Lori Marino v. NOAALori Marino v. NOAA
Elizabeth L. Lewis argued the cause for appellants. With her on the briefs were Donald Baur and William S. Eubanks, II.
Sommer H. Engels, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Andrew C. Mergen and Ellen J. Durkee, Attorneys.
Before: HENDERSON and KATSAS, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge GINSBURG.
GINSBURG,
I. Background
The Marine Mammal Protection Act (MMPA) bans the “taking” of certain classes of marine mammals, including orcas. See
In 1994, the Congress amended the MMPA in such a way that, according to the NMFS, it shifted jurisdiction to oversee the conditions of marine mammals in captivity to the Animal and Plant Health Inspection Service (APHIS) in the U.S. Department of Agriculture; the plaintiffs dispute this interpretation. See
In 2016, Tilikum, an orca at SeaWorld in Orlando held pursuant to a pre-1994 permit, became ill. He was the subject of a well-known documentary, Blackfish, and his illness drew the attention of animal welfare groups, including the plaintiffs. The plaintiffs asked the NMFS whether Tilikum‘s medical history and necropsy reports would be available upon the orca‘s death, under the conditions of SeaWorld‘s permit. On January 6, 2017, as they waited for a response, Tilikum died. The plaintiffs then asked the agency to enforce the permit requirement that SeaWorld transmit medical and necropsy data to the NMFS following his death, but the NMFS declined to do so.
The plaintiffs pressed the NMFS to explain why it would not enforce the permit condition; on March 10, 2017, shortly before meeting with the plaintiffs, the agency sent an email, explaining that it interpreted the 1994 amendments as extinguishing its authority to enforce marine mammal permits and transferring jurisdiction over marine mammal welfare to APHIS. In July and August 2017 two more orcas SeaWorld held pursuant to pre-1994 permits died.
The plaintiffs tried to convince the NMFS it had continuing legal authority to enforce pre-1994 permit conditions, but to no avail. After each orca died, the agency reiterated its position that it did not have the authority to enforce conditions in permits issued to facilities that publicly display marine mammals. The plaintiffs then brought this suit, arguing that the NMFS‘s policy rests upon an arbitrary
The defendants moved to dismiss for lack of subject matter jurisdiction. The district court granted the motion, ruling that the plaintiffs lacked standing to sue. We agree.
II. Analysis
Plaintiffs argue our precedent supports their standing if, as here, enforcement of a regulation a federal agency declines to enforce would allow them to secure information through the Freedom of Information Act. The foundational precedent on standing is Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), which teaches that “standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” To establish standing, a plaintiff “must show (1) an injury in fact that is ‘concrete and particularized’ and ‘actual or imminent‘; (2) that the injury is fairly traceable to the defendant‘s challenged conduct; and (3) that the injury is likely to be redressed by a favorable decision.” Am. Soc‘y For Prevention of Cruelty to Animals v. Feld Ent., Inc., 659 F.3d 13, 19 (D.C. Cir. 2011) (citing Lujan, 504 U.S. at 560-61).
For the plaintiffs to establish their standing to sue, “[e]ach element of standing must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Kareem v. Haspel, 986 F.3d 859, 865 (D.C. Cir. 2021) (cleaned up). Because the district court granted the NMFS‘s motion to dismiss, “we accept the well-pleaded factual allegations in the complaint as true and draw all reasonable inferences from those allegations in the plaintiff‘s favor, but threadbare recitals of the elements of standing, supported by mere conclusory statements, do not suffice.” Id. at 865-66 (cleaned up). Because the plaintiffs fail to establish that the relief they seek would redress the injury they allegedly suffered, we do not consider whether they satisfy the other requirements for standing.
We explain first that the plaintiffs have failed to allege a favorable decision here would lead the NMFS to enforce the permit conditions and thus redress their alleged injury. Their allegation to the contrary relies upon unadorned speculation that the NMFS would choose to enforce the necropsy permit conditions and that SeaWorld would voluntarily send necropsy information to an agency that had not enforced permit conditions in twenty-three years should this court determine that the NMFS retains its discretion to enforce permits it issued prior to 1994.
A. First-Party Redressability
To establish redressability, a plaintiff must prove “a likelihood that the requested relief will redress the alleged injury.” Steel Co. v. Cit. for Better Env‘t, 523 U.S. 83, 103 (1998). In Steel Co. the Court held the plaintiffs did not meet the redressability requirement for standing to bring a claim under the Emergency Planning and Community Right-To-Know Act because they did not allege an ongoing injury that could be remedied by the injunction they had requested. Id. at 105-06, 108.
Similarly, here, the plaintiffs did not allege that a favorable decision would cause the NMFS to redress their alleged injuries. Their prayer for relief requests an order declaring the NMFS violated the
The MMPA is permissive on its face: The NMFS “may” enforce permit conditions; it is not required to do so. See
The plaintiffs, however, citing Competitive Enterprise Institute v. National Highway Traffic Safety Administration (CEI), 901 F.2d 107, 117-118 (D.C. Cir. 1990), argue a plaintiff “need not prove that granting the requested relief is certain to redress their injury.” True enough, for certainty is not the lot of man, and no court would require it. In CEI the petition alleged that “if [the agency] had adequately assessed the safety impacts of the [relevant] standards, it would have been likely to conclude that its proposed standards were too high.” Id. at 118. That allegation was all the more plausible because the agency there had “already shown a willingness to entertain comments on the potential effects of a standard lower than 26 mpg, the low end of the range it originally proposed.” Id.
