BOISE — Less than two months after the 9th U.S. Circuit Court of Appeals issued a ruling on Idaho’s so-called “ag gag” law, the high-profile fight over the law is headed back to district court.
Opponents of the law have filed a motion for declaratory judgment, which sends the case back to U.S. District Judge Lynn Winmill.
Winmill in 2015 found the law unconstitutional but Idaho appealed that decision to the 9th Circuit Court, which in January upheld most of the provisions of the state’s Agricultural Security Act, which is called the ag gag law by opponents.
In a motion filed Feb. 20, the plaintiffs asked Winmill to resolve what they say is legal uncertainty over the law that remains following the 9th Circuit decision.
The appeals court upheld Winmill’s ruling that the law’s ban on secret video or audio recordings on agricultural production facilities is unconstitutional.
But it upheld as constitutional other provisions of the law, including one that makes it a crime to obtain employment with an ag production facility through lies or misrepresentation with the intent to cause economic or other injury to the facility’s operations, business interests or customers.
It also reversed a permanent injunction on enforcement of the law, which also makes it a crime to obtain records of an ag production facility by force, threat, misrepresentation or trespass.
The law requires those found guilty to pay restitution to the victim in an amount equal to twice the damages. They would also face one year in prison.
In their motion for declaratory judgment, plaintiffs argue the provision that makes it a crime to lie to gain employment with the intent to cause harm should not apply to undercover investigative activities that seek to reveal animal abuse or other wrongdoing at ag facilities.
The 9th Circuit ruling did not resolve that issue, said Matthew Liebman, the senior attorney representing Animal Legal Defense Fund, one of the plaintiffs among a coalition of animal rights groups, journalists and public interest groups that challenged the law in court.
“To apply the statute to these investigators would be unconstitutional ... because our investigators don’t intend to cause (legal harm) to the facility,” he said.
The law was crafted by the Idaho Dairymen’s Association in 2014 after video footage of dairy cows being abused was released by an undercover animal activist group. IDA officials said the footage was used to attempt to unfairly damage the dairy’s business.
IDA officials declined to comment for this story.
In their motion for declaratory judgment, plaintiffs said the type of undercover investigations they plan to engage in could result in boycotts and other reputational damages, but those aren’t covered under the law’s provisions.
The “misrepresentations plaintiffs desire to engage in are not made with the intent to, and in fact do not, cause the types of tangible harms contemplated by the statute...,” the motion states.
Depending on how Winmill rules, the case could end up back at the 9th Circuit, Liebman said, adding that “it’s definitely possible” it could make its way to the U.S. Supreme Court.