The animal welfare act, 7 U.S.C. 2131 et seq, enacted in 1966, requires the Secretary of Agriculture to formulate standards "to govern the humane handling, care, treatment, and transportation of animals by dealers," and these standards must include minimum requirements "for handling, housing, feeding, watering, sanitation," etc. The act authroises the secretary "to promulgate such rules, regulations, and orders as [the secretary] may deem necessary in order to effectuate the purposes of 'the Act]." Utilizing this authority, USDA promulgated a regulation, according to the APA's notice and comment procddures, entitled "structural strength," which provides that "the facility [housing animals] must be contructed to material and of such strength as appropriate for the animals involved." The regulation further provides that "the indoor and outdoor housing facilities shall be structurally sound and shall be maintained in good repair to protect the animals from injury and to contain the animals."

Patricia Jones has been a dealer in exotic animals on her farm outside of Wichita, Kansas since 1992. In a 25-acre compound, she regularly raises a variety of animals including "Big Cats"- such as lions, tigers, cougars and snow leopards. The animals are in pens, and there is a containment fence around the pens. In addition, there is a perimeter fence around the entire compound. When Jones started her animal dealership in 1992, she made the perimeter fence ten feet high.

In 1998, USDA issued an internal memorandu that "dangerous animals," defined as including, among members of the cat family, lions, tigers, and leopards, "must be inside a perimeter fence of at least fifteen feet high." The memorandum was addressed to the USDA inspectors responsible for assuring compliance with the Animal Welfare Act and regulations promulgated to implement it.

When an USDA inspector informs Ms. Jones that she must build a higher fence or she will be fined for non-compliance, she contacts you, her lawyer. She informs you that it would cost her thousands of dollars to build a higher perimeter fence and that she likely would be forced out of business if she has to do so. On her behalf, you file a lawsuit claiming that the memorandum is really a legislative rule that is subject to the rulemaking requirements of section 553, which USDA did not observe.

What arguments can you make on your clients behalf? What arguments would you expect from USDA? How would you expect a court to rule?

Please analyse andprovide your advice to Ms. Jones regarding the alleged interpretive rule and the counter arguments. Cite to the reading and case law for full credit.