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ANIMAL PROTECTION INST. OF AMERICA v. MOSBACHER

July 31, 1992

ANIMAL PROTECTION INSTITUTE OF AMERICA, ET AL., Petitioners,
v.
ROBERT A. MOSBACHER, ET AL., Respondents, and JOHN G. SHEDD AQUARIUM, and AMERICAN ASSOCIATION OF ZOOLOGICAL PARKS AND AQUARIUMS, Intervenor-Respondents. INTERNATIONAL WILDLIFE COALITION, ET AL., Petitioners, v. BARBARA H. FRANKLIN, and WILLIAM W. FOX, JR., Respondents, and JOHN G. SHEDD AQUARIUM, Intervenor-Respondent.



The opinion of the court was delivered by: THOMAS PENFIELD JACKSON

 These cases, each challenging a permit issued by the Secretary of Commerce ("Secretary") for the importation of certain marine mammals, are before the Court on cross-motions for summary judgment. In the first case, Animal Protection Institute, et al., v. Franklin, Civil Action No. 89-1696, (the "API Case"), the petitioners, each of whom may be generically described as an organization for the protection of wildlife, seek invalidation of a permit issued by the respondent Secretary to the intervenor-respondent John G. Shedd Aquarium ("Shedd") on April 28, 1989 for the importation from Japan of six false killer whales, pseudorca crassidens, for the purpose of public display at the Shedd Aquarium in Chicago.

 In the second case, International Wildlife Coalition v. Schnabel, Civil Action No. 92-0223, (the "IWC Case"), the petitioners, similar organizations (some of whom are also party to the API Case), seek invalidation of a permit issued by the respondent Secretary to the intervenor-respondent, again Shedd, on November 29, 1991 for the importation from Canada of four yet-to-be-captured beluga whales, delphinapterus leucas, for the purpose of public display at the same Shedd Aquarium. *fn1"

 In both the API Case and the IWC Case (collectively, the "Whales Cases") the petitioners contend that the Secretary violated the requirements of the Marine Mammal Protection Act of 1972 ("MMPA" or the "Act"), 16 U.S.C. § 1361, et seq., by failing to determine that the method by which the whales were or will be reduced to captivity is consistent with the MMPA's provisions, and also by failing to ascertain the "optimum sustainable population" ("OSP") of the species of whale involved, before issuing the permits. The API Case petitioners make the additional argument that the Secretary violated the MMPA by failing to determine that the animals to be imported were not pregnant, nursing or underage at the time of taking, or taken in a manner deemed inhumane by the Secretary. Petitioners contend that the foregoing omissions or oversights render the issuance of the permits invalid under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), as being "not in accordance with law" or, alternatively, "arbitrary and capricious," and thus an abuse of discretion. Because of the substantial identity of the parties and similarity of the facts of each case, and because the same legal issues are involved in each, the Whales Cases were consolidated for all purposes on April 29, 1992.

 I.

 On June 12, 1992, however, the Supreme Court issued its decision in Lujan v. Defenders of Wildlife, 119 L. Ed. 2d 351, 60 U.S.L.W. 4495, 112 S. Ct. 2130, ("Defenders"), holding that certain plaintiff environmental groups did not have standing to challenge a rule promulgated by the Secretary of the Interior interpreting § 7(a)(2) of the Endangered Species Act of 1973, ("ESA"), 16 U.S.C. § 1536. The decision belatedly raised the question of whether the Whales Cases petitioners have standing to bring the instant actions. *fn2"

 First, the plaintiff must have suffered an "injury in fact" - an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of - the injury has to 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." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed" by a favorable decision.

 Defenders, slip op. at 4. A plaintiff invoking federal jurisdiction, the Supreme Court said, bears the burden of demonstrating these elements with "specific facts," not "mere allegations," observing, moreover, that a plaintiff's burden of establishing standing is "substantially more difficult" to meet when the plaintiff is "not himself the object of the government action or inaction he challenges. . . ." Id.

 Just a few terms ago, however, the Supreme Court held that "whale-watchers," as such and without more, allege a sufficient "injury in fact" to satisfy that element of the test, in that whale-watching and studying would be adversely affected by a continuation of the whale "harvesting" they sought to curtail. Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221, 231 n.4, 92 L. Ed. 2d 166, 106 S. Ct. 2860 (1986). Several members of the petitioner organizations in the Whales Cases here also claim to be "whale-watchers," *fn3" and they contend that their opportunities to view these creatures in the wild will be diminished to the extent any are captured for exhibition at the Shedd Aquarium, notwithstanding an undetermined number of them remain at large. *fn4"

 Yet the Defenders decision made clear that while observing an animal species, even for purely aesthetic purposes, is undeniably a "cognizable" interest for the purpose of standing, the "injury in fact" test requires more. Specifically, the Court held that the plaintiffs in Defenders had to submit evidence that one or more of their members would be "directly" affected apart from their "special interest" in the subject. Slip. op., at 5. Applying this refinement of the test, the Supreme Court proceeded to find that the plaintiffs in Defenders lacked standing, in part, because the affidavits upon which they relied expressed only vague and indefinite intentions of the affiants for future observation of the endangered crocodiles, elephants and leopards, with which they were concerned. *fn5" Such "'some day' intentions," the Supreme Court stated, "without any description of concrete plans, or indeed even any specification of when the some day will be . . . do not support a finding of the 'actual or imminent' injury that our cases require." Id., at slip op. 6.

 While the Supreme Court in Defenders admitted that the "imminence" [of such an injury] is a "somewhat elastic concept," it stressed that the judicial requirement for imminence was designed "to reduce the possibility of deciding a case in which no injury would have occurred at all." Id., at n.2. The Supreme Court's concern in Defenders was that the affiants' intentions to return to the areas at question were sufficiently amorphous as to mean "nothing more than 'in this lifetime.'" Id., at n.2.

 In contrast to the plaintiffs in Defenders, each relevant declarant in the Whales Cases has committed to a specific time frame in which he or she plans to visit the areas in which the false killer whales and belugas are likely to be encountered. Doncaster plans to watch belugas "this summer;" Morlan plans to take students to watch the belugas in the "summers of 1993 and 1994;" and Nancy Daves plans to visit Japan to watch the false killer whales "this summer."

 Wherever a precise line of "imminence" may be drawn between events scheduled, or expected to occur "soon," and those too speculative to inspire confidence in their occurring at all, a cautious reading of Defenders counsels that concrete plans for actions to be taken "this summer" should fall on the positive side of the spectrum, militating toward a finding of standing, for these Whales Cases petitioners, at least with respect to the first part of the standing test. While the outcome is by no means certain, the Court concludes that petitioners in the Whales Cases (or at least some of the people they represent) meet the test and have thus borne the burden of establishing actual or imminent injury in fact.

 In the Whales Cases, unlike Defenders, the second and third parts of the standing analysis respecting causation and redressability actually coalesce in petitioners' favor. *fn6" More precisely, a decision granting the relief they ask will both eliminate the source of the harm they fear and prevent the injury from occurring; an invalidation of the permits will prevent the importation of the whales, and whales that cannot be imported are unlikely to be captured, at least for delivery to Shedd. *fn7" Consequently, the Court concludes (although not ...


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