New England Anti-Vivisection Society v. United States Fish & Wildlife Service , 208 F. Supp. 3d 142 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
NEW ENGLAND ANTI-VIVISECTION )
SOCIETY, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 16-cv-149 (KBJ)
)
UNITED STATES FISH AND )
WILDLIFE SERVICE, et al., )
)
)
Defendants, )
)
and )
)
YERKES NATIONAL PRIMATE )
RESEARCH CENTER, )
)
Intervenor-Defendant. )
)
MEMORANDUM OPINION
The question of who can speak for the animals has long vexed federal judges in
animal-welfare cases. As a general matter, courts have concluded that well -established
principles of Article III standing permit “human beings [to] invoke their own injuries in
fact to challenge harms done to animals[,]” Cass R. Sunstein, Standing For Animals
(With Notes On Animal Rights), 47 UCLA L. Rev. 1333, 1343 (2000), but it can be
“exceptionally confusing” to apply settled standing doctrine to determine when and
under what circumstances an act that is allegedly harmful to animals works a cognizable
injury in fact to human plaintiffs, id. at 1334. In the instant case, a consortium of
organizations and individuals led by the New England Anti -Vivisection Society
(“NEAVS”), a non-profit organization that dedicates itself to animal -welfare issues, has
claimed the right to file a lawsuit against the United States Fish and Wildlife Service
(“FWS”) and its Director Daniel Ashe (collectively, “Defendants”) to seek to enjoin the
agency’s grant of a certain wildlife export permit.
Specifically, Plaintiffs object to FWS’s decision to permit Intervenor -Defendant
Yerkes National Primate Research Center (“Yerkes”) to transfer eight of its
chimpanzees to a zoo in the United Kingdom; the agency has authorized this act of
exportation pursuant to Section 10 of the Endangered Species Act ( “ESA”), 16 U.S.C.
§§ 1531–1544, on the condition that Yerkes commit to donating money to an unrelated
non-governmental organization that purportedly will use the funds for a chimpanzee
conservation program. Plaintiffs complain, inter alia, that the agency’s decision to
issue an export permit under these circumstances violates certain fundamental tenets of
the ESA, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551–559, 701–706,
the National Environmental Policy Act (“NEPA”), 42 U.S.C. § § 4321–4370h, and the
Convention on International Trade in Endangered Species (“CITES”), 27 U.S.T. 1087
(Mar. 3, 1973). (See Am. Compl. (“Compl.”), ECF No. 6, ¶¶ 145–161.)) Among
Plaintiffs’ myriad objections to this particular permit arrangement is the ir contention
that the plain language of the ESA prohibits FWS from establishing this sort of ‘pay-to-
play’ export permitting scheme, which, Plaintiffs say, at best inures to the benefit of
endangered species only indirectly. (See id. ¶ 4 (asserting that Section 10 of the ESA
“requires that the permitted activity itself ‘enhance the survival’ of the chimpanzee
species” (emphasis in original)).) Plaintiffs also contend, inter alia, that FWS
2
purportedly failed “to consider the adverse impacts of its decision on efforts to conserve
chimpanzees in the wild,” and “to consider the precedential effect its decision will have
on the disposition of other captive chimpanzees[.]” (Id. ¶ 5.)
Before this Court at present are three partial cross -motions for summary
judgment that Plaintiffs, FWS, and Yerkes have now filed. (See Pls.’ Mot. for Partial
Summ. J. (“Pls.’ Mot.”), ECF No. 39; Defs.’ Mot. for Partial Summ. J. (“Defs.’ Mot.”),
ECF No. 44; Def.-Intervenor’s Cross-Mot. for Summ. J. (“Yerkes’s Mot.”), ECF No.
42). 1 Plaintiffs focus primarily on the alleged harm to the chimpanzees at issue
(Plaintiffs believe they would be far better off if they were sent to a sanctuary within
the United States rather than “an unaccredited zoo” overseas (Pls. ’ Mem. in Supp. of
Pls.’ Mot. (“Pls.’ Mem.”), ECF No. 39-1, at 9)), and they suggest that FWS’s export-
permit decision not only violates the ESA but also injures endangered species as a
whole because, in Plaintiffs’ view, it was “Congress’s stated intention to limit
substantially the number of exemptions that may be granted ” under Section 10 of the
ESA, and that intent is “completely eviscerated by allowing applicants to simply buy
Section 10 permits by promising to contribute money to someone else” ( id. at 32
(emphasis altered) (citation omitted)). 2 Plaintiffs also argue that the permit hurts
NEAVS in various ways, including “mak[ing] it impossible for NEAVS to advocate for
the release of these . . . chimpanzees to a U.S. sanctuary” ( id. at 49–50 (citation
omitted)), and that three of the individual plaintiffs—all of whom are former Yerkes
1
These motions are for “partial” summary judgment because they do not address a count of the
complaint that has been brought under the Freedom of Informa tion Act, 5 U.S.C. § 552 et seq. (See
Compl. ¶162.)
2
Page-number citations to the documents the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.
3
employees who allegedly have formed “strong emotional bonds with these animals” (id.
at 50 (citations omitted))—will suffer too if these chimpanzees are exported to England.
For their part, FWS and Yerkes defend the agency’s decision to issue the export permit
on the merits, asserting that Section 10(a) is a “broad grant of discretion” that “allows
for and does not preclude enhancement [of the species] by indirect means.” (Defs.’
Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 44 -1, at 30–31; see also
Yerkes’s Mot. at 23–35.) Defendants also maintain that this Court lacks subject -matter
jurisdiction over the instant action as a threshold matter, because, in their view, none of
the plaintiffs have Article III standing to seek a court order setting aside the permit.
(Defs.’ Mem. at 20–30.)
For the reasons explained fully below, this Court finds that Defendants have the
better of the standing dispute. Despite the fact that Plaintiffs have presented a series of
persuasive arguments regarding the meaning of the ESA and the extent to which FWS’s
interpretation undermines the goals and purposes of that statute, recent D.C. Circuit
case law compels this Court to conclude that Article III requires something more than a
potentially meritorious challenge to imprudent government action involving endangered
animals: Plaintiffs themselves must have a concrete and particularized injury in fact that
is actual or imminent, that is fairly traceable to Defendants’ actions, and that a federal
court’s decision can redress. This Court concludes that Plaintiffs have not satisfied
these threshold requirements under binding law regarding Article III standing in
animal-welfare and environmental-law cases, and therefore, the Court is constrained to
refrain from passing on the merits of Plaintiffs’ arguments or granting them the relief
they seek. See Scenic Am., Inc. v. U.S. Dep’t of Transp., No. 14-5195, 2016 WL
4
4608153, at *3 (D.C. Cir. Sept. 6, 2016) (“Observing our Article III limitations is . . .
always important, and particularly so in a case such as this, where we are asked to
invalidate an action of the Executive branch.”). Consequently, Defendants’ and
Yerkes’s partial motions for summary judgment must be GRANTED, Plaintiffs’ partial
motion for summary judgment must be DENIED, and the claims at issue herein must be
dismissed. A separate order consistent with this Memorandum Opinion shall issue.
I. BACKGROUND
A. The Listing Of Chimpanzees As Endangered Species Under The ESA
The ESA has been called “the most comprehensive legislation for the
preservation of endangered species ever enacted by any nation.” Babbitt v. Sweet Home
Chapter of Cmtys. For a Great Or., 515 U.S. 687, 698 (1995) (internal quotation marks
and citation omitted). The statute aims to conserve the populations and habitats of
certain species, see 16 U.S.C. § 1531(b), and it accomplishes this by, among other
things, authorizing the Department of the Interior to determine if a species is
“endangered[,]” because it is “in danger of extinction throughout all or a si gnificant
portion of its range[,]” id. § 1532(6), or is “threatened[,]” insofar as it is “likely to
become an endangered species within the foreseeable future[,]” id. § 1532(20). See
also id. § 1533(a). “The Department of the Interior administers the ESA for non-marine
species and has delegated to the Fish and Wildlife Service (an agency within the
Interior Department) the authority to list such species as ‘endangered’ or ‘threatened’
through rulemaking.” Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 144 F. Supp.
3d 35, 40 (D.D.C. 2015) (citing, inter alia, 50 C.F.R. § 402.01 (2015)).
5
FWS has listed chimpanzees as a protected animal species for ESA purposes
since 1976. See Determination of 26 Species of Primates as Endangered or Threa tened
Species, 41 Fed. Reg. 45990, 45990 (Oct. 19, 1976); Endangered and Threatened
Wildlife and Plants; Listing All Chimpanzees as Endangered Species (“Chimpanzee
Final Rule”), 80 Fed. Reg. 34500, 34500 (June 16, 2015). Beginning in 1990, the
agency “[s]plit-[l]ist[ed]” chimpanzees (Pls.’ Mem. at 13) based upon whether the
animals at issue were wild or captive; wild chimpanzees were considered endangered,
and captive chimpanzees were deemed threatened. See Chimpanzee Final Rule, 80 Fed.
Reg. at 34500. Under the ESA, these different designations resulted in the application
of different constraints on public and private actions that might impact the species.
Compare 16 U.S.C. § 1538(a)(1) (banning a host of activities only with respect to
endangered species), with id. § 1533(d) (authorizing—but not requiring—the Executive
to apply the protections found in § 1538(a)(1) to “any threatened species” via
regulation).
In 2015, after years of intensive lobbying by animal -welfare organizations, FWS
eliminated the dichotomy between wild and captive chimpanzees, deeming all
chimpanzees “endangered” within the meaning of the ESA. (Pls.’ Mem. at 13–14;
Defs.’ Mem. at 13); see also Chimpanzee Final Rule, 80 Fed. Reg. at 34500. For
present purposes, this designation was particularly consequential because Section 9 of
the ESA categorically prohibits the export of endangered species, among other things.
See 16 U.S.C. § 1538(a)(1)(A) (providing that, “with respect to any endangered species
of fish or wildlife” that has been listed as such, “it is unlawful for any person subject to
the jurisdiction of the United States” to “export any such species from the United
6
States”). 3 But this export proscription is also subject to certain specified exceptions:
Section 10 (titled “Exceptions”) establishes the circumstances under which the
Secretary is authorized to permit the activities that Section 9 prohibits. See 16 U.S.C.
§ 1539.
In pertinent part, the text of Section 10(a)(1) reads, as follows:
(a) Permits.
(1) The Secretary may permit, under such terms and conditions as he shall
prescribe—
(A) any act otherwise prohibited by [Section 9] for scientific purposes
or to enhance the propagation or survival of the affected species , including
but not limited to, acts necessary for the establishment and maintenance of
experimental populations[.]
16 U.S.C. § 1539(a)(1)(A) (emphasis added). Under Section 10(c), the Secretary is
required to “publish notice in the Federal Register of each application for an exemption
or permit which is made under this section[.]” Id. § 1539(c). And Section 10(c)
mandates both that the Secretary’s notice must “invite the submission from interested
parties, within thirty days after the date of the notice, of written data, views, or
arguments with respect to the application[,]” and also that “[i]nformation received by
the Secretary as a part of any application shall be available to the public as a matter of
public record at every stage of the proceeding.” Id. In addition, pursuant to Section
10(d), FWS may not grant a permit to authorize otherwise-prohibited acts with respect
to endangered species unless it publishes in the Federal Register a finding that the
“exceptions were applied for in good faith,” that they “will not operate to the
3
Applicable regulations also recognize this ba n on exports. See 50 C.F.R. § 17.21(b).
7
disadvantage of [the] endangered species,” and that issuing the permit “will be
consistent with the purposes and policy” of the ESA. Id. § 1539(d).
B. FWS’s Approval Of Yerkes’s Export-Permit Application
On June 12, 2015, Yerkes—a research laboratory associated with Emory
University (Yerkes’s Mot. at 36)—requested that FWS grant it permission under CITES
to export eight chimpanzees that Yerkes owns to the Wingham Wildlife Park
(“Wingham”) in England. (See CITES Permit Application, AR 000012.) 4 Yerkes’s
staff had purportedly “spent significant time” in 2013 and 2014 “conducting an
extensive due diligence review of Wingham’s facility, staff, mission, and plans,”
including site visits (id. at 15 (citation omitted)), and in December of 2014, Yerkes
“signed an agreement to donate to Wingham eight chimpanzees, all of which were bred
and born at [Yerkes’s] facilities” (id. (citation omitted)). 5 When FWS decided (in June
of 2015) to list captive chimpanzees as an endangered species, Yerkes was forced to
have to seek an exemption from Section 9’s export prohibition in order to execute the
Wingham agreement. (See id. at 17 (explaining that Yerkes amended its CITES permit
request “to include a request for a permit under the ESA following the ‘uplisting’ of
captive chimpanzees to endangered status” (citation omitted))).
4
The voluminous Administrative Record has not been filed on the ECF docket; as explained in their
Notice of Filing, Defendants have filed the certified Administrative Record index on the docket and
have supplied the full panoply of documents via a USB flash drive delivered to the Court. (See Notice
of Filing of Supplemented Admin. R. Index, ECF No. 52, at 1.)
5
According to Yerkes, Wingham is “home to 200 species and more than 650 animals ,” and is “a
licensed zoo” that “is required to meet the Standards of Modern Zoo Practice[.]” (Yerkes’s Mot. at 14
(footnote omitted).) Plaintiffs counter that “Wingham is not accredited by either the European
Association of Zoos and Aquaria . . . or the British & Irish Association of Zoos and Aqua riums[.]”
