NEW ENGLAND ANTI-VIVISECTION SOCIETY, et al., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants, and Yerkes National Primate Research Center, Intervenor-Defendant.
Civil Action No. 16-cv-149 (KBJ)
United States District Court, District of Columbia.
Signed September 14, 2016
Claire M. Whitaker Fred Elmore Haynes U.S. Attorney‘s Office for the District of Columbia Ruth Ann Storey, Trent S.W. Crable, U.S. Department of Justice, Washington, DC, for Defendants.
James Hardwick Lister, Birch Horton Bittner and Cherot, P.C., Washington, DC, Mara Michaletz, Birch Horton Bittner & Cherot, PC, Anchorage, AK, for Intervenor-Defendant.
MEMORANDUM OPINION
KETANJI BROWN JACKSON, United States District Judge
The question of who can speak for the animals has long vexed federal judges in animal-welfare cases. As a general matter, courts have concluded that well-established principles of Article III standing permit “human beings [to] invoke their own injuries in fact to challenge harms done to animals[,]” Cass R. Sunstein, Standing For Animals (With Notes On Animal Rights), 47 UCLA L. Rev. 1333, 1343 (2000), but it can be “exceptionally confusing” to apply settled standing doc-
Specifically, Plaintiffs object to FWS‘s decision to permit Intervenor-Defendant Yerkes National Primate Research Center (“Yerkes“) to transfer eight of its chimpanzees to a zoo in the United Kingdom; the agency has authorized this act of exportation pursuant to Section 10 of the Endangered Species Act (“ESA“),
Before this Court at present are three partial cross-motions for summary judgment that Plaintiffs, FWS, and Yerkes have now filed. (See Pls.’ Mot. for Partial Summ. J. (“Pls.’ Mot.“), ECF No. 39; Defs.’ Mot. for Partial Summ. J. (“Defs.’ Mot.“), ECF No. 44; Def.-Intervenor‘s Cross-Mot. for Summ. J. (“Yerkes‘s Mot.“), ECF No. 42).1 Plaintiffs focus primarily on the alleged harm to the chimpanzees at issue (Plaintiffs believe they would be far better off if they were sent to a sanctuary within the United States rather than “an unaccredited zoo” overseas (Pls.’ Mem. in Supp. of Pls.’ Mot. (“Pls.’ Mem.“), ECF No. 39-1, at 9)), and they suggest that FWS‘s export-permit decision not only violates the ESA but also injures endangered species as a whole because, in Plaintiffs’ view, it was “Congress‘s stated intention to limit substantially the number of exemptions that may be granted” under Section 10 of the ESA, and that intent is “completely eviscerated by allowing applicants to simply buy Section 10 permits by promising to contribute money to someone else” (id. at 32 (emphasis altered) (citation
For the reasons explained fully below, this Court finds that Defendants have the better of the standing dispute. Despite the fact that Plaintiffs have presented a series of persuasive arguments regarding the meaning of the ESA and the extent to which FWS‘s interpretation undermines the goals and purposes of that statute, recent D.C. Circuit case law compels this Court to conclude that Article III requires something more than a potentially meritorious challenge to imprudent government action involving endangered animals: Plaintiffs themselves must have a concrete and particularized injury in fact that is actual or imminent, that is fairly traceable to Defendants’ actions, and that a federal court‘s decision can redress. This Court concludes that Plaintiffs have not satisfied these threshold requirements under binding law regarding Article III standing in animal-welfare and environmental-law cases, and therefore, the Court is constrained to refrain from passing on the merits of Plaintiffs’ arguments or granting them the relief they seek. See Scenic Am., Inc. v. U.S. Dep‘t of Transp., No. 14-5195, 836 F.3d 42, 48, 2016 WL 4608153, at *3 (D.C. Cir. Sept. 6, 2016) (“Observing our Article III limitations is ... always important, and particularly so in a case such as this, where we are asked to invalidate an action of the Executive branch.“). Consequently, Defendants’ and Yerkes‘s partial motions for summary judgment must be GRANTED, Plaintiffs’ partial motion for summary judgment must be DENIED, and the claims at issue herein must be dismissed. A separate order consistent with this Memorandum Opinion shall issue.
I. BACKGROUND
A. The Listing Of Chimpanzees As Endangered Species Under The ESA
The ESA has been called “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 698 (1995) (internal quotation marks and citation omitted). The statute aims to conserve the populations and habitats of certain species, see
FWS has listed chimpanzees as a protected animal species for ESA purposes since 1976. See Determination of 26 Species of Primates as Endangered or Threatened Species, 41 Fed. Reg. 45990, 45990 (Oct. 19, 1976); Endangered and Threatened Wildlife and Plants; Listing All Chimpanzees as Endangered Species (“Chimpanzee Final Rule“), 80 Fed. Reg. 34500, 34500 (June 16, 2015). Beginning in 1990, the agency “[s]plit-[l]ist[ed]” chimpanzees (Pls.’ Mem. at 13) based upon whether the animals at issue were wild or captive; wild chimpanzees were considered endangered, and captive chimpanzees were deemed threatened. See Chimpanzee Final Rule, 80 Fed. Reg. at 34500. Under the ESA, these different designations resulted in the application of different constraints on public and private actions that might impact the species. Compare
In 2015, after years of intensive lobbying by animal-welfare organizations, FWS eliminated the dichotomy between wild and captive chimpanzees, deeming all chimpanzees “endangered” within the meaning of the ESA. (Pls.’ Mem. at 13-14; Defs.’ Mem. at 13); see also Chimpanzee Final Rule, 80 Fed. Reg. at 34500. For present purposes, this designation was particularly consequential because Section 9 of the ESA categorically prohibits the export of endangered species, among other things. See
In pertinent part, the text of Section 10(a)(1) reads, as follows:
(a) Permits.
(1) The Secretary may permit, under such terms and conditions as he shall prescribe—
(A) any act otherwise prohibited by [Section 9] for scientific purposes or to enhance the propagation or survival of the affected species, including but not limited to, acts necessary for the establishment and maintenance of experimental populations[.]
