CEASE v. New England Aquarium: Standing To Challenge Marine Mammal Permits

In the recent case Citizens to End Animal Suffering and Exploitation, Inc. (CEASE) v. New England Aquarium, the United States District Court for the District of Massachusetts prohibited a dolphin and several animal rights groups acting on behalf of the dolphin from bringing suit in federal court. The parties were protesting the transfer of the dolphin (Kama) in a manner alleged to be inconsistent with the permitting requirements of the Marine Mammal Protection Act (MMPA). The court dismissed the case on a motion for summary judgment in favor of the defendants on the basis that none of the named plaintiffs had standing to sue. Although the court summarily dismissed Kama\u27s claim, it thoroughly discussed whether or not the plaintiffs\u27 individual members, as individuals, had met the requirement of injury in fact necessary for the plaintiffs to have standing. The court concluded that they had not. With less discussion, the court reached the same conclusion regarding the organizational plaintiffs. The MMPA was passed in 1972 for the purpose of prohibiting the harassing, catching, and killing of marine mammals so that they would continue to be “a significant functioning element in the ecosystem of which they are a part.” Essentially, the MMPA gives the Secretaries of the Interior and Commerce the guidance and authority necessary to establish general limitations on the taking of all marine mammals, and within those limits, the power to issue permits that allow the transport of certain marine mammals. The MMPA also requires that the public be informed of the action to be taken and the evidence upon which that decision was reached. Section 1374 of the MMPA outlines the permit procedures for public display and scientific research of marine mammals. It sets forth requirements for application, public notice and hearing, and permit review. In order to transport a marine mammal an individual or organization must obtain a permit from the Secretary of Commerce. The Secretary of Commerce must publish notice in the Federal Register of any application for a permit. This allows interested parties to review permit applications and request a hearing on the matter. The Secretary is authorized to conduct a hearing if it is requested. Plaintiffs in this case argued that the Secretary\u27s modification of the required permitting process denied them the right to request a public hearing. The court dismissed this claim without discussing whether a genuine issue of material fact indeed existed. In so doing, the court furthered the government\u27s ability to act without public knowledge, contrary to the explicit provisions of the MMPA. A permit, once issued, must specify the methods of capture and subsequent care of the marine mammal. An interested party may request judicial review of any permit issued under section 1374 of the MMPA. The legislative history of the Act clearly emphasizes the public\u27s right to information. If the district court had granted plaintiffs standing and had reached the merits of the case, the court would have been unable to reconcile the inconsistencies between the clear mandates of the MMPA and the permit process and the Letter of Agreement that the Secretary utilized in allowing Kama to be transported without a permit. New England Aquarium acts in conjunction with recent Supreme Court and Circuit Court decisions to close the courtroom doors to environmental groups on grounds of standing. This Note will discuss the ramifications of the New England Aquarium decision on the ability of environmental groups to exercise their rights to challenge governmental actions under the MMPA. It will examine the various requirements for standing by tracing several lines of cases, particularly those involving environmental plaintiffs. The Note will then demonstrate that those decisions cannot be reconciled with the court\u27s reasoning in the subject case