Animal Protection Institute of America v. Hodel

• Decision Date: 31 October 1988
• Docket Number: No. 87-2683,87-2683
• Citation: 860 F.2d 920
• Parties: 19 Envtl. L. Rep. 20,251 ANIMAL PROTECTION INSTITUTE OF AMERICA, a California non-profit corporation; the Fund for Animals, Inc., a New York non-profit corporation, Plaintiffs-Appellees, v. Donald P. HODEL, Secretary of the United States Department of the Interior, Washington, D.C.; Robert Buford, Director of the Bureau of Land Management, Washington, D.C.; Edward F. Spang, Director of the Bureau of Land Management, State of Nevada; Thomas J. Owen, District Manager Bureau of Land Management, Carson City; Don Pomi, Assistant District Manager for the Division of Wild Horses and Burros; M.H. Frei, Program Leader, Wild Horse Specialist, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 920

860 F.2d 920

19 Envtl. L. Rep. 20,251

ANIMAL PROTECTION INSTITUTE OF AMERICA, a California non-profit corporation; the Fund for Animals Inc., a New York non-profit corporation Plaintiffs-Appellees, v. Donald P. HODEL, Secretary of the United States Department of the Interior, Washington, D.C.; Robert Buford, Director of the Bureau of Land Management, Washington, D.C.; Edward F. Spang, Director of the Bureau of Land Management, State of Nevada; Thomas J. Owen, District Manager Bureau of Land Management, Carson City; Don Pomi, Assistant District Manager for the Division of Wild Horses and Burros; M.H Frei, Program Leader, Wild Horse Specialist, Defendants-Appellants.

No. 87-2683.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 14, 1988.

Decided Oct. 31, 1988.

Blake A. Watson, Appellate Section, Land & Natural Resources Div., Dept. of Justice, Washington D.C., for defendants-appellants.

W. Craig James, Skinner, Fawcett & Mauk, Boise, Idaho, John Ohlson, Olson & Edmiston, Reno, Nev., for plaintiffs-appellees.

Russell J. Gaspar, Hanna, Gaspar, Osborne & Birkel, Washington, D.C., for amicus.

Appeal from the United States District Court for the District of Nevada.

Before CHOY, CANBY, and TROTT, Circuit Judges.

CHOY, Circuit Judge:

The United States Secretary of the Interior and subordinate officials ("Secretary") appeal from the district court's grant of summary judgment for the Animal Protection Institute of America, Inc. and the Fund for Animals, Inc. ("the API"). ¹ The district court enjoined the Secretary from transferring the titles of wild horses and burros to persons who the Secretary knows intend to use the animals for commercial purposes upon receiving title. 671 F.Supp. 695. We affirm.

BACKGROUND

In 1971, Congress passed the Wild Free-Roaming Horses and Burros Act ("WHA") to preserve from "capture, branding, harassment, or death" wild horses and burros found on public lands as these animals were considered "living symbols of the historic and pioneer spirit of the West" that "enrich[ed] the lives of the American people." 16 U.S.C. Sec. 1331. The WHA authorized the removal of excess wild horses and animals from public lands for private maintenance under humane conditions and care. 16 U.S.C. Sec. 1333(b) (amended 1978). Under this grant of authority, the Secretary instituted its "adopt-a-horse" program by which individuals could "adopt" wild horses or burros. See 43 C.F.R. Sec. 4740.2(b) (1977).

In 1978, as part of the Public Rangelands Improvement Act, Congress amended the WHA. The amendments set a limit of four on the number of excess animals an individual could adopt, absent a written finding by the Secretary that the individual could humanely care for more than four animals. 16 U.S.C. Sec. 1333(b)(2)(B). The amendments specified that an adopter must be a "qualified individual" who could "assure humane treatment and care" for his animals. Id. The amendments also authorized the Secretary to grant adopters title to animals if the adopters were "qualified individuals" and had humanely treated the animal or animals in their care for a year. 16 U.S.C. Sec. 1333(c).

In May 1984, the Bureau of Land Management ("BLM") ² published regulations that allowed it to waive adoption fees for wild horses or burros that were considered "unadoptable" at the adoption fee of $125 per horse or $75 per burro. 43 C.F.R. Sec. 4750.4-2(b) (1987).

On September 11, 1985, the API filed a complaint in district court seeking declaratory and injunctive relief against the Secretary. The API claimed that the Secretary was violating the WHA in its roundup practices and maintenance of excess wild horses and burros, and in its adoption procedures for excess animals. The API alleged a statutory basis for its lawsuit under the Administrative Procedure Act, which allows a party "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action" to seek judicial review. 5 U.S.C. Sec. 702.