B. FWS‘s Approval Of Yerkes‘s Export-Permit Application
On June 12, 2015, Yerkes—a research laboratory associated with Emory University (Yerkes‘s Mot. at 36)—requested that FWS grant it permission under CITES to export eight chimpanzees that Yerkes owns to the Wingham Wildlife Park (“Wingham“) in England. (See CITES Permit Application, AR 000012.)4 Yerkes‘s staff had purportedly “spent significant time” in 2013 and 2014 “conducting an extensive due diligence review of Wingham‘s facility, staff, mission, and plans,”
After Yerkes finished supplementing its application to include the ESA permit request, FWS published the required Section 10(c) notice. See Endangered Species; Wild Bird Conservation; Marine Mammals; Receipt of Applications for Permit (“Original 10(c) Notice“), 80 Fed. Reg. 62089, 62091 (Oct. 15, 2015). According to documents in the record, Yerkes originally hoped to satisfy Section 10(a) by making financial commitments to two organizations that conduct “programs that focus on benefits to wild populations of chimpanzees.” (Supplement to Yerkes Permit Request, AR 000257.) One of those organizations apparently opposed Yerkes‘s attempted export
Then, on November 27, 2015, FWS informed NEAVS that (1) “there ha[d] been a shift in the organization and amount” of Yerkes‘s donation—Yerkes would now donate “$45,000 per year for five years to the Population & Sustainability Network [(“PSN“),]” and (2) the export permit would be granted to Yerkes within ten days. (FWS Email to NEAVS, AR 001359-60.) Three days later, Plaintiffs filed a lawsuit against FWS that challenged the permitting decision (see Pls.’ Mem. at 22), and raised essentially the same claims that are before this Court at present, see Compl. ¶¶ 84-95, New England Anti-Vivisection Soc‘y v. Jewell, No. 15-cv-2067 (D.D.C. filed Nov. 30, 2015), ECF No. 1. Because the recipient shift occurred after the relevant comment period had closed, see Original 10(c) Notice, 80 Fed. Reg. at 62089, FWS elected to reopen the comment period “to allow the public the opportunity to review additional information submitted for the issuance of [the] permit[,]” Endangered Species; Receipt of Application for Permit, 81 Fed. Reg. 3452, 3452 (Jan. 21, 2016), and, as a result, Plaintiffs dismissed that other case (see Compl. ¶ 96). The new comment period subsequently closed, and FWS again decided (over strenuous objection from Plaintiffs and others (see Pls.’ Mem. at 22-28) to grant the permit (see Issued Permit, AR 049927-35).
FWS made a number of findings in connection with its decision to issue the export permit to Yerkes. (See, e.g., Enhancement Finding, AR 049912-14; NEPA Statement, AR 049915-18; Section 10(d) Finding, AR 049919-20.) The agency explained, for example, that it viewed Yerkes‘s application as “an application ... for the exportation of [the chimpanzees] for the purpose of enhancing the survival of the species in the wild.” (Enhancement Finding, AR 049912.) Moreover, and significantly for present purposes, FWS specifically found that “this action [would] enhance the survival of the species” (id. AR 049914) not because the permitted action itself (i.e., sending these chimpanzees to Wingham) would accomplish this result, but because of the donation to PSN, which is a United Kingdom-based English non-governmental organization that “works at the intersection of sustainability, human health, and population dynamics to conserve biodiversity around the world” (id. AR 049912; see also Section 10(d) Finding, AR 049920 (“[FWS] determined that the export of the chimpanzees would enhance the propagation or survival of the species.“)). FWS explained that PSN had promised to use the funds to “initiat[e] a new ... program specifically focused on how [the above-described] factors can be addressed to ameliorate current risks, such as habitat destruction and disease, which face wild chimpanzees in East Africa.” (Enhancement Finding, AR 049912.) FWS also proceeded to find that the export-permit process complied with Section 10(d)‘s requirement that the permit was applied for in good faith and would not “operate to the disadvantage of chimpanzees within [their] natural range.” (Section 10(d) Finding, AR 049920.)
The agency published notice of the Section 10(d) finding in the Federal Register on May 5, 2016. See Endangered Species; Marine Mammals; Emergency Exemption;
C. Procedural History
Meanwhile, on January 29, 2016—during the pendency of the second comment period related to Yerkes‘s permit application—NEAVS filed a single-issue complaint in this Court, alleging that FWS had violated the
The amended complaint also attacked the agency‘s permitting decision on several additional grounds. (See
On April 27, 2016, Yerkes requested permission from this Court to intervene in this lawsuit as a defendant (see Consent Mot. to Intervene, ECF No. 9); the Court granted Yerkes‘s request on April 29, 2016 (see Mem. Op. & Order, ECF No. 15). Thereafter, Plaintiffs filed a motion for a preliminary injunction that sought to enjoin execution of the permitted activity pending final resolution of the case. (See Pls.’ Mot. for Preliminary Injunction (“P.I.“), ECF No. 18, at 1.) This Court held a hearing on Plaintiffs’ P.I. motion on May 24, 2016 (see Order, ECF No. 27), after which the Court denied the motion as moot in light of Yerkes‘s agreement to suspend its transfer of the chimpanzees voluntarily in order to permit the matter to be briefed as cross-motions for summary judgment and decided with the benefit of a full administrative record (see
Plaintiffs filed their cross-motion for summary judgment on July 8, 2016. In their memorandum in support of the motion, Plaintiffs home in on a subset of the claims in their wide-ranging complaint. For example, Plaintiffs specifically argue that Section 10 of the ESA does not au-
Defendants’ cross-motion for summary judgment, which was filed August 4, 2016, not only challenges Plaintiffs’ claims on the merits, it also contends that this Court lacks subject-matter jurisdiction because Plaintiffs lack Article III standing to maintain this lawsuit. (See generally Defs.’ Mem.) In this regard, Defendants assert that the informational, organizational, and aesthetic injuries upon which Plaintiffs
rely for standing (discussed at length in Part III) do not constitute actual or imminent injuries in fact (see id. at 19-30). Yerkes spends most of its cross-motion memorandum attempting to defend the rationality of FWS‘s conclusion that a sizable monetary donation to an organization that supports (human) family planning and reproductive health services will benefit chimpanzees as a species (see, e.g., Yerkes‘s Mot. at 24-25, 36-41), but Yerkes also generally agrees with Defendants that, in any event, Plaintiffs have failed to assert an injury in fact that FWS‘s action caused and that will likely be remedied if Plaintiffs prevail (see id. at 49-54).
