United States District Court, D. Idaho
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For Animal Legal Defense Fund, Plaintiff: Justin F Marceau, LEAD ATTORNEY, PRO HAC VICE, University of Denver Sturm College of Law, Denver, CO; Maria E Andrade, LEAD ATTORNEY, ANDRADE LEGAL, INC, Boise, ID; Matthew G Liebman, PRO HAC VICE, Animal Legal Defense Fund, Cotati, CA; Matthew Daniel Strugar, PRO HAC VICE, Los Angeles, CA; Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Boise, ID.
For People for the Ethical Treatment of Animals, American Civil Liberties Union of Idaho, Farm Sanctuary, River's Wish Animal Sanctuary, Western Watersheds Project, Sandpoint Vegetarians, Idaho Concerned Area Residents for the Environment, Idaho Hispanic Caucus Institute for Research and Education, Counterpunch, Farm Forward, Will Potter, James McWilliams, Monte Hickman, Blair Koch, Daniel Hauff, Plaintiffs: Maria E Andrade, LEAD ATTORNEY, ANDRADE LEGAL, INC, Boise, ID; Matthew Daniel Strugar, PRO HAC VICE, Los Angeles, CA; Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Boise, ID.
For The Center for Food Safety, Plaintiff: Maria E Andrade, LEAD ATTORNEY, ANDRADE LEGAL, INC, Boise, ID; Leslie Brueckner, PRO HAC VICE, Public Justice, P.C., Oakland, CA; Matthew Daniel Strugar, PRO HAC VICE, Los Angeles, CA; Paige M Tomaselli, PRO HAC VICE, Center for Food Safety, San Francisco, CA; Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Boise, ID.
For C.L. Butch Otter, in his official capacity as Governor of Idaho, Defendant: Thomas C. Perry, Office of the Governor, Boise, ID; Cally Ann Younger, Governor's Office, Boise, ID.
For Lawrence Wasden, in his official capacity as Attorney General of Idaho, Defendant: Clay R Smith, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, Boise, ID; Carl J Withroe, Idaho Attorney General, Boise, ID.
For Reporters Committee for Freedom of the Press, Amicus: Charles A Brown, LEAD ATTORNEY, Lewiston, ID; Bruce D Brown, PRO HAC VICE, Reporters Committee for Freedom of the Press, Arlington, VA.
For Government Accountability Project, Amicus: Craig Durham, LEAD ATTORNEY, Durham Law Office, PLLC, Boise, ID; Jeffery S Gulley, PRO HAC VICE, Government Accountability Project, Washington, DC.
For Idaho Building and Construction Trades Council, AFL-CIO, Amicus: James Marshall Piotrowski, LEAD ATTORNEY, Marty Durand, Herzfeld & Piotrowski, LLP, Boise, ID.
For Idaho Farm Bureau Federation, Inc., Idaho Heartland Coalition, Inc., Food Producers of Idaho, Inc., Idaho Cattle Association, Amicus: Norman M Semanko, Moffatt Thomas Barrett Rock & Fields, Chtd., Boise, ID.
For Center for Constitutional Rights, Amicus: Michael J Bartlett, LEAD ATTORNEY, Nevin, Benjamin, McKay & Bartlett LLP, Boise, ID; Rachel Meeropol, PRO HAC VICE, Center for Constitutional Rights, New York, NY.
MEMORANDUM DECISION AND ORDER
B. Lynn Winmill, Chief United States District Judge.
The Animal Legal Defense Fund, as well as various other organizations and individuals, (collectively, " ALDF" ), challenges section 18-7042 of the Idaho Code as unconstitutional. The State defendants, Governor Butch Otter and Attorney General Lawrence Wasden, move to dismiss ALDF's claims. The Court heard oral argument on June 25, 2014, and took the motion under advisement. For the reasons set forth below, the Court will dismiss Governor Otter from the lawsuit, as well as ALDF's challenge to section 18-7042(1)(e). All other claims survive.
Section 18-7042 creates the new crime -- " interference with agricultural production." I.C. § 18-7042(1)(d). It, in essence, criminalizes undercover investigations and videography at " agricultural production facilities."
