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March 31, 2003


The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge



This action comes before the court on the parties' cross-motions for summary judgment. Plaintiffs San Juan Audubon Society, Sinapu, and Wildlife Damage Review (collectively, "the plaintiffs") are wildlife preservation groups. They allege that Wildlife Services of the Animal and Plant Health Inspection Service ("APHIS") of the Department of Agriculture and the Secretary of Agriculture (collectively, "the defendants") are violating the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., by failing to follow regulations when implementing the department's livestock-protection program. The defendants contend that the plaintiffs lack standing to bring this case. Because the plaintiffs' members do not have standing in their own right, and the plaintiffs therefore fail to establish associational standing, the court grants the defendants' motion for summary judgment and denies the plaintiffs' motion for summary judgment.


The defendants are responsible for carrying out a program for the protection of livestock and sensitive or endangered species from animal predators. Pls.' Statement of Material Facts ("Pls.' Statement") ¶ 1; Defs.' Statement of Material Facts ("Defs.' Statement") at 1. Among the lethal methods of animal control is the M-44 cyanide-ejector device. Id. When placed in the ground, the M-44 device attracts animals and, when triggered, explodes a sodium cyanide capsule into the face of the animal, usually causing death. Id.

The Environmental Protection Agency ("EPA") imposes "use restrictions" on the use of M-44 devices pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). Pls.' Statement ¶ 2; Defs.' Statement at 1. Use Restriction No. 9 states that M-44 devices "shall not be used in areas where federally listed threatened or endangered animal species might be adversely affected." Id. In addition, it states that APHIS personnel ("the applicators") who place the M-44 devices in the ground "shall be issued a map, prepared by or in consultation with the U.S. Fish and Wildlife Service, which clearly indicates such areas." Id.

According to the plaintiffs, the defendants have not provided the applicators with such maps. Pls.' Statement ¶ 3. The plaintiffs state that particularly when not used according to the FIFRA restrictions, the M-44 devices have killed "non-target" animals such as endangered species. Id. ¶ 4. In support of this statement, the plaintiffs point to the 1986 death of an endangered sandhill crane in Mississippi and the 1998 death of an endangered gray wolf in Wyoming by M-44 devices. Id. Other threatened or endangered species that the plaintiffs believe M-44 devices place at risk are the wolf, jaguar, lynx, bald eagle, grizzly bear, and California condor. Am. Compl. ¶ 90.

The defendants vigorously dispute the plaintiffs' conclusions, asserting that Use Restriction No. 9 requires that maps be issued to applicators only if a threatened or endangered species is located in an area and might be adversely affected by an M-44 device. Defs.' Statement at 1. The defendants note that the 1986 sandhill crane death resulted from an M-44 device placed in Mississippi by another agency, and that the 1998 death may not have involved a wolf, but a wolf hybrid. Id. at 2.

On April 11, 2000, the plaintiffs filed a complaint alleging that the defendants were violating the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and regulations thereto by carrying out the M-44 program in six western and southwestern states.*fn1 Compl. ¶¶ 74-83. On May 9, 2000, the plaintiffs filed an amended complaint modifying their ESA claims, and adding a claim charging the defendants with violating the APA by implementing the M-44 program in an arbitrary and capricious manner. Am. Compl. ¶¶ 84-90. After discussions, the parties reached agreement on the plaintiffs' ESA claim, and at the parties' request, the court dismissed that claim on September 18, 2000.

On March 16, 2002, the defendants moved to dismiss the plaintiffs' APA claim pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). On June 19, 2001, the court denied the defendants' motion to dismiss. On April 24, 2002, after resolving issues associated with a separate proceeding,*fn2 the defendants filed an administrative record. The plaintiffs filed their motion for summary judgment on May 22, 2002, and the defendants countered with their own motion for summary judgment on June 26, 2002. The court now turns to the parties' cross-motions.


A. Legal Standard for Standing

Article III of the Constitution limits the jurisdiction of federal courts to cases or controversies. U.S. CONST. ART. III, § 2, cl. 1. These prerequisites reflect the "common understanding of what it takes to make a justiciable case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998). Consequently, "a showing of standing is an essential and unchanging predicate to any exercise of a court's jurisdiction." Florida Audubon Soc'y v. Bentsen, 94 F.3d 568, 663 (D.C. Cir. 1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 550, 560 (1992))

As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing. Defenders of Wildlife, 504 U.S. at 561; Steel Co., 523 U.S. at 104; City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 233 (D.C. Cir. 2003). The extent of the plaintiff's burden varies according to the procedural posture of the case. Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898-99 (D.C. Cir. 2002). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct will suffice. Id. On a motion for summary judgment, however, the "plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific ...

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