(Pls.’ Mem. at 14–15.) Plaintiffs also assert that Wingham “has never housed, cared for, or displayed
chimpanzees[.]” (Id. at 15). This dispute of fact regarding Wingham’s standards and capabilities need
not be resolved because, regardless, alleged harm to an animal, in and of itself, is not a sufficient injury
to support a legal action in federal court. See ASPCA v. Ringling Bros. & Barnum & Bailey Circus , 317
F.3d 334, 336–37 (D.C. Cir. 2003).
8
After Yerkes finished supplementing its application to include the ESA permit
request, FWS published the required Section 10(c) notice. See Endangered Species;
Wild Bird Conservation; Marine Mammals; Receipt of Applications for Permit
(“Original 10(c) Notice”), 80 Fed. Reg. 62089, 62091 (Oct. 15, 2015). According to
documents in the record, Yerkes originally hoped to satisfy Section 10(a) by making
financial commitments to two organizations that conduct “programs that focus on
benefits to wild populations of chimpanzees.” (Supplement to Yerkes Permit Request,
AR 000257.) One of those organizations apparently opposed Yerkes’s attempted export
and rejected its donation once that organization discovered the full import of the action
(see Letter from Kibale Chimpanzee Project to Wingham, AR 000355–57); the record is
less pellucid with respect to the second, but it appears that organization also “withdrew
its interest in receiving the donation.” (Decl. of R. Paul Johnson (“Johnson Decl.”), Ex.
C. to Yerkes’s Mot., ECF No. 42-9, ¶ 20.) Many other conservation groups and
conservationists—including Plaintiffs—also objected. (See Pls.’ Mem. at 16–20.)
Then, on November 27, 2015, FWS informed NEAVS that (1) “there ha[d] been
a shift in the organization and amount” of Yerkes’s donation—Yerkes would now
donate “$45,000 per year for five years to the Population & Sustainability Network
[(“PSN”),]” and (2) the export permit would be granted to Yerkes within ten days.
(FWS Email to NEAVS, AR 001359–60.) Three days later, Plaintiffs filed a lawsuit
against FWS that challenged the permitting decision (see Pls.’ Mem. at 22), and raised
essentially the same claims that are before this Court at present, see Compl. ¶¶ 84–95,
New England Anti-Vivisection Soc’y v. Jewell, No. 15-cv-2067 (D.D.C. filed Nov. 30,
2015), ECF No. 1. Because the recipient shift occurred after the relevant comment
9
period had closed, see Original 10(c) Notice, 80 Fed. Reg. at 62089, FWS elected to
reopen the comment period “to allow the public the opportunity to review additional
information submitted for the issuance of [the] permit[,]” Endangered Species; Receipt
of Application for Permit, 81 Fed. Reg. 3452, 3452 (Jan. 21, 2016) , and, as a result,
Plaintiffs dismissed that other case (see Compl. ¶ 96). The new comment period
subsequently closed, and FWS again decided (over strenuous objection from Plaintiffs
and others (see Pls.’ Mem. at 22–28) to grant the permit (see Issued Permit, AR
049927–35).
FWS made a number of findings in connection with its decision to issue the
export permit to Yerkes. (See, e.g., Enhancement Finding, AR 049912–14; NEPA
Statement, AR 049915–18; Section 10(d) Finding, AR 049919–20.) The agency
explained, for example, that it viewed Yerkes’s application as “an application . . . for
the exportation of [the chimpanzees] for the purpose of enhancing the survival of the
species in the wild.” (Enhancement Finding, AR 049912.) Moreover, and significantly
for present purposes, FWS specifically found that “this action [would] enhan ce the
survival of the species” (id. AR 049914) not because the permitted action itself (i.e.,
sending these chimpanzees to Wingham) would accomplish this result, but because of
the donation to PSN, which is a United Kingdom-based English non-governmental
organization that “works at the intersection of sustainability, human health, and
population dynamics to conserve biodiversity around the world” ( id. AR 049912; see
also Section 10(d) Finding, AR 049920 (“[FWS] determined that the export of the
chimpanzees would enhance the propagation or survival of the species.”)) . FWS
explained that PSN had promised to use the funds to “initiat[e] a new . . . program
10
specifically focused on how [the above-described] factors can be addressed to
ameliorate current risks, such as habitat destruction and disease, which face wild
chimpanzees in East Africa.” (Enhancement Finding, AR 049912.) FWS also
proceeded to find that the export-permit process complied with Section 10(d)’s
requirement that the permit was applied for in good faith and would not “operate to the
disadvantage of chimpanzees within [their] natural range.” (Section 10(d) Finding, AR
049920.)
The agency published notice of the Section 10(d) finding in the Federal Register
on May 5, 2016. See Endangered Species; Marine Mammals; Emergency Exemption;
Issuance of Permits, 81 Fed. Reg. 27170, 27170 (May 5, 2016).
C. Procedural History
Meanwhile, on January 29, 2016—during the pendency of the second comment
period related to Yerkes’s permit application—NEAVS filed a single-issue complaint in
this Court, alleging that FWS had violated the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552 et seq., because it “ha[d] failed in a timely ma[nn]er to release all of the
information to which NEAVS [was] entitled” pursuant to two FOIA requests the
organization had made in late 2015. (Compl. (“Original Compl.”), ECF No. 1, ¶¶ 1,
34.) After the second comment period closed and FWS made its final decision to grant
Yerkes’s export-permit application, NEAVS amended its complaint to add five other
animal-rights organizations, four individuals, and “Georgia,” one of the affected
chimpanzees. (See generally Compl.). 6
6
The entire group of plaintiffs consists of NEAVS, Fauna Foundation, Primate Rescue Center, Chimps,
Inc., Jungle Friends Primate Sanctuary, Cruelty Free International, Jennifer Feuerstein, Brian A. Hare,
Rachel Weiss, Mary Lee Jensvold, and Georgia the chimpanzee. (See generally Compl.)
11
The amended complaint also attacked the agency’s permitting decision on
several additional grounds. (See id. ¶¶ 145–61.) In brief, Plaintiffs claimed that (1)
FWS’s actions were not in accordance with the ESA and its implementing regulations,
and thus violated the APA (see id. ¶¶ 145–53 (Count I)); (2) FWS had transgressed
Article III of CITES (see id. ¶¶ 154–55 (Count II)) 7; (3) FWS had failed to comply with
certain NEPA assessment-related requirements (see id. ¶¶ 156–57 (Count III)) 8; and (4)
FWS’s permitting officer and other agency officials had acted in various inappropriate
ways that amounted to arbitrary and capricious decisionmaking in violation of the
APA’s bedrock principles (see id. ¶¶ 158–61 (Count IV)). The amended complaint also
persisted with the aforementioned FOIA claim. (See id. ¶ 162 (Count V).)
7
CITES “is a multilateral treaty that regulates the international trade of protected wildlife[.]” Friends
of Animals v. Ashe, No. 15-0653, 2016 WL 1170937, at *1 (D.D.C. Mar. 24, 2016); see also
Castlewood Prods., L.L.C. v. Norton, 365 F.3d 1076, 1078–79 (D.C. Cir. 2004). Article III of that
treaty provides, among other things, that export permits may only be granted when the “Scientific
Authority of the State of export has advised that such export will not be detrimental to the survival of
that species” and the “Management Authority of the State of export is satisfied that any living specimen
will be so prepared and shipped as to minimize the risk of injury, damage to health[,] or cruel
treatment” and that an “import permit has been granted for the specimen.” CITES, art. III, ¶ 2(a), (c)–
(d). Subdivisions of FWS serve as this country’s Scientific and Management Authorities. See Marcum
v. Salazar, 694 F.3d 123, 125 (D.C. Cir. 2012).
8
The NEPA is “a ‘procedural statute’ that is designed to ensure that federal agencies make fully
informed and well-considered decisions.” Otay Mesa, 144 F. Supp. 3d at 43 (internal quotation marks
and citation omitted). The statute requires agencies “‘to the fullest extent possible’ to prepare an
environmental impact statement (‘EIS’) in ‘every recommendation or report on proposals for legislati on
and other major Federal actions significantly affecting the quality of the human environment[.]” Safari
Club Int’l v. Jewell, 960 F. Supp. 2d 17, 32 (D.D.C. 2013) (alteration in original) (quoting 42 U.S.C.
§ 4332(C)). No EIS is required if the agency conducts “a shorter environmental assessment (EA)” and
finds “that the proposed action will not have a significant impact on the environment[.]” Id. (internal
quotation marks and citation omitted). But if a “categorical exclusion” applies —a term that describes
“a category of actions which do not individually or cumulatively have a significant effect on the human
environment and which have been found to have no such effect in procedures adopted by a Federal
agency in implementation of [applicable] regulati ons[,]” 40 C.F.R. § 1508.4—an agency need perform
neither an EIS nor an EA, see Safari Club, 960 F. Supp. 2d at 32. With respect to the Yerkes permit,
FWS also found that, under the NEPA, a categorical exclusion applied to its permit grant, and no
extraordinary circumstances, see 40 C.F.R. § 1508.4; 43 C.F.R. § 46.215, that would bar such an
exclusion were present. (See NEPA Statement, AR 049915–18.)
12
On April 27, 2016, Yerkes requested permission from this Court to intervene in
this lawsuit as a defendant (see Consent Mot. to Intervene, ECF No. 9); the Court
granted Yerkes’s request on April 29, 2016 (see Mem. Op. & Order, ECF No. 15).
Thereafter, Plaintiffs filed a motion for a preliminary injunct ion that sought to enjoin
execution of the permitted activity pending final resolution of the case. (See Pls.’ Mot.
for Preliminary Injunction (“P.I.”), ECF No. 18, at 1.) This Court held a hearing on
Plaintiffs’ P.I. motion on May 24, 2016 (see Order, ECF No. 27), after which the Court
denied the motion as moot in light of Yerkes’s agreement to suspend its transfer of the
chimpanzees voluntarily in order to permit the matter to be briefed as cross -motions for
summary judgment and decided with the benefit of a full administrative record (see id.
at 1).
Plaintiffs filed their cross-motion for summary judgment on July 8, 2016. In
their memorandum in support of the motion, Plaintiffs home in on a subset of the claims
in their wide-ranging complaint. For example, Plaintiffs specifically argue that Section
10 of the ESA does not authorize FWS’s permitting decision, insofar as that section
requires (and FWS failed to find) that the permitted act itself enhance the propagation
or survival of the species. (See Pls.’ Mem. at 29–33.) Additionally, Plaintiffs assert
that, even if the ESA permits FWS’s interpretation, FWS unlawfully delegated its duty
to make the enhancement finding to a third party (see id. at 33–36); that the grant of the
permit somehow violates the consultation requirement in Section 7(a) of the ESA (see
13
id. at 45 n.34) 9; and that FWS failed to comply with the APA’s mandate regarding
reasoned decisionmaking because the agency improperly disregarded certain public
comments (see id. at 36–38). Plaintiffs also contend that the NEPA’s requirement that
the agency conduct an environmental impact assessment and produce the corresponding
statement applied to the permit determination, because the categorical exclusion is
inapplicable, either on its own terms or because extraordinary circumstances apply. (Id.
at 38–45.) 10
Defendants’ cross-motion for summary judgment, which was filed August 4,
2016, not only challenges Plaintiffs’ claims on the merits, it also contends that this
Court lacks subject-matter jurisdiction because Plaintiffs lack Article III standing to
maintain this lawsuit. (See generally Defs.’ Mem.) In this regard, Defendants assert
that the informational, organizational, and aesthetic injuries upon which Plaintiffs rely
for standing (discussed at length in Part III) do not constitute actual or imminent
injuries in fact (see id. at 19–30). Yerkes spends most of its cross-motion memorandum
attempting to defend the rationality of FWS’s conclusion that a sizable monetary
donation to an organization that supports (human) family planning and reproductive
health services will benefit chimpanzees as a species (see, e.g., Yerkes’s Mot. at 24–25,
9
Section 7(a)(2) “provides that a federal agency must consult with agencies the Secretaries of
Commerce and the Interior designate in order to ‘insure that any action authorized, funded, or carried
out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or
threatened species.’” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 664, 649 (2007)
(alteration in original) (quoting 16 U.S.C. 1536(a)(2)).
10
As Defendants point out, Plaintiffs make no summary judgment arguments related to the complaint’s
contention that Defendants have violated Article III of CITES. (See Defs.’ Mem. at 50). And given
that Plaintiffs also fail to make any such argument in their reply brief, the Court deems this claim
abandoned. See Pub. Emps. for Env’tl Responsibility v. Beaudreau , 25 F. Supp. 3d 67, 129 (D.D.C.
2014); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (“[A]n issue raised in the
complaint but ignored at summary judgment may be deemed waived.”).
14
36–41), but Yerkes also generally agrees with Defendants that, in any event, Plaintiffs
have failed to assert an injury in fact that FWS’s action caused and that will likely be
remedied if Plaintiffs prevail (see id. at 49–54).
II. LEGAL STANDARDS
As noted above, Plaintiffs’ complaint asks this Court to set aside FWS’s decision
to issue an export permit to Yerkes on a variety of grounds. (See Compl. ¶¶ 145–161.)
