Citizens v. New England Aquarium

• Decision Date: 25 October 1993
• Docket Number: Civ. A. No. 91-11634-WF.
• Citation: 836 F. Supp. 45
• Parties: CITIZENS TO END ANIMAL SUFFERING AND EXPLOITATION, INC., et al., Plaintiffs, v. The NEW ENGLAND AQUARIUM, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

836 F. Supp. 45

CITIZENS TO END ANIMAL SUFFERING AND EXPLOITATION, INC., et al., Plaintiffs, v. The NEW ENGLAND AQUARIUM, et al., Defendants.

Civ. A. No. 91-11634-WF.

United States District Court, D. Massachusetts.

October 25, 1993.

Steven M. Wise, Fraser & Wise, Boston, MA, for plaintiffs.

David R. Schmahmann, Nutter, McClennen & Fish, Judith S. Yogman, Atty. Gen.'s Office, Boston, MA, Larry Bradfish, Silvia Sepulveda-Hambor, Charles W. Brooks, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, Suzanne E. Durrell, U.S. Atty.'s Office, Boston, MA, for defendants.

MEMORANDUM AND ORDER

WOLF, District Judge.

This case is brought by Kama, a dolphin, Citizens to End Animal Suffering and Exploitation ("CEASE"), the Animal Legal Defense Fund, Inc. ("ALDF"), and the Progressive Animal Welfare Society, Inc. ("PAWS"), to protest the transfer of Kama from the New England Aquarium to the Department of the Navy. The parties have named as defendants the New England Aquarium ("the Aquarium"), the Department of the Navy ("the Navy"), the Department of Commerce and two of its subagencies, the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service (collectively referred to as "Commerce").

Defendants have moved to dismiss and for summary judgment on several grounds. They contest the standing of the plaintiffs, the propriety of naming the Aquarium and the Navy as defendants, and the substantive merits of plaintiffs' case. Plaintiffs have moved to amend their complaint to add several counts concerning the transfer of Rainbow, another dolphin whose case was previously settled in this court. They have also moved to dismiss defendants' counterclaims. For the reasons described below, summary judgment should be granted in favor of defendants because plaintiffs lack standing; plaintiffs' motion to amend, filed after defendants' motions for summary judgment, should be denied; and defendants' counterclaims, which are premised on state law, should be dismissed without prejudice to being reinstituted in the courts of the Commonwealth of Massachusetts.

I. FACTS

Plaintiffs' factual contentions primarily concern the transfer of Kama from the Aquarium to the Navy. Except as noted, the following relevant facts are undisputed.

Kama was born in captivity at Sea World in San Diego in 1981. Kama was transferred to the Aquarium in 1986 for breeding purposes and/or for public display. See Federal Defendant's Motion to Dismiss at ¶ 5; Affidavit of John Prescott ("Prescott Aff.") at ¶ 5, Exhibit A to New England Aquarium's Memorandum of Law in Support of its Motion for Summary Judgment. Kama, however, did not fit into the social climate at the Aquarium. Prescott Aff. at ¶ 6. As a result, he was not regularly on public display, nor featured in the Aquarium dolphin shows. Id.; Affidavit of Kathy Krieger ("Krieger Aff.") at ¶ 2, Exhibit A to New England Aquarium's Reply Memorandum.¹

In 1987, the Aquarium wrote to Commerce requesting authorization to transfer Kama and another dolphin to the Naval Oceans Systems Center. See Administrative Record at § 7. The Navy also wrote to Commerce, requesting authority to purchase and transport the two dolphins, noting, "These two dolphins will be housed in floating bay pens as specified in Marine Mammal Permit Number # 195. Id. at § 8. Commerce authorized both requests, and sent the Navy a Letter of Agreement (# AN108), to be signed by the Navy, which set forth the obligations of the Navy to ensure the safety and well-being of the dolphins. Id. at §§ 9-10.

In late 1987, Kama was transferred from the Aquarium to the Navy pursuant to this Letter of Agreement. Prescott Aff. at ¶¶ 6-7. Kama is now located in Hawaii, where he is being studied for his sonar capabilities. Declaration of Lester Bivens ("Bivens Decl.") at ¶ 5, Exhibit 4 to Federal Defendants' Memorandum in Support of its Motion to Dismiss and in the Alternative Motion for Summary Judgment. The Navy has invested over $700,000 and over 3,500 man hours training Kama. Id. at ¶ 4. The Navy contends that Kama is able to associate with wild dolphins on a daily basis, and could swim away if he so desired. Id. at ¶ 3.

Additional relevant facts are discussed in the analysis of defendants' motions for summary judgment.

