             Case: 11-14217    Date Filed: 12/07/2012   Page: 1 of 13

                                                                        [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                          ________________________

                                No. 11-14217
                          ________________________

                      D. C. Docket No. 4:09-cv-10050-JEM

907 WHITEHEAD STREET, INC.,
d.b.a. Ernest Hemingway Home and Museum,

                                                         Plaintiff-Appellant,

                                     versus

SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE,
DR. CHESTER A. GIPSON,
Deputy Administrator of Animal Care for the Animal and Plant
Health Inspection Services, United States Department of Agriculture,

                                                         Defendants-Appellees.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                               (December 7, 2012)

Before DUBINA, Chief Judge, PRYOR and HILL, Circuit Judges.

DUBINA, Chief Judge:
                Case: 11-14217       Date Filed: 12/07/2012      Page: 2 of 13

      Appellant 907 Whitehead Street, Inc., d/b/a Ernest Hemingway Home and

Museum (“the Museum”), appeals the district court’s post-trial order denying the

Museum declaratory and injunctive relief. The Museum challenges the jurisdiction

of the U.S. Department of Agriculture and its Animal and Plant Health Inspection

Service (collectively the “USDA”) to regulate the Museum as an animal exhibitor

under the Animal Welfare Act (“AWA”), 7 U.S.C. § 2131 et seq. The district

court concluded that the Museum is indeed subject to the USDA’s regulatory reach

pursuant to the AWA. After considering the parties’ arguments and having the

benefit of oral argument, we agree with the district court’s findings of fact and

conclusions of law and hold that the Museum is an AWA animal exhibitor subject

to USDA regulation.

                                                I.

      Ernest Hemingway lived at 907 Whitehead Street in Key West, Florida,

from 1931 to 1938. During that time, Hemingway’s friend, Captain Stanley

Dexter, gave Hemingway a polydactyl cat named Snowball. 1 Since Hemingway’s

time at 907 Whitehead Street, Snowball’s polydactyl progeny (the “Hemingway

cats”) have thrived and populated the property. In 1961, Bernice Dixon (“Dixon”)

purchased 907 Whitehead Street from Hemingway’s estate. The Hemingway cats


      1
          A polydactyl cat has more than the normal number of digits on one or more of its paws.
                                                2
             Case: 11-14217     Date Filed: 12/07/2012   Page: 3 of 13

are not mentioned in Dixon’s purchase and sale agreement; the cats were simply

present at 907 Whitehead Street when she took possession. Dixon opened the

property for tours in 1964. When Dixon died, her sisters inherited the house,

maintained it as a museum, and incorporated it in 1994 as 907 Whitehead Street,

Inc. Dixon’s great-nephew, Michael A. Morawski (“Morawski”), is the

corporation’s current CEO.

      The Museum has always kept, fed, and provided weekly veterinary care for

the Hemingway cats. The cats live and roam freely on the grounds that are

enclosed by a brick fence at the property’s perimeter. To prevent population

beyond the historical norm of 50–60 cats, the majority of the cats are spayed or

neutered so that only a couple of cats of each sex are reproductive. At the time of

the district court’s bench trial, the Museum had 44 Hemingway cats.

      No Hemingway cat has ever been bought or sold, although some cats have

been given away at various times. 2 However, the Museum charges admission for a

tour of the property, and the tour includes seeing and discussing the roaming

Hemingway cats. Approximately 250,000 visitors from within and beyond Florida

visit the Museum annually. The Museum’s gift shop sells cat-related merchandise

online and at its physical location. The Museum’s website offers a secondary page

      2
       Dixon gave away Hemingway cats; Morawski gave away non-Hemingway kittens
which were left in the Museum’s care.
                                         3
               Case: 11-14217       Date Filed: 12/07/2012     Page: 4 of 13

devoted exclusively to the Hemingway cats as well as another secondary page

including a web camera focusing on the cats. The Museum produced a video

featuring the Hemingway cats that has been promoted through “Visit Florida,” a

tourism organization with its own website. The Hemingway cats are also featured

prominently in print advertisements.

