Animal Rights Challenge to Fisheries Service Decision on Disclosure of Necropsies Dismissed by Federal District Court

By John M. Simpson.

On March 26, 2020, the U.S. District Court for the District of Columbia dismissed a lawsuit brought by certain animal rights advocates and organizations against several federal defendants challenging a decision of the National Marine Fisheries Service (NMFS) declining to enforce a permit condition allegedly requiring a marine mammal park to submit a necropsy report concerning a killer whale obtained the permit. Marino, et al. v. Nat’l Oceanic and Atmospheric Admin., et al., No. 18-cv-2750 (DLF) (D.D.C. Mar. 26, 2020).

The permit in question was issued under the Marine Mammal Protection Act (MMPA) in 1992.  In 1994, however, pursuant to amendments to the MMPA, while NMFS retained jurisdiction over “takes” and importation of marine mammals, authority over the care and maintenance of permitted animals in the possession of zoological facilities was transferred to the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture.  When the killer whale died in 2017, NMFS took the position that jurisdiction over the animal’s necropsy report now lay with APHIS.

Plaintiffs challenged NMFS’ decision as arbitrary and capricious and on other grounds under the federal Administrative Procedure Act. The plaintiffs included four individual scientists associated with animal rights advocacy, including Lori Marino, Heather Rally and Naomi Rose, as well as five organizations known for animal rights or anti-captivity views: People for the Ethical Treatment of Animals (PETA), Animal Welfare Institute (AWI), Earth Island Institute, Whale and Dolphin Conservation and Cetacean Society International.  The district court granted the government’s motion to dismiss on Article III standing grounds.  None of the plaintiffs had standing to sue because none of them had an “injury in fact” pursuant to D.C. Circuit precedent defining “informational injury” for purposes of Article III standing.

As the district court reasoned:

None of the plaintiffs have alleged that they have “been deprived of information” that, even on their interpretation of the law, “a statute requires the government or a third party to disclose” to them. [Electronic Privacy Info. Ctr. v. U.S. Dep’t of Commerce, 928 F.3d 95, 103 (D.C. Cir. 2019) (“EPIC”).] Nor could they. Indeed, nothing in the MMPA—or any other statute—requires NMFS to collect necropsy reports from the marine parks and zoos it regulates. To the contrary, as the plaintiffs’ own complaint acknowledges, the MMPA “authorize[s] NOAA to issue permits to take or import marine mammals,” Compl. ¶ 56 (emphasis added); the MMPA directs that permits issued by NMFS “specify any . . . terms or conditions which [NMFS] deems appropriate,” id. ¶ 57 (quoting 16 U.S.C. § 1374(b)(2)(D) (emphasis added)); and the permits that NMFS ultimately issued merely “routinely . . . required that the permit holder submit necropsies, clinical histories, and other medical records to NMFS,” id. ¶ 59 (emphasis added). The unenforced Necropsy Provisions that the plaintiffs identify as the source of their alleged injuries are not creatures of statute, but instead consequences of NMFS’s discretionary decision to include those provisions in the permits it issued, as well as its discretionary decision to issue those permits in the first place.  Accordingly, no statute “requires the government or a third party to disclose” the information that the plaintiffs seek, EPIC, 928 F.3d at 103, and the plaintiffs have therefore failed to allege a cognizable informational injury.

Slip op. at 8-9.

In an ironic twist, the district court found controlling a prior D.C. Circuit decision in which AWI and other animal rights groups had also unsuccessfully invoked “informational injury” standing in a lawsuit brought against a circus operator, Feld Entertainment, claiming that the care and maintenance of its Asian elephants constituted a prohibited “take” under the Endangered Species Act.  American Soc’y for the Prevention of Cruelty to Animals v. Feld Entmt., Inc., 659 F.3d 13 (D.C. Cir. 2011).  After a 6 ½ week bench trial, the lack of standing in that case was so obvious that the district court found that the litigation was frivolous and vexatious from its inception and ruled that the defendant was entitled to recover its attorney’s fees from AWI and the other organizations.  Animal Welfare Inst. v. Feld Entmt., Inc., 944 F. Supp. 2d 1 (D.D.C. 2013).  Counsel for the plaintiffs also were sanctioned under 28 U.S.C. § 1927 in that same decision.  Furthermore, in a parallel case, the same court ruled that the abusive manner in which the ESA litigation had been conducted by AWI and the other parties stated a cause of action under the Racketeer Influenced and Corrupt Organizations (RICO) Act.  Feld Entmt., Inc. v. American Soc’y for the Prevention of Cruelty to Animals, 873 F. Supp. 2d 288 (D.D.C. 2012).  These rulings ultimately paved the way for the recovery by Feld Entertainment of more than $25 million from the adverse parties (including AWI) and their counsel.