II. LEGAL STANDARDS
As noted above, Plaintiffs’ complaint asks this Court to set aside FWS‘s decision to issue an export permit to Yerkes on a variety of grounds. (See Compl. ¶¶ 145-161.) The motions at issue here are styled as motions for summary judgment under
As always, however, before the court can render a decision on the merits of a plaintiff‘s challenge to agency action, it must first satisfy itself that it has jurisdiction over the plaintiff‘s claims because the plaintiff who seeks the court‘s assistance meets the “irreducible constitutional minimum of standing[.]” Bennett v. Spear, 520 U.S. 154, 167 (1997) (internal quotation marks and citation omitted); see also Scenic Am., 836 F. Supp. 3d at 47-49, 2016 WL 4608153, at *3-4. Standing doctrine “helps preserve the Constitution‘s separation of powers and demarcates ‘the proper—and properly limited—role of the courts in a democratic society[,]” Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1279 (D.C. Cir. 2012) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)), and thus, must not be viewed as a “troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of a lawsuit which a party desires to have adjudicated[,]” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 476 (1982). Pursuant to our Constitution, the role of the federal courts “is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law[,]” and “[e]xcept when necessary in the execution of that function, courts have no charter to review and revise legislative and executive action.” Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009) (citation omitted). Accordingly, and as a general matter, the threshold inquiry for any federal court
The three essential elements of Article III standing are by now well established. The Constitution requires:
(1) that the plaintiff have suffered an “injury in fact“—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of—the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Bennett, 520 U.S. at 167 (citation omitted). It is axiomatic that the party that invokes federal jurisdiction has the burden of establishing these elements, and as relevant here, it is also clear that, “at the summary judgment stage, such a party can no longer rest on mere allegations, but must set forth by affidavit or other evidence specific facts” that support his claim of injury, causation, and redressability. Fed. Forest Res. Coal. v. Vilsack, 100 F. Supp. 3d 21, 34 (D.D.C. 2015) (quoting Clapper v. Amnesty Int‘l USA, 133 S. Ct. 1138, 1148-49 (2013) (internal quotation marks omitted)); see also Bennett, 520 U.S. at 168 (noting that, at summary judg-
Furthermore, when it evaluates whether or not a plaintiff has Article III standing, the court must not “decide ... for or against the plaintiff” on the merits of his claims, In re Navy Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008) (internal quotation marks and citation omitted); rather, the court must “assume that on the merits the plaintiffs would be successful in their claims.” Id. (emphasis added) (internal quotation marks and citation omitted); see also Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007). And while standing is not entirely precluded if “the plaintiff is not himself the object of the government action or inaction he challenges,” there is no question that “it is ordinarily substantially more difficult to establish.” Fed. Forest Res. Coal., 100 F. Supp. 3d at 34 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992) (internal quotation marks omitted)); see also Food & Water Watch v. Vilsack, 808 F.3d 905, 914 (D.C. Cir. 2015).
III. ANALYSIS
This case begins and ends with the Article III standing inquiry. Plaintiffs insist that they are entitled to bring this challenge to the export permit that FWS has granted to Yerkes because they have suffered (or imminently will suffer) various injuries in fact as a result of this permitting decision. To support this contention, which is essential to establishing standing and thus this Court‘s subject-matter jurisdiction, Plaintiffs offer three separate theories of injury: (1) that all of the plaintiffs have suffered an “informational” injury,
A. Plaintiffs Have Not Demonstrated That They Have A Cognizable Informational Injury
An informational injury can occur when a plaintiff is deprived of information that a statute entitles him to have. See Zivotofsky v. Sec‘y of State, 444 F.3d 614, 618 (D.C. Cir. 2006) (“Any[] [FOIA requester] whose request for specific information has been denied has standing to bring an action .... The requester is injured-in-fact for standing purposes because he did not get what the statute entitled him to receive.” (some citations omitted) (citing, inter alia, FEC v. Akins, 524 U.S. 11, 23-25 (1998))); see also Am. Farm Bureau v. E.P.A., 121 F. Supp. 2d 84, 97 (D.D.C. 2000) (explaining that “[i]nformational standing arises ‘only in very specific statutory contexts’ where a statutory provision has ‘explicitly created a right to information‘” (quoting Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 502 (D.C. Cir. 1994))). Under such circumstances, which are “exceedingly limited” as
1. Section 10(c) Does Not Require FWS To Collect And Disclose Information Beyond That Which Is Submitted To The Agency In Support Of A Permit Application
As the D.C. Circuit recently explained, “[a] plaintiff suffers sufficiently concrete and particularized informational injury where the plaintiff alleges that: (1) it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it, and (2) it suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.” Friends of Animals v. Jewell (“Friends of Animals II“), 828 F.3d 989, 992 (D.C. Cir. 2016) (citation omitted). Importantly, it is well established that “the existence and scope of an injury for informational standing purposes is defined by Congress[.]” Id. at 992 (emphasis added) (citation omitted); cf. Warth v. Seldin, 422 U.S. 490, 514 (1975) (“Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute.” (citation omitted)). Consequently, a “plaintiff seeking to demonstrate that it has informational standing generally need not allege any additional harm beyond the one Congress has identified.” Friends of Animals II, 828 F.3d at 992 (emphasis omitted) (internal quotation marks and ci-
Here, Plaintiffs assert that they have suffered informational injury “because the FWS‘s failure to collect the information necessary to conclude that the authorized export will ‘enhance the survival’ of the chimpanzee species, and its decision to instead allow PSN, Yerkes, and Wingham to make this determination ... [,] violated the Plaintiffs’ right to receive and comment on such information before the FWS made the decision at issue, as required by Section 10(c)[.]” (Pls.’ Mem. at 46 (emphasis in original).) Pursuant to the above-cited cases, Plaintiffs might well have had a viable contention that they were injured by this alleged deprivation of relevant information that the agency failed to collect, but only if Section 10(c) actually does require the agency “to collect the information necessary to conclude that the authorized export will ‘enhance the survival’ of the species” (id.), and this Court sees no such affirmative-collection requirement in that statutory provision. Indeed, the plain text of the disclosure requirement in Section 10(c) is far more limited; as relevant here, it provides only that “[i]nformation received by the Secretary as a part of any application [for a permit] shall be available to the public as a matter of public record at every stage of the proceeding.”