The motions at issue here are styled as motions for summary judgment under Rule 56 of
the Federal Rules of Civil Procedure; however, “in cases involving review of a final
agency action[,] . . . the standard set forth in [Rule 56] does not apply because of the
limited role of a court in reviewing the administrative record.” Otsuka Pharm. Co. v.
Burwell, No. 15-1688, 2016 WL 4098740, at *6 (D.D.C. July 28, 2016) (alterations in
original) (internal quotation marks and citation omitted). Rather, the Court “act[s] as
an appellate tribunal[.]” XP Vehicles, Inc. v. U.S. Dep’t of Energy, 156 F. Supp. 3d
185, 191 (D.D.C. 2016) (first alteration in original) (internal quotation marks and
citation omitted). Thus—assuming the court has jurisdiction to review the claims
brought in the case—the court’s function is “solely ‘to determine whether or not as a
matter of law the evidence in the administrative record permitted the agency to make
the decision it did.’” Otsuka Pharm., 2016 WL 4098740, at *6 (quoting ViroPharma,
Inc. v. Hamburg, 916 F. Supp. 2d 76, 79 (D.D.C. 2013)). That task includes ensuring
that the agency action was not “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).
As always, however, before the court can render a decision on the merits of a
plaintiff’s challenge to agency action, it must first satisfy itself that it has jurisdiction
15
over the plaintiff’s claims because the plaintiff who seeks the court’s assistance meets
the “irreducible constitutional minimum of standing[.]” Bennett v. Spear, 520 U.S. 154,
167 (1997) (internal quotation marks and citation omitted); see also Scenic Am., 2016
WL 4608153, at *3–4. Standing doctrine “helps preserve the Constitution’s separation
of powers and demarcates ‘the proper—and properly limited—role of the courts in a
democratic society[,]’” Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1279
(D.C. Cir. 2012) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)), and thus, must
not be viewed as a “troublesome hurdle to be overcome if possible so as to reach the
‘merits’ of a lawsuit which a party desires to have adjudicated[,]” Valley Forge
Christian Coll. v. Ams. United for Separation of Church an d State, Inc., 454 U.S. 464,
476 (1982). Pursuant to our Constitution, the role of the federal courts “is to redress or
prevent actual or imminently threatened injury to persons caused by private or official
violation of law[,]” and “[e]xcept when necessary in the execution of that function,
courts have no charter to review and revise legislative and executive action.” Summers
v. Earth Island Inst., 555 U.S. 488, 492 (2009) (citation omitted). Accordingly, and as
a general matter, the threshold inquiry for any federal court is whether the plaintiff has
alleged, and ultimately proven, “such a personal stake in the outcome of the
controversy as to warrant [the] invocation of federal-court jurisdiction.” Id. at 493
(emphasis added) (internal quotation marks and citation omitted); cf. Lin-Manuel
Miranda, The Room Where it Happens, on Hamilton (Atlantic Records 2015) (“[Y]ou
don’t get a win unless you play in the game.”).
The three essential elements of Article III standing are by now well established.
The Constitution requires:
16
(1) that the plaintiff have suffered an “injury in fact”—an invasion of a
judicially cognizable interest which is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical; (2) that there
be a causal connection between the injury and the conduct complained
of—the injury must be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third
party not before the court; and (3) that it be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.
Bennett, 520 U.S. at 167 (citation omitted). It is axiomatic that the party that invokes
federal jurisdiction has the burden of establishing these elements, and as relevant here,
it is also clear that, “at the summary judgment stage, such a party can no longer rest on
mere allegations, but must set forth by affidavit or other evidence specific facts” that
support his claim of injury, causation, and redressability. Fed. Forest Res. Coal. v.
Vilsack, 100 F. Supp. 3d 21, 34 (D.D.C. 2015) (quoting Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138, 1148–49 (2013) (internal quotation marks omitted)); see also Bennett,
520 U.S. at 168 (noting that, at summary judgment, the motion-to-dismiss practice of
“presum[ing] that general allegations embrace those specific facts that are necessary to
support the claim” no longer applies (internal quotation marks and citation omitted)).
Furthermore, when it evaluates whether or not a plaintiff has Article III standing,
the court must not “decide . . . for or against the plaintiff” on the merits of his claims,
In re Navy Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008) (internal quotation marks
and citation omitted); rather, the court must “assume that on the merits the plaintiffs
would be successful in their claims.” Id. (emphasis added) (internal quotation marks
and citation omitted); see also Parker v. District of Columbia, 478 F.3d 370, 377 (D.C.
Cir. 2007). And while standing is not entirely precluded if “the plaintiff is not himself
the object of the government action or inaction he challenges, ” there is no question that
“it is ordinarily substantially more difficult to establish.” Fed. Forest Res. Coal., 100
17
F. Supp. 3d at 34 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)
(internal quotation marks omitted)); see also Food & Water Watch v. Vilsack, 808 F.3d
905, 914 (D.C. Cir. 2015).
III. ANALYSIS
This case begins and ends with the Article III standing inquiry. Plaintiffs insist
that they are entitled to bring this challenge to the export permit that FWS has granted
to Yerkes because they have suffered (or imminently will suffer) various inju ries in fact
as a result of this permitting decision. To support this contention, which is essential to
establishing standing and thus this Court’s subject-matter jurisdiction, Plaintiffs offer
three separate theories of injury: (1) that all of the plaintiffs have suffered an
“informational” injury, because FWS failed to collect and provide information about the
nature and scope of the PSN project prior to authorizing the export (see Pls.’ Mem. at
46–48); (2) that NEAVS’s organizational interests will be injured (i.e., it has
“organizational” standing), because the permit runs contrary to NEAVS’s goals and it
will spend money in response (see id. at 48–50); and (3) that some of the plaintiffs
(three of the individuals) have suffered or soon will suffer an “aesthetic” injury based
on their personal concern for the particular chimpanzees at issue ( see id. at 50–53).
Unfortunately for Plaintiffs, each of these standing theories founders under existing
precedents that bind this Court, and thus, the Court is compelled to conclude that no
plaintiff has demonstrated a concrete or particularized injury in fact that is actual or
imminent, as explained below.
A. Plaintiffs Have Not Demonstrated That They Have A Cognizable
Informational Injury
An informational injury can occur when a plaintiff is deprived of information
18
that a statute entitles him to have. See Zivotofsky v. Sec’y of State, 444 F.3d 614, 618
(D.C. Cir. 2006) (“Any[] [FOIA requester] whose request for specific information has
been denied has standing to bring an action . . . . The requester is injured-in-fact for
standing purposes because he did not get what the statute entitled him to receive.”
(some citations omitted) (citing, inter alia, FEC v. Akins, 524 U.S. 11, 23–25 (1998));
see also Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 97 (D.D.C. 2000) (explaining
that “[i]nformational standing arises ‘only in very specific statutory contexts’ where a
statutory provision has ‘explicitly created a right to information’” (quoting Animal
Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 502 (D.C. Cir. 1994))). Under such
circumstances, which are “exceedingly limited” as a practical matter, Food & Water
Watch v. Vilsack, 79 F. Supp. 3d 174, 197 (D.D.C. 2015), aff’d, 808 F.3d 905 (D.C. Cir.
2015), an alleged informational injury can provide the necessary injury in fact to
support Article III standing. The necessary circumstances do not exist in this case.
1. Section 10(c) Does Not Require FWS To Collect And Disclose
Information Beyond That Which Is Submitted To The Agency In
Support Of A Permit Application
As the D.C. Circuit recently explained, “[a] plaintiff suffers sufficiently concrete
and particularized informational injury where the plaintiff alleges that: (1) it has been
deprived of information that, on its interpretation, a statute requires the government or a
third party to disclose to it, and (2) it suffers, by being denied access to that
information, the type of harm Congress sought to prevent by requiring disclosure.”
Friends of Animals v. Jewell (“Friends of Animals II”), No. 15-5223, 2016 WL
3854010, at *3 (D.C. Cir. July 15, 2016) (citation omitted). Importantly, it is well
established that “the existence and scope of an injury for informational standing
purposes is defined by Congress[.]” Id. at *2 (emphasis added) (citation omitted); cf.
19
Warth v. Seldin, 422 U.S. 490, 514 (1975) (“Congress may create a statutory right or
entitlement the alleged deprivation of which can confer standing t o sue even where the
plaintiff would have suffered no judicially cognizable injury in the absence of statute.”
(citation omitted)). Consequently, a “plaintiff seeking to demonstrate that it has
informational standing generally need not allege any additional harm beyond the one
Congress has identified.” Friends of Animals II, 2016 WL 3854010, at *2 (emphasis
omitted) (internal quotation marks and citation omitted); see also Zivotofsky, 444 F.3d
at 617 (explaining that “[a]nyone whose request for specific information has been
denied has standing to bring an action; the requester’s circumstances—why he wants
the information, what he plans to do with it, what harm he suffered from the failure to
disclose—are irrelevant to standing” (citation omitted)).
Here, Plaintiffs assert that they have suffered informational injury “because the
FWS’s failure to collect the information necessary to conclude that the authorized
export will ‘enhance the survival’ of the chimpanzee species, and its decision to instead
allow PSN, Yerkes, and Wingham to make this determination . . . [,] violated the
Plaintiffs’ right to receive and comment on such information before the FWS made the
decision at issue, as required by Section 10(c)[.]” (Pls.’ Mem. at 46 (emphasis in
original).) Pursuant to the above-cited cases, Plaintiffs might well have had a viable
contention that they were injured by this alleged deprivation of relevant information
that the agency failed to collect, but only if Section 10(c) actually does require the
agency “to collect the information necessary to conclude that the authorized export will
‘enhance the survival’ of the . . . species” (id.), and this Court sees no such affirmative-
collection requirement in that statutory provision. Indeed, the plain text of the
20
disclosure requirement in Section 10(c) is far more limited; as relevant here, it provi des
only that “[i]nformation received by the Secretary as a part of any application [for a
permit] shall be available to the public as a matter of public record at every stage of the
proceeding.” 16 U.S.C. § 1539(c) (emphasis added). By its terms, then, Section 10(c)
“creates a “right to information[,]” Friends of Animals v. Jewell (Friends of Animals I),
824 F.3d 1033, 1041 (D.C. Cir. 2016), but that right extends only to the information
that the agency receives in connection with a permit application, and Congress did not
impose any duty to make an affirmative effort to collect certain information as part of
the permitting process, which is the failure that Plaintiffs contend has injured them.
Consequently, Plaintiffs’ alleged informational injury—i.e., that they did not receive
information that FWS failed to collect (where the disclosure provision upon which
Plaintiffs rely to support this assertion does not require the collection of such
information)—is not a cognizable injury for standing purposes.
The D.C. Circuit’s recent decision in Friends of Animals II makes clear why this
is so. That case involved Section 4(b) of the ESA, which authorizes petitions to the
Secretary of the Interior to request that a species be added or removed from the
endangered or threatened species lists. See 16 U.S.C. § 1533(b)(3)(A). Under Section
4(b)(3)(A), once petitioned, the agency has 90 days to decide “whether the petition
presents substantial . . . information indicating that the petitioned action may be
warranted.” Id. If so, then, within 12 months of receiving the petition, the agency must
make one of three potential findings, each of which, when made, triggers a duty on the
agency’s part to publish certain finding-specific information in the Federal Register.
See Friends of Animals II, 2016 WL 3854010, at *1 (citing 16 U.S.C. § 1533(b)(3)(B) );
21
see also id. at *3 (explaining that Congress adopted a “sequential procedural structure”
insofar as “[t]he disclosure requirement sets forth what information the [agen cy] must
publish after making a given finding” (emphasis in original)). The Friends of Animals
II plaintiff was a nonprofit organization that contended the agency had blown through
the 12-month deadline for making findings, see id. at *2, *4, and claimed informational
standing to enforce the findings requirement on the grounds that, insofar as meeting the
deadline for making findings triggered a disclosure requirement, the Secretary’s failure
to meet the deadline deprived them of the information to which t hey would be entitled,
see id. at *3–4.
The D.C. Circuit rejected this informational standing contention. Stated simply,
the Circuit focused on “the first part of the [informational standing] inquiry” —i.e., the
requirement that the plaintiff be deprived of information that the statute requires
produced—and, based on its evaluation of the statutory provisions at issue, concluded
that “[t]he disclosure requirement [plaintiff] points to as the source of its informational
injury does not impose any obligations on the [agency] until a later time in the listing
process.” Id. at *3. Under the Circuit’s reading, “[t]he structure of section 4(b)(3)(B)
makes clear that [the deadline and disclosure] requirements arise sequentially[,]” id.,
and thus, “Congress placed the Secretary under no obligation to publish any information
in the Federal Register until after making a 12-month finding[,]” id. This same analysis
plainly supports this Court’s conclusion that the absence of a ny collection requirement
in Section 10(c)’s disclosure provision prevents Plaintiffs from claiming injury as a
result of FWS’s failure to undertake any such action.
