Marino v. Nat'l Oceanic & Atmospheric Admin.

451 F.Supp.3d 55

Lori MARINO, et al., Plaintiffs,

v.NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, et al., Defendants.

No. 18-cv-2750 (DLF)

United States District Court, District of Columbia.

Signed March 26, 2020

Eric Robert Glitzenstein, Center for Biological Diversity, Elizabeth Leigh Lewis, Pro Hac Vice, Eubanks & Associates, LLC, Washington, DC, William Stewart Eubanks, II, Eubanks & Associates, LLC, Fort Collins, CO, for Plaintiffs. Frederick Harter Turner, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge

The plaintiffs in this case are four individual scientists—Lori Marino, Heather Rally, Leslie Cornick, and Naomi Rose—and five animal protection organizations—People for the Ethical Treatment of Animals, Inc. ("PETA"), Animal Welfare Institute ("AWI"), Earth Island Institute ("EII"), Whale and Dolphin Conservation ("WDC"), and Cetacean Society International ("CSI"). They allege that the defendants—the National Marine Fisheries Service ("NMFS"), its parent agency, the National Oceanic and Atmospheric Administration ("NOAA"), and NOAA officials Tim Galludet, Chris Oliver, and Donna Wieting—acted arbitrarily and capriciously, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (the "APA"), when they interpreted the 1994 amendments to the Marine Mammal Protection Act, 16 U.S.C. §§ 1361 - 1423h (the "MMPA"), to foreclose NMFS's authority to enforce certain conditions in permits issued under the MMPA prior to 1994. Before the Court is the defendants' Motion to Dismiss for lack of standing and failure to state a claim. Dkt. 13 (Mot. to Dismiss). Because the plaintiffs lack standing to bring this action, the Court will grant the defendants' motion.

I. BACKGROUND

A. Facts¹

The MMPA states that one of its principal aims is to ensure that "certain species and population stocks of marine mammals" should "not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem." 16 U.S.C. § 1361(1), (2). One key MMPA provision aimed at attaining that goal is a "moratorium on the taking and importation of marine mammals and marine mammal products." Id. § 1371(a). That moratorium contains certain exceptions, and the MMPA allows NOAA to issue permits to take or import marine mammals pursuant to these exceptions. Id. § 1374.

Such permits are called "Special Exception Permits," and may be issued by NMFS for the purposes of scientific research, public display, or enhancing the survival or recovery of a species. See id. § 1374(c); 50 C.F.R. pt. 216(D). Prior to issuing any "Special Exception Permit," NMFS "must be assured that the taking of [the] marine mammal is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of [the MMPA]." Id. § 1371(a)(3)(A). The MMPA requires NMFS to determine the appropriate provisions for Special Exception Permits; the permits must "specify ... any ... terms or conditions which [NMFS] deems appropriate." Id. § 1374(b)(2)(D).

According to the complaint, one condition "routinely included" in these permits requires the permittee to "submit necropsies, clinical histories, and other medical records to NMFS" within thirty days of the marine mammal's death (the "Necropsy Provisions"). Dkt. 1 (Compl.) ¶ 59. NMFS regularly included these Necropsy Provisions in Special Exception Permits it issued between 1979 and 1994, id. ¶ 70, and prior to 1994, "public display facilities routinely submitted necropsy and medical data to NMFS upon the death of the animal, as required under the terms of their permits," id. ¶ 71. The information was "then made available to the public and the scientific community through FOIA." Id.

Congress amended the MMPA in 1994. Pursuant to those amendments, NMFS retained jurisdiction over the taking and importation of marine mammals held for purposes of public display but transferred authority over the subsequent "care and maintenance of captive marine mammals" to the U.S. Department of Agriculture's Animal and Plant Health Inspection Service ("APHIS"). See MMPA Amendments of 1994, Pub. L. No. 103-238, § 5, 108 Stat. 532, 537 (the "1994 Amendments"). Congress further provided that Special Exception Permits issued prior to 1994 were "modified to be consistent with" the 1994 Amendments. Id. § 5(c). According to the plaintiffs' complaint, between 1994 and 2017, "NMFS never articulated to the public any position" as to "whether the Necropsy Provisions of pre-1994 Special Exception Permits remained in force" following the 1994 Amendments. Compl. ¶ 63.

