The U.S. Court of Appeals for the D.C. Circuit recently reversed¹ a lower court's dismissal of a petition for review of certain permits issued under the Marine Mammal Protection Act (MMPA),² finding that the district court erroneously concluded plaintiffs lacked standing to challenge the permits. The suit was brought by eight animal protection groups which claimed that the permits, under which the National Marine Fisheries Service (NMFS) would authorize the Fouke Company to import about 13,000 baby fur sealskins from South Africa, violated several provisions of the MMPA.The district court dismissed the case on the grounds that the groups could not allege injury in fact.³ Even though §104 of the MMPA grants a right of judicial review to anyone opposed to NMFS permits, the district court tersely discounted its relevance.

The D.C. Circuit's opinion forcefully pointed out that plaintiffs have standing both under the statute and under the traditional standing tests. Although the district court's opinion was phrased in terms of permits to import the fur sealskins, the court of appeals noted that the permits would be based on NMFS' waiver by regulation of the statutory moratorium against taking fur seals and, further, that the MMPA does not explicitly provide for judicial review of regulations. Nevertheless, the court said, it would exalt form over substance to allow plaintiffs to challenge each permit issued under the regulations but not the underlying regulations themselves. Therefore, the court said, those with statutory standing to challenge MMPA permits under §104 have standing to challenge waiver regulations.