The parties eventually signed a stipulation settling the claims concerning the roundup and maintenance of wild equids. The dispute concerning adoption procedures remained unresolved. The API alleged that the Secretary's fee-waiver adoption program violated congressional intent under the WHA by facilitating the commercial exploitation ³ of wild horses and burros. Specifically, the API claimed that entrepreneurs used the fee-waiver program in conjunction with the granting of powers of attorney to secure title to wild equids for commercial purposes. ⁴ On cross-motions for summary judgment, however, the API limited its claim for relief to situations in which the Secretary transfers title to adopters knowing that they intend to use the animals for commercial purposes once they receive title. ⁵ The district court subsequently granted the API injunctive relief, holding that when the Secretary has actual knowledge that an adopter intends to commercially exploit animals upon receipt of legal title, the Secretary may not transfer title to that adopter. The Secretary timely appeals.

DISCUSSION

I. Standing

The Secretary attacks the API's standing for the first time on appeal. Standing is a necessary element of federal court jurisdiction, and we must determine that standing exists, even though the issue was not raised below. See Bender v. Williamsport Area School District, 475 U.S. 534, 546-47, 106 S.Ct. 1326, 1334, 89 L.Ed.2d 501 (1986).

The constitutional requirement of standing, discerned from Article III's "case" or "controversy" requirement, entails that a litigant allege: "(1) a personal injury, (2) which is fairly traceable to the defendant's allegedly unlawful conduct, and (3) which is likely to be redressed by the requested relief." Alaska Fish & Wildlife Federation v. Dunkle, 829 F.2d 933, 937 (9th Cir.1987) (citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984)), cert. denied, --- U.S. ----, 108 S.Ct. 1290, 99 L.Ed.2d 501 (1988).

In the present case, the Secretary contests the API's ability to satisfy the first requirement. The Secretary argues that neither the API nor its members have suffered or are in danger of suffering an injury-in-fact.

A. Injury-in-Fact

An association has standing to sue for injuries to its members. See Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975); Animal Lovers Volunteer Ass'n, Inc. (ALVA) v. Weinberger, 765 F.2d 937, 938 (9th Cir.1985). Cognizable injuries include harm to aesthetic interests and environmental well-being. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 702, 93 S.Ct. 2405, 2423, 37 L.Ed.2d 254 (1973).

The API asserted in its complaint that the improper removal and injury of wild horses and burros will cause irreparable injury to its members who use and enjoy the public lands that the equids inhabit. Yet, as the Secretary notes, the API's claim concerns not the management and treatment of wild horses and burros on the range, but the disposal of animals already removed from the range. The fate of these animals will not impact on the members' use and enjoyment of public lands. Hence, the members can allege no injury to their However, API members have a special interest in monitoring the well-being of wild horses and burros removed from the range and kept in BLM holding facilities. An agreement between the Secretary and the API gives API members the right to inspect wild equids maintained in the BLM pens in order to insure that the animals receive humane treatment. ⁶ The Secretary's practice at issue in this lawsuit frustrates this right, because it removes from BLM pens for commercial exploitation animals which would otherwise be monitored by the API members.

aesthetic interests. See ALVA, 765 F.2d at 938 (no injury to the association's members from the Navy's shooting of wild goats on land not open to the public).

The Secretary denies that its transfer of animals to adopters who will put the animals to commercial use constitutes an injury. The Secretary notes that under BLM regulations only those animals otherwise unadoptable are eligible for adoption under the fee-waiver program. 43 C.F.R. Sec. 4750.4-2(b) (1987). ⁷ Therefore, since he is statutorily required to humanely destroy unadoptable animals, see 16 U.S.C. Sec. 1333(b)(2)(C), the Secretary reasons that the removal and destruction of animals that are subject to the fee-waiver program is assured in any event.

This argument does not address the injury to the API members' interest in insuring that the animals receive humane treatment while kept in BLM pens. Moreover, this argument does not address the scenario in which the Secretary allows adoptions by persons who pay value for the animals and intend to commercially exploit them. Finally, in granting funds to the BLM for fiscal year 1988, Congress stated that the money appropriated "shall not be available for the destruction of healthy, unadopted, wild horses and burros in the care of the [BLM] or its contractors." Department of the Interior & Related Agencies Appropriations Act of 1988, Pub.L. No. 100-202, 101 Stat. 1329-214 (Dec. 22, 1987). The Department of the Interior appropriations bill for fiscal year 1989 contains the identical restriction on the use of funds. See H.R. 4867, 100th Cong., 2d Sess., 134 Cong.Rec. S9450 (daily ed. July 13, 1988). ⁸ Thus, at the present time, Congress clearly is determined to prevent the Secretary from exercising his authority to destroy healthy excess animals under 16 U.S.C. Sec. 1333(b)(2)(C). ⁹

B. The Remaining Constitutional Requirements of Standing

It is evident that the requested relief, the prohibition of the transfer of title to adopters

who intend to commercially exploit animals, is traceable to the Secretary's practice of ignoring the expressed intent of adopters. Likewise, the requested relief will redress the alleged injury stemming from the commercial use of wild equids....