Whales Have No Standing in the Courts of the United States

Or so recently stated the 9th Circuit Court of Appeals (yes, that 9th Circuit). Someone decided to sue the President and the Secretary of Defense on behalf of "the Cetacean Community." The suit asks that the Executive Branch essentially be enjoined to review regulations that exempt the use of a certain type of Navy sonar from restriction in time of war or national emergency, claiming protections under the Endangered Species Act etc.

Passing over the issue of the sonar, which even the Navy admits probably harms marine mammals, the question of standing is fascinating. The whales, dolphins, etc. (really their attorney) claim standing based on the decision of the 9th Circuit in Palila v. Hawaii Department of Land and Natural Resorces in which the case name and the wording of the decision itself imply or state that an endangered Hawaiian bird is a party to the case. The whales apparently can sue under the principle of stare decisis . At this point, I would have resolved this question by ruling that the whales are denizens of the high seas, comprehended by international treaties (even the whales themselves) to which the United States is signatory and by which the powers of the United States are limited. The ESA doesn't apply. The birds, however, are U.S. nationals. But the 9th Circuit unfortunately, though probably fortunately doesn't think like that. Instead, they cited precedents in which the standing of the Palila in the Palila decision was dicta , especially since suit in the various cases was brought by environmental organizations in the name of the Palila. And the 9th Circuit notes that it has jurisdiction if multiple parties sue and one has defective standing.

Strangely enough, the Cetaceans aren't the first non-human wild animals to seek relief in US courts based on Palila . The Marbled Murrelet was granted standing in the Northern District of California and the Loggerhead Turtle was heard in the Middle District of Florida based on the precedent of the Murrelet. Surely, my nationality argument would come to the mind of the 9th Circuit. Well, they quote Cass Sunstein to support the idea that Article III does not explicitly limit the jurisdiction of the federal court to humans. At this point, I thought I heard the DOJ's lawyers' hearts skip a beat. That tricky 9th Circuit ...! But while the Court was noting works that argued for the rights of trees, they emphasized that Congress alone has the power to decide who can sue under particular statutes, i.e., "persons." Of course, associations can sue, too, but they should be made up of persons.

So the whales can't sue in the 9th Circuit. But we may assume that there is one still binding precedent left? Next month: Provided there is a submarine base in central Florida, the whales will be seeking the same status as the Loggerhead...

ESA(20041021.1)