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Law School Case Brief

Cetacean Cmty. v. Bush - 386 F.3d 1169 (9th Cir. 2004)


Standing involves two distinct inquiries. First, a federal court under U.S. Const. art. III must ask whether a plaintiff has suffered sufficient injury to satisfy the case or controversy requirement of U.S Const. art. III. To satisfy U.S. Const. art. III, a plaintiff must show that: (1) it has suffered an injury in fact that is: (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. If a plaintiff lacks U.S. Const. art. III standing, Congress may not confer standing on that plaintiff by statute. A suit brought by a plaintiff without U.S. Const. art. III standing is not a case or controversy, and a U.S. Const. art. III federal court therefore lacks subject matter jurisdiction over the suit. In that event, the suit should be dismissed under Fed. R. Civ. P. 12(b)(1).


Plaintiff Cetacean Community ("Community") was comprised of all of the world's whales, porpoises, and dolphins; the Community was named by the Cetaceans' self-appointed attorney. The Community filed a lawsuit in federal district court against defendants George W. Bush, President of the United States of America, and Donald H. Rumsfeld, United States of America Secretary of Defense, challenging the United States Navy's use of Surveillance Towed Array Sensor System Low Frequency Active Sonar during wartime or heightened threat conditions. The Community alleged that the Navy's use of that system violated, or would violate, the Endangered Species Act ("ESA"), 16 U.S.C.S. §§ 1531-1544, the Marine Mammal Protection Act ("MMPA"), 16 U.S.C.S. §§ 1371-1421h, and the National Environmental Policy Act ("NEPA"), 16 U.S.C.S. §§ 4321-4347. Defendants filed a motion to dismiss the lawsuit under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. Without specifying which of the rules was the basis for its decision, the district court granted the motion to dismiss. The court held, inter alia, that the Community lacked standing under the ESA, the MMPA, NEPA and the Administrative Procedure Act ("APA"). The Community appealed.


Did the world's cetaceans have standing to bring suit in their own name under the ESA, the MMPA, NEPA or the APA?




The court of appeals affirmed the district court's judgment. The court found that although U.S. Const. art. III did not prevent Congress from authorizing a suit in the name of an animal, the Community did not have standing to sue under: (1) the Endangered Species Act, 15 U.S.C.S. § 1531 et seq., since there was no hint in the definition of "person" in 16 U.S.C.S. § 1532(13) that the "person" authorized to bring suit to protect an endangered or threatened species could be an animal that is itself endangered or threatened; (2) the Administrative Procedure Act, 5 U.S.C.S. § 701 et seq., since § 10(a) (5 U.S.C.S. § 702(a)) of the APA did not define "person" to include animals; or (3) the Marine Mammal Protection Act, 16 U.S.C.S. § 1361 et seq., since no court had ever held that an animal, even a marine mammal whose protection was at stake, had standing to sue in its own name to require that a party seek a permit or letter of authorization under the MMPA.

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