Marino, et al. v. Nat\u2019l Oceanic and Atmospheric Admin<\/em>., et al., No. 18-cv-2750 (DLF) (D.D.C. Mar. 26, 2020).<\/a><\/p>\nThe permit in question was issued under the Marine Mammal Protection Act (MMPA) in 1992.\u00a0 In 1994, however, pursuant to amendments to the MMPA, while NMFS retained jurisdiction over \u201ctakes\u201d 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.\u00a0 When the killer whale died in 2017, NMFS took the position that jurisdiction over the animal\u2019s necropsy report now lay with APHIS.<\/p>\n
Plaintiffs challenged NMFS\u2019 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.\u00a0 The district court granted the government\u2019s motion to dismiss on Article III standing grounds.\u00a0 None of the plaintiffs had standing to sue because none of them had an \u201cinjury in fact\u201d pursuant to D.C. Circuit precedent defining \u201cinformational injury\u201d for purposes of Article III standing.<\/p>\n
As the district court reasoned:<\/p>\n
None of the plaintiffs have alleged that they have \u201cbeen deprived of information\u201d that, even on their interpretation of the law, \u201ca statute requires the government or a third party to disclose\u201d to them. [Electronic Privacy Info. Ctr. v. U.S. Dep\u2019t of Commerce<\/em>, 928 F.3d 95, 103 (D.C. Cir. 2019) (\u201cEPIC\u201d).] Nor could they. Indeed, nothing in the MMPA\u2014or any other statute\u2014requires NMFS to collect necropsy reports from the marine parks and zoos it regulates. To the contrary, as the plaintiffs\u2019 own complaint acknowledges, the MMPA \u201cauthorize[s] NOAA to issue permits to take or import marine mammals,\u201d Compl. \u00b6 56 (emphasis added); the MMPA directs that permits issued by NMFS \u201cspecify any . . . terms or conditions which [NMFS] deems appropriate,\u201d id<\/em>. \u00b6 57 (quoting 16 U.S.C. \u00a7 1374(b)(2)(D) (emphasis added)); and the permits that NMFS ultimately issued merely \u201croutinely . . . required that the permit holder submit necropsies, clinical histories, and other medical records to NMFS,\u201d id<\/em>. \u00b6 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\u2019s 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.\u00a0 Accordingly, no statute \u201crequires the government or a third party to disclose\u201d the information that the plaintiffs seek, EPIC<\/em>, 928 F.3d at 103, and the plaintiffs have therefore failed to allege a cognizable informational injury.<\/p>\nSlip op. at 8-9.<\/p>\n
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 \u201cinformational injury\u201d standing in a lawsuit brought against a circus operator, Feld Entertainment, claiming that the care and maintenance of its Asian elephants constituted a prohibited \u201ctake\u201d under the Endangered Species Act.\u00a0 American Soc\u2019y for the Prevention of Cruelty to Animals v. Feld Entmt., Inc<\/em>., 659 F.3d 13 (D.C. Cir. 2011).\u00a0 After a 6 \u00bd 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\u2019s fees from AWI and the other organizations.\u00a0 Animal Welfare Inst. v. Feld Entmt., Inc<\/em>., 944 F. Supp. 2d 1 (D.D.C. 2013).\u00a0 Counsel for the plaintiffs also were sanctioned under 28 U.S.C. \u00a7 1927 in that same decision.\u00a0 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.\u00a0 Feld Entmt., Inc. v. American Soc\u2019y for the Prevention of Cruelty to Animals<\/em>, 873 F. Supp. 2d 288 (D.D.C. 2012).\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"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 … <\/p>\n
Continue reading “Animal Rights Challenge to Fisheries Service Decision on Disclosure of Necropsies Dismissed by Federal District Court”<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[273,108,49,577,109,540,179,573,581,578,584,579,5,176,583,585,13,582,63,101,45,576,580],"ppma_author":[697],"class_list":["post-311","post","type-post","status-publish","format-standard","hentry","category-general","tag-american-society-for-the-prevention-of-cruelty-to-animals","tag-animal-and-plant-health-inspection-service","tag-animal-law","tag-animal-welfare-institute","tag-aphis","tag-article-iii-standing","tag-aspca","tag-awi","tag-cetacean-society-international","tag-earth-island-institute","tag-heather-rally","tag-informational-injury-standing","tag-john-simpson","tag-killer-whale","tag-lori-marino","tag-naomi-rose","tag-national-marine-fisheries-service","tag-necropsy","tag-nmfs","tag-people-for-the-ethical-treatment-of-animals","tag-peta","tag-rico","tag-whale-and-dolphin-conservation"],"authors":[{"term_id":697,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/simpsonjohn-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/311","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=311"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/311\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=311"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=311"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=311"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=311"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}