ELR Citation: ELR 20596
No(s). 91-11634-WF (D. Mass. Oct 25, 1993)

The court holds that dolphin and animal welfare organizations lack standing to bring an action under the Marine Mammal Protection Act (MMPA) to challenge the transfer of the dolphin from the New England Aquarium to the Department of Defense (DOD) pursuant to a Department of Commerce (Commerce) Letter of Agreement, and to challenge Commerce's general practice of foregoing the issuance of permits and public hearings with respect to marine mammal transport, permit modification, and the taking of beached or stranded marine mammals. The court first holds that under the MMPA and Federal Rule of Civil Procedure 17(b), a dolphin lacks standing to maintain the action. The court notes that an animal is not expressly authorized to bring suit under the Act. If Congress had intended to authorize animals to bring suits under the MMPA, it ought to have included a provision specifically providing animals with that power. Furthermore, the court notes that citizen groups can seek the relief requested for the animal under the Act, provided they can establish standing. Federal Rule of Civil Procedure 17(b) identifies state law as determinative of the capacity of an individual to sue or be sued. While state law does not specifically address the question of animal standing, relevant case law indicates that animals are treated as the property of their owners, not as entities with their own legal rights.

The court next holds that the animal welfare organizations allege sufficient harm as a result of the dolphin's transfer and Commerce's practice of foregoing permits to withstand a motion to dismiss. The court holds that the organizations failed to establish standing to sue representationally, on behalf of their members. The organizations have successfully demonstrated that the interests the suit seeks to vindicate are pertinent to the objectives for which the organizations were formed—the protection of animals—and that the personal participation of affected individuals is not necessary because damages are not sought. However, the organizations fail to offer evidence sufficient to allow a reasonable fact finder to conclude that any of their individual members possesses standing to sue in his or her own right on any of the alleged violations. The affidavits of two members presented by the organizations do not allege actual or imminent harm with respect to the transfer of this dolphin. Affiants fail to assert a relationship with this particular dolphin and do not even know if they ever observed him, which is unlikely because the dolphin was rarely on display. The organizations also fail to establish that any of their members has suffered harm regarding the depletion of wild dolphins due to Commerce's general practices. The allegations and evidence regarding a general concern for the depletion of wild dolphins are insufficient to show injury-in-fact. Moreover, the organizations fail to demonstrate that Commerce's challenged practices actually cause a decrease in the number of wild dolphins. The court cannot address Commerce's practices when the organizations have failed to establish standing with respect to even one agency action. The organizations and their members' allegations of procedural harm due to Commerce's practices, which deny them the opportunity to participate in the public proceeding that would occur if permits were issued, are insufficient to establish standing because the organizations have suffered no particularized injury. The inability to participate in the permit process due to lack of notice, commenting opportunity, ability to request a hearing, and possibility of seeking judicial review is a harm suffered by the general public. Since the organizations' other allegations of harm are insufficient, there is no distinct injury to these plaintiffs sufficient to grant standing.

The court next holds that the organizations do not have standing to sue for injuries to the organizations themselves. The organizations allege procedural and informational harm caused by Commerce's general practices which deny the organizations the opportunity both to participate in the permit process and to obtain information from that process that they would pass on to members. Where there is insufficient evidence of other concrete and particularized injury to contribute to a finding of standing, however, evidence of informational harm alone is insufficient to establish standing, according to relevant case law. If informational harm were sufficient to confer standing, any individual or appropriate organization could obtain standing to challenge any action taken by Commerce pursuant to the MMPA by asserting that the action required the use of the permit process, negating the requirement of concrete and particularized harm. Also, under relevant case law, it is "substantially more difficult" to establish standing when the individual or organization is not itself the object of the government action being challenged. The court then denies the organizations' motion to amend their complaint by adding charges relating to the transfer of a second dolphin in an effort to establish standing. Allowing the organizations to avoid an adverse ruling on the motion for summary judgment, which had already been filed, would be unfair. Moreover, adding the separate and unique issue of an alleged breach of a settlement agreement with respect to the transfer of a different dolphin would be unfair and inefficient, because it would allow the organizations to establish standing to perpetuate the much broader claims in the case at bar for which they otherwise lack standing. Lastly, the court dismisses without prejudice to being reinstituted in state court the defendants' counterclaims alleging abuse and defamation because exceptional circumstances do not exist that would warrant retaining jurisdiction in federal court over purely state court claims.

Counsel for Plaintiffs
Steven M. Wise
Fraser & Wise
896 Beacon St., Boston MA 02215
(617) 267-4455

Counsel for Defendants
Charles W. Brooks
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Judith S. Yogman, Ass't Attorney General
Attorney General's Office
One Ashburton Pl., Boston MA 02108
(617) 727-2200