22
But there is more. Because the Friends of Animals II plaintiffs apparently
recognized that the statutory conditions for the required disclosure of information had
not come to pass, the complaint that was filed in that case claimed the only
transgression that could plausibly be pled under the circumstances: that the agency had
missed the 12-month deadline for making the requisite findings. See id. at *4 (noting
that the plaintiff had called its case “a deadline suit” and that its “complaint seeks to
have the court order compliance with section 4(b)(3)(B)’s deadline requirement, not its
disclosure requirement” (internal quotation marks and citation omitted)). The Circuit
emphasized, however, that Congress intended for the deadline duty to be a “distinct”
obligation of the agency, id. at *3, and thus, the plaintiff would not be permitted to
assert that it had suffered an informational injury (i.e., that its right to information had
been violated) based on the agency’s failure to satisfy the deadline for making findings.
Indeed, according to the Circuit, the fact that the plaintiff’s claim necessarily arose
under the deadline provision, as opposed to the disclosure provision, only underscored
the conclusion that, per the statute, the agency had no obligation to disclose information
until such time as findings were made. See id. at *4 (“[Plaintiff’s] complaint, in other
words, demonstrates precisely why it lacks informational injury: before the [agency]
makes a 12-month finding, section 4(b)(3)(B) does not mandate the disclosure of any
information whatsoever.”).
So it is here. Plaintiffs’ ESA claims challenge FWS’s export-permit decision as
an arbitrary-and-capricious contravention of Sections 10(a) and 7(a)(2), rather than as a
violation of Section 10(c), presumably precisely because Section 10(c) does not itself
require the agency to collect and disclose the information that Plaintif fs assert that
23
Section 10(c) requires the agency to collect and disclose for the purpose of their
informational-injury argument. And just as the plaintiff in Friends of Animals II
earnestly argued that the statutory provisions in that case must be read “[t] ogether” and
interpreted to “confer on it the right to timely information” that could be the basis for
the plaintiff’s claim of informational injury, id. at *4 (internal quotation marks and
citation omitted), so, too, Plaintiffs here insist that the disclosur e mandate in Section
10(c) must be read to include a right (i.e., the right to force the agency to make
affirmative efforts to collect certain information and disclose it to the public) that
appears nowhere in the statute. In short, this Court cannot conc lude that Plaintiffs have
suffered an informational injury under the circumstances presented here consistently
with the D.C. Circuit’s holding in Friends of Animals II because, just as in that case,
the statutory provisions at issue here “do[] not [themselves] mandate the disclosure of
[the] information” that Plaintiffs say was improperly withheld from them. Id. at *1. 11
Of course, the absence of any clear statutory requirement that FWS collect the
detailed information about the PSN project that Plaintiffs say should have been gathered
and disclosed to them pursuant to Section 10(c), raises the question: what is the real
source of Plaintiffs’ insistence that they have met the requirements for having an
11
The D.C. Circuit’s holding in ASPCA v. Feld Entertainment, Inc., 659 F.3d 13 (D.C. Cir. 2011), is
along these same lines. There, plaintiffs who asserted that certain elephant-training methods were
prohibited by Section 9 alleged they had informational standing because —as they read Section 9—the
training methods were prohibited, which meant the de fendant circus organization could not “lawfully
engage in th[o]se practices without” obtaining a Section 10 permit, which would require it to submit the
pertinent information and FWS to make it available under Section 10(c). Id. at 17, 22. The Circuit
disagreed. “[N]othing in [S]ection 9”—the provision plaintiffs sought to enforce—“even under
[plaintiffs’] view, would entitle [them] to any information.” Id. at 23. And because the triggers
Congress created for the informational right had not been met (n or was whether they had been the point
of contention in the lawsuit), “a suit under [S]ection 10 would [have been] entirely premature.” Id. at
24; see id. (“Section 10’s disclosure requirements are . . . triggered only in the context of an ongoing
permit proceeding[.]”).
24
informational injury? The duty to collect information that Pla intiffs read into the
statute appears to be grounded, first, in their belief the agency could not make a rational
decision about whether the proposed permitting arrangement enhances the survival of
the chimpanzee species (as Section 10(a) requires) without collecting detailed
information about the PSN project (see Pls.’ Mem. at 46–47), and second, in the fact
that agency regulations require applicants for “enhancement” permits to include in the
application certain information about the “[l]ocation where the requested permitted
activity is to occur or be conducted[,]” 50 C.F.R. § 13.12(a)(2), including (1) a
“complete description and address of the institution or other facility where the wildlife
sought to be covered by the permit will be used, displayed, or maintained[,]” id.
§ 17.22(a)(1)(v); and (2) the “resume of the experience of those person[s] who will be
caring for the wildlife” covered by the permit, id. § 17.22(a)(1)(vi); see also id.
§ 17.22(a)(1)(vii) (requiring a “full statement of the reasons why the applicant is
justified in obtaining a permit including the details of the activities sought to be
authorized by the permit”). Plaintiffs argue that they “have a statutory right to
information that they contend the agency would be required to collect if Plaintiffs are
correct on the merits of their claims” (Pls.’ Corrected Mem. in Opp’n to the Cross-
Mots. For Partial Summ. J. & Reply in Supp. of Pls.’ Mot. (“Pls.’ Reply”), ECF No. 51-
1, at 38 (emphasis altered)), and insist that FWS’s failure to enforce “the agency’s own
regulations” (id.) by requiring Yerkes to submit substantial information about the PSN
project has injured them (see id. at 41 (maintaining that Plaintiffs are “suffering
informational injury because the FWS failed to obtain the informa tion necessary even to
consider granting the permit at issue”); see also Pls.’ Mem. at 47 (arguing that FWS
25
“did not require Yerkes to submit any information about where the PSN program will
take place . . . , who will conduct that program, any of the qualifications of such
individuals, or any of the other details of the program[,]” and that Plaintiffs were
harmed by this “failure to obtain that required information and make it available to the
public” (emphasis in original))).
This line of argument falls short in several respects. First of all, Section 10(a) is
not the disclosure provision upon which Plaintiffs’ informational-injury argument rests,
so Plaintiffs’ concern that FWS failed to collect information that the agency needed to
review in order to make a rational “enhancement” finding has no bearing on Plaintiffs’
informational-injury contention. Second, it is not at all clear that what FWS regulations
say about the information that an applicant must submit is responsive to the
informational-standing question that is at issue here—i.e., whether and under what
circumstances the statute requires the agency to disclose information to the public.
Third, and relatedly, the applicable disclosure provision —Section 10(c)—only directs
the agency to release information it has “received” in connection with a permit, 16
U.S.C. § 1539(c); it certainly does not purport, either explicitly or implicitly, to entitle
anyone to information FWS might have received if the agency (1) had understood the
permitting regulations differently, or (2) had reached the conclusion that the
information an applicant submitted was insufficient under that different view of the
regulatory requirements. In this regard, Plaintiffs appear to have based their
informational-injury assertion on a purportedly statute-based “right to information”
(Pls.’ Reply at 38) that is much broader than the right that Congress actually has
conveyed in the statute upon which Plaintiffs rely.
26
Finally, even assuming that the regulations establish and define the scope of
FWS’s duty to collect information, this Court can find nothing in those regulations that
supports a finding that the agency actually breached that collection obligation in the
manner Plaintiffs suggest. That is, the regulations expressly and repeat edly require that
an applicant submit various pieces of information about “the wildlife sought to be
covered by the permit[,]” 50 C.F.R. § 17.22(a)(1) (emphasis added), and other than
requiring “[a] full statement of the reasons why the applicant is justified in o btaining
the permit[,]” id. § 17.22(a)(1)(vii), the regulations do not mandate that the applicant
provide specific information pertaining to the manner and extent to which the species
will be enhanced if the permit issues. The fact that the regulations do not refer to or
require the submission of information relevant to the agency’s enhancement assessment
might well support Plaintiffs’ merits argument that the Section 10 permitting scheme
does not actually authorize an indirect enhancement arrangement such as the one at
issue here. But the lack of any provision of law that requires FWS to collect and
distribute the kinds of information that Plaintiffs say they did not receive clearly
undermines Plaintiffs’ claims of harm for the purpose of the informational-standing
analysis. See Friends of Animals II, 2016 WL 3854010, at *4; ASPCA v. Feld Entm’t,
Inc., 659 F.3d 13, 23–24 (D.C. Cir. 2011). 12
12
The D.C. Circuit’s recent decision in Friends of Animals I is not to the contrary. Plaintiffs there
attacked a regulation (and the statute that ordered its promulgation) permitt ing certain owners of
“domestic, captive-bred” endangered antelope to “engage in activities otherwise prohibited by Section
9 of the ESA without applying for individual permits on a case -by-case basis.” 824 F.3d at 1036. The
Circuit held that plaintiffs—an animal-welfare advocacy group—had informational standing because
Section 10(c) is a disclosure statute, see id. at 1041, and because the challenged regulation
“eliminate[d] the applicability of individual Section 10 permitting requirements that would otherwise
have been necessary to engage in prohibited act ivities that enhance the propagation or survival of the
. . . antelope species.” Id. In other words, the regulation purported to make the congressionally
mandated informational triggers inapplicable in a wide swath of cases , and plaintiffs were injured
because Section 10(c) would otherwise entitle them to that information. See id. at 1042 (explaining
27
2. Plaintiffs’ Arguments To The Contrary Proceed From A Mistaken
Premise And Thus Are Not Persuasive
Undaunted, Plaintiffs invoke “the well-established rule that to determine
standing the Court must accept Plaintiffs’ view of the merits.” (Pls.’ Reply at 39.)
According to Plaintiffs, this means that the Court is required to accept their view that
Section 10(c) confers on them a right to certain information that they say FWS had to,
yet failed to, collect. (See id. at 38 (maintaining that “this Court is required to assume”
that “Plaintiffs have a statutory right to information that they contend the agency would
be required to collect if Plaintiffs are correct on the merits of their claims ” (emphasis
in original)); see also id. at 42 (expressing the view that Section 10(c)’s “obligation to
collect and disclose . . . information applies to the entity that will be conductin g the
activities that the agency has concluded will ‘enhance the survival ’ of the species, here
PSN” and that, “again, the Court must accept this view of the statute when deciding
standing”).) But Plaintiffs are wrong to insist that, just because the Court is required to
assume the merits of their claims when conducting the informational-standing analysis,
it must also accept their legal argument that Section 10(c) requires the disclosure of
information under the circumstances that Plaintiffs envision , for at least two reasons.
To begin with, it does not help Plaintiffs for this Court to assume that the claims
they have brought in this case are meritorious, since the claims these plaintiffs press are
wholly independent of the Section 10(c) argument they seek to advance for standing
that plaintiffs’ claims “directly implicate[d] Sectio n 10’s disclosure requirement”). Similar reasoning
explains the Circuit’s recognition of informational standing in Public Citizen v. FTC, 869 F.2d 1541
(D.C. Cir. 1989). See id. at 1542 (allowing plaintiffs to challenge a regulation that purported to exempt
“utilitarian objects for personal use” from the strictures of a federal statute that requi red “producers and
distributors of smokeless tobacco products . . . to include health warnings on . . . advertisements” for
such products (internal quotation marks and citation omitted)). Neither of these cases supports finding
informational standing where, as here, there is no congressionally mandated right to the information
that Plaintiffs say they are entitled to but have not received.
28
purposes. See Friends of Animals II, 2016 WL 3854010, at *4 (explaining that a
plaintiff whose claim of misconduct arises under a statutory provision that does not
require the disclosure of information cannot claim that he is i njured on the basis of a
distinct (albeit related) disclosure provision because “[a] plaintiff can demonstrate
informational injury [only] where it seeks to enforce [statutory] disclosure
requirements” (citation omitted)); Feld, 659 F.3d at 23. 13 Second, and perhaps even
more important, the D.C. Circuit’s reasoning in Friends of Animals II completely belies
any contention that a court’s informational-standing analysis is constrained by a
plaintiff’s assertion that a particular disclosure provision requires the disclosure of
information on the terms the plaintiff dictates. As explained above, the plaintiff in
Friends of Animals II specifically argued that the deadline and disclosure provisions of
Section 4(b)(3)(B) of the ESA must be read together, and so read, must b e construed to
“confer on it the right to timely information.” Friends of Animals II, 2016 WL
3854010, at *4 (internal quotation marks and citation omitted). Far from adopting this
construction of that statute, the Circuit squarely rejected the plaintiff’s interpretation,
and it found, instead, that “nothing in the Act or its legislative history indicates that the
deadline requirement . . . should be read to incorporate the informational purpose of
section 4(b)(3)(B)’s disclosure requirement” as a matter of law. Id. at *4. Notably,
nothing about “the well-established rule that . . . the Court must accept Plaintiffs’ view
of the merits” when determining standing (Pls.’ Reply at 39) compelled the Friends of
Animals II panel to ignore the even more venerable and well-settled principle that it is
the role of the court to determine the meaning of a statute, see id. at *3–4; cf. Nixon v.
13
As explained above, none of Plaintiffs’ merits arguments relate to claims that have been brought
under Section 10(c). (See Pls.’ Mem. at 29–45.)
29
Sirica, 487 F.2d 700, 714 (D.C. Cir. 1973) (“[I]t is emphatically the province and duty
of the judicial department to say what the law is.” (internal quotation marks and
footnote omitted)). And as reflected in Part III.A.1 of the instant Memorandum
Opinion, this Court rightly has assumed that same role here.