       At some point several years ago, a Museum visitor complained to the USDA

about the Museum’s care of the cats.3 USDA inspectors responded by visiting and

corresponding with the Museum. In October 2003, Dr. Elizabeth Goldentyer, a

USDA regional director for animal care, determined that the Museum was an

animal exhibitor subject to USDA regulation under the AWA because (1) the

Museum exhibited the cats for the cost of an admission fee, and (2) the cats were

used in promotional advertising. Two USDA policy manuals supporting

Goldentyer’s conclusion, Animal Care Resource Inspector Guide and Licensing

and Registration Under the Animal Welfare Act, define exhibited animals as

animals that are displayed for some form of compensation.

       From the outset of the USDA’s intervention, the Museum has resisted the

federal government’s attempts to interfere with the Museum’s care for the

Hemingway cats. The Museum protests the USDA officials’ alleged demands that

       3
      This fact is not in the record, but when asserted by the USDA at oral argument, the
Museum did not contest it.
                                               4
              Case: 11-14217     Date Filed: 12/07/2012    Page: 5 of 13

the Museum: obtain an exhibitor’s license; contain and cage the cats in individual

shelters at night, or alternatively, construct a higher fence or an electric wire atop

the existing brick wall, or alternatively, hire a night watchman to monitor the cats;

tag each cat for identification purposes; construct additional elevated resting

surfaces for the cats within their existing enclosures; and pay fines for the

Museum’s non-compliance with the AWA. At one point, the USDA allegedly

refused to issue an exhibitor’s license to the Museum and threatened to confiscate

the cats from the property. Then, during an agency-initiated administrative

proceeding against the Museum, Dr. Chester A. Gipson (“Dr. Gipson”), a USDA

deputy administrator for animal care, proposed a temporary resolution: granting the

Museum an exhibitor’s license from the USDA without prejudicing the Museum’s

right to contest the USDA’s legal authority to regulate the Museum.

Consequently, the Museum has been licensed as an exhibitor since August 2008.

      The Museum filed the instant complaint in October 2009 against the

Secretary of Agriculture and Dr. Gipson, requesting a declaratory judgment that:

(1) the Museum is not an “exhibitor” under the AWA and is not under the USDA’s

animal care jurisdiction; (2) the Hemingway cats do not have an effect on interstate

commerce sufficient to subject the Museum to AWA regulation; (3) Congress

passed the AWA only to protect animals physically moving in interstate

                                           5
              Case: 11-14217     Date Filed: 12/07/2012     Page: 6 of 13

commerce; and (4) the AWA does not authorize federal regulation of a field

already occupied by local and state animal welfare laws. After a bench trial, the

district court rendered its findings of facts and conclusions of law in favor of the

Secretary and Dr. Gipson. The Museum appealed. We affirm.

                                           II.

      Following a bench trial, we review the district court’s findings of facts for

clear error and its conclusions of law de novo. Renteria-Marin v. Ag-Mart

Produce, Inc., 537 F.3d 1321, 1324 (11th Cir. 2008). We also review de novo the

interpretation and application of a statute. Dawson v. Scott, 50 F.3d 884, 886 (11th

Cir. 1995). When a statute is silent or ambiguous, we afford deference to an

administrative agency’s interpretation of the statute as long as it is reasonable and

not “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 886–87

(internal quotation marks omitted).

                                          III.

      The Museum argues that it is not an “exhibitor” of animals as defined in the

AWA and, even if it is, the AWA is unconstitutional as applied to the Museum and

its Hemingway cats. Consistent with the principle that “a federal court should

refuse to decide a constitutional issue unless a constitutional decision is strictly




                                           6
              Case: 11-14217     Date Filed: 12/07/2012   Page: 7 of 13

necessary,” Cone Corp. v. Fla. Dep’t. of Transp., 921 F.2d 1190, 1210 (11th Cir.

1991), we begin with the question of statutory interpretation.

      The AWA somewhat obscurely defines an “exhibitor” as “any person

(public or private) exhibiting any animals, which were purchased in commerce or

the intended distribution of which affects commerce, or will affect commerce, to

the public for compensation, as determined by the Secretary.” 7 U.S.C. § 2132(h).

The Museum does not dispute that it exhibits the Hemingway cats to the public for

compensation, so the crux of this case appears to be whether the Museum’s

exhibition of cats is a “distribution . . . which affects [interstate] commerce.” See

id. (emphasis added).