On January 6, 2017, an orca named Tilikum died. Id. ¶ 84. Tilikum, the subject of the documentary Blackfish , was imported to the United States in 1992 pursuant to NMFS Permit No. 774. Id. ¶ 78. Tilikum's death triggered SeaWorld's obligation under Permit No. 774 to submit his clinical history and necropsy reports to NMFS within thirty days. Id. ¶ 84. Following Tilikum's death, two of the plaintiffs in this litigation (Naomi Rose and PETA) contacted NMFS to discuss NMFS's enforcement of the Necropsy Provisions contained in Tilikum's permit. Id. On February 14, 2017, more than thirty days after Tilikum's death, Rose wrote to NMFS requesting that NMFS enforce the conditions of Permit No. 774 against SeaWorld. Id. ¶ 85.

In a March 10, 2017 email response to Rose's request, NMFS asserted that "the necropsy provisions of the 1992 permit were effectively extinguished by the 1994 amendments to the MMPA and that jurisdiction of necropsies and associated reports is the province of APHIS under the [Animal Welfare Act ("AWA") ] and its regulations." Id. ¶ 85. According to the complaint, "[a]s a result of its legal decision that it lacked authority to do so, NMFS did not obtain Tilikum's necropsy, clinical history, and other medical records pursuant to the permit's Necropsy Provisions." Id. ¶ 86. Based on subsequent interactions between the plaintiffs and NMFS, the complaint further alleges that "NMFS relied on its legal decision regarding the effect of the 1994 MMPA amendments on the general permit conditions in pre-1994 Special Exception Permits to deny [p]laintiffs' repeated requests that NMS exercise its authority under [pre-1994 permits] to obtain necropsy and clinical history data." Id. ¶ 92.

AWI, one of the plaintiffs in this case, subsequently sought to obtain information about NMFS's decision-making process by submitting a FOIA request to NOAA. See Animal Welfare Inst. v. Nat. Oceanic and Atmospheric Admin. , 370 F. Supp. 3d 116 (D.D.C. Feb. 28, 2019). That request, and the subsequent lawsuit brought by AWI, sought disclosure of "all documents from January 1, 2017 to May 1, 2017 regarding NMFS's determination that the necropsy requirements of Public Display Permit 774, which authorized the import of the orca whale known as ‘Tilikum,’ were extinguished by the 1994 amendments to the MMPA." Id. at 122. In particular, AWI sought disclosure of a draft memorandum allegedly containing the legal analysis underlying NMFS's decision. Id. at 124. The district court denied AWI's motion for summary judgment, reasoning that the draft memorandum was rightfully withheld under FOIA Exemption 5 pursuant to the attorney-client and work-product privileges. Id. at 139.

B. Procedural History

The plaintiffs filed this lawsuit on November 27, 2018. Their complaint alleges that "NMFS's March 10, 2017 final decision that NMFS lacks any legal authority to enforce the necropsy and related provisions of the pre-1994 permits represents final agency action that is reviewable under the APA." Id. ¶ 93. The complaint further alleges that NMFS's decision "lacks any supporting explanation and is otherwise arbitrary, capricious, an abuse of discretion and not in accordance with law in violation of the APA." Id.

The defendants filed their motion to dismiss on March 22, 2019, arguing that the plaintiffs lack standing and that the complaint fails to state a claim. Mot. to Dismiss.

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

Under Rule 12(b)(1), a party may move to dismiss a claim over which the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "When ruling on a Rule 12(b)(1) motion, the court must treat the plaintiff's factual allegations as true and afford the plaintiff the benefit of all inferences that can be derived from the facts alleged." Jeong Seon Han v. Lynch , 223 F. Supp. 3d 95, 103 (D.D.C. 2016) (quotation marks and citation omitted). Because Rule 12(b)(1) concerns a court's ability to hear a particular claim, "the court must scrutinize the plaintiff's allegations more closely when considering a motion to dismiss pursuant to Rule 12(b)(1) than it would under a motion to dismiss pursuant to Rule 12(b)(6)." Schmidt v. U.S. Capitol Police Bd. , 826 F. Supp. 2d 59, 65 (D.D.C. 2011). If the court determines that it lacks jurisdiction, the court must dismiss the claim or action. Fed. R. Civ. P. 12(b)(1), 12(h)(3).

III. ANALYSIS

A. Standing

Article III of the Constitution limits the "judicial Power" of federal courts to "Cases" and "Controversies." U.S. Const. art. III, § 2, cl. 1. "[T]here is no justiciable case or controversy unless the plaintiff has standing." West v. Lynch , 845 F.3d 1228, 1230 (D.C. Cir. 2017). As the Supreme Court has interpreted this requirement, "the irreducible constitutional minimum of standing contains three elements": (1) the plaintiff must have suffered an "injury in fact" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"; (2) there must exist "a causal connection between the injury and the conduct complained of"; and (3) it must be "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (...