`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided May 17, 2022
`
`Argued October 8, 2021
`
`
`No. 20-5151
`
`LORI MARINO, PH.D., ET AL.,
`APPELLANTS
`
`WHALE AND DOLPHIN CONSERVATION,
`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.
`
`
`
`
`
`
`
`
`2
`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.
`
`
`
`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
`
`I.
`
`Background
`
`
`
`
`
`3
`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
`
`
`
`
`
`4
`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.
`
`
`
`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
`
`II.
`
`Analysis
`
`
`
`
`
`5
`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.
`
`
`
`
`
`
`6
`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
`
`
`
`
`
`7
`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.
`
`
`
`
`
`
`8
`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.
`
`to
` The plaintiffs also point, quite mistakenly,
`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!
`
`
`
`
`
`
`
`
`9
`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.”).
`
`
`
`
`
`10
`
`
`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.
`
`
`
`
`
`
`11
`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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