D.C. Circuit Upholds Standing to Sue Under Marine Mammal Protection Act

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's 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.

As insurance, the court went on to discuss plaintiffs' standing under the traditional tests, which the court counted as three: injury in fact, causal nexus, and an interest within the zone of interests protected by the statute. Briefly, the court noted that plaintiffs, if anyone, would be injured by the permits because the MMPA protects animal rather than human interests and it is logical that animal protection groups ought to be able to enforce the statute.⁴ The court then went on to hold that plaintiffs could allege injury because their members had or could travel to South Africa to view the seals. As to causal nexus, a test that has been separated out from the injury in fact determination,⁵ the court found that a nexus exists between the alleged violation and the alleged injury. Specifically, the court held as a matter of law that denial of import privileges will protect marine mammals in foreign countries. As to the third test, neither the district court nor the government on appeal challenged that plaintiffs came within the zone of interests protected by the MMPA, especially since they were among those who urged its passage.

The parties had stipulated that the court of appeals could decide the merits of the validity of the waiver. On this question, the court found for plaintiffs on three out [7 ELR 10197] of four counts. First, the waiver regulations impermissibly allowed fully half the seals to be taken prior to the statutorily set⁶ eight-month age. Second, the regulations allowed taking when seals had ceased so-called "obligate" nursing,⁷ that is, when nursing was no longer required for survival or physical health. The court could find no such distinction in the statute and overturned this regulation. Third, the court used the first two violations to establish that the fur seals were being imported from a country whose practices did not conform to the MMPA;⁸ therefore, the importation was unlawful. Yet the court declined to decide the more difficult but related question of whether South Africa was violating the MMPA's mandate that marine mammals be kept at an "optimum sustainable population,"⁹ leaving the question for a later case with a better record. Finally, the court also declined to overturn the finding of the NMFS Director that South Africa was taking seals in a humane manner because the court could make only a limited review of the Director's findings of fact.

The court firmly established that the broad protections of the MMPA will not be stifled by cramped interpretation of its admittedly skimpy judicial review provisions. Moreover, the court headed off the possible resuscitation of the standing defense that otherwise would have been this case's legacy. Now that this procedural thicket is pruned, it may finally be possible to monitor the government's compliance with statutory directives to prohibit importation of skins of animals that are protected in this country.

1. Animal Welfare Institute v. Kreps, __ F.2d __, 7 ELR 20617 (D.C. Cir. July 27, 1977).

2. 16 U.S.C. § 1361 et seq., ELR Stat. & Reg. 41815.

3. Animal Welfare Institute v. Richardson, __ F. Supp. __, 7 ELR 20073 (D.D.C. Dec. 23, 1976).

4. The court of appeals' holding on standing was anticipated and urged in an earlier ELR Comment. See Comment, The Revival of the Standing Defense in Environmental Litigation, 7 ELR 10031 (Feb. 1977).

5. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976).

6. MMPA § 102(b)(2), 16 U.S.C. § 1372(b)(2), ELR Stat. & Reg. 41817.

7. 50 C.F.R. § 216.32(d)(4).

8. See 16 U.S.C. § 1371(a)(3)(A), ELR Stat. & Reg. 41816.

9. 16 U.S.C. § 1362(8), ELR Stat. & Reg. 41816.