Lori Marino, P H.d. v. National Oceanic and Atmospheric Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2021 Decided May 17, 2022
No. 20-5151
LORI M ARINO, P H.D., ET AL.,
APPELLANTS
WHALE AND DOLPHIN C ONSERVATION ,
APPELLEE
v.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION ,
ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02750)
Elizabeth L. Lewis argued the cause for appellants. With
her on the briefs were Donald Baur and William S. Eubanks,
II.
Sommer H. Engels, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Andrew C. Mergen and Ellen J. Durkee, Attorneys.

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Before: HENDERSON and KATSAS , Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: The plaintiffs are a
group of organizations devoted to animal welfare and
individuals who work with those organizations and with marine
mammals. They sued the National Marine Fisheries Service
(NMFS) and its parent agency, the National Oceanic and
Atmospheric Administration, seeking to enforce conditions in
permits held by SeaWorld, a business operating several marine
zoological parks. The permits authorize the capture and
display of orcas and require display facilities to transmit
medical and necropsy data to the NMFS following the death of
an animal displayed under the terms of a permit. The district
court dismissed the plaintiffs’ suit for lack of standing. We
affirm.
I. Background
The Marine Mammal Protection Act (MMPA) bans the
“taking” of certain classes of marine mammals, including
orcas. See 16 U.S.C. § 1372. Special Exception Permits are
available for the capture of these animals for specified
purposes, including research and public display. Id at
§ 1371(a)(1). Although not defined in the statute, public
display includes placing marine mammals in facilities such as
SeaWorld’s marine zoological parks in Orlando and San
Diego. See Jones v. Gordon, 792 F.2d 821, 823 (9th Cir. 1986)
(discussing approval of permits to SeaWorld for public display
under this provision of the MMPA). The NMFS determines
whether to issue these permits and upon what conditions. See
16 U.S.C. § 1374(a), (b). Prior to 1994, the NMFS also

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enforced compliance with the conditions in the permits. One
condition commonly included in permits issued prior to 1994
required facilities that publicly display marine mammals to
send medical history and necropsy data to the NMFS whenever
an animal held under the terms of a permit died. These reports
were publicly available pursuant to the Freedom of Information
Act.
In 1994, the Congress amended the MMPA in such a way
that, according to the NMFS, it shifted jurisdiction to oversee
the conditions of marine mammals in captivity to the Animal
and Plant Health Inspection Service (APHIS) in the U.S.
Department of Agriculture; the plaintiffs dispute this
interpretation. See MMPA Amendments of 1994, Pub. L. No.
103-238, § 5, 108 Stat. 532, 537. Under the NMFS’s
interpretation of this revised division of labor, the NMFS issues
permits and regulates the capture of marine animals, whereas
APHIS regulates post-capture. For twenty-three years – until
this suit — that understanding went unchallenged.
In 2016, Tilikum, an orca at SeaWorld in Orlando held
pursuant to a pre-1994 permit, became ill. He was the subject
of a well-known documentary, Blackfish, and his illness drew
the attention of animal welfare groups, including the plaintiffs.
The plaintiffs asked the NMFS whether Tilikum’s medical
history and necropsy reports would be available upon the
orca’s death, under the conditions of SeaWorld’s permit. On
January 6, 2017, as they waited for a response, Tilikum died.
The plaintiffs then asked the agency to enforce the permit
requirement that SeaWorld transmit medical and necropsy data
to the NMFS following his death, but the NMFS declined to do
so.
The plaintiffs pressed the NMFS to explain why it would
not enforce the permit condition; on March 10, 2017, shortly