The D.C. Circuit‘s recent decision in Friends of Animals II makes clear why this is so. That case involved Section 4(b) of the ESA, which authorizes petitions to the Secretary of the Interior to request that a species be added or removed from the endangered or threatened species lists. See
The D.C. Circuit rejected this informational standing contention. Stated simply, the Circuit focused on “the first part of the [informational standing] inquiry“—i.e., the requirement that the plaintiff be deprived of information that the statute requires produced—and, based on its evaluation of the statutory provisions at issue, concluded that “[t]he disclosure requirement [plaintiff] points to as the source of its informational injury does not impose any obligations on the [agency] until a later time in the listing process.” Id. at 992. Under the Circuit‘s reading, “[t]he structure of section 4(b)(3)(B) makes clear that [the deadline and disclosure] requirements arise sequentially[,]” id., and thus, “Congress placed the Secretary under no obligation to publish any information in the Federal Register until after making a 12-month finding[,]” id. This same analysis plainly supports this Court‘s conclusion that the absence of any collection requirement in Section 10(c)‘s disclosure provision prevents Plaintiffs from claiming injury as a result of FWS‘s failure to undertake any such action.
But there is more. Because the Friends of Animals II plaintiffs apparently recognized that the statutory conditions for the required disclosure of information had not come to pass, the complaint that was filed in that case claimed the only transgression that could plausibly be pled under the circumstances: that the agency had missed the 12-month deadline for making the requisite findings. See id. at 994 (noting that the plaintiff had called its case “a deadline suit” and that its “complaint
So it is here. Plaintiffs’ ESA claims challenge FWS‘s export-permit decision as an arbitrary-and-capricious contravention of Sections 10(a) and 7(a)(2), rather than as a violation of Section 10(c), presumably precisely because Section 10(c) does not itself require the agency to collect and disclose the information that Plaintiffs assert that Section 10(c) requires the agency to collect and disclose for the purpose of their informational-injury argument. And just as the plaintiff in Friends of Animals II earnestly argued that the statutory provisions in that case must be read “[t]ogether” and interpreted to “confer on it the right to timely information” that could be the basis for the plaintiff‘s claim of informational injury, id. at 993 (internal quotation marks and citation omitted), so, too, Plaintiffs here insist that the disclosure man-
Of course, the absence of any clear statutory requirement that FWS collect the detailed information about the PSN project that Plaintiffs say should have been gathered and disclosed to them pursuant to Section 10(c), raises the question: what is the real source of Plaintiffs’ insistence that they have met the requirements for having an informational injury? The duty to collect information that Plaintiffs read into the statute appears to be grounded, first, in their belief the agency could not make a rational decision about whether the proposed permitting arrangement enhances the survival of the chimpanzee species (as Section 10(a) requires) without collecting detailed information about the PSN project (see Pls.’ Mem. at 46-47), and second, in the fact that agency regulations
Pls.’ Mem. at 47 (arguing that FWS “did not require Yerkes to submit any information about where the PSN program will take place ... , who will conduct that program, any of the qualifications of such individuals, or any of the other details of the program[,]” and that Plaintiffs were harmed by this “failure to obtain that required information and make it available to the public” (emphasis in original))).
This line of argument falls short in several respects. First of all, Section 10(a) is not the disclosure provision upon which Plaintiffs’ informational-injury argument rests, so Plaintiffs’ concern that FWS failed to collect information that the agency needed to review in order to make a rational “enhancement” finding has no bearing on Plaintiffs’ informational-injury contention. Second, it is not at all clear that what FWS regulations say about the information that an applicant must submit is responsive to the informational-standing question that is at issue here—i.e., whether and under what circumstances the statute requires the agency to disclose information to the public. Third, and relatedly, the applicable disclosure provision—Section 10(c)—only directs the agency to release information it has “received” in connection with a permit,
Finally, even assuming that the regulations establish and define the scope of FWS‘s duty to collect information, this Court can find nothing in those regulations that supports a finding that the agency actually breached that collection obligation in the manner Plaintiffs suggest. That is, the regulations expressly and repeatedly require that an applicant submit various pieces of information about “the wildlife sought to be covered by the permit[,]”
2. Plaintiffs’ Arguments To The Contrary Proceed From A Mistaken Premise And Thus Are Not Persuasive
Undaunted, Plaintiffs invoke “the well-established rule that to determine standing the Court must accept Plaintiffs’ view of the merits.” (Pls.’ Reply at 39.) According to Plaintiffs, this means that the Court is required to accept their view that Section 10(c) confers on them a right to certain information that they say FWS had to, yet failed to, collect. (See id. at 38 (maintaining that “this Court is required to assume” that “Plaintiffs have a statutory right to information that they contend the agency would be required to collect if Plaintiffs are correct on the merits of their claims” (emphasis in original)); see also id. at 42 (expressing the view that Section 10(c)‘s “obligation to collect and disclose ... information applies to the entity that will be conducting the activities that the agency has concluded will ‘enhance the survival’ of the species, here PSN” and that, “again, the Court must accept this view of the statute when deciding standing“).) But Plaintiffs are wrong to insist that, just because the Court is required to assume the merits of their claims when conducting the informational-standing analysis, it must also accept their legal argument that Section 10(c) requires the disclosure of information under the circumstances that Plaintiffs envision, for at least two reasons.
To begin with, it does not help Plaintiffs for this Court to assume that the claims they have brought in this case are meritorious, since the claims these plaintiffs press are wholly independent of the Section 10(c) argument they seek to advance for standing purposes. See Friends of Animals II, 828 F.3d at 994, 2016 WL 3854010, at *4 (explaining that a plaintiff whose claim of misconduct arises under a statutory provision that does not require the disclosure of information cannot claim that he is injured on the basis of a distinct (albeit related) disclosure provision because “[a] plaintiff can demonstrate informational injury [only] where it seeks to enforce [statutory] disclosure requirements” (citation omitted)); ASPCA, 659 F.3d at 23.13 Second, and perhaps even more important, the D.C. Circuit‘s reasoning in Friends of Animals II completely belies any contention that a court‘s informational-standing analysis is constrained by a plaintiff‘s assertion that a particular disclosure provision requires the disclosure of infor-
mation on the terms the plaintiff dictates.