      Because most animal-related exhibitions contain animals that have been

purchased and transported in commerce, very few courts have been presented with

an occasion to interpret the AWA’s use of the term “distribution.” The Museum

points out dicta in Haviland v. Butz where the D.C. Circuit stated that the term

“distribution” is synonymous with “transportation.” 543 F.2d 169, 173 n.22 (D.C.

Cir. 1976) (upholding applicability of the AWA to a traveling, interstate dog-and-

pony show). Of course, this comment is advantageous to the Museum because the

Hemingway cats have never been transported anywhere.




                                           7
              Case: 11-14217     Date Filed: 12/07/2012    Page: 8 of 13

      But in its administrative agency decisions, the Secretary of Agriculture has

interpreted “distribution” more liberally and applied it to intrastate, “fixed-site

exhibitions.” Lloyd A. Good, Jr., 49 Agric. Dec. 156, 174 (1990) (holding that a

stationary dolphin exhibition was subject to the AWA). In Good, the Secretary

reasoned that the word “distribution” relates only to “the manner in which the

animals are displayed to the public,” and thus, an exhibitor becomes subject to the

AWA if he “distributes” animals “by television or simply by making them

available to the public.” Id. (emphasis added). The Secretary supported this

interpretation by reasoning that the word “distribution” can mean “an array of

objects or events in space or time” or “any spatial or temporal array of objects or

events.” Id. at 173 (citing WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY

391 (1984) and THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE

384–85 (New College Edition, 1976), respectively). Therefore, a repeated and

regular exhibition fits the cited dictionary definitions of “distribution.” Id. at 173–

74. The Secretary further reasoned that one of Congress’s “basic purposes” for

expanding the scope of the AWA in 1976 was to “bring into the regulatory

framework of the Act for the first time exhibitors (such as circuses, zoos,

carnivals[,] and road shows).” Id. at 174 (quoting H.R. REP. NO. 1651, at 2 (1970),

reprinted in 1970 U.S.C.C.A.N. 5104) (emphasis added). Upon consideration of

                                           8
              Case: 11-14217     Date Filed: 12/07/2012    Page: 9 of 13

this legislative history, the Secretary aptly noted that “[z]oos do not move from

place to place.” Good, 49 Agric. Dec. at 174. Accordingly, the Secretary found

that a person acts as an exhibitor as defined by Congress “simply by making

animals available to the public.” Id. For over two decades, the USDA has relied

upon this interpretation to apply the AWA to fixed-site, intra-state exhibitors like

the Museum. See, e.g., Peter Gronbeck, AWA Docket No. 05-0018, 2007 WL

3170301, at *1 n.2 (U.S.D.A. Feb. 27, 2007); Ronnie Faircloth, 52 Agric. Dec.

171, 174–75 (U.S.D.A. 1993).

      The Secretary’s reasonable and consistent interpretation of “exhibitor” as

articulated in Good is entitled to Chevron deference. See Dawson, 50 F.3d at 886–

87. Pursuant to Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc.,

467 U.S. 837, 104 S. Ct. 2778 (1984), a court must first “give effect to the

unambiguously expressed intent of Congress.” Id. at 842–43, 104 S. Ct. at 2781.

But when “the statute is silent or ambiguous with respect to the specific issue,” and

an administrating agency has interpreted the statute, courts are bound to show

deference to the agency’s reasonable interpretation, so long as it is not “arbitrary,

capricious, or manifestly contrary to the statute.” Id. at 843–44, 104 S. Ct. at 2782.

The statute is ambiguous on the question whether “distribution” includes the

display of animals by a fixed-site commercial enterprise. And, given Congress’s

                                           9
             Case: 11-14217    Date Filed: 12/07/2012   Page: 10 of 13

intent to regulate zoos, 7 U.S.C. § 2132(h), which are notably stationary and which

could potentially exhibit animals that are neither purchased nor transported in

commerce, we cannot see how the Secretary’s interpretation of “exhibitor” is

unreasonable. The Museum makes no attempt to explain why that interpretation is

not entitled to Chevron deference.

