Humane Soc. of U.S. v. Babbitt, No. 93-5339

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSILBERMAN
Citation46 F.3d 93
Parties, 25 Envtl. L. Rep. 20,612 The HUMANE SOCIETY OF THE UNITED STATES, Appellant, v. Bruce BABBITT, Secretary of the United States Department of Interior, Irvin Feld and Kenneth Feld Productions, Inc., d/b/a Ringling Bros. and Barnum & Bailey Circus, and Hawthorn Corporation, Appellees.
Docket NumberNo. 93-5339
Decision Date14 February 1995

Page 93

46 F.3d 93
310 U.S.App.D.C. 228, 25 Envtl. L. Rep. 20,612
The HUMANE SOCIETY OF THE UNITED STATES, Appellant,
v.
Bruce BABBITT, Secretary of the United States Department of
Interior, Irvin Feld and Kenneth Feld Productions, Inc.,
d/b/a Ringling Bros. and Barnum & Bailey Circus, and
Hawthorn Corporation, Appellees.
No. 93-5339.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 15, 1994.
Decided Feb. 14, 1995.

Page 94

Appeal from the United States District Court for the District of Columbia (92cv0952).

Page 95

Irwin Goldbloom argued the cause for appellant. With him on the briefs were Lee D. Hwang and Robert B. Wasserman. Philip Lance Gordon entered an appearance for appellant.

Martin W. Matzen, Atty., U.S. Dept. of Justice, argued the cause for appellee Babbitt. With him on the brief were Lois J. Schiffer, Asst. Atty. Gen., and Robert L. Klarquist, Atty., U.S. Dept. of Justice.

Sally P. Paxton argued the cause for appellee Ringling Bros. and Barnum & Bailey Circus. With her on the brief was John M. Simpson.

Benjamin W. Boley argued the cause for appellee Hawthorn Corp. With him on the brief were Robert B. Wasserman and David B. Goodhand. Larry T. Garvin entered an appearance for Hawthorn Corp.

Before: SILBERMAN, WILLIAMS, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

The Humane Society of the United States (Society) appeals from the district court's grant of summary judgment in favor of the Secretary of the Interior and Hawthorn Corporation. The Society challenged a certificate issued by the Secretary exempting Hawthorn from Endangered Species Act (ESA) prohibitions on the transport of an Asian elephant interstate and abroad. We conclude that the Society lacked standing and therefore vacate the district court's judgment and remand with directions to dismiss the case for want of jurisdiction.

I.

Lota, a female Asian elephant, was born in the wild in 1950 and brought to the Milwaukee Zoo in 1954, where she remained for 36 years. Toward the end of her stay at the zoo, Lota began to exhibit aggressive behavior toward the zoo's other Asian elephants, in particular one older elephant whose health and safety were jeopardized by Lota's actions. After numerous efforts to modify Lota's behavior failed, the zoo decided in November 1990 to donate her to the Hawthorn Corporation in Illinois, which breeds, trains, and exhibits Asian elephants.

Asian elephants are endangered species subject to regulation under both the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), 27 U.S.T. 1087, T.I.A.S. 8249, entered into force July 1, 1975, and the Endangered Species Act ("ESA"), 16 U.S.C. Secs. 1531-1544 (1988). In July 1991, the Fish and Wildlife Service (FWS) issued a CITES certificate designating Lota a "pre-Convention animal" exempt from CITES' import and export restrictions. The certificate was amended in August 1991 to further designate Lota as a "pre-Act animal" exempt from the ESA's restrictions on the import and export of endangered species or their shipment in interstate or foreign commerce in the course of a commercial activity, id. Sec. 1538(a)(1)(A), (E). It is the amendment to the certificate designating Lota as exempt from the ESA which the Society challenges here. 1

The propriety of FWS' exemption of Lota from the ESA prohibitions on interstate and international transportation of endangered species turns on the definition of "commercial activity" in the statute. The term appears in two relevant sections: first, the ESA's "captive-held" exemption, 16 U.S.C. Sec. 1538(b)(1), provides that

The provisions of subsections (a)(1)(A) [prohibiting import and export of an endangered species] ... shall not apply to any fish or wildlife which was held in captivity or in a controlled environment on (A) December 28, 1973 ... Provided, that such holding and any subsequent holding or use of the fish or wildlife was not in the course of a commercial activity.

