Animal Welfare Institute v. Richardson

Civ. Nos. 76-0483; 76-0484 (D.D.C. December 23, 1976)

The court denies standing to environmental groups challenging the issuance of a permit under the Marine Mammal Protection Act (MMPA) to import 13,000 seal skins. The Fouke Company was granted the permit by the National Marine Fisheries Service. Plaintiffs challenged the permit application on the grounds that it would allow taking of immature seals and taking seals in an inhumane manner, which the MMPA prohibits. Although plaintiffs come within the zone of inerests protected by the MMPA, they do not allege sufficient harm to meet the Sierra Club v. Morton, 2 ELR 20192, injury-in-fact test. Their interest in a safe, healthful environment for the Cape fur seal is speculative at best. Plaintiffs are no different from any other concerned citizen. The cases are dismissed.

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

Counsel for Defendant
Peter R. Taft, Asst. Attorney General
Margaret N. Strand
Department of Justice
Washington DC 20530
(202) 739-2750

[7 ELR 20073]

Robinson, J.:

MEMORANDUM AND ORDER

These cases, consolidated for all purposes by order of this court, are before the court on plaintiffs' motion for a temporary restraining order and preliminary injunction to enjoin the Defendant Secretary of Commerce from issuing a permit to the Defendant Intervenor Fouke Company to permit the importation of 13,000 seal skins from the Republic of South Africa. For the reasons set forth below the court has determined that the plaintiffs' motion should be denied and the cases dismissed.

The permit to be issued is pursuant to the Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361 et seq. The Act imposed a moratorium on the taking and importing of marine mammals and marine mammal products but allowed the Secretary to grant a waiver of the moratorium and allow importation under certain conditions. A waiver was granted in regard to the importaton of Cape fur seal skins, and the Fouke Company applied for and was granted a permit to ship the seal skins to this country.

Plaintiffs challenge the granting of the permit on the grounds that it would result in the importation of seals that were taken while they were nursing, seals that were less than eight months old at the time of taking; and seals that were taken in an inhumane manner each of which is prohibited under the Act. Plaintiffs also argue that the program under which the seals were taken could not have been certified by the defendants as being consistent with the policies and procedures of the Act. The court does not find it necessary to reach the merits of the case as the plaintiffs have not shown that they have the requisite standing to bring this action.

The basic guidelines for standing as enunciated by the Supreme Court require that the party bringing the action have a sufficient stake in a justiciable controversy to obtain judicial resolution of that controversy. Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972). The Supreme Court has held that standing encompasses a determination that the challenged action has caused the plaintiffs "injury in fact" and that the alleged injury was to an interest "arguably within the zone of interests to be protected." Data Processing Service v. Camp, 397 U.S. 150 (1970). The court does not quarrel with the plaintiffs' assertion that they have an interest within the zone of interests to be protected. Aesthetic and environmental concerns are deserving of legal protection. What is missing from plaintiffs' argument is a showing that the plaintiffs themselves are or can be substantively injured. Sierra Club v. Morton, supra at 735.

Plaintiffs allege that they have an interest in the maintenance of a sale [sic], healthful environment for marine mammals, including the Cape fur seal, in natural conditions and under humane treatment and that the decision made by the Secretary will impair that interest. It is important to note that what is before the court is the determination of how the plaintiffs will be injured by the action of the defendants. Plaintiffs' assertion of interference with an interest in studying the Cape fur seal is speculative at best. In fact the Cape area for various reasons, is well protected and accessible only with the special permission of the South African government.¹

There is nothing on this record to show that plaintiffs, however great their interests are, are on any different footing from any other concerned citizen. Such generalized harm as plaintiffs allege does not normally warrant exercise of jurisdiction. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974). Absent a statute that authorizes suits by concerned citizens functioning as "private attorneys general,"² the court must follow the strict standing requirements as laid down by the Supreme Court in Sierra Club v. Morton, supra and subsequent cases.³

Accordingly, it is this 23rd day of December, 1976,

ORDERED, that the motions be and they hereby are DENIED; and it is

FURTHER ORDERED, that the cases be and they are hereby DISMISSED.

1. An affidavit submitted by the plaintiffs does state that one of the members of plaintiff organization does intend to visit South Africa for the purpose of studying the seals but it is not clear to the court that the permission of the South African government has been secured.

2. Section 104 of the Act cannot be held to authorize suits under this rationale.

3. Warth v. Seldin, U.S. , 95 S. Ct. 2197 (1975), Simon v. Eastern Kentucky Welfare Rights Organization, U.S. , 96 S. Ct. 1917 (1975).