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Eleventh Circuit Sides with USDA in Hemingway Cat Fight

By Robyn Hagan Cain on December 10, 2012 | Last updated on March 21, 2019

Ernest Hemingway lived at 907 Whitehead Street in Key West, Florida, from 1931 to 1938. During that time, a friend gave him a polydactyl cat named Snowball. Since then, Snowball's polydactyl progeny have thrived and populated the property.

Hemingway's estate sold the property in 1961. Though the Hemingway cats were not explicitly mentioned in the purchase and sale agreement, it seems that they came with the place. For almost 50 years, visitors have toured the property — now known as Hemingway House and Museum — and marveled at the cats.

In 2003, the U.S. Department of Agriculture decided that the Museum was an animal exhibitor subject to USDA regulation under the Animal Welfare Act (AWA). The Agency demanded that the Museum obtain an exhibitor's license, pay fines, and follow certain protocols for caring for the cats. The Museum sued for declaratory relief, and lost. Last week, the Eleventh Circuit Court of Appeals affirmed that decision.

The Museum argued that it wasn't an "exhibitor" under the AWA, and it wasn't subject to federal regulation because the Hemingway cats don't have an effect on interstate commerce. But, according to the USDA, a person acts as an exhibitor "simply by making animals available to the public." For over two decades, the USDA has relied upon this interpretation to apply the AWA to fixed-site, intrastate exhibitors like the Museum.

The Museum didn't dispute that it exhibits the Hemingway cats to the public for compensation, so the case hinged upon whether the Museum's exhibition of cats is a "distribution ... which affects [interstate] commerce," thus triggering federal oversight.

No Hemingway cat has ever been bought or sold, although some cats have been given away. The Museum's gift shop sells cat-related swag, and the Museum's website offers a secondary page devoted exclusively to the Hemingway cats. (At one time, there was a cat cam. Sadly, it is gone now.)

Approximately 250,000 visitors from Florida and beyond visit the Museum annually.

The Eleventh Circuit concluded that the USDA's reasonable and consistent interpretation of "exhibitor" was entitled to Chevron deference. Since the appellate court didn't find the Secretary's interpretation of "exhibitor" unreasonable, and the Museum made no attempt to explain why that interpretation was not entitled to Chevron deference, the court affirmed the district court's decision.

The appellate court also noted that the Museum "distributes" the cats in a manner affecting commerce every time it exhibits them to the public for compensation.

So there you have it. If your business attracts interstate visitors, and you promote on-site animals as part of your business, you could be subject to the AWA. Even if the animals never travel.

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