The opinion of the court was delivered by: LOUIS F. OBERDORFER
Plaintiffs, two environmental groups, brought this action to enjoin the defendant Secretary of the Interior from enacting a provision of a regulation that restricts importation of certain exotic birds. Plaintiffs claim the provision, which has passed through notice-and-comment procedures, violates the language of the Wild Bird Conservation Act of 1992. Plaintiffs have applied for a preliminary injunction. Defendants have opposed plaintiffs' application, and both parties have agreed that their filings may be treated as cross-motions for summary judgment. A hearing took place on March 7, 1994. For the reasons stated herein, an accompanying Order enters a declaratory judgment that the contested regulation is invalid and denies without prejudice plaintiffs' application for a preliminary injunction.
Among other measures, the Act places a one-year moratorium on "the importation of any exotic bird of a species that is listed in any appendix" to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. 16 U.S.C. § 4904(c). The Convention has three appendices that list species of birds. The first two appendices contain lists of endangered birds upon which the Convention signatories agree as a group; in the third appendix, individual nations may unilaterally list endangered birds. The Act directs the Secretary of the Interior to develop a list of species that may continue to be imported despite their listing in an appendix to the Convention. Before exempting a species, the Secretary must make specific findings regarding the effects of trade on the species, the humane treatment of birds in trade, and the conservation programs of each country of origin. See 16 U.S.C. 4905(c).
Plaintiffs seek relief to suspend or invalidate the following exception, contained in the Secretary's implementing regulation, to the prohibition on importation of birds listed in the Convention's appendices:
This paragraph [enacting the moratorium on importation of birds listed in the appendices] does not apply to an exotic bird species listed in Appendix III to the Convention that originated in a country that has not listed the species in Appendix III.
58 Fed. Reg. 60524, 60536-37 (Nov. 16, 1993), to be codified at 50 C.F.R. § 15.11(b)(2).
Plaintiffs argue that this provision violates the plain language of the Act, which bars the importation of "any" species listed in "any" appendix to the Convention. Plaintiffs raised their objection during the notice-and-comment period, but defendants did not alter the regulation.
As a preliminary matter, it is necessary to inquire into plaintiffs' standing to bring this action. Although neither party originally briefed the matter of standing, defendants pursued the issue, questioning primarily whether plaintiffs had alleged a sufficient injury to establish standing, after the Court raised standing at the March 7 hearing. In demonstrating their standing to sue, plaintiffs "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). The injury to plaintiffs must be "concrete and particularized." Lujan v. Defenders of Wildlife, 119 L. Ed. 2d 351, 112 S. Ct. 2130, 2136 (1992). Defendants have not contested that, if plaintiffs can satisfy the Allen requirements, plaintiffs have organizational standing to represent their members' interests. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977).
Plaintiffs allege that the regulation they challenge causes a concrete and particularized injury to their members because the deaths and mistreatment of the bird species the regulation partially exempts from the statute's moratorium on importation diminish the numbers of those species, thereby decreasing members' opportunities to observe the birds in the wild. The Supreme Court has held that "the desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purpose of standing." Lujan, 112 S. Ct. at 2137. In particular, Lujan acknowledged the plausibility of the argument that
a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing [perceptible] harm, since some animals that might have been the subject of his interest will no longer exist.
Id. at 2139-40, citing 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).
Plaintiffs' original application for a preliminary injunction included the Declarations of Teresa M. Telecky, Ph.D., and Peter M. Knights. Telecky, an Associate Director in the Wildlife and Habitat Protection Section of the plaintiff Humane Society, states that she has an ongoing personal and professional interest in viewing exotic birds and has travelled extensively to observe them. She also provides detailed background on the damage the international bird trade causes to bird species, including Appendix III species. Knights, a freelance environmental consultant and Humane Society member, describes his aesthetic interest in observing wild bird species in Africa and his related economic interest in promoting "ecotourism" there, and he contends that the trade in wild birds harms those interests. He ...