Second, Sec. 1538(a)(1)(E) prohibits, inter alia, the transportation or shipment of an endangered species in interstate or foreign commerce "in the course of a commercial activity." The ESA defines the term "commercial activity" to include "all activities of industry and trade, including, but not limited to, the buying or selling of commodities ..." 16 U.S.C. Sec. 1532(2). In 1975, FWS promulgated

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regulations which interpret "industry and trade" to mean only "the actual or intended transfer of wildlife or plants from one person to another person in the pursuit of gain or profit." 50 C.F.R. Sec. 17.3 (1993) (emphasis added).

In the 19 years since the regulation took effect, FWS has interpreted "commercial activity" to exclude the transportation of an endangered species across state or national borders where there is no change in ownership or control of the animal. Under FWS' reading of the statute, Hawthorn's exhibition of Lota in the U.S. and abroad satisfies the "captive-held" exemption, Sec. 1538(b)(1), 2 and does not violate Sec. 1538(a)(1)(E), because Hawthorn's use of Lota does not constitute "commercial activity." The Society sued in district court seeking an injunction to suspend operation of Hawthorn's certificate for Lota, and a determination that FWS' interpretation of the ESA exempting Lota was unlawful. The court denied the Society's request for a preliminary injunction, and subsequently granted summary judgment for the Secretary and Hawthorn. After determining that the statutory language is ambiguous, the court held that FWS' interpretation of "commercial activity" is not unreasonable, accords with the legislative history of the ESA, and has been impliedly ratified by Congress through subsequent amendments to the statute which left the definition of "commercial activity" unchanged. 3

II.

A party invoking federal jurisdiction must satisfy the "irreducible constitutional minimum" of standing: injury-in-fact, causally linked to the alleged unlawful conduct, which is likely to be redressed by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, ----, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (Defenders of Wildlife); see Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 759-60, 70 L.Ed.2d 700 (1982). We must examine standing on appeal even where, as here, the court below did not address the question (although Hawthorn raised it), 4 for " 'every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review....' " Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496, 499 (D.C.Cir.1994) (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990)).

Injury for standing purposes implies the "invasion of a legally-protected interest which is ... concrete and particularized," and "actual or imminent, not 'conjectural' or 'hypothetical.' " Defenders of Wildlife, --- U.S. at ----, 112 S.Ct. at 2136 (citations omitted). To establish injury, the Society submitted affidavits from a Society representative, Michael Winikoff, (to which were attached a number of letters from Society members (the "Winikoff letters")), 5 and a Milwaukee resident, Kay Mannes. These

Page 97

documents and the Society's pleadings are somewhat ambiguous regarding the precise nature of the injury claimed. We can discern two potential theories of harm in the affidavits, and consider each in turn: first, Ms. Mannes' statement that she is harmed by Lota's absence from the zoo because she has lost the opportunity to study Asian elephants generally; and second, the claim that Society members are harmed by their inability to observe Lota at the zoo.

A. Injury-in-Fact

In support of first theory of injury, Ms. Mannes, a resident of Milwaukee, Wisconsin, claims that she had visited the Milwaukee Zoo several times between 1968 and 1992, viewed Lota, and found the experience "both educational and aesthetically satisfying." "Through viewing and studying Lota," Ms. Mannes asserted, "I have learned more about the Asian elephant and have gained an appreciation of endangered animals ... I have been harmed by the absence of Lota at the [zoo] because I have lost the opportunity to learn about an endangered animal, the Asian elephant." (emphasis added).