As explained above, the plaintiff in Friends of Animals II specifically argued that the deadline and disclosure provisions of
To be sure, the D.C. Circuit has, at times, asserted that a plaintiff‘s informational injury is to be evaluated in light of the plaintiff‘s interpretation of a statute. See, e.g., Friends of Animals I, 824 F.3d at 1040-41 (explaining that “a denial of access to information can work an injury in fact for standing purposes, at least where a statute (on the claimants’ reading) requires that the information be publicly disclosed and there is no reason to doubt their claim that the information would help them” (emphasis added) (internal quotation marks omitted) (quoting Ethyl Corp. v. E.P.A., 306 F.3d 1144, 1148 (D.C. Cir. 2002))); Feld, 659 F.3d at 23 (“To establish [informational] injury, a plaintiff must espouse a view of the law under which the defendant (or an entity it regulates) is obligated to disclose certain information that the plaintiff has a right to obtain.“). But this Court takes this directive to mean that, while it is completely within the province of the court to determine whether and under what circumstances a statutory provision requires the disclosure of information, any dispute about whether such circumstances exist in the case at bar must be decided in plaintiff‘s favor for standing purposes.
So, for example, in FEC v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998), the Supreme Court read the statute at issue—the
D.C. Circuit cases that purport to accept the plaintiff‘s view of the law while analyzing standing can be read this way as well. See, e.g., Judicial Watch, Inc. v. U.S. Dep‘t of Commerce, 583 F.3d 871, 872-73 (D.C. Cir. 2009) (finding “obvious[]” injury in fact to support a claim that the Department of Commerce violated the
The bottom line is this: just as the D.C. Circuit held that the disclosure provision in Friends of Animals II imposed no disclosure obligation on the Secretary until she had made her deadline finding, this Court finds that
B. NEAVS Does Not Have Organizational Standing
Plaintiffs’ second standing theory rests on NEAVS‘s contention that FWS‘s permit decision will injure that organization because it will harm “NEAVS‘[s] ability to carry out one of its key missions[.]” (Pls.’ Mem. at 48.) According to Plaintiffs, NEAVS “is dedicated to ending the use of
1. An Organization That Sues On Its Own Behalf Must Show That The Challenged Action Poses An Actual Or Imminent Threat To Its Ability To Perform Its Activities
Simply stated, an organization is permitted to assert standing on its own behalf, but only if it can demonstrate that it has an “actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.” PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015) (internal quotation marks and citation omitted); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). The difficulty in applying these core principles—see PETA, 797 F.3d at 1099, 1101 (Millett, J., dubitante); Int‘l Acad. of Oral Med. & Toxicology v. FDA, 195 F.Supp.3d 243, 253-54, 2016 WL 3659887, at *6 (D.D.C. July 1, 2016)—arises from the fact that, just as individuals need more than a “special interest” in the subject matter of their lawsuit to have Article III standing, Lujan, 504 U.S. at 563, 112 S.Ct. 2130 (internal quotation marks and citation omitted), “an organization‘s abstract interest in a problem is insufficient to establish standing, ‘no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem[,]’ ” Feld, 659 F.3d at 24 (quoting Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)); see also id. at 24-25 (explaining that ” ‘an organization‘s abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury’ that Article III demands” (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976))). Therefore, “organizations who seek to do no more than vindicate their own value preferences through the judicial process generally cannot establish standing.” Id. (internal quotation marks and citation omitted).
Helpfully, the D.C. Circuit has developed standards to assist district courts in determining when an organization that has an abstract interest in a legal dispute has also established the concrete injury that is required to establish that it has Article III standing to sue on its own behalf. The Circuit has adopted a two-part test for organizational standing: courts must “ask, first, whether the agency‘s action or omission to act injured the [organi-
With respect to part one, when the Court undertakes to evaluate the alleged injury to the organization‘s interest, the organization‘s activities—and the extent to which the challenged act threatens to damage its ability to conduct those activities—is the key. See Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006) (“The court has distinguished between organizations that allege that their activities have been impeded from those that merely allege that their mission has been compromised.” (emphasis added)); see also Food & Water Watch, 808 F.3d at 919 (requiring a “concrete and demonstrable injury to [the organization‘s] activities” (internal quotation marks omitted) (quoting PETA, 797 F.3d at 1093)); Nat‘l Ass‘n of Home Builders v. E.P.A., 667 F.3d 6, 11 (D.C. Cir. 2011) (explaining that, to show injury in fact, an organization must show “concrete and demonstrable injury to the organization‘s activities—with [a] consequent drain on the organization‘s resources—constitut[ing] more than simply a setback to the organization‘s abstract social interests.” (alterations in original) (internal quotation marks and citation omitted)).
Furthermore, to establish that there has been a cognizable injury to its interests (activities), “an organization must allege that the defendant‘s conduct perceptibly impaired the organization‘s ability to provide services[,]” Turlock Irrigation Dist. v. F.E.R.C., 786 F.3d 18, 24 (D.C. Cir. 2015) (internal quotation marks and citation omitted), and it can demonstrate such impairment by showing, for example, that the “defendant‘s conduct causes an inhibition of [the organization‘s] daily operations[,]” Food & Water Watch, 808 F.3d at 920 (alteration in original) (internal quotation marks and citation omitted); see also Chesapeake Climate Action v. Exp.-Imp. Bank, 78 F.Supp.3d 208, 234 (D.D.C. 2015) (requiring, at the summary judgment stage, ” ‘specific facts’ to show concrete ways in which . . . programmatic activities were harmed” by the challenged action). That was the case in PETA v. USDA, 797 F.3d 1087 (D.C. Cir. 2015), because the group People for the Ethical Treatment of Animals (“PETA“) had established that the refusal of the U.S. Department of Agriculture to apply certain statutory animal-welfare requirements to birds (the act that the organization sought to challenge) prevented PETA from “seek[ing] redress for mistreatment of birds through the USDA‘s complaint procedures” and from gaining “access to bird-related . . . information” that the organization needed in order to educate its members and advocate for the rights of birds. Food & Water Watch, 808 F.3d at 920 (internal quotation marks and citations omitted); see also PETA, 797 F.3d at 1091, 1095. By contrast, in Food & Water Watch, a food-safety organization complained that the time and resources it had already spent fighting a new poultry-inspection rule would be wasted if the rule took effect, see Food & Water Watch, 79 F.Supp.3d at 200, and also that it would be forced to use some of its education funds to educate its members and warn the public about the rule‘s negative effects, id. yet the Circuit found that the organization had alleged only an “abstract injury to its interests” that was not enough to demonstrate impairment of its organizational activities, Food & Water Watch, 808 F.3d at 921; see also id. at 919 (“An organization must allege more than a frustration of its purpose because frustration of an organization‘s objectives ‘is the type of abstract concern that does not impart standing.’ ” (quoting Nat‘l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995))). Additionally, the Circuit emphasized that “an organization‘s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury[,]” id. (citations omitted), because an organization that chooses to spend its money in this way has made a “self-inflicted budgetary choice that cannot qualify as an injury in fact[,]” Feld, 659 F.3d at 25 (internal quotation marks and citation omitted).
