New England Anti-Vivisection Soc'y v. U.S. Fish & Wildlife Serv.

• Decision Date: 14 September 2016
• Docket Number: Civil Action No. 16-cv-149 (KBJ)
• Citation: 208 F.Supp.3d 142
• Parties: NEW ENGLAND ANTI-VIVISECTION SOCIETY, et al., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants, and Yerkes National Primate Research Center, Intervenor-Defendant.
• Court: U.S. District Court — District of Columbia

208 F.Supp.3d 142

NEW ENGLAND ANTI-VIVISECTION SOCIETY, et al., Plaintiffs,

v.UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants,andYerkes National Primate Research Center, Intervenor-Defendant.

Civil Action No. 16-cv-149 (KBJ)

United States District Court, District of Columbia.

Signed September 14, 2016

Eric Robert Glitzenstein, Meyer Glitzenstein & Eubanks LLP, Katherine A. Meyer, Meyer Glitzenstein & Crystal, Washington, DC, William Stewart Eubanks, II, Meyer Glitzenstein & Eubanks LLP, Fort Collins, CO, for Plaintiffs.

Claire M. Whitaker Fred Elmore Haynes U.S. Attorney's Office for the District of Columbia Ruth Ann Storey, Trent S.W. Crable, U.S. Department of Justice, Washington, DC, for Defendants.

James Hardwick Lister, Birch Horton Bittner and Cherot, P.C., Washington, DC, Mara Michaletz, Birch Horton Bittner & Cherot, PC, Anchorage, AK, for Intervenor-Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

The question of who can speak for the animals has long vexed federal judges in animal-welfare cases. As a general matter, courts have concluded that well-established principles of Article III standing permit "human beings [to] invoke their own injuries in fact to challenge harms done to animals[,]" Cass R. Sunstein, Standing For Animals (With Notes On Animal Rights) , 47 UCLA L. Rev. 1333, 1343 (2000), but it can be "exceptionally confusing" to apply settled standing doctrine to determine when and under what circumstances an act that is allegedly harmful to animals works a cognizable injury in fact to human plaintiffs, id. at 1334. In the instant case, a consortium of organizations and individuals led by the New England Anti-Vivisection Society ("NEAVS"), a non-profit organization that dedicates itself to animal-welfare issues, has claimed the right to file a lawsuit against the United States Fish and Wildlife Service ("FWS") and its Director Daniel Ashe (collectively, "Defendants") to seek to enjoin the agency's grant of a certain wildlife export permit.

Specifically, Plaintiffs object to FWS's decision to permit Intervenor-Defendant Yerkes National Primate Research Center ("Yerkes") to transfer eight of its chimpanzees to a zoo in the United Kingdom; the agency has authorized this act of exportation pursuant to Section 10 of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 –1544, on the condition that Yerkes commit to donating money to an unrelated non-governmental organization that purportedly will use the funds for a chimpanzee conservation program. Plaintiffs complain, inter alia , that the agency's decision to issue an export permit under these circumstances violates certain fundamental tenets of the ESA, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 –559, 701 –706, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 –4370h, and the Convention on International Trade in Endangered Species ("CITES"), 27 U.S.T. 1087 (Mar. 3, 1973). (See Am. Compl. ("Compl."), ECF No. 6, ¶¶ 145–161.)) Among Plaintiffs' myriad objections to this particular permit arrangement is their contention that the plain language of the ESA prohibits FWS from establishing this sort of ‘pay-to-play’ export permitting scheme, which, Plaintiffs say, at best inures to the benefit of endangered species only indirectly. (See id. ¶ 4 (asserting that Section 10 of the ESA "requires that the permitted activity itself ‘enhance the survival’ of the chimpanzee species" (emphasis in original)).) Plaintiffs also contend, inter alia , that FWS purportedly failed "to consider the adverse impacts of its decision on efforts to conserve chimpanzees in the wild," and "to consider the precedential effect its decision will have on the disposition of other captive chimpanzees [.]" (Id. ¶ 5.)

