Org. of Prof'l Aviculturists, Inc. v. Kershner

564 F.Supp.3d 1238

ORGANIZATION OF PROFESSIONAL AVICULTURISTS, INC., Plaintiff,

v.Eric L. KERSHNER, in his official capacity as the Chief Officer at the Branch of Conservation, Permits, and Regulations, and U.S. Fish and Wildlife Service, Defendants.

Case Number: 20-22059-CIV-MORENO

United States District Court, S.D. Florida, Miami Division.

Signed September 30, 2021

Mark Andrew Prada, David Anthony Garcia, Prada Urizar, PLLC, Miami, FL, for Plaintiff.

Robert Mark Norway, DOJ-Enrd, Environment and Natural Resources Division, Washington, DC, for Defendants.

ORDER DISMISSING CASE FOR LACK OF JURISDICTION AND DENYING PLAINTIFF'S UNTIMELY MOTION TO ADD NAMED PLAINTIFF

FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE

Plaintiff, the Organization of Professional Aviculturists, Inc., brings this case to contest the U.S. Fish and Wildlife Service's addition of 47 bird species to the list of protections under the Migratory Bird Treaty Act, 16 U.S.C. § 703 - 712. To establish associational standing, Plaintiff points to an afflicted member named Dariel Gonzalez, who owns a pair of Red-legged Honeycreepers (Cyanerpes Cyaneus ), which he breeds. This is the sole injury to a member that Plaintiff identifies, and it does not identify an injury to any other member relating to the other 46 species. Because associational standing stems from injuries to the organization's members, Plaintiff lacks standing as to those claims relating to the addition of the 46 species to the list.

With respect to the addition of the Red-legged Honeycreeper, the question is whether Plaintiff has standing stemming from Mr. Gonzalez's injury. Mr. Gonzalez is not on Plaintiff's official membership roll. This is undisputed. He is a member of the Avicultural Society of America. Plaintiff proffers evidence to show that the two organizations are affiliated, and that Mr. Gonzalez's membership in one means he is a member of both. To that end, Plaintiff proffers two sworn statements by Mr. Gonzalez, two letters from the Avicultural Society, a letter from the Plaintiff, and a Memorandum of Affiliation by both organizations. The Plaintiff's proffered evidence is hearsay and cannot be reduced to admissible evidence for consideration on a motion for summary judgment. Mr. Gonzalez's sworn statements are conclusory and not based on his personal knowledge. Because there is insufficient record evidence to show that when the complaint was filed the Plaintiff and the Avicultural Society were affiliated and shared members, the Court finds there is no genuine dispute warranting an evidentiary hearing to determine the association's standing.

To cure the standing deficiency, the Plaintiff filed an untimely motion to add the Avicultural Society as a plaintiff on March 3, 2021. Even if the Court were to find good cause to allow the amendment five months after the deadline, the amendment would be futile. Like the Plaintiff, the Avicultural Society also lacks standing as to the addition of the 46 bird species. The Avicultural Society is incorporated in California and therefore, venue would be improper here. Finally, the Avicultural Society, like the Organization of Professional Aviculturists, lacks standing to assert a Fifth Amendment takings claim because it does not own the property at issue, and jurisdiction over the takings claim is vested in the U.S. Court of Claims.

THIS CAUSE came before the Court upon the Plaintiff's Motion for Summary Judgment (D.E. 23) , the Defendants’ Motion for Summary Judgment (D.E. 27) , and Plaintiff's Untimely Motion to Add Named Plaintiff (D.E. 24 ).

THE COURT has considered the motions, the responses, the pertinent portions of the record, and being otherwise fully advised in the premises, it is

ADJUDGED that the case is DISMISSED due to Plaintiff's lack of standing and the Defendant's Motion for Summary Judgment is GRANTED on the issue of standing. It is

ADJUDGED that Plaintiff's motion for summary judgment is DENIED as moot. It is also

ADJUDGED that Plaintiff's untimely motion to add a named plaintiff is DENIED for lack of good cause.