      Based on this reasonable interpretation to which we accord deference, the

district court correctly found that the Museum qualifies as an animal exhibitor

under the AWA. Without explicitly acknowledging the most obvious means of

exhibiting the Hemingway cats (i.e., displaying them to the public for

compensation), the district court found that the animals were “distributed” in these

two ways: (1) when Dixon, and later, Morawski, gave cats away, and (2) when the

Museum broadcasted images of the Hemingway cats online and used them to

attract visitors through promotional advertising materials. [See R. 74 at 10–11,

¶¶ 39, 42.] Perhaps because of the district court’s conclusions on the promotional

advertising, the Museum focuses all of its energy in this appeal toward convincing

us that the application of the AWA cannot be based merely upon the Museum’s

use of the cats’ images in promotional media. The Museum posits that, without

any “distribution” via promotional photographic or video advertising featuring the

Hemingway cats, the Museum would no longer be subject to the AWA. The

                                         10
             Case: 11-14217    Date Filed: 12/07/2012    Page: 11 of 13

Museum’s arguments are mistaken. The Museum “distributes” the cats in a

manner affecting commerce every time it exhibits them to the public for

compensation. See Good, 49 Agric. Dec. at 174. Thus, we hold that the Museum

is subject to the AWA because the Museum’s use of the Hemingway cats falls

within the reasonable interpretation of the AWA by the USDA.

      We must now address whether the regulation of the Museum and its

Hemingway cats exceeds Congress’s authority under its power “[t]o regulate

Commerce . . . among the several States.” U.S. CONST. art. I, § 8, cl. 3. The

Commerce Clause authorizes Congress to regulate “the channels of interstate

commerce, persons or things in interstate commerce, and those activities that

substantially affect interstate commerce.” Nat’l Fed’n of Indep. Bus. v. Sebelius,

___ U.S. ____, 132 S. Ct. 2566, 2578 (2012) (internal quotation marks omitted)

(quoting United States v. Morrison, 529 U.S. 598, 609, 120 S. Ct. 1740, 1749

(2000)). This case involves only the final object of Congress’s commerce

jurisdiction because the Hemingway cats themselves are neither channels of

interstate commerce nor things in interstate commerce.

      We conclude that the Museum’s exhibition of the cats substantially affects

interstate commerce. The Museum argues that its activities are of a purely local

nature because the Hemingway cats spend their entire lives at the Museum—the

                                         11
             Case: 11-14217     Date Filed: 12/07/2012    Page: 12 of 13

cats are never purchased, never sold, and never travel beyond 907 Whitehead

Street. See Reply Brief at 3 (citing United States v. Lopez, 514 U.S. 549, 567–68,

115 S. Ct. 1624, 1634 (1995)). But the local character of an activity does not

necessarily exempt it from federal regulation. “[W]hen a general regulatory statute

bears a substantial relation to commerce, the de minimis character of individual

instances arising under that statute is of no consequence.” Gonzales v. Raich, 545

U.S. 1, 17, 125 S. Ct. 2195, 2206 (2005) (internal quotation marks omitted); see

also Wickard v. Filburn, 317 U.S. 111, 125, 63 S. Ct. 82, 89 (1942) (reasoning that

even if “activity be local[,] and though it may not be regarded as commerce, it may

still, whatever its nature, be reached by Congress if it exerts a substantial economic

effect on interstate commerce”). And it is well-settled that, when local businesses

solicit out-of-state tourists, they engage in activity affecting interstate commerce.

See Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564,

573, 117 S. Ct. 1590, 1596–97 (1997). The Museum invites and receives

thousands of admission-paying visitors from beyond Florida, many of whom are

drawn by the Museum’s reputation for and purposeful marketing of the

Hemingway cats. The exhibition of the Hemingway cats is integral to the

Museum’s commercial purpose, and thus, their exhibition affects interstate




                                          12
             Case: 11-14217     Date Filed: 12/07/2012    Page: 13 of 13

commerce. For these reasons, Congress has the power to regulate the Museum and

the exhibition of the Hemingway cats via the AWA.

                                         IV.

      Notwithstanding our holding, we appreciate the Museum’s somewhat unique

situation, and we sympathize with its frustration. Nevertheless, it is not the court’s

role to evaluate the wisdom of federal regulations implemented according to the

powers constitutionally vested in Congress. See Sebelius, ___ U.S. at ___, 132

S. Ct. at 2600. Therefore, we affirm the judgment of the district court in favor of

the USDA.

      AFFIRMED.




                                          13
