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Saturday, April 28, 2012
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Hemingway cats case awaits federal appeal

An eight-year legal cat fight over famed Ernest Hemingway felines is far from over as the museum has taken the issue to a federal appellate court.

Hemingway Museum owner and CEO Michael Morawski is challenging a U.S. Department of Agriculture (USDA) mandate that the museum obtain an animal exhibition license to keep the 40 or so cats on the 1-acre property, according to court records.

The issue appeared to be settled in 2008 when the museum received the license after four years of legal wrangling and claims by the USDA that the museum was in violation of the Animal Welfare Act by not caging the cats. But Morawski is challenging the requirement, claiming the license is unnecessary and a waste of taxpayer dollars.

The museum is arguing that the cats do not fall under the regulatory umbrella of the USDA, or more specifically, the Animal and Plant Inspection Services, because the cats are not made to perform tricks, are not crossing state lines nor being sold or distributed.

Morawski claims the cats are healthy and receive regular veterinary updates, and that will continue with or without the federal government inspections.

The cats' freedom to leave the grounds -- a point the museum alleges is unfounded -- was one concern of the Agriculture Department, so the museum took steps that included hiring a cat behaviorist and installing a $15,000 nylon fence in 2008 in an effort to resolve the issue.

In August, U.S. District Judge Jose E. Martinez sided with the government, ruling that even though the cats are born, live and die on museum grounds and never are bought or sold, they are displayed on the museum's website and that's enough to qualify the case under the commerce clause of the Animal Welfare Act, said museum attorney Cara Higgins.

"Judge Martinez essentially ruled that the Animal Welfare Act regulates not just animals, but pictures of animals," Higgins said. "This is not what Congress intended in passing the Animal Welfare Act."

Department of Justice and U.S. attorneys do not comment on pending cases.

In December, Higgins appealed that decision before the U.S. 11th Circuit Court of Appeals.

"When viewed individually or in the aggregate, the Hemingway cats have no impact on interstate commerce," Higgins wrote in her reply. "We're saying the cats have to physically move across state lines for this to be applicable," she told The Citizen Friday.

"This was intended for circus animals or animals that are bought and sold across state lines. It was never intended to regulate pictures of cats."

Nonetheless, government attorneys argue that the "plaintiff's broadcasting of images of the cats through a webcam and use of them in promotional materials to bring in visitors who will pay for tours is sufficient to establish distribution in commerce and to establish plaintiff as an exhibitor."

Higgins argues that is a stretch. "There is no evidence that the photographs or Internet video has any substantial effect on any interstate commerce, nor is it logically/rationally related to a legitimate federal government interest regarding animal welfare," Higgins wrote. It was unclear Friday when the appellate court will issue its decision, Higgins said. It's possible the court will ask attorneys to present oral arguments as well, she added.

alinhardt@keysnews.com

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