wouldn’t cross the street to pee on if their hair was on fire, but I will swerve my car across a six-lane highway to keep from hitting a squirrel.

As a result of this character flaw, I have never lived without a pet. In law school, I was so desperate for furry companionship I bought a guinea pig. Animals were not permitted in my apartment building, so I spent almost three years smuggling my contraband guinea pig in and out of 15 Hermann Street in a bowling bag.

When Funky Henry1 died, I wasn’t quite sure what to do. I had no place to bury him, and I couldn’t bring myself to just toss him down the garbage chute. Having been told Animal Control would pick up dead pets, I called them and asked them to please come pick up my deceased guinea pig.

The response was immediate and definitive: “I’m sorry, Sir, we don’t pick up anything smaller than a chicken.”

I was heartbroken. I sat for a few minutes contemplating my tiny dead friend, remembering how cute he was, and reviling the heartless bureaucracy that would condemn him to the same ignominious disposal as an overripe kumquat.

Then I wrapped him up in several days’ worth of newspapers, turning him into a package about the size of a basketball, and called them back. “Hello,” I said, “My chicken has just died. ...”

So we have established in five short paragraphs that I love animals—even small rodents—and I was, in my antediluvian youth, given to occasional lapses of judgment concerning them.

It should not come as a surprise then that I sympathize with the Department of Agriculture’s recent conclusion it may have suffered a lapse of judgment with regard to small rodents. I concur fully in the decision of Secretary of Agriculture Tom Vilsack, that maybe we should take a second look at his department’s requirement that a children’s magician file a disaster preparedness plan for his rabbit.

Yep. He ordered his department to reconsider whether a magician who pulls a rabbit out of a hat at kids’ parties is the same as a big pharma-company that maintains vast rabbit herds2 for scientific experimentation.

Hard to imagine that required executive intervention. Magician has a rabbit. Pulls it out of a hat. Magic rabbit, magic hat, magic wand, happy kids. You or I might not recognize that as an area requiring government regulation. But then again, you or I might not think people should have to lie about the death of their guinea pigs.

The United States Department of Agriculture sees it differently. Their official position is, “Magic, schmagic ... you got a rabbit you aren’t raising to kill,3 you gotta follow the rules. Pursuant to 7 Code of Federal Regulations 2.22, 2.80, and 371.7, enacted under the Laboratory Animal Welfare Act of 1966, magicians must have an emergency preparedness plan in place for their hat livestock.”4 They sent a letter to Marty Hahne, aka “Marty the Magician” ordering him to provide such a plan “PDQ, posthaste, like a shot, and toute de suite.”5

Marty, unburdened by a law degree, was somewhat nonplussed by the idea the Department of Agriculture of the United States of America, a bureaucracy with an official seal and a professionally designed logo and a 140-billion-dollar budget, was ordering him to get his kid-show rabbit in line. He was even more astonished when he learned that alignment required him to file with them a written plan explaining what he would do to protect his rabbit in case of fire, flood, hurricane, tornado, tsunami,6 earthquake, asteroid impact, power outage, civil disorder, air conditioner failure, or any other emergency up to and including zombie apocalypse.

Apparently, “I plan to pick up the rabbit and run like hell,” was not sufficient.

Marty was confused. Magicians and other laypeople might be forgiven for thinking that the Laboratory Animal Welfare Act was meant to apply to laboratory animals. But those of us initiated into the Loyal and Fraternal Brotherhood, Sisterhood, and Benevolent Order of the Billable Hour know it can’t be that easy. If it were, we’d all be out laying bricks somewhere.

And sure enough. The USDA has interpreted the term “laboratory animals” to apply equally to “hat animals.” The same rule applies to rabbits who live in Magic Land and periodically appear in hats that applies to rabbits who live in laboratories and periodically appear in scientific experiments.

Makes sense to me. After all, the rule that requires the hospital taking care of my Uncle Floyd to have a defibrillator on hand also applies to me when Uncle Floyd comes over for dinner, right? You combine the two bedrock legal principles of “equal protection” and “close enough for government work,” you cannot gainsay the applicability of the Laboratory Animal Welfare Act to Marty’s rabbit.7

So just as Pfizer, Merck, GlaxoSmithKline, and the University of California8 must provide emergency preparedness programs for their animals, so must Marty.