It is clear from the Circuit‘s holdings in these and other cases that having a concrete injury to an organization‘s interests means that the challenged activity must hamper the organization‘s ability to do what it does, see Int‘l Acad., 195 F.Supp.3d at 259-60, 2016 WL 3659887, at *11, and that complaining that the organization‘s ultimate goal has been made more difficult is not sufficient, see Nat‘l Ass‘n of Home Builders, 667 F.3d at 11-12. Nor does it suffice to show that the challenged action runs directly counter to the organization‘s mission, see Food & Water Watch, 808 F.3d at 921 n. 9, or that the organization will have to divert resources to combat it, Nat‘l Veterans Legal Servs. Program v. U.S. Dep‘t of Def., No. 14-1915, 2016 WL 4435175, at *7 (D.D.C. Aug. 19, 2016) (finding the organization‘s allegations that the challenged action caused it to redeploy “scarce resources” to be insufficient to establish standing). This Court has no doubt that the impairment that is required necessitates perceptible strictures on the organization‘s ability to function, see, e.g., id. at *6 (“[O]rganizational plaintiffs [must] alleg[e] specific facts indicating how a defendant‘s actions undermine the organization‘s ability to perform its fundamental programmatic services.” (emphasis added)); Elec. Privacy Info. Ctr. v. U.S. Dep‘t of Educ., 48 F.Supp.3d 1, 24 (D.D.C. 2014) (asking whether the challenged action “impaired [plaintiff‘s] ability to provide its programs or carry out its activities“), and that NEAVS has failed to demonstrate that it has organizational standing, as explained below.
2. NEAVS‘s Contention That It Will Have To Spend Money To Thwart The Negative Effects Of The Export Permit Falls Far Short Of Demonstrating That The Permit Has Hampered (Or Will Imminently Hamper) Its Activities Or Operations
Even assuming that NEAVS “has spent many years and resources” fighting for research chimpanzees (including Yerkes-owned chimpanzees) to be retired to chimpanzee sanctuaries (Pls.’ Mem. at 48 (quoting Capaldo Decl. ¶ 3) (internal quotation marks omitted)), and even if sending chimpanzees to Wingham directly conflicts with the goals of an organization whose mission centers on “ending the use of animals in research, testing[,] and science education[,]” (Capaldo Decl. ¶ 1), NEAVS has not shown that Yerkes‘s export permit impairs NEAVS‘s own activities or operations in any perceptible way. Indeed, the testimony that Plaintiffs have offered comes nowhere close to specifying how the permit interferes with NEAVS‘s ability to do its job—e.g., how, due to this particular government action, the organization is prevented from advocating for the transfer of laboratory animals to sanctuaries—and, instead, NEAVS‘s declarant makes statements that are remarkably close to the kinds of general mission-frustration contentions that the D.C. Circuit has considered (and rejected) as a basis for finding organizational standing.
For example, NEAVS‘s President says that this export permit “is frustrating the
NEAVS‘s related assertions about the expenditure of resources—i.e., that it will be forced to spend (or shift) resources in an attempt to rescue the relocated chimpanzees, monitor their status, advocate for them under any and all applicable laws, and prevent other chimpanzee owners from “rid[ding] themselves of chimpanzees” in a similar fashion (Capaldo Decl. ¶¶ 4-6)—fare no better. The D.C. Circuit has made clear that such budgetary choices merely reflect shifting priorities regarding “the expenditure of resources on advocacy[,]” Turlock, 786 F.3d at 24, and it has long held that this type of harm amounts to a “self-inflicted” wound, Feld, 659 F.3d at 25 (internal quotation marks and citation omitted), that does not qualify as “a cognizable Article III injury[,]” Turlock, 786 F.3d at 24 (citation omitted). NEAVS would have this Court hold otherwise, by pointing to the PETA panel‘s statement that, “if an organization expends resources in response to, and to counteract, the effects of the defendants’ alleged [unlawful conduct] rather than in anticipation of litigation, it has suffered a concrete and demonstrable injury that suffices for purposes of standing.” (Pls.’ Mem. at 49 (alterations in original) (quoting PETA, 797 F.3d at 1097) (internal quotation marks omitted)). But that statement must be evaluated in the context in which it was made, and PETA‘s standing was clearly derived not only from the fact that the challenged government actions had actually impaired the organization‘s ability to perform its services, but also the organization‘s expenditure of resources as a result. See PETA, 797 F.3d at 1095; see also Food & Water Watch, 808 F.3d at 920-21 (explaining that, due to the challenged action, PETA had suffered “[t]he denial of access to an avenue for redress and denial of information” in a manner that “perceptibly impaired [the organization‘s] ability to both bring [statutory] violations to the attention of the agency charged with preventing avian cruelty and continue to educate the public” (second and third alterations in original) (internal quotation marks and citation omitted)).
Plaintiffs’ insistence that NEAVS‘s “core campaign will be impaired” due to the Yerkes export permit because the export “will make it impossible for NEAVS to advocate for the release of these seven chimpanzees” to a sanctuary (Pls.’ Mem. at 49-50 (citing Capaldo Decl. ¶ 4)) (emphasis added), also misses the mark. As an initial matter, they have offered no proof for that contention be-
C. The Individual Plaintiffs Do Not Have Cognizable Injuries That Have Been Caused By FWS‘s Permitting Decision
Plaintiffs’ final standing argument is that Yerkes‘s transfer of its chimpanzees to Wingham will injure three individual
As explained below, the D.C. Circuit‘s jurisprudence teaches that not every circumstance that disappoints a plaintiff works a cognizable injury for the purpose of Article III, see, e.g., In re Navy Chaplaincy, 534 F.3d at 763; moreover, in the instant case, the dashed-hopes harm these individual plaintiffs allegedly have suffered is also not even fairly traceable to FWS‘s decision to issue the export permit. As for Plaintiffs’ suggestion that these three individuals will be injured by the permit because, while they “desire to see [the chimpanzees] again in a humane setting where they can enjoy their company” and “observe them engage in normal chimpanzee behavior[,]” they will instead have to see these animals in an environment of “commercial confinement and exploitation” (Pls.’ Reply at 44), the record does not establish that any of these individual plaintiffs will, in fact, travel to see the chimps in the environment they decry, or that, if they do, Wingham necessarily will have mistreated the chimps in such a way that these plaintiffs’ aesthetic interests inevitably will be harmed, which means that Plaintiffs have failed to satisfy the standards for proving an imminent aesthetic injury. Furthermore, and in any event, this Court views any injury to these plaintiff‘s personal and aesthetic sensibilities from seeing the chimpanzees in the Wingham facility as self-inflicted at its core.
