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Animal Welfare Inst. v. Kreps

Citation: 7 ELR 20617
No. Nos. 76-2148, -2149, 561 F.2d 1002/10 ERC 1540/(D.C. Cir., 07/27/1977) Rev'd

Reversing the district court, 7 ELR 20073, the court holds that appellants have standing to challenge the importation of baby fur sealskins and that the government's waiver of the importation moratorium violates the Marine Mammal Protection Act (MMPA). Appellee Fouke Company sought the waiver in order to import 13,000 sealskins. The government waived the moratorium by regulation. The court finds that the MMPA does not specifically provide for judicial review of regulations although judicial review is available to challenge permits issued under MMPA regulations. Thus, since parties would be able to challenge every permit issued under theregulations, the court holds that the MMPA should be construed to grant standing to review importation regulations. Even without this statutory basis, appellants have standing to challenge the regulations under the traditional tests. They allege injury in fact to the recreational, aesthetic, scientific, and educational interests of their members. Moreover, injury to any one of their members who may in the future visit the seal rookeries in South Africa satisfies the injury in fact test. Second, appellants have alleged that there exists a causal relationship between the government's alleged failure to enforce the MMPA and South Africa's seal harvesting practices. South Africa must abide by the MMPA's strictures in order to have its sealskins imported into the United States. Third, appellees do not contest that appellants, environmental groups which urged enactment of the MMPA, come within the zone of interests protected by the statute. As to the merits, the government's formula that allows half of the seals to be less than eight months old when they are killed blatantly violates the Act. Also, the government's distinction between obligatory and convenience nursing violates the Act's requirement that seals not be taken while nursing. As to appellants' contention that seals are taken in an inhumane manner, the court cannot reject the finding of fact by the Director of the National Marine Fisheries Service that the South African harvest is humane. Finally, because of its finding as to the first two contentions, the court must declare that South Africa's sealing program is inconsistent with the MMPA, notwithstanding ambiguous evidence as to whether South Africa is pursuing the MMPA's policy of optimum sustainable population.

Counsel for Appellants
Leonard C. Meeker, Richard A. Frank
Center for Law and Social Policy
1751 N St. NW, Washington DC 20036
(202) 872-0670

Counsel for Appellee Kreps
Margaret Strand (with Peter R. Taft, Ass't Attorney General; Bruce C. Rashkow)
Department of Justice, Washington DC 20530
(202) 729-2750

Counsel for Appellee The Fouke Company
James P. Davenport (with Lucien Hilmer)
Nussbaum & Owen
Suite 250, 1800 M St. NW, Washington DC 20036
(202) 833-8900

Before WRIGHT, McGOWAN, and TAMM, Circuit Judges.