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before meeting with the plaintiffs, the agency sent an email,
explaining that it interpreted the 1994 amendments as
extinguishing its authority to enforce marine mammal permits
and transferring jurisdiction over marine mammal welfare to
APHIS. In July and August 2017 two more orcas SeaWorld
held pursuant to pre-1994 permits died.
The plaintiffs tried to convince the NMFS it had
continuing legal authority to enforce pre-1994 permit
conditions, but to no avail. After each orca died, the agency
reiterated its position that it did not have the authority to
enforce conditions in permits issued to facilities that publicly
display marine mammals. The plaintiffs then brought this suit,
arguing that the NMFS’s policy rests upon an arbitrary and
capricious interpretation of the MMPA, and that its refusal to
enforce the permit conditions was also arbitrary and capricious.
The defendants moved to dismiss for lack of subject matter
jurisdiction. The district court granted the motion, ruling that
the plaintiffs lacked standing to sue. We agree.
II. Analysis
Plaintiffs argue our precedent supports their standing if, as
here, enforcement of a regulation a federal agency declines to
enforce would allow them to secure information through the
Freedom of Information Act. The foundational precedent on
standing is Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992), which teaches that “standing is an essential and
unchanging part of the case-or-controversy requirement of
Article III.” To establish standing, a plaintiff “must show (1)
an injury in fact that is ‘concrete and particularized’ and ‘actual
or imminent’; (2) that the injury is fairly traceable to the
defendant’s challenged conduct; and (3) that the injury is likely
to be redressed by a favorable decision.” Am. Soc’y For

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Prevention of Cruelty to Animals v. Feld Ent., Inc., 659 F.3d
13, 19 (D.C. Cir. 2011) (citing Lujan, 504 U.S. at 560-61).
For the plaintiffs to establish their standing to sue, “[e]ach
element of standing must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Kareem v. Haspel, 986
F.3d 859, 865 (D.C. Cir. 2021) (cleaned up). Because the
district court granted the NMFS’s motion to dismiss, “we
accept the well-pleaded factual allegations in the complaint as
true and draw all reasonable inferences from those allegations
in the plaintiff’s favor, but threadbare recitals of the elements
of standing, supported by mere conclusory statements, do not
suffice.” Id. at 865-66 (cleaned up). Because the plaintiffs fail
to establish that the relief they seek would redress the injury
they allegedly suffered, we do not consider whether they satisfy
the other requirements for standing.
We explain first that the plaintiffs have failed to allege a
favorable decision here would lead the NMFS to enforce the
permit conditions and thus redress their alleged injury. Their
allegation to the contrary relies upon unadorned speculation
that the NMFS would choose to enforce the necropsy permit
conditions and that SeaWorld would voluntarily send necropsy
information to an agency that had not enforced permit
conditions in twenty-three years should this court determine
that the NMFS retains its discretion to enforce permits it issued
prior to 1994.

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A. First-Party Redressability
To establish redressability, a plaintiff must prove “a
likelihood that the requested relief will redress the alleged
injury.” Steel Co. v. Cit. for Better Env’t, 523 U.S. 83, 103
(1998). In Steel Co. the Court held the plaintiffs did not meet
the redressability requirement for standing to bring a claim
under the Emergency Planning and Community Right-To-
Know Act because they did not allege an ongoing injury that
could be remedied by the injunction they had requested. Id. at
105-06, 108.
Similarly, here, the plaintiffs did not allege that a favorable
decision would cause the NMFS to redress their alleged
injuries. Their prayer for relief requests an order declaring the
NMFS violated the Administrative Procedure Act and vacating
its March 10, 2017 non-enforcement decision and the policy
underlying that decision. In the March 10 email conveying that
decision, the NMFS said it “will not be enforcing the necropsy-
related provisions of the permit.” The permit referenced in the
email is Number 774, which was issued to SeaWorld in 1992.
The “policy” underlying the email is based upon the advice of
the agency’s counsel that the 1994 amendments to the MMPA
shifted the enforcement of permit conditions to the APHIS.
The plaintiffs make no allegation addressing the likely effect
of a favorable ruling upon the behavior of the NMFS. Even
their arguably relevant allegations are oblique at best: They
state only that some permit holders continued to submit
necropsy reports to the NMFS after 1994 because the agency
did not announce until 2017 its position that the 1994
amendments terminated its ability to enforce its permit
conditions.
The MMPA is permissive on its face: The NMFS “may”
enforce permit conditions; it is not required to do so. See 16