Oh, and he must also provide proof that he and his wife can carry out the plan. One of the requirements is that “trained personnel” be available to carry out the plan. This was easy when the plan was, “Grab the rabbit and run like hell.” It’s tougher now that the plan runs to twenty-eight pages.9

And just where did Marty the Magician come up with a twenty-eight-page emergency preparedness plan for his rabbit? A local attorney provided it—pro bono. Yay for our team!

All of this has enabled Marty to get license number USDA 43-C-0269 for Casey (that’s the rabbit). But I’m afraid Marty’s not out of the woods yet. In addition to the requirement that he pay forty dollars a year for his license and provide proof of periodic veterinary care, he is required to submit to unannounced home inspections by USDA inspectors.

So I figure little Bobby Hahne is going to answer the door some night and two men in black suits and black ties flash a badge case at him and announce, “USDA; we’re here to inspect your home to make sure it’s fit for rabbits.”

Little Bobby, whose parents have often pointed out the briar patch where the rabbits live in their neighborhood, will be seriously confused when he finds out there are suburban houses in Missouri that the United States government thinks might not be fit for rabbits who get by just fine in prickly underbrush with no protection from the elements. He will doubtless need years of therapy to counteract the effects of that announcement and the implicit suggestion he has been raised by people who cannot even be trusted with a rabbit.

And he will be devastated when the authorities find out his father’s rabbit is a three-year-old Netherlands Dwarf rabbit, and cart Dad off to the hoosegow for violating a veritable warren of statutes having to do with the proper treatment of three-year-olds, visitors from the Netherlands without papers, and the physically challenged.

Bobby’s subsequent and inevitable suit against the Missouri Department of Social Services, the Immigration and Naturalization Service, and three agencies fighting over jurisdiction to enforce the ADA will result in a four-quadrillion-dollar judgment against the United States Government, which the government will pay off by agreeing to just let Bobby take over ownership of the USDA.

That’s what I envision as the future of enforcement in this area. I can see all of that clearly. Most of it without resorting to hallucinogens.

And apparently, so could Tom Vilsack, the Secretary of Agriculture. After having Marty’s case brought to his attention, he has asked his department to conduct a review of their regulations in this area, urging that “common sense be applied.”

Good for Tom Vilsack! Hooray for the Secretary of Agriculture!10

By the way, Tom, my chicken just died, and I was wondering ...

(1) He was named after golfer Bunky Henry, who endeared himself to me in a television interview I have never forgotten. Asked, “You grew up in West Texas, didn’t you, Bunky?” Henry responded, “No, Jack, I grew older in West Texas. I never did grow up. You may have noticed I play golf for a living.”
(2) I looked it up. Large group of rabbits is either a herd or a warren.
(3) This is an interesting distinction. It seems if you’re raising the rabbits to kill for food and/or fur, you don’t need an emergency preparedness plan. There’s a certain ineluctable logic to that; apparently the theory is that if rabbit disaster is what you’re aiming for, requiring you to prepare to avoid it would be unfair.
(4) This may not be a verbatim quotation of the USDA position. They pay people to make it sound more erudite than that. But—to use the legal term we almost never get to use anywhere else—I think it adequately conveys the gravamen of the department’s claim. (5) All right, again not an exact quote, but at least as close as magician’s rabbits are to lab animals.
(6) Did I mention Marty lives in Springfield, Missouri?
(7) After I submitted this column, my editor informed me there is no defibrillator rule, hospital standards are not applied to home care, and she was shocked by the ignorant lameness—I think that was her phrase—of that analogy. But I pointed out to her that if we deleted that paragraph, she would end up with a blank space in her magazine. She decided the analogy was up to the standards I had previously set for this column and we should leave it in.
(8) Go Bears!
(9) A length which, according to The Washington Times, is considered short for this particular literary genre.
(10) Still another of my sentences that may never have previously been written.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.