United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta, United States District Judge
the court is Defendant-Intervenor-Applicants'
(“Applicants”) Motion to Intervene. See
Mot. to Intervene, ECF No. 24 [hereinafter Mot. to
Intervene]. The Applicants are three environmental
groups-Oceana, Inc., the Natural Resources Defense Council,
Inc., and the Center for Biological Diversity-who seek to
enter this case to defend against Plaintiffs' challenge
to the Seafood Import Monitoring Program, 81 Fed. Reg. 88,
975 (Dec. 9, 2016), otherwise known as the “Seafood
the telephone conference held on March 8, 2017, the court
committed to ruling on the Motion before the start of summary
judgment briefing. The Motion to Intervene became ripe on
March 29, 2017, and Plaintiffs' Motion for Summary
Judgment is due on April 25, 2017. Because of the time
limitations inherent in the current expedited briefing
schedule, this written decision is not as fulsome as it
otherwise might be. This Memorandum Opinion and Order
nevertheless explains, in abridged form, why the court denies
the Motion to Intervene.
the court finds that the Applicants lack standing. In this
Circuit, those whose seek to intervene as a matter of right
under Rule 24(a) of the Federal Rules of Civil Procedure must
establish Article III standing. See In re Endangered
Species Act Section 4 Deadline, 704 F.3d 972, 976 (D.C.
Cir. 2013). As a general matter, a prospective intervenor has
standing when it has “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S.__, __, 136 S.Ct. 1540, 1547 (2016)
(citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992)). An injury in fact is “an invasion
of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural
or hypothetical.” Lujan, 504 U.S. at 560
(footnote, citations, and internal quotation marks omitted).
Applicants' claimed injuries do not qualify as
“concrete” within the meaning of Lujan.
Each of their proposed injuries rests on the same premise:
Invalidating the Seafood Traceability Rule (the
“Rule”) against Illegal, Unregulated, and
Unreported (“IUU”) fishing will result in the
loss of protections afforded by the Rule and therefore reduce
the likelihood that Applicants' members will be able to
avoid the various harms that the Rule seeks to protect
against, such as uninformed consumer choices, reductions in
at-risk fish populations, and degradation of marine
ecosystems. Mot. to Intervene at 11-14. An uncertain
lessening of risk to the ills of IUU fishing- which is
already illegal-is simply too abstract to satisfy the
“concrete” injury requirement. Spokeo,
136 S.Ct. at 1548 (“A ‘concrete' injury must
be . . . ‘real, ' and not
‘abstract.'”). Admittedly, actually buying
illegally purchased or mislabeled at-risk fish against
one's desires, see Mot. to Intervene, Ex. 3, ECF
No. 24-3 [hereinafter Kroner Decl.], ¶ 19, or the
substantial likelihood of a reduced opportunity to view and
study at-risk fish species, see Mot. to Intervene,
Ex. 6, ECF No. 24-6 [hereinafter Steiner Decl.], ¶ 16,
might qualify as a concrete injury. However, the injuries
claimed here are one step removed from such injuries. The
inexact prospect of reducing exposure to the actual harm
Applicants' declarants wish to avoid is simply too
abstract to satisfy Article III standing.
Applicants' alleged injuries could be considered
“concrete, ” they are neither
“particularized” nor “fairly
traceable” to vacating the Rule. First, one of the
declarants, Rachel Golden Kroner, claims that invalidating
the Rule would increase the risk of her buying illegally
fished or mislabeled seafood. Kroner Decl. ¶ 19. But
that claimed harm is no different than that which the public
at large would suffer if the Rule were to be struck down.
See Prisology, Inc. v. Fed. Bureau of Prisons, No.
15-5003, 2017 WL 1228576, at *2 (D.C. Cir. Apr. 4, 2017)
(rejecting alleged injury because it failed to
“differentiate [claimant's injury] from the public
at large”). The proposed Rule here affects millions of
U.S.-based consumers who purchase the designated at-risk fish
populations, and one person's desire for greater
information on labels or to avoid buying illegally caught
fish is indistinguishable from another's. Consequently,
that alleged injury is not “particularized”
within the meaning of Article III. See Lujan, 504
U.S. at 560 & n.1. Second, one of the declarants-Todd
Steiner, a board member for one of the Applicants-asserts
that vacating the Rule will affect his ability to study and
observe designated at-risk fish populations, including
yellowfin tuna and shark, during his visits to Cocos Island,
which sits off the coast of Costa Rica. Steiner Decl.
¶¶ 11-12. According to Steiner, he is “aware
that illegal fishing occurs within [12 nautical miles of
Cocos Island], and  regularly see[s] evidence of illegal
fishing during [his] travels, ” including fishing boats
and discarded fishing equipment. Id. ¶ 13.
While such an injury is arguably “particularized,
” Steiner's declaration falls short of establishing
that his injury is “fairly traceable” to vacating
the Rule. See Spokeo, 136 S.Ct. at 1547. For
instance, Steiner fails to provide any evidence that the
illegal fishing that he has observed around Cocos Island is
of species designated by the Rule. True, Steiner has observed
two protected species around Cocos Island- yellowfin tuna and
shark-but his declaration fails to establish a link between
those species and the illegal fishing that occurs there.
