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Institute of Marine Mammal Studies v. Nat'l Marine Fisheries Service

United States District Court, S.D. Mississippi, Southern Division

May 22, 2014


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[Copyrighted Material Omitted]

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For Institute for Marine Mammal Studies, Plaintiff: Cyril T. Faneca, LEAD ATTORNEY, Haley Necaise Broom, Shannon Ladner Ozerden, DUKES, DUKES, KEATING & FANECA, PA - Gulfport, Gulfport, MS.

For National Marine Fisheries Service, National Oceanographic and Atmospheric Administration, Rebecca M. Blank, Acting Secretary of Commerce, United States Department of Commerce, Defendants: Clifford Eugene Stevens, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Stephen R. Graben, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE - Gulfport, Gulfport, MS.

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BEFORE THE COURT are cross-motions for summary judgment filed by the plaintiff, the Institute of Marine Mammal Studies (" IMMS" ), and the defendants, the National Marine Fisheries Service (" NMFS" ), National Oceanographic and Atmospheric Administration, and Rebecca M. Blank, acting Secretary of Commerce, United States Department of Commerce (the " federal defendants" ). This case calls for review of the administrative record concerning certain actions of the federal defendants, and the parties agree that resolution

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of the matter by summary judgment is appropriate.

After consideration of the parties' arguments, the administrative record, and the relevant law, it is the Court's opinion that the IMMS lacks standing to bring its claim that NMFS regulations do not properly implement the Marine Mammal Protect Act (" MMPA" ). Further, the Court finds that it lacks subject matter jurisdiction of IMMS' claims that the NMFS is improperly administering a placement list for non-releasable sea lions. However, the Court may review the claims concerning the permit allowing IMMS to " take" sea lions. The Court finds that a term included in IMMS' permit improperly delegates federal authority to third parties. The permit will therefore be remanded to the agency for reconsideration. Each summary judgment motion is granted in part and denied in part.

The Parties

Pursuant to the MMPA, the NMFS administers a network of private and governmental organizations that rescue and rehabilitate stranded marine mammals, including California sea lions. 16 U.S.C. § 1421 et seq. See also 50 § C.F.R. 216.27. To the extent possible, stranded sea lions are rehabilitated and then reintroduced into the wild by the stranding network organizations, consistent with the directives of the MMPA. 16 U.S.C. § 1379(h)(3). However, some are deemed non-releasable because of injuries, medical conditions, and behavioral issues that make their success in the wild unlikely. NMFS places most of these non-releasable sea lions with public display facilities. The NMFS has a wait list of about thirty public display facilities seeking such non-releasable sea lions.

The IMMS is a non-profit organization in Gulfport, Mississippi, that operates a marine mammal public display facility established for the purpose of public education, conservation and research of marine mammals in the wild and under human care. The IMMS is approved to receive non-releasable sea lions and is on the NMFS' national placement list to be considered when appropriate animals become available. The IMMS also holds a " Public Display Permit to Take Marine Mammals" issued by the NMFS on October 5, 2011, which authorizes IMMS to obtain up to eight rehabilitated, releasable sea lions from the stranding network. (Compl. Ex. 1, ECF No. 53-1). The IMMS brought this lawsuit to enforce the provisions of the MMPA as they apply to the IMMS' " take" permit for releasable sea lions, and its priority position to receive stranded, non-releasable sea lions.[1]

The Allegations of the Complaint

The IMMS' claims are brought pursuant to the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701, et seq., the MMPA, 16 U.S.C. § 1361, et seq., and the Fifth Amendment to the United States Constitution.

In Count 1 of the Second Amended and Supplemented Complaint (ECF No. 53), IMMS seeks declaratory relief for agency action it alleges is arbitrary and capricious. Specifically, the IMMS contends that NMFS is forcing IMMS to apply to take sea lions from the wild and foreclosing other methods of obtaining sea lions, such as from the stranding organizations. By doing so, the NMFS is violating its regulations, and the purposes, intent and provisions of the MMPA to preserve the ocean

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populations of marine mammals. IMMS also alleges that by allowing the stranding/rehabilitation facilities to make the final decision regarding disposition of stranded, releasable sea lions, the NMFS is unlawfully delegating its federal authority.

In Count 2 of the Complaint, IMMS seeks declaratory relief for revision of the permit. It alleges that the requirement in its permit that NMFS will not direct rehabilitation facilities to place releasable sea lions to IMMS is contrary to other permits. IMMS alleges that the NMFS has no legal basis for giving rehabilitation facilities the right to place releasable sea lions as they choose, but retaining that right in regard to non-releasable sea lions.