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U.S.C. § 1374(e)(1) (“The Secretary may modify, suspend, or
revoke in whole or in part any permit issued by him under this
section.”). The plaintiffs cite one provision of the statute that
requires the NMFS to act, but it is not helpful to their case
because it simply directs the agency, when first issuing a
permit, to specify “any other terms or conditions which the
Secretary deems appropriate.” 16 U.S.C. § 1374(b)(2)(D).
Therefore, it is of no moment whether, as the plaintiffs contend,
the 1994 amendments to the MMPA did not extinguish the
NMFS’s ability to enforce its permit conditions, because the
NMFS has prosecutorial discretion not to enforce them. Nor
do the plaintiffs allege any reason to believe the NMFS would
enforce the permit conditions if the plaintiffs received all the
relief they requested, namely an injunction requiring the
agency to rescind its interpretation of the MMPA or declaratory
relief that the agency’s interpretation of the statute is
unreasonable. Consequently, it seems the plaintiffs’ claimed
injury is not judicially redressable and they do not have
standing to pursue their complaint.
The plaintiffs, however, citing Competitive Enterprise
Institute v. National Highway Traffic Safety Administration
(CEI), 901 F.2d 107, 117-118 (D.C. Cir. 1990), argue a
plaintiff “need not prove that granting the requested relief is
certain to redress their injury.” True enough, for certainty is
not the lot of man, and no court would require it. In CEI the
petition alleged that “if [the agency] had adequately assessed
the safety impacts of the [relevant] standards, it would have
been likely to conclude that its proposed standards were too
high.” Id. at 118. That allegation was all the more plausible
because the agency there had “already shown a willingness to
entertain comments on the potential effects of a standard lower
than 26 mpg, the low end of the range it originally proposed.”
Id.

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CEI is clearly not controlling here; that redressability is
established where a remand would likely result in a favorable
exercise of agency discretion does not help the plaintiffs
because they did not plausibly plead that relief is indeed likely.
See National Wrestling Coaches Ass’n v. Dep’t of Educ.
(NWCA), 366 F.3d 930, 938-39 (D.C. Cir. 2004). They did not
allege, even on information and belief, that the NMFS was
likely to enforce the terms of the permit against SeaWorld or,
for that matter, that SeaWorld composed or submitted any
reports after 1994.
The plaintiffs also point, quite mistakenly, to
Massachusetts v. EPA, 549 U.S. 497, 518 (2007), to argue they
have standing “if there is some possibility that the requested
relief will prompt the injury-causing party to reconsider the
decision that allegedly harmed the litigant.” Of course, there is
some possibility the NMFS would oblige the plaintiffs, but that
is not the standard they must meet. As the Court clearly
explained in Massachusetts v. EPA, immediately after the
passage the plaintiffs quote: “It is of considerable relevance
that the party seeking review here is a sovereign State and not
. . . a private individual.” 549 U.S. at 518. “States are not
normal litigants for the purposes of invoking federal
jurisdiction,” and therefore are “entitled to special solicitude in
our standing analysis.” Id. at 518, 520; see also New Jersey v.
EPA, 989 F.3d 1038, 1045 (D.C. Cir. 2021) (holding New
Jersey’s quasi-sovereign interests in reducing air pollution
justified its standing to challenge an EPA rule). The plaintiffs
here are not states and hence are not entitled to special
solicitude as to standing. Therefore, the plaintiffs fail to allege
any facts from which we could infer the relief they seek would
likely cause the NMFS to redress their alleged harms. But wait,
there’s more!

