Cetacean Community v. Bush

386 F.3d 1169

The CETACEAN COMMUNITY, Plaintiff-Appellant, v. George W. BUSH, President of the United States of America; Donald H. Rumsfeld, United States of America Secretary of Defense, Defendants-Appellees.

No. 03-15866.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2004.

Filed October 20, 2004.

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Lanny Sinkin (argued), Hilo, Hawaii, for the appellant.

Ann D. Navaro, Kristen L. Gustafson, Kathryn E. Kovacs (argued), United States Department of Justice, Environmental and Natural Resources Division, Washington, D.C., for the appellees.

Appeal from the United States District Court for the District of Hawaii; David A. Ezra, Chief District Judge, Presiding. D.C. No. CV-02-00599-DAE/BMK.

Before: HUG, ALARCÓN, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

We are asked to decide whether the world's cetaceans have standing to bring suit in their own name under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act. We hold that cetaceans do not have standing under these statutes.

I. Background

The sole plaintiff in this case is the Cetacean Community ("Cetaceans"). The Cetacean Community is the name chosen by the Cetaceans' self-appointed attorney for all of the world's whales, porpoises, and dolphins. The Cetaceans challenge the United States Navy's use of Surveillance Towed Array Sensor System Low Frequency Active Sonar ("SURTASS LFAS") during wartime or heightened threat conditions. The Cetaceans allege that the Navy has violated, or will violate, the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1371-1421h, and the National Environmental Policy Act ("NEPA"), 16 U.S.C. §§ 4321-4347.

The Navy has developed SURTASS LFAS to assist in detecting quiet submarines at long range. This sonar has both active and passive components. The active component consists of low frequency underwater transmitters. These transmitters emit loud sonar pulses, or "pings," that can travel hundreds of miles through the water. The passive listening component consists of hydrophones that detect pings returning as echoes. See 67 Fed.Reg. 46,712-16 (explaining SURTASS LFAS in more detail); 67 Fed.Reg. 48,145-48 (same). Through their attorney, the Cetaceans contend that SURTASS LFAS harms them by causing tissue damage and other serious injuries, and by disrupting biologically important behaviors including feeding and mating.

The negative effects of underwater noise on marine life are well recognized. An analysis accompanying the current regulations for the Navy's use of SURTASS LFAS summarizes the harmful effects as follows:

[A]ny human-made noise that is strong enough to be heard has the potential to reduce (mask) the ability of marine mammals to hear natural sounds at similar frequencies, including calls from conspecifics, echolocation sounds of ondontocetes, and environmental sounds such as surf noise.... [V]ery strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity. In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration, and other functions. This trauma may include minor to severe hemorrhage.

67 Fed.Reg. 46,778; see also Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 737 n. 4 (9th Cir.2001) (noting that the "acoustic environment appears to be very important to humpback whales"). The current regulations, governing routine peacetime training and testing, have been challenged in a separate action. Natural Res. Def. Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1191 (N.D.Cal.2003) ("NRDC") (issuing permanent injunction restricting the Navy's routine peacetime use of LFA sonar "in areas that are particularly rich in marine life").

The Cetaceans do not challenge the current regulations. Instead, they seek to compel President Bush and Secretary of Defense Rumsfeld to undertake regulatory review of use of SURTASS LFAS during threat and wartime conditions. The Navy has specifically excepted such use of SURTASS LFAS from the current regulations. See Fed.Reg. 46,717; 67 Fed.Reg. 48,146. The Cetaceans seek an injunction ordering the President and the Secretary of Defense to consult with the National Marine Fisheries Service under the ESA, 16 U.S.C. § 1536(a), to apply for a letter of authorization under the MMPA, 16 U.S.C. § 1371(a)(2), and to prepare an environmental impact statement under NEPA, 42 U.S.C. § 4332(2)(C). They also seek an injunction banning use of SURTASS LFAS until the President and the Secretary of Defense comply with what the Cetaceans contend these statutes command.

Defendants moved to dismiss the Cetaceans' suit under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. Without specifying which of these rules was the basis for its decision, the district court granted the motion to dismiss. The court held, inter alia, that the Cetaceans lacked standing under the ESA, the MMPA, NEPA and the Administrative Procedure Act ("APA"). Cetacean Community v. Bush, 249 F.Supp.2d 1206 (D.Haw.2003).

