Ninth Circuit Denies Standing to World’s Whales and Dolphins

Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004).

The Ninth Circuit Court of Appeals recently confirmed that marine mammals do not have standing to sue in their own name.

Background
The Cetacean Community (Cetaceans), the name given to the world’s whales, dolphins and porpoises by their self-appointed attorney, filed suit against President Bush and the Secretary of Defense over the Navy’s use of SURTASS LFA sonar. The Navy developed this sonar system to assist in the detection of quiet submarines at long range. The SURTASS LFA sonar consists of an active component that emits a loud sonar pulse and a passive listening component. The Cetaceans contend that the Navy’s use of the sonar harms them by disrupting biologically important behaviors, including feeding and mating, and causing tissue damage.

There is a permanent injunction restricting the Navy’s routine peacetime use of SURTASS LFA sonar “in areas that are particularly rich in marine life” because of the well-recognized negative effects of underwater noise on marine mammals.1 The Cetaceans did not challenge the current restrictions, but sought an order compelling the Secretary of Defense to consult with NOAA Fisheries under the Endangered Species Act (ESA), apply for a letter of authorization under the Marine Mammal Protection Act (MMPA), and prepare an environmental impact statement under the National Environmental Policy Act (NEPA) for its use during wartime. The Cetaceans claimed they had standing to sue in their own name because of a Ninth Circuit decision in which the court stated the Hawaiian Palila bird, “has legal status and wings its way into federal court as a plaintiff in its own right.”2

The defendants moved to dismiss the suit for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. The district court granted the motion to dismiss, holding that the Cetaceans lacked standing under the ESA, the MMPA, NEPA and the Administrative Procedure Act (APA). The Cetaceans appealed.

Article III Standing
To bring suit in federal court, a plaintiff must have both Article III (constitutional) standing and statutory standing. Under Article III, a plaintiff “must show that (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”3 If the plaintiff has Article III standing, then the court must determine whether the plaintiff has standing under the specific statute under which the plaintiff brings suit. If a plaintiff has Article III standing but lacks statutory standing, the plaintiff cannot state a claim upon which relief can be granted and the claim should be dismissed.

Although animals have many legally protected rights, animals unfortunately, like artificial persons such as corporations and ships and judicially incompetent persons such as infants, cannot speak for themselves or function as a plaintiff in the same manner as a judicially competent person. However, “nothing in the text of Article III of the U.S. Constitution explicitly limits the ability to bring a claim in federal court to humans.”4 The Ninth Circuit held that Congress could authorize a suit in the name of an animal if it wanted to. The main question for the court, therefore, was whether Congress granted animals statutory standing in any of the four statutes under which the Cetaceans brought suit. The court found that it had not.

Statutory Standing
Neither the Administrative Procedure Act, the ESA, the MMPA, nor NEPA authorizes animals to bring suit in their own names. The APA provides that a person “suffering legal wrong” because of a federal administrative action is entitled to judicial review. “Person” is defined as “an individual, partnership, corporation, association, or public or private organization other than an agency.5 With regards to the MMPA, affected “persons,” as defined by the APA, can file suit to compel parties to seek permits or letters of authorization. Suits regarding NEPA violations must be brought under the APA and therefore are similarly limited to the above definition of persons. The ESA, which authorizes citizen suits for alleged violations of the act, defines “person” as an individual, corporation, partnership, trust, association, or other private entity. Animals are not included in the APA or ESA definitions of “person” and consequently they lack standing to sue in their own names.

Conclusion
The Ninth Circuit reaffirmed that Congress has yet to grant statutory standing to animals. The court dismissed the Cetaceans’ argument that Palila granted them standing holding that the reference to the Palila bird having standing in its own right was non-binding dicta. It is important to note, that nothing in the court’s opinion limits the ability of groups to challenge the Navy’s use of sonar or other government actions impacting animals. The suits must simply be brought by a judicially competent person or group on the animals’ behalf.

Endnotes
1. Nat. Res. Def. Council, Inc. v. Evans, 279 F. Supp. 2d 1129, 1191 (N.D. Cal. 2003).
2. Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106, 1107 (9th Cir. 1988).
3. Cetacean Community v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).
4. Id. at 1175.
5. 5 U.S.C. § 551(2).