To be sure, the D.C. Circuit has, at times, asserted that a plaintiff ’s informational
injury is to be evaluated in light of the plaintiff’s interpretation of a statute. See, e.g.,
Friends of Animals I, 824 F.3d at 1040–41 (explaining that “a denial of access to
information can work an injury in fact for standing purposes, at least where a statute
(on the claimants’ reading) requires that the information be publicly disclosed and there
is no reason to doubt their claim that the information would help them” (emphasis
added) (internal quotation marks omitted) (quoting Ethyl Corp. v. EPA, 306 F.3d 1144,
1148 (D.C. Cir. 2002))); Feld, 659 F.3d at 23 (“To establish [informational] injury, a
plaintiff must espouse a view of the law under which the defendant (or an entity it
regulates) is obligated to disclose certain information that the plaintiff has a right to
obtain.”). But this Court takes this directive to mean that, while it is completely within
the province of the court to determine whether and under what circumstances a statutory
provision requires the disclosure of information, any dispute about whether such
circumstances exist in the case at bar must be decided in plaintiff’s favor for standing
purposes.
So, for example, in FEC v. Akins, 524 U.S. 11 (1998), the Supreme Court read
the statute at issue—the Federal Election Campaign Act of 1971 (“FECA”)—as
“impos[ing] extensive recordkeeping and disclosure requirements upon groups that fall
within the Act’s definition of a ‘political committee[,]’” id. at 14, apparently of its own
30
volition and without even referring to how the plaintiffs had interpreted the statute. In
fact, what the FECA said about the circumstances under which disclosures must be
made was not disputed; the issue that arose was a statute-based question of a different
nature: given that only “political committees” were required to make plaintiffs’ desired
disclosures per the statute, the parties debated whether the American Israel Public
Affairs Committee (“AIPAC”) qualified as a “political committee” within the meaning
of that statute. Id. at 17–18. It was only when assessing the plaintiffs’ argument that
AIPAC was a political committee (and thus that plaintiffs had been deprived of the
required disclosures) that the Supreme Court concluded that the plaintiffs’ injury in fact
was “their inability to obtain information—lists of AIPAC donors . . . and campaign-
related contributions and expenditures—that, on [plaintiffs’] view of the law, the statute
requires that AIPAC makes public.” Id. at 21 (emphasis added); see also Feld, 659
F.3d at 23 (explaining that, in Akins, “plaintiffs’ contrary view of the law” consisted of
its position “that AIPAC’s activities rendered it a ‘political committee’” and therefore ,
“[w]ere plaintiffs to prevail, AIPAC would have to disclose the inf ormation [plaintiffs]
sought” (citation omitted)). Thus, for standing purposes, the Supreme Court merely
accepted the plaintiffs’ assertion that the statute reached AIPAC’s conduct, see Akins,
524 U.S. at 18, 21, which, in this Court’s view, says nothing about whether a cou rt is
required to accept a plaintiff’s threshold legal argument about whether and to what
extent a statute requires disclosure at all. Cf. Friends of Animals I, 824 F.3d at 1041
(finding, based on the Court’s own statutory analysis, that Section 10(c) “cr eates a right
to information upon which a claim of informational standing may be predicated”).
31
D.C. Circuit cases that purport to accept the plaintiff’s view of the law while
analyzing standing can be read this way as well. See, e.g., Judicial Watch, Inc. v. U.S.
Dep’t of Commerce, 583 F.3d 871, 872–73 (D.C. Cir. 2009) (finding “obvious[]” injury
in fact to support a claim that the Department of Commerce violated the Federal
Advisory Committee Act by failing to make disclosures with respect to advisory
committees and assuming for standing purposes that certain organizations in question
were in fact advisory committees); see also Feld, 659 F.3d at 23 (describing the
standing analysis in Judicial Watch as accepting “plaintiff’s view of the law” that those
organizations were “‘advisory committees’ under FACA[,]” thus triggering “ ‘an array
of FACA obligations’ to disclose information” (internal quotation marks and citation
omitted)). And when that meaning of the well-established requirement that the court
accept the plaintiff’s view of the law with respect to the merits of its claims is applied,
it is readily apparent that Plaintiffs’ assertion here that this Court must adopt its
threshold argument that Section 10(c) is the type of disclosure statute that requ ires FWS
to collect certain information for inclusion in its permit-related files is misguided.
The bottom line is this: just as the D.C. Circuit held that the disclosure provision
in Friends of Animals II imposed no disclosure obligation on the Secretary until she had
made her deadline finding, this Court finds that Section 10(c) imposes no disclosure
obligation with respect to any permit-related information beyond the information that
FWS receives as part of the application, and this Court need not accept Plaintiffs’
assertions that Section 10(c) is actually broader than its plain text provides. And
because Plaintiffs here do not have any right under Section 10(c) to information that
FWS did not receive in connection with Yerkes’s export-permit application, even
32
though they have vigorously argued otherwise, Plaintiffs have not suffered a cognizable
informational injury.
B. NEAVS Does Not Have Organizational Standing
Plaintiffs’ second standing theory rests on NEAVS’s contention that FWS’s
permit decision will injure that organization because it will harm “NEAVS’[s] ability to
carry out one of its key missions[.]” (Pls.’ Mem. at 48.) According to Plaintiffs,
NEAVS “is dedicated to ending the use of animals in research, testing[,] and science
education[,]” and has been fighting to have captive chimpanzees sent to chimpanzee
sanctuaries in the United States for a long time. (Decl. of Theoroda[sic] Capaldo
(“Capaldo Decl.”), Ex. 22 to Pls.’ Mot., ECF No. 39-24, ¶¶ 1, 3.) NEAVS’s President
avers that, “as a direct and immediate result of the unlawfully issued permit” that is
being challenged in this case, “NEAVS will be forced to expend more resources
attempting to rescue and protect the eight Yerkes chimpanzees that FWS has authorized
to be relocated to Wingham[,]” and the increased expenditures allegedly will include
the cost of (1) “monitoring what happens to these chimpanzees and their progeny once
the chimpanzees are shipped to England,” and (2) “advocat[ing] for the greatest
protection possible for these animals under the laws of the United Kingdom[.]” (Id.
¶ 5.) In this Court’s view, recent D.C. Circuit case law confirms that organizational
standing requires more than a sincere and strong objection to the challenged
government action and a stated intention to use the organization’s resources to oppose
it, as explained below. And a review of the record evidence reveals that NEAVS has
not demonstrated anything more than that.
33
1. An Organization That Sues On Its Own Behalf Must Show That
The Challenged Action Poses An Actual Or Imminent Threat To Its
Ability To Perform Its Activities
Simply stated, an organization is permitted to assert standing on its own behalf,
but only if it can demonstrate that it has an “actual or threatened injury in fact that is
fairly traceable to the alleged illegal action and likely to be redressed by a favorable
court decision.” PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015) (internal
quotation marks and citation omitted); see also Havens Realty Corp. v. Coleman, 455
U.S. 363, 378–79 (1982). The difficulty in applying these core principles—see PETA,
797 F.3d at 1099, 1101 (Millet, J., dubitante); Int’l Acad. of Oral Med. & Toxicology v.
FDA, No. 14-356, 2016 WL 3659887, at *6 (D.D.C. July 1, 2016)—arises from the fact
that, just as individuals need more than a “special interest” in the subject matter of their
lawsuit to have Article III standing, Lujan, 504 U.S. at 563 (internal quotation marks
and citation omitted), “an organization’s abstract interest in a problem is insuf ficient to
establish standing, ‘no matter how longstanding the interest and no matter how
qualified the organization is in evaluating the problem[,]’” Feld, 659 F.3d at 24
(quoting Sierra Club v. Morton, 405 U.S. 727, 739 (1972)); see also id. at 24–25
(explaining that “‘an organization’s abstract concern with a subject that could be
affected by an adjudication does not substitute for the concrete injury’” that Article III
demands (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976))).
Therefore, “organizations who seek to do no more than vindicate their own value
preferences through the judicial process generally cannot establish standing.” Id.
(internal quotation marks and citation omitted).
Helpfully, the D.C. Circuit has developed standards to assist district courts in
determining when an organization that has an abstract interest in a legal dispute has
34
also established the concrete injury that is required to establish that it has Article III
standing to sue on its own behalf. The Circuit has adopted a two-part test for
organizational standing: courts must “ask, first, whether the agency’s action or
omission to act injured the [organization’s] interest and, second, whether the
organization used its resources to counteract that harm.” Food & Water Watch, 808
F.3d at 919 (alteration in original) (quoting PETA, 797 F.3d at 1094).
With respect to part one, when the Court undertakes to evaluate the alleged
injury to the organization’s interest, the organization’s activities—and the extent to
which the challenged act threatens to damage its ability to conduct those activities—is
the key. See Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469
F.3d 129, 133 (D.C. Cir. 2006) (“The court has distinguished between organizations
that allege that their activities have been impeded from those that merely allege that
their mission has been compromised.” (emphasis added)); see also Food & Water
Watch, 808 F.3d at 919 (requiring a “concrete and demonstrable injury to [the
organization’s] activities” (internal quotation marks omitted) (quoting PETA, 797 F.3d
at 1093)); Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011)
(explaining that, to show injury in fact, an organization must show “concrete and
demonstrable injury to the organization’s activities—with [a] consequent drain on the
organization’s resources—constitut[ing] . . . more than simply a setback to the
organization’s abstract social interests.’” (alterations in original) (internal quotation
marks and citation omitted)).
Furthermore, to establish that there has been a cognizable injury to its interests
(activities), “an organization must allege that the defendant’s conduct perceptibly
35
impaired the organization’s ability to provide services[ ,]” Turlock Irrigation Dist. v.
FERC, 786 F.3d 18, 24 (D.C. Cir. 2015) (internal quotation marks and citation omitted),
and it can demonstrate such impairment by showing, for example, that the “defendant’s
conduct causes an inhibition of [the organization’s] daily operatio ns[,]” Food & Water
Watch, 808 F.3d at 920 (alteration in original) (internal quotation marks and citation
omitted); see also Chesapeake Climate Action v. Exp.-Imp. Bank, 78 F. Supp. 3d 208,
234 (D.D.C. 2015) (requiring, at the summary judgment stage, “‘specific facts’ to show
concrete ways in which . . . programmatic activities were harmed” by the challenged
action). That was the case in PETA v. USDA, 797 F.3d 1087 (D.C. Cir. 2015), because
the group People for the Ethical Treatment of Animals (“PETA”) had established that
the refusal of the U.S. Department of Agriculture to apply certain statutory animal -
welfare requirements to birds (the act that the organization sought to challenge)
prevented PETA from “seek[ing] redress for mistreatment of birds through the USDA’s
complaint procedures” and from gaining “access to bird-related . . . information” that
the organization needed in order to educate its members and advocate for the rights of
birds. Food & Water Watch, 808 F.3d at 920 (internal quotation marks and citations
omitted); see also PETA, 797 F.3d at 1091, 1095. By contrast, in Food & Water
Watch, 808 F.3d 905 (D.C. Cir. 2015), a food-safety organization complained that the
time and resources it had already spent fighting a new poultry-inspection rule would be
wasted if the rule took effect, see Food & Water Watch, 79 F. Supp. 3d at 200, and also
that it would be forced to use some of its education funds to educate its members and
warn the public about the rule’s negative effects, id., yet the Circuit found that the
organization had alleged only an “abstract injury to its interests” that was not enough to
36
demonstrate impairment of its organizational activities, Food & Water Watch, 808 F.3d
at 921; see also id. at 919 (“An organization must allege more than a frustration of its
purpose because frustration of an organization’s objectives ‘is the type of abstract
concern that does not impart standing.’” (quoting Nat’l Taxpayers Union, Inc. v. United
States, 68 F.3d 1428, 1433 (D.C. Cir. 1995)). Additionally, the Circuit emphasized that
“an organization’s use of resources for litigation, investigation in anticipation of
litigation, or advocacy is not sufficient to give rise to an Article III injury[,]” id.
(citations omitted), because an organization that chooses to spend its money in this way
has made a “self-inflicted budgetary choice that cannot qualify as an injury in fact[ ,]”
Feld, 659 F.3d at 25 (internal quotation marks and citation omitted ).
It is clear from the Circuit’s holdings in these and other cases that having a
concrete injury to an organization’s interests means that the challenged activity must
hamper the organization’s ability to do what it does, see Int’l Acad., 2016 WL 3659887,
at *11, and that complaining that the organization’s ultimate goal has been made more
difficult is not sufficient, see Nat’l Ass’n of Home Builders, 667 F.3d at 11–12. Nor
does it suffice to show that the challenged action runs directly counter to the
organization’s mission, see Food & Water Watch, 808 F.3d at 921 n.9, or that the
organization will have to divert resources to combat it, Nat’l Veterans Legal Servs.
Program v. U.S. Dep’t of Def., No. 14-1915, 2016 WL 4435175, at *7 (D.D.C. Aug. 19,
2016) (finding the organization’s allegations that the challenged action caused it to
redeploy “scarce resources” to be insufficient to establish standing). This Court has no
doubt that the impairment that is required necessitates perceptible strictures on the
organization’s ability to function, see, e.g., id. at *6 (“[O]rganizational plaintiffs [must]
37
alleg[e] specific facts indicating how a defendant’s actions undermine the
organization’s ability to perform its fundamental programmatic services.” (emphasis
added)); Elec. Privacy Info. Ctr. v. U.S. Dep’t of Educ., 48 F. Supp. 3d 1, 24 (D.D.C.