Before this Court at present are three partial cross-motions for summary judgment that Plaintiffs, FWS, and Yerkes have now filed. (See Pls.' Mot. for Partial Summ. J. ("Pls.' Mot."), ECF No. 39; Defs.' Mot. for Partial Summ. J. ("Defs.' Mot."), ECF No. 44; Def.-Intervenor's Cross-Mot. for Summ. J. ("Yerkes's Mot."), ECF No. 42).¹ Plaintiffs focus primarily on the alleged harm to the chimpanzees at issue (Plaintiffs believe they would be far better off if they were sent to a sanctuary within the United States rather than "an unaccredited zoo" overseas (Pls.' Mem. in Supp. of Pls.' Mot. ("Pls.' Mem."), ECF No. 39-1, at 9)), and they suggest that FWS's export-permit decision not only violates the ESA but also injures endangered species as a whole because, in Plaintiffs' view, it was "Congress's stated intention to limit substantially the number of exemptions that may be granted" under Section 10 of the ESA, and that intent is "completely eviscerated by allowing applicants to simply buy Section 10 permits by promising to contribute money to someone else" (id. at 32 (emphasis altered) (citation omitted)).² Plaintiffs also argue that the permit hurts NEAVS in various ways, including "mak[ing] it impossible for NEAVS to advocate for the release of these ... chimpanzees to a U.S. sanctuary" (id. at 49–50 (citation omitted)), and that three of the individual plaintiffs—all of whom are former Yerkes employees who allegedly have formed "strong emotional bonds with these animals" (id. at 50 (citations omitted))—will suffer too if these chimpanzees are exported to England. For their part, FWS and Yerkes defend the agency's decision to issue the export permit on the merits, asserting that Section 10(a) is a "broad grant of discretion" that "allows for and does not preclude enhancement [of the species] by indirect means." (Defs.' Mem. in Supp. of Defs.' Mot. ("Defs.' Mem."), ECF No. 44-1, at 30–31; see also Yerkes's Mot. at 23–35.) Defendants also maintain that this Court lacks subject-matter jurisdiction over the instant action as a threshold matter, because, in their view, none of the plaintiffs have Article III standing to seek a court order setting aside the permit. (Defs.' Mem. at 20–30.)

For the reasons explained fully below, this Court finds that Defendants have the better of the standing dispute. Despite the fact that Plaintiffs have presented a series of persuasive arguments regarding the meaning of the ESA and the extent to which FWS's interpretation undermines the goals and purposes of that statute, recent D.C. Circuit case law compels this Court to conclude that Article III requires something more than a potentially meritorious challenge to imprudent government action involving endangered animals: Plaintiffs themselves must have a concrete and particularized injury in fact that is actual or imminent, that is fairly traceable to Defendants' actions, and that a federal court's decision can redress. This Court concludes that Plaintiffs have not satisfied these threshold requirements under binding law regarding Article III standing in animal-welfare and environmental-law cases, and therefore, the Court is constrained to refrain from passing on the merits of Plaintiffs' arguments or granting them the relief they seek. See Scenic Am., Inc. v. U.S. Dep't of Transp. , No. 14–5195, 836 F.Supp.3d 42, 48, 2016 WL 4608153, at *3 (D.C.Cir. Sept. 6, 2016) ("Observing our Article III limitations is ... always important, and particularly so in a case such as this, where we are asked to invalidate an action of the Executive branch."). Consequently, Defendants' and Yerkes's partial motions for summary judgment must be GRANTED , Plaintiffs' partial motion for summary judgment must be DENIED , and the claims at issue herein must be dismissed. A separate order consistent with this Memorandum Opinion shall issue.

I. BACKGROUND

A. The Listing Of Chimpanzees As Endangered Species Under The ESA

The ESA has been called "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Babbitt v. Sweet Home Chapter of Cmtys. f or a Great Or. , 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (internal quotation marks and citation omitted). The statute aims to conserve the populations and habitats of certain species, see 16 U.S.C. § 1531(b), and it accomplishes this by, among other things, authorizing the Department of the Interior to determine if a species is "endangered[,]" because it is "in danger of extinction throughout all or a significant portion of its range[,]" id. § 1532(6), or is "threatened [,]" insofar as it is "likely to become an endangered species within the foreseeable future[,]" id. § 1532(20). See also id. § 1533(a). "The Department of the Interior administers the ESA for non-marine species and has delegated to the Fish and Wildlife Service (an agency within the Interior Department) the authority to list such species as ‘endangered’ or ‘threatened’ through rulemaking." Otay Mesa Prop., L.P. v. U.S. Dep't of the Interior , 144 F.Supp.3d 35, 40 (D.D.C.2015) (citing, inter alia , 50 C.F.R. § 402.01 (2015) ).

FWS has listed chimpanzees as a protected animal species for ESA purposes since 1976. See Determination of 26 Species of Primates as Endangered or Threatened Species, 41 Fed. Reg. 45990, 45990 (Oct. 19, 1976) ; Endangered and Threatened Wildlife and Plants; Listing All Chimpanzees as Endangered Species ("Chimpanzee Final Rule"), 80 Fed. Reg. 34500, 34500 (June 16, 2015). Beginning in 1990, the agency "[s]plit-[l]ist[ed]" chimpanzees (Pls.' Mem. at 13) based upon whether the animals at issue were wild or captive; wild chimpanzees were considered endangered, and captive chimpanzees were deemed threatened. See Chimpanzee Final Rule, 80 Fed. Reg. at 34500. Under the ESA, these different designations resulted in the application of different constraints on public and private actions that might impact the species. Compare 16 U.S.C. § 1538(a)(1) (banning a host of activities only with respect to endangered species), with id. § 1533(d) (authorizing—but not requiring—the Executive to apply the protections found in § 1538(a)(1) to "any threatened species" via regulation).

In 201...