The Cetaceans timely appeal. We review the district court's standing decision de novo. City of Sausalito v. O'Neill, 386 F.3d 1186, 2004 WL 2348385 (filed October 20, 2004); Bernhardt v. County of Los Angeles, 279 F.3d 862, 867 (9th Cir.2002). We agree with the district court that the Cetaceans have not been granted standing to sue by the ESA, the MMPA, NEPA, or the APA. We therefore conclude that dismissal under Rule 12(b)(6) for failure to state a claim was correct, and we affirm the district court.

II. Our Decision in Palila IV

The Cetaceans contend that an earlier decision of this court requires us to hold that they have standing under the ESA. We first address that decision. In Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106, 1107 (9th Cir.1988) ("Palila IV"), a suit to enforce the ESA, we wrote that an endangered member of the honeycreeper family, the Hawaiian Palila bird, "has legal status and wings its way into federal court as a plaintiff in its own right." Id. We wrote, further, that the Palila had "earned the right to be capitalized since it is a party to these proceedings." Id.

If these statements in Palila IV constitute a holding that an endangered species has standing to sue to enforce the ESA, they are binding on us in this proceeding. Brand X Internet Services v. FCC, 345 F.3d 1120, 1130 (9th Cir.2003) ("three-judge panels are bound by the holdings of earlier three-judge panels"). The government argues that these statements in Palila IV are nonbinding dicta. See, e.g., Hawaiian Crow (`Alala) v. Lujan, 906 F.Supp. 549, 552 n. 2 (D.Haw.1991) (characterizing statements in Palila IV as nonbinding dicta); Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F.Supp. 45, 49 (D.Mass.1993) (same). The district court agreed with the government's argument. Cetacean Community, 249 F.Supp.2d at 1210 ("As other courts have recognized, however, this statement is dicta and does not constitute precedent binding on this court."). However, at least two district courts, relying on our statements in Palila IV, have held that the ESA grants standing to animals. Marbled Murrelet v. Pac. Lumber Co., 880 F.Supp. 1343, 1346 (N.D.Cal.1995); Loggerhead Turtle v. County Council of Volusia, Florida, 896 F.Supp. 1170, 1177 (M.D.Fla.1995) (citing Marbled Murrelet). We asked for briefing on whether we should take this case en banc to overrule Palila IV. A majority of the nonrecused judges voted not to take this case en banc.

After due consideration, we agree with the district court that Palila IV's statements are nonbinding dicta. A statement is dictum when it is "`made during the course of delivering a judicial opinion, but ... is unnecessary to the decision in the case and [is] therefore not precedential.'" Best Life Assur. Co. v. Comm'r, 281 F.3d 828, 834 (9th Cir.2002) (quoting Black's Law Dictionary 1100 (7th ed.1999)). The line is not always easy to draw, however, for "where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense." United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (Kozinski, J., concurring).

When we decided Palila IV, the case had already been the subject of three published opinions, two by the district court and one by this court. Standing for most of the plaintiffs had always been clear, and standing for the Palila had never been a disputed issue. In Palila I, the district court noted that the action "was filed in the name of the Palila by the Sierra Club, National Audubon Society, Hawaii Audubon Society, and Alan C. Ziegler, suing as next friends and on their own behalf, as plaintiffs." Palila v. Hawaii Dep't of Land & Natural Res. ("Palila I"), 471 F.Supp. 985, 987 (D.Haw.1979). On appeal from that decision, we wrote in Palila II, "The Sierra Club and others brought this action in the name of the Palila." Palila v. Hawaii Dep't of Land & Natural Res. ("Palila II"), 639 F.2d 495, 496 (9th Cir.1981). On remand, the district court did not repeat its description of the plaintiffs, but the parties were unchanged. Palila v. Hawaii Dep't of Land & Natural Res. ("Palila III"), 649 F.Supp. 1070 (D.Haw.1986). Finally, in Palila IV, immediately after we stated that the Palila "wings it way into the federal court as a plaintiff in its own right," we noted that "the Sierra Club and others brought an action under the [ESA] on behalf of the Palila." Palila IV, 852 F.3d at 1107.

We have...