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B. Third-Party Redressability
The plaintiffs also fail to plead facts suggesting SeaWorld
would turn over the necropsy and medical history reports even
if the NMFS were so to direct. Indeed, as we have noted
before, “[w]hen a plaintiff’s asserted injury arises from the
Government’s regulation of a third party that is not before the
court, it becomes ‘substantially more difficult’ to establish
standing.” NCWA, 366 F.3d at 938 (quoting Lujan, 504 U.S.
at 562). “Because the necessary elements of causation and
redressability in such a case hinge on the independent choices
of the regulated third party, ‘it becomes the burden of the
plaintiff to adduce facts showing that those choices have been
or will be made in such manner as to produce causation and
permit redressability of injury.’” Id. (quoting Lujan, 504 U.S.
at 562).
Here the plaintiffs’ pleadings come close to suggesting a
favorable decision would not redress their injury, for they
allege that public display facilities have not sent necropsy
reports to the NMFS for the past couple of decades. First, the
complaint states: “very few public display facilities make such
reports available on a voluntary basis.” Then the complaint
implies SeaWorld did not voluntarily release the necropsy
information after the death of Tilikum in January 2017 even
though the NMFS had not yet issued its March 10 decision. In
other words, the plaintiffs’ complaint suggests SeaWorld was
not complying with the terms of the permit even before the
NMFS issued its decision and is not likely to comply unless
forced to do so by the NMFS — which, as we have seen, the
plaintiffs did not allege is likely. See Teton Historic Aviation
Foundation v. DOD, 785 F.3d 719, 726 (D.C. Cir. 2015) (“[A]
plaintiff does not have standing to sue when redress for its
injury depends entirely on the occurrence of some other, future
event made no more likely by its victory in court.”).

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Finally, citing Int’l Ladies’ Garment Workers’ Union v.
Donovan (ILGWU), 722 F.2d 795, 811 (D.C. Cir. 1983), the
plaintiffs argue there is a “strong presumption” a regulated
entity will comply with the law, which they say is all that is
required to establish redressability here. But the ILGWU case
does not support this proposition; the relief requested there
would have made illegal several third parties’ subminimum
wages, causing a competitive injury to the plaintiffs. Id. The
court held “only by taking extraordinary measures . . . could
third parties prevent redress of the appellants’ injuries” if the
court ruled those subminimum wages were illegal. Id. In
contrast, granting the plaintiffs’ requested relief here would not
by itself make it unlawful for SeaWorld to refuse to release
necropsy data. Therefore, ILGWU is irrelevant to the
plaintiffs’ cause.
Even if ILGWU applied here in principle, it would not help
the present plaintiffs because they do not allege SeaWorld ever
created and still retains the reports the plaintiffs seek. The
closest they come is to allege that “some public display
facilities continued to submit necropsy and clinical history
reports” after 1994. SeaWorld’s retention of such reports is
particularly unlikely because the relevant regulation requires
only that “necropsy records will be maintained at the marine
mammal’s home facility and at the facility at which it died, if
different, for a period of 3 years.” 9 C.F.R. § 3.110(g)(2).
Tilikum and the other two orcas referenced in the complaint
were all dead by August 15, 2017, more than three years ago.
As a result, we cannot infer SeaWorld would (or could) comply
with the permit requirement, even if the NMFS agreed to
enforce it. Therefore, the possible independent choices of a
third party, SeaWorld, also defeat the plaintiffs’ case for
redressability.

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III. Conclusion
Plaintiffs have not demonstrated their alleged injury is
redressable for two reasons: First, they failed plausibly to plead
that a favorable decision would lead the NMFS to enforce the
necropsy conditions in SeaWorld’s permits; second, they did
not plead any facts suggesting SeaWorld would, or could,
comply with the permit requirement and turn over necropsy
data even if the NMFS’s interpretation of the MMPA were
declared unlawful. Therefore, the district court did not err in
determining that the plaintiffs lacked standing to pursue this
case. The judgment of the district court is, therefore,
Affirmed.

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