Animal Welfare Institute v. Kreps
| Decision Date | 27 July 1977 |
| Docket Number | Nos. 76-2148 and 76-2149,s. 76-2148 and 76-2149 |
| Citation | 561 F.2d 1002,183 U.S.App.D.C. 109 |
| Parties | , 183 U.S.App.D.C. 109, 7 Envtl. L. Rep. 20,617 ANIMAL WELFARE INSTITUTE et al., Appellants, v. Juanita KREPS, Secretary of Commerce of the United States, et al. COMMITTEE FOR HUMANE LEGISLATION, INC. and Friends of Animals, Inc., Appellants, v. Juanita KREPS, Secretary of Commerce of the United States, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Leonard C. Meeker, Washington, D. C., with whom Richard A. Frank, Washington, D. C., was on the brief, for appellants in No. 76-2148.
Margaret Strand, Atty., Dept. of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen., and Bruce C. Rashkow, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee Kreps.
James P. Davenport, Washington, D. C., with whom Lucien Hilmer, Washington, D. C., was on the brief, for appellee The Fouke Co. Ronald G. Precup, Washington, D. C., also entered an appearance for appellee The Fouke Co.
Bernard Fensterwald, Jr., Washington, D. C., entered an appearance for appellants in No. 76-2149.
Before WRIGHT, McGOWAN, and TAMM, Circuit Judges.
Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.
These appeals arise from a complaint filed in the District Court challenging a decision by the Government appellees to waive the moratorium imposed by the Marine Mammal Protection Act (MMPA) 1 so as to permit importation into the United States from South Africa of baby fur sealskins. Appellants are eight environmental groups. 2 The District Court dismissed the suit on the ground that appellants lacked standing to sue. We reverse, holding that appellants do have standing and that the Government's decision to waive the ban on importing baby fur sealskins violates the Marine Mammal Protection Act.
A brief sketch of the statutory scheme is necessary at this point. The MMPA imposes a moratorium on taking or importation of marine mammals or marine mammal products. The Director of the National Marine Fisheries Service (NMFS) can waive the moratorium to allow taking or importation according to the detailed procedural and substantive requirements of the Act. Waiving the moratorium is a two-stage process. In the first stage the agency must determine if there will be a waiver and promulgate regulations containing the terms of the waiver. In the second stage the agency may issue permits authorizing importation to particular applicants.
The annual harvest of baby seals takes place in South Africa in the fall of the year. In 1975 appellee Fouke Company, an importer, sought a waiver and a permit to allow it to import skins from the 1975 harvest. Throughout the administrative proceedings appellants vigorously opposed the waiver. In February 1976 the Director reached a decision that the Cape fur seal herd could sustain a taking of up to 70,000 seals per year. He therefore waived the moratorium on the condition that the total harvest in South Africa not exceed 70,000. 3
At this point appellants filed their complaint, 4 alleging that the waiver was illegal because (1) seals less than eight months old would be imported, contrary to Section 102(b)(2) of the Act; 5 (2) nursing seals would be imported, contrary to the same section; (3) seals taken in an inhumane manner would be imported, contrary to Section 102(b)(4); 6 and (4) the program of taking marine mammals in South Africa is not consistent with the provisions and policies of the MMPA as required by Section 101(a)(3)(A). 7
Soon after the complaint was filed and while Fouke's application for a permit was still pending, it became known that the 1975 harvest had exceeded 70,000 seals. Fouke therefore withdrew its application for a permit. Then, in June 1976, the District Court dismissed the suit on the ground that there was no longer a justiciable controversy since the waiver had been cancelled by the failure of its condition. The error in this disposition, as the parties soon pointed out to the court, was that the waiver had continuing validity, subject to annual review, 8 and the condition had failed only in regard to the 1975 harvest. The waiver remained and could become the basis for a permit to import in any future year in which the seal harvest did not exceed 70,000. Therefore, on July 22, 1976 the court vacated its order dismissing the suit and reinstated the complaint.
The Government then completed its 1976 annual review and decided that conditions continued to justify the waiver. In the fall of 1976 Fouke applied for a permit to import some 13,000 sealskins from the 1976 harvest. Notice of the application was published in the Federal Register 9 and appellants promptly submitted their views, urging that the application be denied or at least held in abeyance pending resolution of their suit challenging the waiver. However, notice that the permit had been granted appeared on December 15, 1976. 10 Appellants immediately moved in the District Court for a temporary restraining order and preliminary injunction aimed at preventing importation of the 13,000 sealskins covered by the permit. The District Court denied appellants' motion and dismissed the suit, holding that appellants lacked standing to sue.
Appellants appealed. On December 28, 1976 this court refused to enjoin the importation pending appeal, but agreed to expedite the appeal, and it was stipulated that the briefs on appeal would address the merits of the validity of the waiver as well as the issue of standing.
The gist of the problem standing is whether the party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends * * *." 11 While that much remains clear and has its roots in the Constitution, application of the principle to a particular complaining party has become difficult in the wake of rapidly developing case law. There is no single test to be derived from the case law to determine if a particular party has standing to sue. Rather, at least three separate inquiries can be distilled from the Supreme Court cases on standing. They are (1) the existence of an injury in fact, (2) whether the requisite causal connection exists between plaintiff's injury and defendant's action, and (3) whether the interest to which injury is claimed is arguably within the zone of interests to be protected by the statute.
Before embarking on these inquiries, however, we must consider whether the MMPA itself confers standing on appellants. For, while Congress cannot of course authorize exercise of judicial power in the absence of a case or controversy, the Supreme Court has held that the injury required by Article III may exist solely by virtue of a statute: "Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute." 12 A finding that Congress has expressly, "or by clear implication," 13 conferred standing on appellants would thus obviate the other inquiries.
Unfortunately, the MMPA is not perfectly clear on this point. With regard to permits the Act provides for public notice and full participation by all "interested parties" in the proceedings on a permit application. 14 Following the agency decision, "(a)ny applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such a permit." 15 There can be no doubt that appellants eight environmental groups which participated fully in the administrative proceedings and vigorously opposed grant of the permit to Fouke qualify as "parties opposed."
With regard to regulations, the MMPA requires that they be made on the record after opportunity for an agency hearing and provides for notice to the " public" of the bases for the regulations. 16 But no special provision for judicial review is included. Nevertheless, the legislative history reveals that Congress clearly intended judicial review to be available under the general federal jurisdictional statutes. 17 We conclude that Congress implicitly intended to confer standing to challenge waiver regulations on the same categories of people to whom it gave standing to challenge permits.
We base this conclusion upon the nature of the statutory waiver-permit scheme. It is clear that appellants would have standing under the statute to challenge each and every successive permit issued pursuant to the waiver which they oppose. Yet a requirement that appellants take this route would be unnecessarily wasteful of judicial resources. Further, in addition to being inefficient, seeking review of each permit would be ineffective. There would rarely be enough time for full judicial review of any particular permit before the importation took place. 18
For these reasons, appellants originally framed their suit as a challenge to the waiver regulations. But their suit also clearly encompassed a challenge to the permit granted to Fouke, 19 and to any future permit, because a permit does nothing more than apply the general authorization contained in the regulations to a particular person. 20 In fact the permit issued to Fouke expressly stated that it was "subject to" the waiver regulations and recited most of those regulations. 21 Thus the "terms and conditions" of the permit which appellants are expressly given standing to challenge 22 are the regulations. Just as opposition to the regulations implies opposition to any permit granted thereunder, a challenge to a permit implies a challenge to the regulations.
In view of this interrelationship, to find that Congress gave appellants standing to challenge permits, but not to challenge waiver regulations, would be to...
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