2014) (asking whether the challenged action “impaired [plaintiff’s] ability to provide its
programs or carry out its activities”), and that NEAVS has failed to demonstrate that it
has organizational standing, as explained below.
2. NEAVS’s Contention That It Will Have To Spend Money To
Thwart The Negative Effects Of The Export Permit Falls Far Short
Of Demonstrating That The Permit Has Hampered (Or Will
Imminently Hamper) Its Activities Or Operations
Even assuming that NEAVS “has spent many years and resources” fighting for
research chimpanzees (including Yerkes-owned chimpanzees) to be retired to
chimpanzee sanctuaries (Pls.’ Mem. at 48 (quoting Capaldo Decl. ¶ 3) (internal
quotation marks omitted)), and even if sending chimpanzees to Wingham directly
conflicts with the goals of an organization whose mission centers on “ending the use of
animals in research, testing[,] and science education[,]” (Capaldo Decl. ¶ 1), NEAVS
has not shown that Yerkes’s export permit impairs NEAVS’s own activities or
operations in any perceptible way. Indeed, the testimony that Plaintiffs have offered
comes nowhere close to specifying how the permit interferes with NEAVS’s ability to
do its job—e.g., how, due to this particular government action, the organization is
prevented from advocating for the transfer of laboratory animals to sanctuaries—and,
instead, NEAVS’s declarant makes statements that are remarkably close to the kinds of
general mission-frustration contentions that the D.C. Circuit has considered (and
rejected) as a basis for finding organizational standing.
38
For example, NEAVS’s President says that this export permit “is frustrating the
explicit mission” of the organization’s flagship campaign (titled “Project R & R
(Release and Restitution)”) (Capaldo Decl. ¶ 4), and her declaration makes clear that
this frustration does not stem from the fact that the Yerkes export permit impacts
NEAVS’s ability to wage that campaign in some way, but from the fact that exporting
the Yerkes chimpanzees to a zoo in England is an act that is in ideological opposition to
the organization’s core belief that “such chimpanzees [should] be retired to chimpanzee
sanctuaries in the United States where they can live out the remainder of their lives in
settings that mimic their natural habitats to the greatest extent possible[.]” (Id. ¶ 3.)
This is no different than Food & Water Watch’s argument that the government’s new
poultry-inspection rules conflicted with its ideological belief that slaughterhouse
employees cannot be trusted to inspect poultry carcasses and condemn the tainted ones,
see Food & Water Watch, 808 F.3d at 920, and upon considering that argument, the
D.C. Circuit concluded that such a conflict between the government’s action and the
organization’s mission was “nothing more than an abstract injury” that was insufficient
to support organizational standing, id. at 921.
NEAVS’s related assertions about the expenditure of resources—i.e., that it will
be forced to spend (or shift) resources in an attempt to rescue the relocated
chimpanzees, monitor their status, advocate for them under any and all applicable laws,
and prevent other chimpanzee owners from “rid[ding] themselves of chimpanzees” in a
similar fashion (Capaldo Decl. ¶¶ 4–6)—fare no better. The D.C. Circuit has made
clear that such budgetary choices merely reflect shifting priorities regarding “the
expenditure of resources on advocacy[,]” Turlock, 786 F.3d at 24, and it has long held
39
that this type of harm amounts to a “self-inflicted” wound, Feld, 659 F.3d at 25
(internal quotation marks and citation omitted), that does not qualify as “a cognizable
Article III injury[,]” Turlock, 786 F.3d at 24 (citation omitted). NEAVS would have
this Court hold otherwise, by pointing to the PETA panel’s statement that, “if an
organization expends resources in response to, and to counteract, the effects of the
defendants’ alleged [unlawful conduct] rather than in anticipation of litigation, . . . it
has suffered a concrete and demonstrable injury that suffices for purposes of standing.”
(Pls.’ Mem. at 49 (alterations in original) (quoting PETA, 797 F.3d at 1097) (internal
quotation marks omitted)). But that statement must be evaluated in the context in
which it was made, and PETA’s standing was clearly derived not only from the fact that
the challenged government actions had actually impaired the organization’s ability to
perform its services, but also the organization’s expenditure of resources as a result.
See PETA, 797 F.3d at 1095; see also Food & Water Watch, 808 F.3d at 920–21
(explaining that, due to the challenged action, PETA had suffered “[t]he denial of
access to an avenue for redress and denial of information” in a manner that “perceptibly
impaired [the organization’s] ability to both bring [statutory] violations to the attention
of the agency charged with preventing avian cruelty and continue to educate the public”
(second and third alterations in original) (internal quotation marks and citation
omitted)).
Plaintiffs’ insistence that NEAVS’s “core campaign will be impaired” due to the
Yerkes export permit because the export “will make it impossible for NEAVS to
advocate for the release of these seven chimpanzees” to a sanctuary (Pls.’ Mem. at 49 –
50 (citing Capaldo Decl. ¶ 4)) (emphasis added), also misses the mark. As an initial
40
matter, they have offered no proof for that contention because the declaration that
Plaintiffs cite in support of this assertion does not say that. Furthermore, nothing in the
record demonstrates that it would, in fact, be “impossible” for NEAVS to lobby
Wingham to release these chimpanzees to a sanctuary, much less that the organization’s
failure to achieve its mission with respect to these particular animals prevents it from
being able to continue to wage its campaign in the future. In the absence of such
evidence, the frustration that NEAVS has encountered with respect to its efforts to
advocate for the release of these particular chimpanzees is merely a discrete ideological
setback that cannot be deemed to rise to the level of impairment of its services or daily
operations, as the D.C. Circuit has required. See Food & Water Watch, 808 F.3d at
919; Int’l Acad., 2016 WL 3659887, at *11. And because Plaintiffs have failed to
establish that the challenged export has injured (or will injure) NEAVS’s organizational
interests, Plaintiffs’ contention that NEAVS has organizational standing (see Pls.’
Mem. at 48–50), fails.
C. The Individual Plaintiffs Do Not Have Cognizable Injuries That Have
Been Caused By FWS’s Permitting Decision
Plaintiffs’ final standing argument is that Yerkes’s transfer of its chimpanzees to
Wingham will injure three individual plaintiffs, each of whom is a former Yerkes
employee who claims to have formed strong bonds with the particular chimpanzees at
issue here while they cared for them. (Pls.’ Mem. at 50–53; see also Decl. of Brian
Hare (“Hare Decl.”), Ex. 2 to Pls.’ Mot., ECF No. 39 -4, 2–11, ¶¶ 5, 7, 9; Decl. of
Jennifer Feuerstein (“Feuerstein Decl.”), Ex. 3 to Pls.’ Mot., ECF No. 39 -5, 2–10, ¶ 3;
Decl. of Rachel Weiss (“Weiss Decl.”), Ex. 23 to Pls.’ Mot., ECF N o. 39-25, 2–6, ¶¶ 5,
41
10.) 14 As far as this Court can tell, Plaintiffs have alleged that the export permit they
seek to challenge injures the individual plaintiffs in two ways: first, Plaintiffs say, these
individuals “have been waiting for years for the day when they would have a chance to
be reunited with these animals they love,” so “there really can be no question that they
will be irrevocably harmed if the FWS allows the chimpanzees Yerkes has already
decided to retire to be shipped to Wingham where the y will instead be further
commercially exploited, rather than to a humane setting somewhere in the United States
where these Plaintiffs could visit them.” (Pls.’ Reply at 46; see also, e.g., Feuerstein
Decl. ¶ 4 (“[I]f the requested export goes forward, I will be unable to observe the
chimpanzees because they will be relocated to a foreign, unaccredited zoo far from
where I reside.”).) In the following discussion, the Court refers to this alleged harm as
the individual plaintiffs’ ‘dashed-hopes’ injury. (See infra Part III.C.1.) Second,
Plaintiffs suggest that the individual plaintiffs will be compelled to visit these
chimpanzees if they are sent to Wingham, and if they go there, Plaintiffs will observe
these animals in an environment in which the chimpanzees will be “traumatized” (Pls.’
Mem. at 51) and “further commercially exploited” (Pls.’ Reply at 46), which will
allegedly cause these plaintiffs to suffer “personal, aesthetic, and emotional injur[y]”
14
According to their declarations and attached documentation, Hare is an Associate Professor at Duke
University who worked at Yerkes for four years—between 1995 and 1999—as a student researcher
(Hare Decl. ¶¶ 1–2; Attachment A to Hare Decl., ECF No. 39-4, 12–26, at 14). Feuerstein, a biologist,
was a Yerkes employee from 1997 to 2003 (Feuerstein Decl. ¶¶ 1 –2; Attachment A to Feuerstein Decl.
at 2, ECF No. 39-5, 11–14, at 13). Weiss is a former “care technician” who worked fo r Yerkes for two
years in the mid-1990s (Weiss Decl. ¶ 2; Attachment A to Weiss Decl., ECF No. 39 -25, 7–10, at 10).
Plaintiffs do not press an argument that the fourth named individual plaintiff (Mary Lee Jensvold) has
individual standing, nor do they attempt to assert that plaintiff Georgia the chimpanzee has the capacity
to sue in federal court. Thus, at least as far as their individual -standing contentions go, Plaintiffs have
failed to carry their burden with respect to Jensvold and Georgia. See, e.g., Int’l Acad., 2016 WL
3659887, at *5; see also Nat’l Treasury Emps. Union v. United States , 101 F.3d 1423, 1427 (D.C. Cir.
1996).
42
(id. at 44). (See, e.g., Hare Decl. ¶¶ 21, 25 (claiming he would like to visit the
chimpanzees again in a “humane setting” and to view them behaving in ways he
believes are natural, and that the export will harm him because, if he visits Wingham
afterwards, he “will be injured when Wingham’s untrained, in experienced staff
mishandles and mismanages” the chimpanzees, causing the chimpanzees to behave in
“unnatural, aberrant” ways); Weiss Decl. ¶ 10 (claiming that if the permit is issued , she
“will have to travel to England to see” the chimpanzees and “will o nly be able to
observe [them] acting unnaturally” in an environment of which she disapproves and
“will be injured by seeing the physical and psychological manifestations of the stress
and trauma experienced by the chimpanzees from living in an unnatural an d inhumane
environment”).) This injury is “aesthetic” in nature, see ASPCA v. Ringling Bros. &
Barnum & Bailey, 317 F.3d 334, 337 (D.C. Cir. 2003); Animal Legal Def. Fund, Inc. v.
Glickman, 154 F.3d 426, 431 (D.C. Cir. 1998) (en banc), and the Court has evaluated it
as such, see infra Part III.C.2.
As explained below, the D.C. Circuit’s jurisprudence teaches that not every
circumstance that disappoints a plaintiff works a cognizable injury for the purpose of
Article III, see, e.g., In re Navy Chaplaincy, 534 F.3d at 763; moreover, in the instant
case, the dashed-hopes harm these individual plaintiffs allegedly have suffered is also
not even fairly traceable to FWS’s decision to issue the export permit . As for
Plaintiffs’ suggestion that these three individuals will be injured by the permit because,
while they “desire to see [the chimpanzees] again in a humane setting where they can
enjoy their company” and “observe them engage in normal chimpanzee behavior[,]”
they will instead have to see these animals in an environment of “commercial
43
confinement and exploitation” (Pls.’ Reply at 44), the record does not establish that any
of these individual plaintiffs will, in fact, travel to see the chimps in the environment
they decry, or that, if they do, Wingham necessarily will have mistreated the chimps in
such a way that these plaintiffs’ aesthetic interests inevitably will be harmed, which
means that Plaintiffs have failed to satisfy the standards for proving an imminent
aesthetic injury. Furthermore, and in any event, this Court views any injury to these
plaintiff’s personal and aesthetic sensibilities from seeing the chimpanzees in the
Wingham facility as self-inflicted at its core.
1. The Individual Plaintiffs’ Dashed-Hopes Harm Is Not An Injury In
Fact, And Even If It Qualifies As Such, It Is Yerkes’s Placement
Decision, Not FWS’s Permit, That Caused This Injury
Plaintiffs argue that their dashed-hopes injury is an aesthetic harm that should be
found to be sufficient to ground the individual plaintiffs’ standing. (See Pls.’ Reply at
46 (“[T]hese Plaintiffs who have been waiting for years for the day when they would
have a chance to be reunited with these animals they love . . . will be irrevocably
harmed if the FWS allows the chimpanzees . . . to be shipped to Wingha m . . . , rather
than to a humane setting somewhere in the United States[.]” (citations omitted)).) As
an initial matter, it has not been established that the dashing of these individuals’ hope
that the chimpanzees would be sent to a sanctuary actually qualifies as an “aesthetic”
injury, and this Court doubts the applicability of that label under existing law. To be
sure, it is well established that “harm to ‘the mere esthetic interests of the plaintiff . . .
will suffice’ to establish a concrete and particularized injury[,]” Sierra Club v. Jewell,
764 F.3d 1, 5 (D.C. Cir. 2014) (quoting Summers, 555 U.S. at 494), but such interests
typically include “the desire to use or observe an animal species,” id. (emphasis added),
or the “plaintiff’s enjoyment of flora or fauna,” Ringling Bros., 317 F.3d at 337
44
(emphasis added), or the “aesthetic interest in observing animals living under humane
conditions[,]” Glickman, 154 F.3d at 431 (emphasis added). And what Plaintiffs assert
with their dashed-hopes contention actually has nothing to do with the impact of the
challenged permit on what these individuals are likely to see or feel when in the
company of the chimpanzees they say they love. Instead, Plaintiffs insist that what has
injured these former Yerkes employees is the mere knowledge—presumably acquired
while sitting at home—that the animals that they love will be sent somewhere that is not
up to these plaintiffs’ personal standards. (See, e.g., Pls.’ Reply at 46; Pls.’ Mem. at
51; Feuerstein Decl. ¶ 4.)
