New Eng. Anti-Vivisection Soc'y v. United States Fish & Wildlife Serv.

New Eng. Anti-Vivisection Soc'y v. United States Fish & Wildlife Serv.

Opinion

 [*146]  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  [*147]  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 [**3]  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 their 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. [**4]  (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 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, [**5]  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  [*148]  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 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 [**6]  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.)

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.