1. The Individual Plaintiffs’ Dashed-Hopes Harm Is Not An Injury In Fact, And Even If It Qualifies As Such, It Is Yerkes‘s Placement Decision, Not FWS‘s Permit, That Caused This Injury
Plaintiffs argue that their dashed-hopes injury is an aesthetic harm that should be found to be sufficient to ground the individual plaintiffs’ standing. (See Pls.’ Reply at 46 (“[T]hese Plaintiffs who have been waiting for years for the day when they would have a chance to be reunited with these animals they love . . . will be irrevocably harmed if the FWS allows the chimpanzees . . . to be shipped to Wingham . . . , rather than to a humane setting somewhere in the United States[.]” (citations omitted)).) As an initial matter, it has not been established that the dashing
It is not at all clear that being saddened by the knowledge that an animal you love but with which you have no present contact may be sent to a place in which it will potentially be mistreated (see Pls.’ Reply at 46)—as opposed to seeing such an animal in that condition—qualifies as an aesthetic harm. See Oxford English Dictionary 206 (2d ed. 1989) (defining aesthetic in the adjectival sense as meaning “of or relating to sensuous perception” or being “received by the senses“); see also Ringling Bros., 317 F.3d at 337 (finding standing where plaintiff would return to the environment where he would detect the effects of the challenged activity on animals he loved and be injured by such observation); Glickman, 154 F.3d at 437 (articulating a “principle of standing” that “recognize[s] individual plaintiffs’ injury in fact based on affronts to their aesthetic interests in observing animals living in humane habitats, or in using pristine environmental areas that have not been despoiled“). Presumably, this is what Defendants mean when they emphasize that the individual plaintiffs have not worked with these chimpanzees, or been in their presence, for years, and have no present right to visit these animals. (See Defs.’ Mem. at 24-25.) That is, far from a baseless attack on the strength of the individual plaintiffs’ alleged emotional bond with these animals or a discounting of these plaintiffs’ love for them, this line of argument is properly construed as a rebuttal to Plaintiffs’ insistence that this Court must find that the individual plaintiffs have suffered a cognizable aesthetic injury because they know “these animals are going somewhere, and depending on where, Plaintiffs will either be able to visit and observe them again or never be able to do so” (Pls.’ Mem. at 51 (emphasis in original))—an assertion that, in the absence of some sort of tangible experience, is not ordinarily the stuff of which aesthetic injuries are made.
Indeed, Plaintiffs have failed to cite a single case in which a court has held that a similar dashed-hope theory of injury is sufficient to demonstrate that the plaintiff has suffered an injury in fact for the purpose of Article III standing. This Court suspects that no such case exists, because the dashed-hope harm that Plaintiffs assert actually is functionally indistinguishable from the following generalized grievance that is indisputably insufficient to support standing: that the agency has decided to act in a manner that Plaintiffs
The additional fact that these individual plaintiffs’ sanctuary hope was especially well informed and well founded due to their prior personal relationships with the chimpanzees at issue adds nothing to the standing equation. To understand why this is so, imagine a former employee of a government agency who hears that his former department is being restructured and has very strong feelings (based on personal knowledge) about how that goal is best accomplished. In this Court‘s view, that individual has no more of a personal stake in the outcome of that decisionmaking process than a person who has never worked in the office but would like to apply for a job there and hopes (based on what he reads in the newspaper) that the agency makes the right call. In other words, no matter how strongly a person feels and how much a person knows about the stakes and the consequences of a decision that he hopes will be made in accordance with his values, that knowledge and affinity alone does not entitle him to claim that the decisionmaker‘s contrary policy choice has injured him in fact.