It is not at all clear that being saddened by the knowledge that an animal you
love but with which you have no present contact may be sent to a place in which it will
potentially be mistreated (see Pls.’ Reply at 46)—as opposed to seeing such an animal
in that condition—qualifies an aesthetic harm. See Oxford English Dictionary 206 (2d
ed. 1989) (defining aesthetic in the adjectival sense as meaning “of or relating to
sensuous perception” or being “received by the senses”); see also Ringling Bros., 317
F.3d at 337 (finding standing where plaintiff would return to the environment where he
would detect the effects of the challenged activity on animals he loved and be injured
by such observation); Glickman, 154 F.3d at 437 (articulating a “principle of standing”
that “recognize[s] individual plaintiffs’ injury in fact based on affronts to their aesthetic
interests in observing animals living in humane habitats, or in using pristine
environmental areas that have not been despoiled”). Presumably, this is what
Defendants mean when they emphasize that the individual plaintiffs have not worked
with these chimpanzees, or been in their presence, for years, and have no present right
45
to visit these animals. (See Defs.’ Mem. at 24–25.) That is, far from a baseless attack
on the strength of the individual plaintiffs’ alleged emotional bond with these animals
or a discounting of these plaintiffs’ love for them, this line of argument is properly
construed as a rebuttal to Plaintiffs’ insistence that this Court must find that the
individual plaintiffs have suffered a cognizable aesthetic injury because they know
“these animals are going somewhere, and depending on where, Plaintiffs will either be
able to visit and observe them again or never be able to do so” (Pls.’ Mem. at 51
(emphasis in original))—an assertion that, in the absence of some sort of tangible
experience, is not ordinarily the stuff of which aesthetic injuries are made.
Indeed, Plaintiffs have failed to cite a single case in which a court has held that a
similar dashed-hope theory of injury is sufficient to demonstrate that the plaintiff has
suffered an injury in fact for the purpose of Article III standing. This Court suspects
that no such case exists, because the dashed-hope harm that Plaintiffs assert actually is
functionally indistinguishable from the following generalized grievance that is
indisputably insufficient to support standing: that the agency has decided to act in a
manner that Plaintiffs dislike under circumstances in which the agency could have
opted to do otherwise. (See, e.g., Pls.’ Reply at 46 (asserting that FWS’s decision to
allow the chimpanzees to be “shipped to Wingham” instead of a U.S. sanctuary will
“irrevocably harm[]” these plaintiffs (citation omitted)); see also id. (arguing that “if
after years of advocating for the release of [an] animal [she loves] from an adverse
situation [a] person finally has a chance to be reunited with [it],” but the owner decides
not to permit that outcome, “surely she suffers the requisite identifiable trifle required
for standing from a decision that will forever foreclose that opportunity” (internal
46
quotation marks and citation omitted)).) That is, boiled to bare essence, the gravamen
of the individual plaintiffs’ dashed-hope injury is that they got their hopes up that a
certain result would occur when they heard that Yerkes was retiring these animals (that
these chimpanzees would go to a sanctuary), but because of Defendants’ actions, that
hoped-for outcome will “never” happen. (Pls.’ Mem. at 51 (emphasis in
original)). Surely any and every person who feels strongly about a course of action that
the government is mulling can make that same assertion—i.e., every concerned outside
observer has similar high hopes for the right outcome—yet it is clear from binding case
law that more than hurt feelings over a defendant’s allegedly wrong (or even illegal)
policy choices is required for a plaintiff to have Article III standing to sue. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) (“By the mere bringing of
his suit, every plaintiff demonstrates his belief that a favorable judgment will make him
happier . . . . [, but] that psychic satisfaction . . . does not redress a cognizable Article
III injury.” (citation omitted)); In re Navy Chaplaincy, 534 F.3d at 763 (“[M]ere
personal offense to government action does not give rise to standing to sue.” (citation
omitted)). It is clear to this Court that, underneath the creative packaging, the
individual plaintiffs’ dashed-hopes injury is really nothing more than “an ethical or
moral objection” and, thus, “cannot by itself provide a basis for standing.” Sunstein,
supra, at 1354. 15
The additional fact that these individual plaintiffs’ sanctuary hope was especially
well informed and well founded due to their prior personal relationships with the
15
Because the injury is not cognizable, Plaintiffs’ vacil lation between characterizing it as present or
imminent injury is of no moment. (Compare Pls.’ Reply at 44 (claiming their “interests are greatly
impaired by the FWS’s decision” (emphasis added)) , with Pls.’ Mem. at 51 (claiming these injuries are
“imminent” (internal quotation marks omitted)).)
47
chimpanzees at issue adds nothing to the standing equation. To understand why this is
so, imagine a former employee of a government agency who hears that his former
department is being restructured and has very strong feelings (based on personal
knowledge) about how that goal is best accomplished. In this Court’s view, that
individual has no more of a personal stake in the outcome of that decisionmaking
process than a person who has never worked in the office but would like to apply for a
job there and hopes (based on what he reads in the newspaper) that the agency makes
the right call. In other words, no matter how strongly a person feels and how much a
person knows about the stakes and the consequences of a decision that he hopes will be
made in accordance with his values, that knowledge and affinity alone does not entitle
him to claim that the decisionmaker’s contrary policy choice has injured him in fact.
Plaintiffs’ dashed-hopes theory of injury fails to establish Article III standing on
another ground as well: even if the thwarting of one’s hope of a different outcome
qualifies as a cognizable injury, the hope that was allegedly dashed in the instant case—
the hope that the chimpanzees would go to a sanctuary in the United States and not to a
zoo overseas—was clearly dashed by Yerkes and not by FWS. As Plaintiffs themselves
acknowledge, “Yerkes made clear its decision to relocate these and its other
chimpanzees” (Pls.’ Mem at 52) “many months ago” (id. (citation omitted))—long
before FWS took any relevant actions related to these chimpanzees. The record clearly
demonstrates that Yerkes acted on its own to evaluate its options, and that it decided to
transfer the animals to Wingham rather than a U.S. sanctuary in 2014, when it signed a
contract to that effect. (See Johnson Decl. ¶ 9.). The Wingham-transfer decision was
made by Yerkes before FWS granted the permit, which means that it was Yerkes’
48
placement determination that actually squelched the individual plaintiffs’ hope of
reuniting with the chimps at a sanctuary, not FWS’s subsequent export authorization.
This presents a clear causation problem for the individual plaintiffs, who insist that the
decision to transfer these animals to Wingham rather than a sanctuary is what has
injured them, because they have not, and cannot, demonstrate that the allegedly
injurious transfer decision was made by FWS. See Lujan, 504 U.S. at 560 (stating the
well-established rule that the injury must be “fairly . . . trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] the independent action of some
third party not before the court” (alterations in original) (internal quotation marks and
citation omitted)); see also Am. Fed’n of Gov’t Emps., AFL-CIO v. Vilsack, 118 F.
Supp. 3d 292, 299, 301 (D.D.C. 2015) (explaining that, when a third party’s conduct “is
the direct cause of the . . . alleged injury[,]” there are “only two categories of cases”
where courts have found standing to challenge government action that regulates that
third party’s conduct: (1) if the government action authorizes otherwise illegal conduct,
or (2) if the record shows “substantial evidence of a causal relationship between the
government policy and the third-party conduct” (internal quotation marks and citations
omitted)). What is more, any attempt to solve Plaintiffs’ causation problem by
modifying the asserted hoped-for outcome—say, by contending that the real dashed
hope of these plaintiffs was hope that FWS would intervene to stop the export plan that
Yerkes had already made (see, e.g., Pls.’ Reply at 47–48 (arguing that “but for the
FWS’s decision” to endorse Yerkes’ Wingham plan, “Yerkes would be sending these
chimpanzees to a U.S. sanctuary”))—leads Plaintiffs right back to the unavailing
argument that the individual plaintiffs’ dismay over the agency’s decision to allow the
49
export to proceed, which allegedly dashed their hopes of a different outcome, is a
cognizable injury in fact for Article III purposes in and of itself. See supra Part III.C.1.
2. The Plaintiffs’ Alleged Aesthetic Injury Is Too Speculative To Be
Imminent, Or Would Be Self-Inflicted
Turning to Plaintiffs’ other allegations regarding the alleged aesthetic injury that
the Yerkes export permit allegedly has inflicted (or will inflict) on the individual
plaintiffs, as explained above, Plaintiffs maintain that the individual plaintiffs have a
strong bond with the chimpanzees and that the pending relocation of these animals is an
“imminent” injury to them “because Yerkes has clearly decided to relocate these seven
chimpanzees—i.e., these animals are going somewhere, and, depending on where,
Plaintiffs will either be able to visit and observe them again or never be able to do so.”
(Pls.’ Mem. at 51 (emphasis in original) (internal quotation marks omitted).) 16 If
Plaintiffs intend to suggest that the transfer of the Yerkes chimpanzees to a zoo in
England will prevent the individual plaintiffs from ever again coming into contact with
these animals, that suggestion is puzzling, since no one has provided the Court with any
reason to think that the individual plaintiffs will be barred from visiting the
chimpanzees at Wingham, and Plaintiffs’ briefing and declarations indicate the
opposite. (See e.g., id.; Weiss Decl. ¶ 10.) In any event, it appears that this claim of
injury is actually rooted in what Plaintiffs say will likely happen if they do visit
16
This Court’s analysis addresses only the alleged aesthetic injuries that Plaintiffs have proffered in
their motion for summary judgment as a basis for standing and that appear to be within the scope of the
complaint’s allegations of fact. The additional claims that some of the declarants make —
e.g., Hare’s claims that the export will hurt him because he knows that, if Wingham breeds the
chimpanzees, the babies “will add to the already burgeoning surplus of chimpanzees in Europe that
need homes,” and that, if Wingham places any of the babies in its hands -on programs for children it
would “foster the highly detrimental pet and entertainment trade in chimpanzees[.]” (Hare Decl. ¶¶ 27–
28 (emphasis in original); see also id. ¶ 24 (Hare claiming that he will be harmed if “some but not all of
the chimpanzees are sent to Wingham”))—have not been adopted by Plaintiffs in support of their
standing arguments, and thus, this Court has not considered them.
50
Wingham and see these chimpanzees again: that they will inevitably view the
chimpanzees they love “in harmful conditions” and as a result will suffer “aesthetic and
emotional distress[.]” (Compl. ¶ 22; id. ¶ 25; see also Hare Decl. ¶¶ 21, 25 (claiming
he would like to visit the chimpanzees again in a “humane setting” and “will be injured
when [he sees] Wingham’s untrained, inexperienced staff mishandl[ing] and
mismanag[ing]” the animals, causing them to behave in “unnatural, aberrant” ways);
Weiss Decl. ¶ 10 (claiming that if the permit is issued she “will have to travel to
England to see” the chimpanzees and “will only be able to observe [them] acting
unnaturally” in an environment of which she disapproves, and “will be injured by
seeing the physical and psychological manifestations of the stress and trauma
experienced by the chimpanzees from living in an unnatural and inhumane
environment”).)
In this Court’s view, these claims of aesthetic injury fail for at least two reasons.
First of all, they seem to be entirely speculative; on the instant record, there is no
evidence that any of these individual plaintiffs actually have plans to go to Wingham to
see these animals. One plaintiff (Feuerstein) never even suggests that she might visit
the chimpanzees if they are exported. (See generally Feuerstein Decl.) Hare says only
that “[i]f” he visits Wingham, harm will occur (Hare Decl. ¶ 25), which is just to say
that his visit is “possible[,]” and such a representation is not only insufficient for
imminence, Clapper, 133 S. Ct. at 1147 (emphasis omitted) (internal quotation marks
and citation omitted), it does not come close to the kinds of representations that other
successful aesthetic-injury plaintiffs have made, see, e.g., Ringling Bros., 317 F.3d at
337–38 (plaintiff who had bonded with particular elephants was permitted to proceed
51
beyond the motion-to-dismiss stage largely because he averred that he would actually
visit the circus and see elephants exhibiting signs of mistreatment due to the abusive
practices). Weiss goes the farthest, claiming that, if the export goes forward, she “will
have to travel to England” to see the chimpanzees. (Weiss Decl. ¶ 10 (emphasis
added).) But she offers nothing beyond say-so on that front; she does not contend, for
example, that she has already purchased tickets to Wingham or has concrete plans to do
so soon after the chimpanzees are exported. And at this stage of the litigation, in the
absence of any such evidence, she articulates precisely the sort of “‘some day’
intention[]—without any description of concrete plans, or indeed even any specification
of when the some day will be”—that the Supreme Court has rejected as insufficient to
establish imminent injury. Lujan, 504 U.S. at 564 (emphasis omitted) (citation
omitted); see also Summers, 555 U.S. at 496 (finding at the summary judgment stage
that a plaintiff’s “vague desire to return” to forest areas he wished to protect was not
sufficient to demonstrate standing).