It is true that aesthetic interests such as the observation and study of endangered animals may in some circumstances state cognizable grounds to support Article III standing. See Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972); Defenders of Wildlife, --- U.S. at ----, 112 S.Ct. at 2137. But in these cases, the plaintiffs asserted injury because the challenged conduct threatened to diminish or deplete the overall supply of endangered animals available for observation and study. See Defenders of Wildlife, --- U.S. at ----, 112 S.Ct. at 2137 (plaintiffs...

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61 practice notes
  • Franklin v. District of Columbia, No. 97-7162
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 22, 1999
    ...had established these essential elements of standing. 4 We have therefore reviewed the trial record. See Humane Society v. Babbitt, 46 F.3d 93, 96 (D.C.Cir.1995). Five inmates gave live testimony. Franklin, 960 F.Supp. at 399. Of these, three were serving time for committing felonies (Lazo,......
  • Coho Salmon v. Pacific Lumber Co., No. C-98-0283 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 22, 1999
    ...nexus" between agency action (or inaction) and the injury asserted by the plaintiff. Humane Society of the United States v. Babbitt, 46 F.3d 93, 100 (D.C.Cir.1995). In Pacific Northwest Generating Cooperative v. Brown, 822 F.Supp. 1479, 1502-03 (D.Or.1993), aff'd, 38 F.3d 1058 (9th Cir. 199......
  • Salmon v. Pacific Lumber Co., No. C-98-0283 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 9, 1998
    ...nexus" between agency action (or inaction) and the injury asserted by the plaintiff. Humane Society of the United States v. Babbitt, 46 F.3d 93, 100 (D.C.Cir. 1995). In Pacific Northwest Generating Cooperative v. Brown, 822 F.Supp. 1479, 1502-03 (D.Or.1993), aff'd, 38 F.3d 1058 (9th Cir. 19......
  • Buchholz v. Meyer Njus Tanick, PA, No. 18-2261
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 3, 2020
    ..., the court held that "general emotional ‘harm,’ no matter how deeply felt, cannot suffice for injury-in-fact for standing purposes." 46 F.3d 93, 98 (D.C. Cir. 1995). See also Hein v. Freedom From Religion Found., Inc. , 551 U.S. 587, 619–20, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (Scalia, ......
  • Request a trial to view additional results
61 cases
  • Franklin v. District of Columbia, No. 97-7162
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 22, 1999
    ...had established these essential elements of standing. 4 We have therefore reviewed the trial record. See Humane Society v. Babbitt, 46 F.3d 93, 96 (D.C.Cir.1995). Five inmates gave live testimony. Franklin, 960 F.Supp. at 399. Of these, three were serving time for committing felonies (Lazo,......
  • Coho Salmon v. Pacific Lumber Co., No. C-98-0283 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 22, 1999
    ...nexus" between agency action (or inaction) and the injury asserted by the plaintiff. Humane Society of the United States v. Babbitt, 46 F.3d 93, 100 (D.C.Cir.1995). In Pacific Northwest Generating Cooperative v. Brown, 822 F.Supp. 1479, 1502-03 (D.Or.1993), aff'd, 38 F.3d 1058 (9th Cir. 199......
  • Salmon v. Pacific Lumber Co., No. C-98-0283 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 9, 1998
    ...nexus" between agency action (or inaction) and the injury asserted by the plaintiff. Humane Society of the United States v. Babbitt, 46 F.3d 93, 100 (D.C.Cir. 1995). In Pacific Northwest Generating Cooperative v. Brown, 822 F.Supp. 1479, 1502-03 (D.Or.1993), aff'd, 38 F.3d 1058 (9th Cir. 19......
  • Buchholz v. Meyer Njus Tanick, PA, No. 18-2261
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 3, 2020
    ..., the court held that "general emotional ‘harm,’ no matter how deeply felt, cannot suffice for injury-in-fact for standing purposes." 46 F.3d 93, 98 (D.C. Cir. 1995). See also Hein v. Freedom From Religion Found., Inc. , 551 U.S. 587, 619–20, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (Scalia, ......
  • Request a trial to view additional results

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