In Count 3 of the Complaint, IMMS alleges Fifth Amendment due process equal protection violations, asserting that the NMFS has discriminated against it in placing sea lions. Specifically, NMFS has withheld non-releasable sea lions; failed to give notice of all available non-releasable animals that had restranded; failed to recognize IMMS' priority among facilities requesting non-releasable sea lions; offered only sick, injured and disabled animals to IMMS while placing healthy animals at other facilities; treated IMMS differently by not allowing it to temporarily house animals at another approved facility while it waited for a second sea lion; and inconsistently applied its policies for placement of all stranded animals, resulting in the denial of sea lions to IMMS.

The IMMS seeks an order requiring NMFS to: 1) place stranded, non-releasable sea lions consistently and in accordance with the priority placement list, thereby treating IMMS as an equal to similarly situated facilities; 2) consistently apply its own regulations as to the placement of animals; 3) revise the subject Permit to comport with the authority vested in NMFS pursuant to the MMPA; and 4) refrain from intentional, wrongful and discriminatory treatment of the IMMS.

The Standard of Review

Section 702 of the Administrative Procedure Act gives certain persons the right to obtain judicial review of particular agency actions. It provides in part that:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

Resident Council of Allen Parkway Village v. U.S. Dept. of Housing & Urban Dev., 980 F.2d 1043, 1055 (5th Cir. 1993); 5 U.S.C. § 702. The " agency action" must be made reviewable by statute, or " final agency action for which there is no other adequate remedy in a court" in order to be judicially reviewable. 5 U.S.C. § 704. " If there is no final agency action, a federal court lacks subject matter jurisdiction." Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011).

The Department of Commerce, through the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service (NMFS), is responsible for administering the MMPA in regard to many marine mammals, including sea lions. 16 U.S.C. § 1362(12)(A)(i). The MMPA creates no private right of action, and therefore the plaintiff must allege violations of the MMPA as authorized by the APA. The APA confines the Court's authority to review agency action as follows:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--

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compel agency action unlawfully withheld or unreasonably delayed; and
hold unlawful and set aside agency action, findings, and conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

5 U.S.C. § 706.

" This standard of review is very narrow and very deferential to conclusions and actions of the agency." Ctr. for Marine Conservation v. Brown, 917 F.Supp. 1128, 1143 (S.D. Tex. 1996). Judicial review is precluded entirely, however, when the " agency action is committed to agency discretion by law." 5 U.S.C. § 701; Ellison v. Connor, 153 F.3d 247, 251 (5th Cir. 1998).

The Governmental Response to Sea Lion Stranding Events

Pursuant to the authority granted by the MMPA to establish the " Marine Mammal Health and Stranding Response Program," the NMFS has entered into agreements with stranding organizations, which are authorized to " take" stranded marine mammals, attempt to rehabilitate them, and release them back into the wild. 16 U.S.C. § § 1421, 1421b.[2] Stranding organizations are " custodians" of marine mammals they hold for rehabilitation. 50 C.F.R. § 216.27(a)(2). Animals in rehabilitation are required to be released within six months of capture unless they are deemed by the attending veterinarian to be unreleasable for specified reasons. 50 C.F.R. § 216.27(a). Prior to releasing a stranded rehabilitated animal into the wild, the custodian is required to provide written notification to the NMFS, " unless advance notice is waived in writing by the [NMFS] Regional Director." 50 C.F.R. § 216.27(a)(2)(i)(A). NMFS may make whatever changes it deems appropriate to the release plan, including requiring other disposition of the animal. 50 C.F.R. § 216.27(a)(3). Stranded animals deemed unreleasable may be disposed of at the NMFS' discretion. 50 C.F.R. § 216.27(b)(2). Within thirty days of the non-releasability determination, the custodian may request authorization to keep the animal or transfer it to an approved facility. Otherwise, the custodian must euthanize the animal, or dispose of it in any manner authorized by the NMFS. 50 C.F.R. § 216.27(b)(3). NMFS is authorized to require use of a rehabilitated marine mammal for public display and educational purposes in lieu of animals taken

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from the wild. 50 C.F.R. § 216.27(b)(4); § 216.27(c)(1).

Jurisdictional Issues

At the outset, the Court must address the federal defendants' arguments concerning standing and mootness. As Article III jurisdictional grounds for dismissal, standing and mootness are threshold issues. Sierra Club v. Glickman, 156 F.3d 606, 619 (5th Cir. 1998). The doctrine of standing concerns an analysis of whether the plaintiff had a justiciable case when the complaint was filed, while the doctrine of mootness concerns a determination of whether the plaintiff continues to assert a justiciable case throughout every stage of the lawsuit. See Kitty ...

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