Further, even if the court were to presume that Steiner
witnessed the illegal fishing of yellowfin tuna and shark, he
offers no evidence from which to infer that those illegally
fished species are exported to the United States and,
thereby, subject to the Rule. Cf. Steiner Decl.
¶ 16 (claiming that his injury will be avoided by
“barring [illegal] seafood imports into the United
States”). Accordingly, Steiner's declaration does
not demonstrate that affirming or repealing the Rule would
affect his ability to study and observe designated at-risk
fish populations on Cocos Island and, as a result, his
declaration fails to demonstrate that his claime d injury is
traceable to the Rule.
the court were to ignore the shortcomings of Applicants'
arguments thus far, their reliance on the anticipated conduct
of third parties-those who engage in IUU fishing and interact
with the U.S. seafood market-further undermines
Applicants' standing. When the claimed injury is directly
caused by third-party conduct, the D.C. Circuit requires
“substantial evidence of a causal relationship between
the government policy and the third-party conduct, leaving
little doubt as to causation and the likelihood of
redress.” Arpaio v. Obama, 797 F.3d 11, 20
(D.C. Cir. 2015) (quoting Nat'l Wrestling Coaches
Ass'n v. Dep't of Educ., 366 F.3d 930, 941 (D.C.
Cir. 2004)). Moreover, as here, where standing is
“premised on future injury, [the party] ‘must
demonstrate a realistic danger of sustaining a direct
injury.'” Id. at 21 (quoting United
Transp. Union v. ICC, 891 F.2d 903, 913 (D.C. Cir.
1989)). Applicants do not satisfy this more rigorous burden.
They have not established a “realistic danger”
that the Rule's defeat would result in concrete,
particularized harm to their declarants. Nor do their
affidavits leave “little doubt” as to causation
and the likelihood of redress. Although Applicants'
theories of causation “carry with them some
plausibility, ” id. at 25 (internal quotation
marks omitted), they do not survive the “rigorous
review” the D.C. Circuit demands when the alleged
injury is caused directly by the expected future actions of
primary cases relied upon by Applicants to support standing
are inapposite. In those cases, unlike here, the proposed
intervenors stood to suffer direct, tangible injury if the
agency's action was reversed. See Crossroads
Grassroots Policy Strategies v. Fed. Election
Comm'n, 788 F.3d 312, 318 (D.C. Cir. 2015) (finding
that proposed intervenor alleged sufficient injury based on
its “significant and direct interest in the
[challenged] favorable action shielding it from further
litigation and liability”); Fund for Animals, Inc.
v. Norton, 322 F.3d 728, 733 (D.C. Cir. 2003) (finding
the same based on proposed intervenors' “threatened
loss of tourist dollars, and the consequent reduction in
funding for [its] conservation program”). The injuries
that Applicants' declarants claim would arise if this
court were to strike down the Rule are both more attenuated
from potential court action and dependent on the conduct of
third parties than the injuries in the cases cited by
the court finds that Applicants lack standing.
RULE 24'S REQUIREMENTS
addition to lacking standing, the court finds that Applicants
have not satisfied the requirements of Rule 24. The first
subsection of that Rule permits an individual to intervene in
ongoing litigation as of right if he or she possesses an
unconditional, federal statutory right to do so, or
“claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
that interest.” Fed.R.Civ.P. 24(a). The Rule also
permits a party to intervene permissively, but this is left
to the court's discretion. If a non-government actor
seeks to intervene permissively, then that individual must
show he or she has a conditional, federal statutory right to
intervene or “a claim or defense that shares with the
main action a common question of law or fact.”
See Fed. R. Civ. P. 24(b).
do not have a right to intervene because they have not made
even a “minimal” showing that the Federal
Defendants “may” not adequately represent their
interests in this matter. See Fund for Animals, 322
F.3d at 735 (“Rule [24(a)(2)] is satisfied if the
applicant shows that representation of his interest
‘may be' inadequate; and the burden of making that
showing should be treated as minimal.” (quoting
Trbovich v. United Mine Workers, 404 U.S. 528, 538
n.10 (1972)). True, Applicants' and the Federal
Defendants' mutual interest in having the court affirm
the Rule does not preclude intervention as a matter of right,
and the D.C. Circuit has “look[ed] skeptically on
government entities serving as adequate advocates for private
parties.” See Crossroads, 788 F.3d at
321. Applicants, however, have not offered any valid
reason for the court to find that the Federal Defendants in
this case may not adequately represent their interests.
offer one general and two specific reasons for why the
Federal Defendants will not adequately represent their
interests. As for the general reason, Applicants claim they
have a “narrow focus on marine conservation and
preventing seafood fraud, ” whereas the federal
government has a broader set of objectives, including
balancing the interests of facilitating both international
trade and industry's ability to comply with the Rule.
Applicants' Reply in Supp. of Mot. to Intervene, ECF No.
39, at 13. Such a difference alone cannot be enough to
satisfy Rule 24 in cases where the government is defending a
rule it promulgated. Almost by definition, the
government's objectives in such cases will be broader
than any one private party's interest. After all, the
federal government typically considers a number of factors
and interests when adopting a regulation or rule and, in
fact, often is required to do so ...