I. Background

Plaintiff, the Organization of Professional Aviculturists, Inc., represents bird breeders, and requests the Court declare the U.S. Fish and Wildlife Service's rulemaking invalid. Plaintiff's complaint is that the U.S. Fish and Wildlife Service included 47 species of birds within the protection of the Migratory Bird Treaty Act, 16 U.S.C. § 703 - 712, which Plaintiff claims are not naturally "occurring" in the United States. Specifically, the Plaintiff requests the Court grant summary judgment and vacate the issuance of the Revised List of Migratory Birds, 85 Fed. Reg. 21,282 (Apr. 16, 2020), by finding that the Defendants violated due process, exceeded their statutory authority, acted arbitrarily and capriciously, and violated the Fifth Amendment's Takings Clause.

Defendants filed a cross-motion for summary judgment arguing that Plaintiff lacks associational standing. The cross-motion argues the U.S. Fish and Wildlife Service did not exceed its statutory authority, the service reasonably determined that 47 species should be added to the List of Migratory Birds found in 50 C.F.R. § 10.13, the Service promulgated the rule in accordance with law, and the takings claim is unfounded. Defendants argue the Service did not unlawfully delegate its authority to a private entity.

A. Factual Background

The Migratory Bird Treaty Act of 1918, 16 U.S.C. §§ 703 - 712, implements a series of treaties signed between the United States, Great Britain, Canada, Mexico, Russia/Soviet Union, and Japan, for the purpose of protecting certain biological families of birds. The Migratory Bird Treaty Act makes it unlawful to in any way interact or interfere with any "migratory bird species that are native to the United States or its territories." 16 U.S.C. § 703(b)(1). "Native to the United States" ... "means occurring in the United States or its territories as the result of natural biological or ecological processes." 16 U.S.C. § 703(b)(2)(A). It adds "a migratory bird species that occurs in the United States or its territories solely as a result of intentional or unintentional human-assisted introduction shall not be considered native to the United States or its territories." 16 U.S.C. § 703(b)(2)(B). Plaintiff's claims stem from the addition of 47 bird species, including the Red-legged Honeycreeper, to the list of protected bird species. Plaintiff asserts its member, Dariel Gonzalez, is a breeder of birds, and was injured by the addition of the Red-legged Honey Creeper to the list.

II. Summary Judgment Standard

Fed. R. Civ. P. 56 provides, "summary judgment is appropriate where there ‘is no genuine issue as to any material fact’ and the moving party is ‘entitled to judgment as a matter of law.’ " See Alabama v. N. Carolina , 560 U.S. 330, 130 S. Ct. 2295, 2308, 176 L.Ed.2d 1070 (2010) (quoting Fed. R. Civ. P. 56(a) ). The existence of some factual disputes between litigants will not defeat an otherwise properly ground motion for summary judgment; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis added). Mere "metaphysical doubt as to the material facts" will not suffice. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The basic issue before the court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251, 106 S.Ct. 2505 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992).

III. Legal Analysis

A. Associational Standing

Plaintiff seeks to proceed as a party based on an associational standing theory. The "party invoking federal jurisdiction bears the burden of establishing" standing. Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because standing is not a "mere pleading requirement[ ] but rather an indispensable part of a plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id.

An "association only has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests it seeks to protect are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Fund Democracy, LLC v. SEC , 278 F.3d 21, 25 (D.C. Cir. 2002) (citing Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc. , 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). In other words, standing for a traditional membership organization is limited by its membership.

Defendant argues at summary judgment that the Plaintiff, Organization of Professional Aviculturists, fails to set forth "by affidavit or other evidence ‘specific facts’ " to support its standing. Ga. Republican Party v. SEC , 888 F.3d 1198, 1201 (11th Cir. 2018) (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ) (citing Fed. R. Civ. P. 56(e) ). "[W]hen standing is raised at the summary judgment stage, the plaintiff ... must ‘set forth’ by affidavit or other...