ELR Citation: ELR 20612
No(s). 93-5339 (D.C. Cir. Feb 14, 1995)

The court holds that an animal protection organization lacks standing to challenge the U.S. Fish and Wildlife Service's (FWS') issuance of a certificate that exempts a corporate owner of an Asian elephant from the Endangered Species Act's prohibitions on the interstate and international transportation of endangered species. The corporation received the elephant as a donation from the Milwaukee zoo. The court first holds that the animal protection organization cannot claim injury based on one of its member's lost opportunity to study Asian elephants at the zoo, because the member does not claim in her affidavit that the corporation's elephant was the only Asian elephant at the zoo. Moreover, the affidavit does not explain how the elephant's departure—which reduced the number of Asian elephants from four to three—threatened her opportunity to observe Asian elephants. Furthermore, her affidavit does not assert that she intends to return to the zoo to observe the elephants. The court rejects the argument that the organization's standing can be based on the allegation that its members have suffered severe distress as a result of the elephant's move from the zoo. General emotional harm cannot suffice for injury-in-fact standing purposes. The court also notes that the affidavits and letters the organization submitted to establish standing do not appear to support an injury claim based on an emotional attachment to a particular animal. The organization asserts that one letter makes it apparent that the letter's authors had a concrete and legitimate aesthetic interest in viewing the elephant in a conservation setting, but the letter does not claim any interest in observing or studying the elephant in a conservation setting or anywhere else. The court next rejects the organization's claim of procedural injury allegedly arising out of the FWS' failure to determine whether the elephant's corporate owner meets the statutory criteria for obtaining a conservation permit. Because the organization has not adequately alleged that its members are harmed by not being able to see the elephant in a conservation setting, the members cannot claim injury from the denial of a procedure allegedly intended to achieve that result.

The court notes that even if the organization had established a sufficient injury from the elephant's absence from the zoo, any such injury would fail to satisfy the causation and redressability requirements of standing analysis. The challenged action did not cause the injury complained of, because the alleged unlawful action—the FWS' determination that the elephant's corporate owner may transport the elephant interstate and abroad—is not fairly traceable to the inability of the animal protection organization's members to study the elephant at the zoo. The elephant had already left the zoo and was held at the corporation's property in Illinois when the corporation sought permission to transport it. And just as the challenged agency action was not fairly traceable to the claimed injury, a favorable decision in this case could not redress the injury the animal protection organization's members suffered due to the elephant's absence from the zoo.

[Briefs in this litigation are digested at ELR PEND. LIT. 66371.]

Counsel for Appellant
Irwin Goldbloom
Latham & Watkins
1001 Pennsylvania Ave. NW, Ste. 1300, Washington DC 20004
(202) 637-2200

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

Before: SILBERMAN, WILLIAMS, and ROGERS, Circuit Judges.