Compounding Plaintiffs’ imminence problem is the fact that the record lacks
sufficient evidence to support their contention that Wingham’s caregivers will
inevitably house the chimpanzees in “inhumane” conditions and will mistreat the
animals to such a degree that these individual plaintiffs will see this if they travel there
and be personally affected. In the Ringling Brothers case, the plaintiff was a former
employee of the defendant circus organization who was suing to enjoin the
organization’s use of certain elephant-training methods he disliked; importantly, he had
actually witnessed the abusive treatment of the animals that he said he would like to see
again (and had been, he said, aesthetically injured by the animals’ reactions to said
52
treatment), which supported the inference that the abusive practices the plaintiff
challenged had unquestionably occurred and were likely to continue. See 317 F.3d at
335. Under those circumstances, and given the fact that the case was at the motion-to-
dismiss stage, the D.C. Circuit appeared to assume (without expressly holding) that the
alleged aesthetic injury to the plaintiff was not speculative. See id. at 337 (noting that
plaintiff’s claim that he would “like to ‘visit’ [the animals] again ” to rekindle his
relationship was somewhat vague, but that “a fair construction of his allegation
encompass[ed his] attending the circus as any member of the public would,” from which
“vantage point he might observe” the effects of mistreatment, which he “claim[ed] he
would recognize based on his experience working at [the circus]”). Here, by contrast,
we are at the summary judgment stage, yet Plaintiffs have not shown that mistreatment
of the Yerkes chimpanzees is inevitable or even highly likely when they are transferred
into Wingham’s custody and, indeed, other than making sweeping assertions about the
extent to which these chimpanzees will be put in danger (which Yerkes strenuously
denies (see Yerkes’s Mot. at 15–17)), Plaintiffs provide few specifics about the
particular acts of abuse that they claim they will witness to their detriment.
To be sure, Plaintiffs say that the chimpanzees will not be safe in the hands of
Wingham’s staff; their briefs and declarations describe Wingham’s employees as
abusive neophytes who are intent upon displaying the animals in a harmful commercial
environment and breeding them in perpetuity. (See, e.g., Hare Decl. ¶¶ 21, 25.) But
this Court need not accept these bald representations. 17 And the record is devoid of
17
At this stage “a party can no longer rest on mere a llegations, but must set forth by affidavit or other
evidence specific facts.” Fed. Forest Res. Coal., 100 F. Supp. 3d at 34 (quoting Clapper, 133 S. Ct. at
1148–49); see also Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462,
466 (D.C. Cir. 2009) (“The object of [Rule 56(e)’s ‘specific facts’ requirement] is not to replace
53
actual evidence that would support an inference that these animals will likely be
mistreated, which Plaintiffs need if the individual plaintiffs’ assertions that they will
see the chimpanzees in inhumane conditions if they travel to Wingham are going to
constitute a sufficiently imminent injury for Article III purposes. See Clapper, 133 S.
Ct. at 1147 (holding that an imminent injury must be “certainly impending” to serve as
an injury in fact (internal quotation marks and citation omitted)). Thus, just as in other
cases in which courts have rejected “multi-tiered speculation” from plaintiffs who were
claiming imminent injury, GrassRoots Recycling Network, Inc. v. EPA, 429 F.3d 1109,
1112 (D.C. Cir. 2005) (internal quotation marks and citations omitted), and have
frowned on “standing theories that rest on speculation about the decisions of
independent actors[,]” Clapper, 133 S. Ct. at 1150 (citation omitted); see also Lujan,
504 U.S. at 562; Williams v. Lew, 819 F.3d 466, 473 (D.C. Cir. 2016), this Court, too,
must conclude that the individual plaintiffs’ alleged aesthetic harm is not “certainly
impending[,]” Clapper, 133 S. Ct. at 1147 (internal quotation marks and citation
omitted).
Finally, it also clear to this Court that, unless these individual plaintiffs can
somehow make a persuasive claim that a trip to England to see these chimpanzees is
inevitable, it will be difficult for them to establish that the resulting injury to their
aesthetic sensibilities is not a self-inflicted wound. Put another way, this Court finds it
conclusory allegations of the complaint or answer with conclusory allegations of an affidavit .”
(alteration in original) (internal quotation marks omitted) (quoting Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 888 (1990)); Feld, 659 F.3d at 27 (rejecting as insufficient at the summary judgment stage
the plaintiff’s claims that causation could be demonstrated by “logic” where plaintiff failed to offer
“specific facts” supporting that “logic”). Furthermore, accepting the merits of the APA-related claims
that have been brought in this case does not require blindly assuming that the exported chimpanzees
will, in fact, be subject to abuse.
54
hard to believe that a plaintiff whose presence at the place that he says will injure him
aesthetically is not compelled (e.g., someone who does not live or work in the vicinity,
nor has any history of traveling there, and is not otherwise required to be there) can
complain that he will be injured by what he sees if he makes the trip, because it is well
established that an injury one brings upon oneself is not a cognizable injury that has
been caused by the defendant’s conduct. See Nat’l Family Planning & Reproductive
Health Ass’n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (explaining that
self-inflicted harm can neither be deemed “an injury cognizable under Article III” nor
“fairly traceable to the defendant’s challenged conduct” and denying standing to an
“association [that had] chosen to remain in the lurch” (emphasis in original) (internal
quotation marks and citations omitted)).
In sum, this Court concludes that Plaintiffs’ dashed-hopes theory is not a
cognizable injury in fact, the individual plaintiffs’ alleged aesthetic injury has not been
shown to be sufficiently imminent, and that, in any event, neither of these harms is
fairly traceable to the permitting decision the individual plaintiffs seek to challenge.
Thus, Plaintiffs have offered no persuasive reason that the individual plaintiffs have
standing to attack the Yerkes export permit in federal court.
D. This Court Cannot Reach The Merits Of Plaintiffs’ Claims 18
Having determined that no plaintiff has Article III standing because none has
18
Plaintiffs have asserted the same informational, organizational, and aesthetic injuries with respect to
all of their challenges to the export permit; therefore, the insufficiency of these injury contentions
marks the end of their ability to press any of these claims in this Court. That said, in a footnote at the
conclusion of their opening brief, Plaintiffs have also made cryptic statements regarding “procedural”
standing. (See Pls.’ Mem. at 53 n.43 (“Because they all have an independent substa ntive basis for
standing, NEAVS and the individual Plaintiffs also have standing to bring their NEPA and [ESA]
Section 7 claims, without having to show that if the agency had complied with those statutory
requirements it would not have allowed the export t o proceed.” (emphasis omitted) (citing Lujan, 504
U.S. at 572 n.7)).) Plaintiffs appear to be seeking to invoke the rule that courts “relax the normal
55
suffered a cognizable injury in fact under any of the theories Plaintiffs have proposed,
this Court cannot reach the merits of the instant complaint’s non-FOIA-related counts.
It is lamentable that Plaintiffs’ concerns about this particular export permit, and the
way in which FWS appears to have interpreted the ESA to authorize it, cannot be vetted
by a federal court at this time—or likely ever, given Yerkes’s representation that it
plans to “complete the export before the November 1, 2016 permit expiration date if the
permit is affirmed” (Notice, ECF No. 55, at 1))—because, on the merits, Plaintiffs’ case
raises significant legal issues regarding whether or not the ESA actually authorizes
FWS to permit the exportation of endangered species whenever the agency can
somehow conceive of a way in which the act of granting the permit (as opposed to
allowing the permitted activity) benefits the species of animal that is being exported.
Among the many important questions that a court considering the merits of
Plaintiffs’ APA claims would face is whether the deference to an agency’s statutory
interpretation that the Supreme Court established in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), is even applicable to the
informal adjudication that resulted in FWS’s enhancement finding. See Barnhart v.
Walton, 535 U.S. 212, 222 (2002); United States v. Mead Corp., 533 U.S. 218, 230–31
(2001). And even if it is, the Chevron test requires a court to determine whether the
standards of redressability and imminence[,]” Sierra Club v. FERC, No. 14-1249, 2016 WL 3525562, at
*3 (D.C. Cir. June 28, 2016) (citation omitted), when a plaintiff alleges an impingement on its
procedural interests, but they make no other mention of “procedural” standing, and this Court declines
to address the argument because “perfunctory and undeveloped arguments . . . are deemed waived[,]”
XP Vehicles, 156 F. Supp. 3d at 192 n.2 (alteration in original) (internal quotation marks and citation
omitted). In any event, the relaxed redressability requirement has no relevance to this Court’s
conclusion that no plaintiff has a cognizable injury in fact, and none of the allegedly imminent injuries
would be aided by any permissible relaxation of that standard.
56
statute that the agency has interpreted to authorize its actions really does so, see Vill. Of
Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011), which
appears to be a heavy lift for FWS in this case, at least as far as it has determined that
the ESA allows the agency to find Section 10’s “enhancement” requirements satisfied
upon nothing more than the permittee’s promise to donate money to an unrelated
conservation effort. The plain language of Section 10(a) does not say this, and FWS’s
broad interpretation appears to thwart the dynamic of environmental protection that
Congress plainly intended when it mandated that no export of endangered species be
allowed, see 16 U.S.C. § 1538, unless the agency permits such export pursuant to
certain specified circumstances, see id. § 1539(a). FWS essentially urges the Court to
read those circumstances out of the statute, such that Section 10(a)’s enhancement-
finding requirement actually places no meaningful constraints on FWS’s ability to
authorize prohibited activities, because, as a practical matter, the agency can always
condition the granting of a permit on the permittee’s undertaking some other act that
advances scientific knowledge or benefits the species, regardless of the intentions of the
permittee with respect to the particular animals it seeks to access and/or the permittee’s
avowed lack of interest in furthering the species as a whole. 19
This is all to say that the significant degree of fervor that has accompanied
Plaintiffs’ written and oral arguments in this case is entirely understandable, and that
19
This Court sought to explore the limits (if any) of FWS’s interpretation of Section 10(a) during the
oral argument that it held on Plaintiffs’ motion for a preliminary injunction. The Court asked, for
example, whether, “[a]s long as Michael Jackson gives . . . $45,000” to some third party to be used
ostensibly to enhance the propagation of the species, FWS could gra nt him (or some other rich
dilettante) an export permit. (Tr. of P.I. Hr’g, ECF No. 29, at 100:1 –4.) In response, counsel for FWS
admitted that the agency’s view of the statute would allow for such a grant. ( Id. at 100:5–12, 24–25,
101:1–9.) What remained unclear—and what a court considering the merits of Plaintiffs’ claims would
have to determine—is whether authorizing FWS to barter export permits in this fashion was truly what
Congress intended Section 10(a) to authorize.
57
Plaintiffs have ably made the persuasive argument that, far from viewing Section 10(a)
as a limit on the circumstances in which the permitting of activities that impact
endangered species can occur, FWS now apparently views that provision as a green
light to launch a permit-exchange program wherein the agency brokers deals between,
on the one hand, anyone who wishes to access endangered species in a manner
prohibited by the ESA and has sufficient funds to finance that desire, and on the other,
the agency’s own favored, species-related recipients of funds and other services. This
Court considers doubtful FWS’s insistence that, when Congress penned Section 10(a) it
intended to authorize the agency to ‘sell’ its permits in this fashion so long as the
affected species might (as a whole) be conceived of as benefitting from the exchange.
But the Court cannot evaluate and rule upon the merits of Plaintiffs’ contentions, or
FWS’s responses, because the constraints of Article III standing prevent it from
reaching the merits of the important questions of statutory interpretation and
administrative law that have been presented in this case, as explained above.
IV. CONCLUSION
To avoid “stepp[ing] where the Constitution forb[ids] it to tread[,]” Hancock v.
Urban Outfitters, Inc., No. 14-7047, 2016 WL 3996710, at *2 (D.C. Cir. July 26, 2016),
a federal court must evaluate standing to sue before delving into the merits of a case —
even when the case involves troubling claims of potential harm to protected animal
species. This Court’s examination of the alleged (human and organizational) injuries
that Plaintiffs here say FWS’s decision to issue an export permit to Yerkes purportedly
has caused leads it to the conclusion that none of the Plaintiffs has a cognizable injury
in fact, and thus, this Court does not have subject-matter jurisdiction to address
58
Plaintiffs’ claims or to order the relief that Plaintiffs seek. See Scenic Am., 2016 WL
4608153, at *4 (explaining that, at summary judgment, if “the plaintiff has not
introduced sufficient evidence into the record to at least raise a disputed issue of fact as
to each element of standing, the court has no power to proceed and must dismiss the
case” (citation omitted)). Notably, this Court’s determination rests solely on its
understanding of what binding legal precedents dictate regarding the requirements of
Article III standing; it is clear beyond cavil that “standing is not measured by the
intensity of the litigant’s interest or the fervor of his advocacy[,]” Valley Forge, 454
U.S. at 486, nor is it measured by the importance of the issues presented or the potential
that the plaintiff might prevail on the merits of his claims, if the Court had the power to
reach them.
Accordingly, as set forth in the order accompanying this opinion, Plaintiffs’
partial motion for summary judgment is DENIED, and Defendants’ and Yerkes’s partial
motions for summary judgment are GRANTED. Plaintiffs’ FOIA claim (Count V of
the complaint) persists, but all of Plaintiffs’ other claims (Counts I–IV) must be
dismissed.
DATE: September 14, 2016 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
59