II. SUMMARY OF COMPLAINT AND ISSUES

A. The Statute

Plaintiffs' cause of action is based upon the Marine Mammal Protection Act ("MMPA"), which was passed in 1978 in order to protect marine mammals populations. See 16 U.S.C. § 1361. The primary focus of the statute was to impose a moratorium on the "taking" and importation of marine mammals and marine mammal products. See 16 U.S.C. §§ 1371, 1372. To "take" is defined in the statute as: "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(12). In essence, the MMPA provides that such takings and importations of marine mammals are generally allowed only upon the grant of a permit by Commerce. See 16 U.S.C. § 1374.

At issue in this case is whether the transfer, purchase, or sale of an already-captive dolphin constitutes a "taking" which requires a permit. The dispute concerns language under a subsection in the statute entitled "Taking," which states:

Except as provided in §§ 1372, 1373, 1374, 1379, 1381, and 1383 of this title, it is unlawful —

. . . . .

(4) for any person to transport, purchase, sell, or offer to purchase or sell any marine mammal or marine mammal product.

16 U.S.C. § 1372(a)(4). The exception in § 1374 to which § 1372 refers provides that the Secretary of the Department of Commerce may issue permits for "the taking or importation of any marine mammal." 16 U.S.C. § 1374(a). The permit process requires the publication of permit applications, with the opportunity for public comment, and a hearing if requested by "any interested party." 16 U.S.C. § 1374(d)(2), (4). Furthermore, "judicial review of the terms and conditions of any permit" is available to "any applicant for a permit, or any party opposed to such permit." 16 U.S.C. § 1374(d)(6).

Plaintiffs contend that according to the plain language of § 1372(a)(4), defendants violated the statute by transporting, purchasing, and selling Kama without having obtained a permit from Commerce. Defendants assert that in the context of the statute as a whole, and in view of its purpose, § 1372(a)(4) should be interpreted to apply only to marine mammals in the wild, and that a permit is not necessary for an already-captive marine mammal.

Plaintiffs claim injury arising out of the transfer of Kama, which denied plaintiffs' members the opportunity to observe and study Kama and allegedly contributes to the depletion of the dolphin population. See First Amended Complaint at ¶¶ 4-6. They also claim injury arising out of Commerce's failure to follow the permit procedures for Kama's transfer, which effectively denied plaintiffs and their members notice of the transfer, the opportunity to comment on the transfer and request a hearing, the opportunity to seek judicial review of the grant of a permit for Kama's transfer, and injured plaintiffs' ability to disseminate information to their members. Id. Plaintiffs also contend that several other practices of Commerce, detailed below, are contrary to the terms of the MMPA.

B. The Complaint

In their first amended complaint, plaintiffs make six distinct challenges to actions taken by the defendants.

(1) The Transfer of Kama. Plaintiffs allege that in 1987, Kama was sold and transferred from the Aquarium to the Navy pursuant to a Letter of Agreement, rather than a permit, which, they assert, is contrary to the provisions of the MMPA. The Navy, the Aquarium, and Commerce are named in this allegation.

(2) The Transfer Practice. Plaintiffs allege generally that Commerce's practice of issuing Letters of Agreement rather than permits for transferring marine mammals violates the MMPA.

(3) The Permit Modification Practice. Plaintiffs allege that Commerce's practice of failing to notify the public when it issues permit modifications that do not increase the number of marine mammals taken from the wild violates the MMPA and relevant federal regulations.

(4) Permit # 626. In conjunction with the allegations regarding the Permit Modification Practice, plaintiffs allege, in particular, that Commerce's failure to notify the public of its modification of permit # 626 granting an extension of time for the permit holder # 626, Aquarium, to take an allotted number of marine mammals from the wild violated the MMPA.

(5) The Beached or Stranded Marine Mammals Practice. Plaintiffs allege that the practice of issuing Letters of Agreement, rather than permits, to parties that have rescued beached or stranded marine mammals violates the MMPA.

(6) Violations of NEPA. Plaintiffs allege that the practice of issuing Letters of Agreement for the taking, purchasing, selling, or transporting of marine mammals without having prepared an Environmental Assessment violates the National Environmental Policy Act ("NEPA") (42 U.S.C. § 4321, et seq.).

Plaintiffs seek declaratory and injunctive relief, enjoining Commerce from engaging in the violative practices and returning Kama to the Aquarium. Defendants have counter-claimed for defamation and abuse of process.

III. DISCUSSION

As noted above, this court's ruling is limited to the issue of plaintiffs' standing. To survive a motion for summary judgment on standing, "plaintiffs need show only a `genuine issue' of material fact as to standing." Lujan v. Defenders of Wildlife, ___ U.S. ___, ___, 112 S.Ct. 2130, 2152, 119 L.Ed.2d 351 (1992) (Blackmun, J., dissenting) (citing F.R.Civ.P. 56(c)). "A `genuine issue' exists so long as `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). On a motion for summary...