Section 18-7042 raises First Amendment concerns because it restricts protected speech. The State defends the provision as a restriction on conduct, designed to protect agricultural production facilities against trespass and conversion. The Court acknowledges that the State has a real and substantial interest in protecting private property. But the First Amendment requires more than the invocation of a significant government interest; it requires that the restriction's benefits be balanced against the burden on protected speech. The State therefore must justify a need to serve its interest in protecting private property through targeting protected speech. Laws that restrict more protected speech than necessary violate the First Amendment. Because this question of whether section 18-7042 burdens more speech than necessary remains unanswered, the Court will not dismiss ALDF's First Amendment claim.
ALDF's Equal Protection claim also survives the State's motion to dismiss. Laws based on bare animus violate the Equal Protection Clause. ALDF alleges, as a factual matter, that the Idaho legislators acted with animus against animal-rights activists in passing section 18-7042. If ALDF's allegations of animus prove true, the Court must skeptically scrutinize any offered justifications for section 18-7042 to determine whether bare animus motivated the legislation or whether the law truly furthers the offered purposes.
Finally, the Court concludes that the State's passage of section 18-7042 presents ALDF with the immediate dilemma of choosing between complying with section 18-7042 and risking prosecution under the challenged provision by engaging in whistleblower conduct it says federal law explicitly encourages and protects. ALDF's preemption claims are therefore ripe for review.
For all these reasons, the Court will allow ALDF's claims to proceed with two exceptions: the claims against Governor
Otter and ALDF's challenge to section 18-7042(1)(e) will be dismissed. The ultimate question of whether section 18-7042 is unconstitutional remains for another day.
Section 18-7042 was enacted last year after Mercy for Animals Dairy, a Los Angeles-based animal rights' group, released a video of workers abusing cows at the Bettencourt Dairies' Dry Creek Dairy in Hansen, Idaho. Mercy for Animals secretly captured the abuse while conducting an undercover investigation of the dairy. Naerebout Aff. ¶ 7, Dkt. 16-2. The undercover investigator made the audiovisual recording without the dairy owner's knowledge or consent. Id. And, according to the law's supporters, the investigator " failed to immediately report to the dairy operator or to local or state authorities the conduct he recorded, allowing additional animal abuse to occur and depriving the animals of immediate care and treatment." Id. The investigator gave his recordings to Mercy for Animals, which provided it to the Idaho State Department of Agriculture. Id.
Mercy for Animals regularly conducts these undercover investigations. To gain access to animal facilities, such as the Dry Creek Dairy, Mercy for Animals Dairy members misrepresent their true identities, so they can secretly document animal abuse. Once they gain access to the facility, they make audio and video recordings without the facility owner's consent. Id. Other similar undercover investigations at factory farms have found workers kicking pigs in the head, spray painting them in the eyes, stomping and throwing chickens and turkeys like footballs, smashing piglets' heads against concrete floors, and beating and sexually assaulting pigs with steel gate rods and hard plastic herding canes. Compl. ¶ 5, Dkt. 1.
In the case of the Dry Creek Dairy, the response was swift. The dairy owners expressed their surprise and sorrow at the abuse and quickly fired the five people shown abusing the animals. The owners also installed surveillance cameras throughout the facility, and promised to use the Mercy for Animals video as a training tool for their employees. The workers who abused the animals were prosecuted, and the dairy industry teamed with Idaho schools to offer training in proper care of animals.
While the Dry Creek Dairy owners implemented these changes, the Idaho Dairymen's Association (" IDA" ) wrote and sponsored section 18-7042, which criminalizes the types of undercover investigations that exposed the abuse at the Dry Creek Dairy. Naerebout Aff. ¶ 10, Dkt. 16-2. The Idaho legislature passed the bill quickly, and it was signed by Governor Otter on February 28, 2014.
The law creates the new crime -- " interference with agricultural production." I.C. 18-7042. A person commits the crime of
interference with agricultural production if the person knowingly:
(a) Is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;
(b) Obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;
(c) Obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other ...