Plaintiffs’ dashed-hopes theory of injury fails to establish Article III standing on another ground as well: even if the
2. The Plaintiffs’ Alleged Aesthetic Injury Is Too Speculative To Be Imminent, Or Would Be Self-Inflicted
Turning to Plaintiffs’ other allegations regarding the alleged aesthetic injury that the Yerkes export permit allegedly has inflicted (or will inflict) on the individual plaintiffs, as explained above, Plaintiffs maintain that the individual plaintiffs have a strong bond with the chimpanzees and that the pending relocation of these animals is an “imminent” injury to them “because Yerkes has clearly decided to relocate these seven chimpanzees—i.e., these animals are going somewhere, and, depending on where, Plaintiffs will either be able to visit and observe them again or never be able to do so.” (Pls.’ Mem. at 51
In this Court‘s view, these claims of aesthetic injury fail for at least two reasons. First of all, they seem to be entirely speculative; on the instant record, there is no evidence that any of these individual plaintiffs actually have plans to go to Wingham to see these animals. One plaintiff (Feuerstein) never even suggests that she might visit the chimpanzees if they are exported. (See generally Feuerstein Decl.) Hare says only that “[i]f” he visits Wingham, harm will occur (Hare Decl. ¶ 25), which is just to say that his visit is “possible[,]” and such a representation is not only insufficient for imminence, Clapper, 133 S.Ct. at 1147 (emphasis omitted) (internal quotation marks and citation omitted), it does not come close to the kinds of representations that other successful aesthetic-injury plaintiffs have made, see, e.g., Ringling Bros., 317 F.3d at 337-38 (plaintiff who had bonded with particular elephants was permitted to proceed beyond the motion-to-dismiss stage largely because he averred that he would actually visit the circus and see elephants exhibiting signs of mistreatment due to the abusive practices). Weiss goes the farthest, claiming that, if the export goes forward, she “will have to travel to England” to see the chimpanzees. (Weiss Decl. ¶ 10 (emphasis added).) But she offers nothing beyond say-so on that front; she does not contend, for example, that she has already purchased tickets to Wingham or has con-
Compounding Plaintiffs’ imminence problem is the fact that the record lacks sufficient evidence to support their contention that Wingham‘s caregivers will inevitably house the chimpanzees in “inhumane” conditions and will mistreat the animals to such a degree that these individual plaintiffs will see this if they travel there and be personally affected. In the Ringling Brothers case, the plaintiff was a former employee of the defendant circus organization who was suing to enjoin the organization‘s use of certain elephant-training methods he disliked; importantly, he had actually witnessed the abusive treatment of the animals that he said he would like to see again (and had been, he said, aesthetically injured by the animals’ reactions to said treatment), which supported the inference that the abusive practices the plaintiff challenged had unquestionably occurred and were likely to continue. See 317 F.3d at 335. Under those circumstances, and given the fact that the case was at the motion-to-dismiss stage, the D.C. Circuit appeared to assume (without expressly holding) that the alleged aesthetic injury to the plaintiff was not speculative. See id. at 337 (noting that plaintiff‘s claim that he would “like to ‘visit’ [the animals] again” to rekindle his relationship was somewhat vague, but that “a fair construction of his allegation encompass[ed his] attending the circus as any member of the public would,” from which “vantage point he might observe” the effects of mistreatment, which he “claim[ed] he would recognize based on his experience working at [the circus]“). Here, by contrast, we are at the summary judgment stage, yet Plaintiffs have not shown that mistreatment of the Yerkes chimpanzees is inevitable or even highly likely when they are transferred into Wingham‘s custody and, indeed, other than making sweeping assertions about the extent to which these chimpanzees will be put in danger (which Yerkes strenuously denies (see Yerkes‘s Mot. at 15-17)), Plaintiffs provide few specifics about the particular acts of abuse that they claim they will witness to their detriment.
To be sure, Plaintiffs say that the chimpanzees will not be safe in the hands of Wingham‘s staff; their briefs and declarations describe Wingham‘s employees as abusive neophytes who are intent upon displaying the animals in a harmful commercial environment and breeding them in perpetuity. (See, e.g., Hare Decl. ¶¶ 21, 25.) But this Court need not accept these bald representations.17 And the record is devoid
Finally, it also clear to this Court that, unless these individual plaintiffs can somehow make a persuasive claim that a trip to England to see these chimpanzees is inevitable, it will be difficult for them to establish that the resulting injury to their aesthetic sensibilities is not a self-inflicted wound. Put another way, this Court finds it hard to believe that a plaintiff whose presence at the place that he says will injure him aesthetically is not compelled (e.g., someone who does not live or work in the vicinity, nor has any history of traveling there, and is not otherwise required to be there) can complain that he will be injured by what he sees if he makes the trip, because it is well established that an injury one brings upon oneself is not a cognizable injury that has been caused by the defendant‘s conduct. See Nat‘l Family Planning & Reproductive Health Ass‘n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (explaining that self-inflicted harm can neither be deemed “an injury cognizable under Article III” nor “fairly traceable to the defendant‘s challenged conduct” and denying standing to an “association [that had] chosen to remain in the lurch” (emphasis in original) (internal quotation marks and citations omitted)).
In sum, this Court concludes that Plaintiffs’ dashed-hopes theory is not a cognizable injury in fact, the individual plaintiffs’ alleged aesthetic injury has not been shown to be sufficiently imminent, and that, in any event, neither of these harms is fairly traceable to the permitting decision the individual plaintiffs seek to challenge. Thus, Plaintiffs have offered no persuasive reason that the individual plaintiffs have standing to attack the Yerkes export permit in federal court.
D. This Court Cannot Reach The Merits Of Plaintiffs’ Claims18
Having determined that no plaintiff has Article III standing because none
Among the many important questions that a court considering the merits of Plaintiffs’ APA claims would face is whether the deference to an agency‘s statutory interpretation that the Supreme Court established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), is even applicable to the informal adjudication that resulted in FWS‘s enhancement finding. See Barnhart v. Walton, 535 U.S. 212, 222, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002); United States v. Mead Corp., 533 U.S. 218, 230-31, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). And even if it is, the Chevron test requires a court to determine whether the statute that the agency has interpreted to authorize its actions really does so, see Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011), which appears to be a heavy lift for FWS in this case, at least as far as it has determined that the ESA allows the agency to find
This is all to say that the significant degree of fervor that has accompanied Plaintiffs’ written and oral arguments in this case is entirely understandable, and that Plaintiffs have ably made the persuasive argument that, far from viewing
IV. CONCLUSION
To avoid “stepp[ing] where the Constitution forb[ids] it to tread[,]” Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 513, 2016 WL 3996710, at *2 (D.C. Cir. July 26, 2016), a federal court must evaluate standing to sue before delving into the merits of a case—even when the case involves troubling claims of potential harm to protected animal species. This Court‘s examination of the alleged (human and organizational) injuries that Plaintiffs here say FWS‘s decision to issue an export permit to Yerkes purportedly has caused leads it to the conclusion that none of the Plaintiff has a cognizable injury in fact, and thus, this Court does not have subject-matter jurisdiction to address Plaintiffs’ claims or to order the relief that Plaintiffs seek. See Scenic Am. v. U.S. Dep‘t of Transp., 836 F.3d 42, 49, 2016 WL 4608153, at *4 (D.C. Cir. 2016) (explaining that, at summary judgment, if “the plaintiff has not introduced sufficient evidence into the record to at least raise a disputed issue of fact as to each element of standing, the court has no power to proceed and must dismiss the case” (citation omitted)). Notably, this
Accordingly, as set forth in the order accompanying this opinion, Plaintiffs’ partial motion for summary judgment is DENIED, and Defendants’ and Yerkes‘s partial motions for summary judgment are GRANTED. Plaintiffs’ FOIA claim (Count V of the complaint) persists, but all of Plaintiffs’ other claims (Counts I-IV) must be dismissed.
DISTRICT OF COLUMBIA, FOR the USE AND BENEFIT OF: STRITTMATTER METRO, LLC, Plaintiff v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, et al., Defendants.
Civil Action No. 15-2114 (CKK)
United States District Court,
District of Columbia.
Signed September 20, 2016