CEI is clearly not controlling here; that redressability is established where a remand would likely result in a favorable exercise of agency discretion does not help the plaintiffs because they did not plausibly plead that relief is indeed likely. See National Wrestling Coaches Ass‘n v. Dep‘t of Educ. (NWCA), 366 F.3d 930, 938-39 (D.C. Cir. 2004). They did not allege, even on information and belief, that the NMFS was likely to enforce the terms of the permit against SeaWorld or, for that matter, that SeaWorld composed or submitted any reports after 1994.
The plaintiffs also point, quite mistakenly, to Massachusetts v. EPA, 549 U.S. 497, 518 (2007), to argue they have standing “if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” Of course, there is some possibility the NMFS would oblige the plaintiffs, but that is not the standard they must meet. As the Court clearly explained in Massachusetts v. EPA, immediately after the passage the plaintiffs quote: “It is of considerable relevance that the party seeking review here is a sovereign State and not a private individual.” 549 U.S. at 518. “States are not normal litigants for the purposes of invoking federal jurisdiction,” and therefore are “entitled to special solicitude in our standing analysis.” Id. at 518, 520; see also New Jersey v. EPA, 989 F.3d 1038, 1045 (D.C. Cir. 2021) (holding New Jersey‘s quasi-sovereign interests in reducing air pollution justified its standing to challenge an EPA rule). The plaintiffs here are not states and hence are not entitled to special solicitude as to standing. Therefore, the plaintiffs fail to allege any facts from which we could infer the relief they seek would likely cause the NMFS to redress their alleged harms. But wait, there‘s more!
B. Third-Party Redressability
The plaintiffs also fail to plead facts suggesting SeaWorld would turn over the necropsy and medical history reports even if the NMFS were so to direct. Indeed, as we have noted before, “[w]hen a plaintiff‘s asserted injury arises from the Government‘s regulation of a third party that is not before the court, it becomes ‘substantially more difficult’ to establish standing.” NWCA, 366 F.3d at 938 (quoting Lujan, 504 U.S. at 562). “Because the necessary elements of causation and redressability in such a case hinge on the independent choices of the regulated third party, ‘it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.‘” Id. (quoting Lujan, 504 U.S. at 562).
Here the plaintiffs’ pleadings come close to suggesting a favorable decision would not redress their injury, for they allege that public display facilities have not sent necropsy reports to the NMFS for the past couple of decades. First, the complaint states: “very few public display facilities make such reports available on a voluntary basis.” Then the complaint implies SeaWorld did not voluntarily release the necropsy information after the death of Tilikum in January 2017 even though the NMFS had not yet issued its March 10 decision. In other words, the plaintiffs’ complaint suggests SeaWorld was not complying with the terms of the permit even before the NMFS issued its decision and is not likely to comply unless forced to do so by the NMFS — which, as we have seen, the plaintiffs did not allege is likely. See Teton Historic Aviation Foundation v. DOD, 785 F.3d 719, 726 (D.C. Cir. 2015) (“[A] plaintiff does not have standing to sue when redress for its injury depends entirely on the occurrence of some other, future event made no more likely by its victory in court.“).
Finally, citing Int‘l Ladies’ Garment Workers’ Union v. Donovan (ILGWU), 722 F.2d 795, 811 (D.C. Cir. 1983), the plaintiffs argue there is a “strong presumption” a regulated entity will comply with the law, which they say is all that is required to establish redressability here. But the ILGWU case does not support this proposition; the relief requested there would have made illegal several third parties’ subminimum wages, causing a competitive injury to the plaintiffs. Id. The court held “only by taking extraordinary measures... could third parties prevent redress of the
Even if ILGWU applied here in principle, it would not help the present plaintiffs because they do not allege SeaWorld ever created and still retains the reports the plaintiffs seek. The closest they come is to allege that “some public display facilities continued to submit necropsy and clinical history reports” after 1994. SeaWorld‘s retention of such reports is particularly unlikely because the relevant regulation requires only that “necropsy records will be maintained at the marine mammal‘s home facility and at the facility at which it died, if different, for a period of 3 years.”
III. Conclusion
Plaintiffs have not demonstrated their alleged injury is redressable for two reasons: First, they failed plausibly to plead that a favorable decision would lead the NMFS to enforce the necropsy conditions in SeaWorld‘s permits; second, they did not plead any facts suggesting SeaWorld would, or could, comply with the permit requirement and turn over necropsy data even if the NMFS‘s interpretation of the MMPA were declared unlawful. Therefore, the district court did not err in determining that the plaintiffs lacked standing to pursue this case. The judgment of the district court is, therefore,
Affirmed.